*1 Pennsylvania, COMMONWEALTH of
Appellant
v. HAMMOND,
Desmond Markel
Appellee.
Superior Pennsylvania. Court of 10,
Submitted March 2008.
Filed June
Reargument Aug. Denied
545 STEVENS, PANELLA, аnd BEFORE: HUDOCK, JJ. STEVENS, J.: BY
OPINION appeals from 1 The Commonwealth of Common the Court order entered granted which Schuylkill County, of Pleas the Post filed under petition Appellee’s (PCRA), Pa. Act Relief Conviction Appellee’s vacated §§ 9541-9546 C.S.A. sentence, new directed a and judgment of to the ineffective assistance trial due counsel, after-discovered coupled with trial contends The Commonwealth evidence.1 granting Appel- PCRA court erred (1) trial counsel trial on the basis lee new wit- failing to call as a ineffective Achille investigate properly and ness (2) evidence after-discovered Walker and form of Kelvin Robertson’s recanted granting reverse the order testimony. We judg- trial and reinstate new ment sentence. histo- and procedural facts Relevant Following an altercation
ry are as follows: club, fatally Appellee shot at a victim, Hallick, in the lot Clinton early complex during apartment of an Repre- morning hours of March Nigrini, Esquire, Appellee Jay sented trial, at six-day jury which proceeded claim of self-defense asserted a Appellee behalf numerous witnesses Spe- Appellee. the Commonwealth Santiago testified cifically, Leeann club between was a there of whom Ms. both fight, Ms. Santiago well. After the knew to Ms. went back Santiago and her friends Serina, Atty., for J. Asst. Dist. Andrew ap- Santiago’s apartment, Com., appellant. holding at his her door peared at Ms. 154-157. Santi- Frackville, Nahаs, Jr., ap- side. N.T. P. Joseph would but for the ago asked pellee. claims the the Commonwealth awarded and properly us under Pa. appeal is before 1. This law. 311(a)(6), permits an error of an interlocu- committed which lower court R.A.P. right where a new trial is tory appeal as of relinquish it. Hospédales 256. Ms. Mends, Ms. Santiago, her drove to the complex, where who holding gun, apart- was still left the resided, “Smack’s” children and Ms. *3 ment began walking park- and across the Hospédales Appellee standing saw with ing with retrieving lot the intent of the girls some the lot. parking N.T. 3/18/05 Santiago’s children one of Ms. Mends. at Hospédales 260-263. Ms. and the vic- N.T. at 159-160. At point, this two 3/17/05 vehicle; tim the exited Ms. did Hospédales pulled lot, parking vehicles into the and carrying not see the victim N.T. gun. the victim and his friends exited the vehi- ap- at 310. Hospédales Ms. 3/18/05 cles. N.T. at 162-163. The victim 3/17/05 proached girls, the who were Appel- with girl and a approached Santiago, Ms. her lee, altercation; engaged physical and in a Mends, and and Ms. Santiago Hospédales Ms. admitted she was car- told the victim to leave. N.T. at 3/17/05 rying 270, a knife. N.T. at 280. 3/18/05 166. The victim pushed Santiago. Ms. While she was fighting, she heard the vic- N.T. at 167. Ms. Santiago did not 3/17/05 yell, tim “[G]ive me a fair one.” N.T. possession see the victim in of a al- Hospédales at 271. Ms. then 3/18/05 though put she saw the victim his hand gunshots heard and saw the victim run- 167, under his shirt. N.T. at 199. 3/17/05 ning. N.T. at 272-273. She saw 3/18/05 Santiago Ms. then noticed her fight- sister vehicle, Appellee jump a girl into and ran girl, with a and while her attention was over at Appel- vehicle screamed distracted, Santiago Ms. gun- heard three lee, “[W]hy you did have shoot. We all shots. N.T. at 168-169. The vic- 3/17/05 kids, [Appellee] have on rambled tim ran and away drove something, [about] he called her bitch vehicle. N.T. at 169. Ms. Santia- 3/17/05 and left.” N.T. at 273-274. Ms. 3/18/05 go indicated she did not see the victim Hospédales victim, ran to the who was club, with a prior at the to the said, lying ground, victim shooting. lot at N.T. 187. 3/17/05 pussy “The shot me.” N.T. 3/18/05 fact, Ms. Santiago only testified she saw Hospédales began searching Ms. for the person one with a and that Appel- holes; bullet she did not find a on the lee. N.T. 3/17/05 victim and no a gun one removed from the ¶ Hospédales, who victim’s victim. N.T. at 318. Ms. 3/18/05 paramour, testified she never saw the vic- Hospédales admitted that she threw her gun. tim with a N.T. at 243-245. 3/18/05 knife the drain disposed but no one aof Hospédales Ms. admitted that the victim gun. N.T. 3/18/05 was involved in an Appel- altercation with ¶ 4 club, Crabbe testified she never saw the lee at a and after the bouncers in possession victim of a outside, firearm while threw the men Hospédales Ms. riding in the vehicle with him and left with the victim in Ms. a vehicle. N.T. Hospédales. N.T. Ms. Hospédales 252-253. Ms. 3/18/05 3/18/05 Crabbe any guns not observe indicated at the riding while lot, complex parking vehicle. N.T. the victim 260. At exited some point, approached Appellee “Smack”2 vehicle and called victim and told girls. the victim go apartment complex N.T. at 353-354. She heard “[D]on’t, don’t, because girls yell, “Smack” was concerned for the Santiago don’t, safety Clint, children’s becаuse had a got gun.” don’t. He N.T. infra, 2. As will be discussed “Smack" is a nickname for Kelvin Robertson. Clint, he has[.]” know what you don’t Appel- then saw that 354. She saw Santiago at 413. Jenni carrying gun. N.T. lee was say, “Let’s girls As altercation his hands and an between the victim raise ensued, pointed gun at her Jen- it at 404-405. box out.” down;” ducked “stay and told her to she ni this to mean Santiago understood vehicle, which she later discover- behind to fist victim wanted Appellee’s vehicle. N.T. ed was lee; the victim with she did see at her Appellee pointed Appellee stared victim, yelled, and the Hospédales started and Ms. *4 gun Be a man. We the down. “[P]ut Santiago. physically fighting with Jenni at out.” 356. could this N.T. 3/18/05 Santiago at heard N.T. 407. Jenni 3/18/05 “popped Crabbe her head Every time Ms. victim gunshots and saw the quick three look, pointed gun at up” Appellee to the injury. an obvious N.T. running with “stay her and told her to down.” N.T. 411. at 3/18/05 at 356-357. Crabbe testified Ms. 3/18/05 ¶6 is Athena Sacco testified “Smack” her, as Appellee targeted believed had she paramour, and she never saw the vic- her victim, as the because she was well at gun. of a N.T. possession tim 3/18/05 a N.T. figure.” “dressed more like male 430-432. Ms. Sacco testified “Smack” a Appellee at then fired shot 359. 3/18/05 other, Appellee did not like each and and victim, lay and Crabbe flat Ms. altercation, night the club “Smack” after at behind the vehicle. N.T. 360- 3/18/05 they him were called the victim and told say, “Drop 361. She heard the victim the going apartment complex get to the to the quickly at gun.” N.T. 379. She 3/18/05 at Sacco children. N.T. 444. Ms. 3/18/05 and saw the heard several more shots come to the Appellee might feared that running. Ap- at victim N.T. 361. 3/18/05 complex, of the San- where one vehicle, pellee then entered his and Ms. lived. N.T. at tiago sisters also 3/18/05 Appellee open Crabbe was afraid would point, At some she heard three 446-447. her; passenger-side door and shoot she, “Smack,” however, gunshots; however, just away. drove N.T. 3/18/05 N.T. stayed apartment. children their victim; at 362. Ms. Crabbe ran to the she 3/18/05 possession the victim in of see a ¶7 from the gun and no one removed his nick- Kelvin Robertson testified possession. at victim’s N.T. 364- “Smack,” jail 3/18/05 is and is name 365. Ms. Crabbe indicated the victim did the intent to possession of narcotics with night no not have a with him that and at He never deliver. N.T. 465-466. 3/21/05 one hid a in the vehicle. N.T. 3/18/05 gun. to carry N.T. knew victim at 377-378. atwas at 468. Mr. Robertson 3/21/05 dancing club and observed night Santiago 5 Jenni signals towards the throwing and hand Santiago’s appeared apart- lee at Leeann Ap- at 475-476. As victim. N.T. holding him 3/21/05 gun, ment and Leeann told finger at pellee pointed go home. at 398. While N.T. 3/18/05 said, man.” your “That’s for they talking, pulled a vehicle into the were response, the vic- N.T. lot, people, and a of includ- group 3/21/05 and an altercation punched Appellee tim victim, exited the vehicle. N.T. ing the N.T. people occurred. between numerous approached 403. The victim 3/18/05 he saw point, At some vicinity Jenni general home, holding and one of girl “just go Sаntiago told the victim friends it smacked out her although gunshots. hands. N.T. she later heard N.T. at 479. Mr. Robertson did not see anyone retrieve the N.T. Moyer 9 Justin testified he never knew 479. Mr. Robertson did not observe the victim to possess gun, and he did not victim gun during with a the night club possession see victim dur- fight, and he noted that the victim was night club altercation. wearing sweatpants “you can’t tuck Moyer Mr. saw nothing in the waistband of pants.” sweat Appellee physically fight at 480. After fight, club, and the bouncers threw the Robertson, hospital who went with a Moyer victim and Mr. outside. N.T. friend, called the victim and asked him to Moyer fight, at 547. After the go apartment complex to check on club, went back inside of the they his children because were with a ba- Moyer going told Mr. that he was bysitter. 483-484, get him and the victim on out the street. The victim said he would call back Mr. *5 Moyer N.T. Mr. hit 3/21/05 Robertson, so, and when he did the victim lee, and the threw Moyer bouncers Mr. way indicated he was on apart- his to the outside. N.T. at Mr. Moyer 551. 3/21/05 complex. ment N.T. at 484. When 3/21/05 Santiago’s went back to Leeann apart- Mir. Robertson returned his children at ment, and at point, Santiago some Leeann the apartment, the victim had never ar- Moyer Appellee told Mr. that was outside rived. N.T. at 485. He later 3/21/05 a gun. with N.T. at 553-554. Mr. 3/21/05 learned the victim had been shot. N.T. Moyer stayed apartment inside but at 488-489. Mr. Robertson then 3/21/05 left he when someone came a inside and told dressed as woman apart- and left the victim, him that the violator; ment who was his because he was a childhood parole he friend, subsequently parking in was in the Philadelphia. arrested lot. N.T. Moyer N.T. at 490-491. Mr. at 555. Mr. towards Robertson walked 3/21/05 3/21/05 admitted that directly he uses aliases and false lot and walked security numbers, social victim, and he has sold standing who was next to Ms. drugs past. in the N.T. at 492-493. Hospédales. N.T. at 3/21/05 557. Ms. 3/21/05 Mr. Robertson did not tell the victim to Hospédales yelled Moyer, at Mr. until the gun a bring with him to the victim that Moyer indicated Mr. complex, and he denied a taking from “cool.” N.T. at Hospé- 558. Ms. 3/21/05 possession following the victim’s the shoot- away, dales then walked Moyer and Mr. ing. N.T. at 499-504. 3/21/05 victim, conversed with the who was not holding gun a
¶ and did not have a in his Lynn 8 Jodie Bauscher testified she waistband. N.T. at 558-560. Mr. Sacco, next 3/21/05 lived door to “Smack” and Ms. leave, Moyer told the victim he should and during and she was at the club Moyer girls fighting. Mr. then saw the question. time in at N.T. 506-509. 3/21/05 Moyer N.T. 560. altercation, at Mr. Following the she went 3/21/05 parked walked towards the vehicles Santiago’s apartment, Leeann and she saw yelled Appellee and someone a in had pacing outside a his gun. at Moyer hand. N.T. N.T. 561-562. Mr. 511. Leeann Santia- 3/21/05 3/21/05 home, turned around go go Appellee holding told Leeann and saw and facing Moyer and Santiago then walked to Mr. and the victim. parking lot. N.T. put N.T. 513-515. Ms. The victim 3/21/05 3/21/05 lot, said, Bauscher could not see the parking up hands “Let’s like men.” Terry did Mr. N.T. at 674-677. Moyer Mr. then N.T. 3/21/05 3/21/05 gun. N.T. in his the victim with gunshot, pain he felt not see heard the first gunshot Moyer Terry heard leg, pushed and the victim Mr. at 677. Mr. 3/21/05 Appellee’s After a ground. N.T. come frоm spark and saw a 3/21/05 fired, pause, Terry two more shots were ran short at 678. Mr. N.T. gun. 3/21/05 from although Moyer Mr. could not see gunshots. N.T. more and he heard three he the shots came since was on where Terry When Mr. at 678-680. Moyer N.T. at 566. Mr. ground. around, running be- victim was turned running “everything saw the victim They at 678-679. hind him. N.T. 3/21/05 fuzzy.” N.T. went lay building, and the victim ran behind struck his Moyer testified that whatever hit. N.T. down, indicating he had been large and blue leg, which caused black Terry did at 679-681. ciga- put pack mark and a hole in his and he anything the victim remove from rettes, gun. from N.T. came anything lying near the not observe opined Moyer at 565-567. Mr. victim. by bullet, he which was was struck Steve William Kane testified pack cigarettes. deflected he knew apartment complex, lived saw the victim never Zachary Terry, who was Jacob 694- of a possession drug charges, tes- prison awaiting trial on there was 695. Mr. Kane confirmed possession he never saw the victim tified *6 club, fight, the and after fight night Terry at gun. of a N.T. 667. Mr. 3/21/05 Santiago’s apartment. he to Leeann went at present during the altercation was point, At some N.T. at 700-701. 3/21/05 however, club; night present the he was and saw Mr. Kane went outside when Hospédales with Ms. victim Ap- holding gun. a N.T. 3/21/05 complex. they apartment drove to the if she knew where Leeann pellee asked Terry at 669-670. Mr. N.T. 3/21/05 said, Santiago was and Leeann “Smack” victim, anyone, including the with a not see it.” N.T. it, “Don’t it’s not worth do gun they while in the vehicle. N.T. were back Kane went at 705-706. Mr. 3/21/05 However, at he heard Ms. 670. 3/21/05 heard Leeann of the and inside Hosрédales arguing and the victim over N.T. say had arrived. Santiago the victim weap- to use appropriate whether it was Moyer told Mr. 707. Mr. Kane at 3/21/05 Specifically, at Ms. on. N.T. 686. 3/21/05 arrival, Moyer and Mr. victim’s about the there no need Hospédales indicated was lot, Mr. Kane with parking ran to the her to “be weapon for a and the victim told N.T. him. following behind 3/21/05 no quiet.” N.T. at 686. There was 3/21/05 near standing victim saw the Mr. Kane type weapon to the over discussion as nearby. standing Moyer, Mr. with however, couple arguing; which the was heard at 710. Mr. Kane N.T. 3/21/05 at angry. N.T. 686. the victim was 3/21/05 down, let’s say, weapon “Put the victim lot, the they in the parking arrived When man, like men.” fight let’s like Appellee were Santiago and sisters Appel- 711. Mr. Kane saw at N.T. at 671. Ms. 3/21/05 lot. N.T. parking 3/21/05 of the in the direction gun pointing lee girls, began fighting Hospédales gunshot, Moyer, he heard and Mr. victim Moyer approach. Terry Mr. saw Mr. from the coming sparks and he saw Terry at 674. Mr. saw N.T. 3/21/05 Kane saw Mr. at 711-712. N.T. police he he told gun, with a 3/21/05 lee Moyer Mr. pushing one.” the say “I want a fair the victim heard ground, Moyer say and he heard Pennsylvania Trooper he State Andrea had been shot. N.T. at 713. Mr. Young only gun testified that the turned 3/21/05 that, although Kane turned his back so police by Appellee over to the was and his gunshot, heard a second he did not see attorney. N.T. 76. No 3/17/05 from where it came. N.T. 714- 3/21/05 recovered from the scene or the victim’s However, third, 715. Mr. Kane heard a body. Trooper N.T. Young 3/17/05 fourth, gunshot, and fifth saw the testified told her that he believed coming Appellee’s gun. shots from N.T. carrying the victim was in his waist- Kane ran with Mr. incident; during parking band lot how- Moyer to apartment, Leeann’s and then ever, Trooper Young indicated that Mr. Kane looking went for the victim. wearing sweatpants victim was when he N.T. at 715. Mr. Kane never ob- and it carry shot would be difficult to served a pants the victim’s or on a handgun of sweatpants. waistband ground. at 717. Mr. 3//21/05 Corporal at 108-109. Michael Kane never saw the victim possession of Carney guns confirmed no were recovered gun during the incident in question, he from scene. did not anyone object see remove an from ¶ 14 Trooper Brian Walters anyone and he did not see that some observing witnesses mentioned object remove an from the lot gun during night altercation at the area. N.T. and, shortly club after the altercation end- ¶ 12 Funke, Dr. Sara Lee a forensic ed, Trooper Walters received a from pathologist, performed testified she an au- one of the club bouncers. N.T. on topsy the victim at 8:00 a.m. March Trooper Kevin Mills 13, 2004. N.T. at 620. Dr. Funke testified that the which was recovered indicated that the victim suffered three bouncer, from regis- club gunshot gun- wounds to his torso one man, tered to Hodges,” a deceased “Jackie shot wound to his hand. N.T. *7 an who had address of Philadelphia. N.T. Dr. Funke explained, through 625-635. at 770-771. 3/22/05 mannequin, use of a the that the victim ¶ twisting was turning away Ap- point, and from 15 At this the Commonwealth pellee during the he shooting, and was not rested its case and the defense witnesses holding gun right a began testify. hand when at Specifically, Raymond to least some of the body. bullets entered his Bruen patron testified he was a at the N.T. at Dr. night 645-656. Funke at club the time of the 3/21/05 altercation and, opined, degree a leave, to reasonable of as he attempting gun medical was shot, certainty, that at sliding the time was the went N.T. across the floor. 3/22/05 body male, victim’s of his facing left side was the at 773. A Caucasian who had a shooter directly military-style wearing and victim was not haircut and was facing the shooter. flannel-type jacket, approached N.T. at 658. a bouncer 3/21/05 opined Dr. Funke that the victim “I right. could and said want to this make Give turning right have been ... pushing gun? gun and me where’s the Give the someone down when he was N.T. The shot. N.T. back.”3 775. bounc- 3/22/05 er, give gun, 663-664. who had seized the did not 3/21/05 3. description This matches the one of of club. N.T. at 477. 3/21/05 accompanied Appellee night men who at the rather, began call- male; group of males evening, but gun back to the N.T. police. over to the N.T. names. ing Appellee turned it 3/22/05 3/22/05 suddenly punched at 777-778. The victim and, Appellee, the vic- tussling while ¶ Payne he was a 16 Ken testified that un- shirt for some under his tim reached evening night at the club on the bartender object. N.T. identified 3/22/05 and one of the bouncers altercation until the victim began punching Harris Mr. gun. N.T. picked up 3/22/05 Harris in the head Mr. someone struck to Mr. The bouncer handed at 814. N.T. wife, with a beer bottle. Payne’s who in turn handed it to Mr. 3/22/05 kitchen, where of it” into the clip out Mr. Harris went Payne, “popped who then in filing N.T. at 816. put joined the backroom him. 3/22/05 Payne Harris, N.T. at 783. Mr. cabinet. man called Mr. and a Appellee, 3/22/05 night at the indicated he saw no other hospital because went to the “Junior” evening. N.T. club 3/22/05 bleeding profusely. N.T. Harris was During the at 817. ride to Payne that she is Joan hospital, Appellee talking on his cell son, Payne’s she was married Ken at 818. phone to a female. N.T. 3/22/05 evening night bartender at the club on the glasses during the Appellee, who lost his of the altercation. N.T. fight, telling the female that regular night club that the victim is She testified seeing money. having difficulty while he usually has a lot N.T. he was out, at 790. When the broke N.T. driving hospital. one Payne Ms. observed bouncers remained Mr. Harris and “Junior” mother-in-law, Payne, a handing her Diane N.T. hospital Appellee left. at the but Payne which Diane took into the later, at 820. A short time N.T. at 791. Ms. backroom. indicated that Harris called who Payne not see the admitted she did hospital; how- coming he was back to on the victim with a club return, ever, so Mr. Har- Appellee did not question. again telephoned Appellee. ris talking Ap- at 820-821. While Amy Bailey testified that she lived 3/22/05 a female voice Sacco, pellee, Mr. Harris heard and dur- an near Ms. house,” go in the early morning saying, hours of March “Let’s said, “No, in.” N.T. gunshots. going she he’s not heard lee *8 later, or minutes she saw He heard 798. Two three at 844. also 3/22/05 knocking out, large stop, а African-American male let’s say, “Don’t do this. Chill apartment of indi- this,” gun- on the door Ms. Sacco’s Mr. Harris heard not do and in, cating him and a few seconds to let Feeling at 821-822. shots. N.T. 3/22/05 later, walking she saw Ms. Sacco down hung up phone; paranoid, Mr. Harris apartment. entering her sidewalk however, told back and Appellee called ten Approximately N.T. at 798. coming hospi- 3/22/05 to the that he was “Junior” later, at police appeared Ms. minutes Thereafter, a at 822. tal. N.T. 3/22/05 apartment door. N.T. at Sacco’s 3/22/05 and directed hospital came into the woman Bailey that the man who 799. Ms. believes nearby mini- to a Harris and “Junior” was knocking on Ms. Sacco’s door in a mart, waiting Appellee was where N.T. at 802. “Smack.” 3/22/05 ques- at When N.T. vehicle. 3/22/05 tioned, he had to told Mr. Harris Harris testified that went Travis at 824. gun. his N.T. during use night Appellee, to the club with 3/22/05 Harris was not aware that Appellee possession. had N.T. at 875. The 3/22/05 been carrying gun and he had victim never seen never went to hospital with Mr. Harris, Appellee in possession gun prior although appeared “Smack” for a short evening. injuries. N.T. time check Mr. at Harris’ 8/22/05 N.T. at 875-876. Appellee then When Mr. Harris drove Mr. Harris to West 3/22/05 hospital left the at daybreak, close to Reading Hospital, where Mr. Harris finally gun was where he had left jacket it received treatment for his head wound. in the car. N.T. at 877. Mr. Har- N.T. at 3/22/05 Ap- 825. Mr. Harris and 3/22/05 home; ris then went go he did not to the pellee hospital left the separately. N.T. apartment complex shooting where the oc- at 826. 3/22/05 curred. N.T. at 880. Mr. Harris 3/22/05 ¶ 20 Norman Schwartz testified he was a that, night question, reiterated on the bouncer at night club and he saw a the victim carrying was not al- fight. N.T. at 852. After the 3/22/05 though Mr. Harris had observed him car- fight, the victim yelling, was outside al- rying past. in the N.T. 3/22/05 though at the time trial Mr. Schwartz 873-874, 879. could not exactly remember what the vic- ¶ 22 Santiago Liza testified that she was tim was yelling. N.T. at 855. Mr. 3/22/05 babysitting complex and Schwartz saw a black female outside wav- go night to the club. N.T. 3/22/05 however, gun; Mr. Schwartz was sister, point, 883. At some her Jenni identify female, unable to the black who Santiago, telephoned report that there was one approximately ten twenty or had been a night club. N.T. black night females club on the telephoned 884. Liza Santiago 3/22/05 question. N.T. 3/22/05 and, him, talking while Ms. Mr. Schwartz never pos- saw the victim in Hospédales apparently grabbed the vic- of a gun question. session on the telephone tim’s and stated to Liza Santia- N.T. at 860. go house, coming that she she ¶ 21 Kevin Harris testified that he ac- get out, better the children and she was companied night club, “Smack” to the going to up. blow it the victim started the fight when he Santiago Liza then talked to who punched Appellee. N.T. asked if Liza could drive him and a friend altercation, During the Mr. Harris Ap- hit hospital, and Liza answered affirma- pellee’s bottle, friend with a beer thereby tively. N.T. at 887. Appellee ap- cutting his finger. N.T. at 864. Mr. peared a short time later and asked to be Harris observеd neither the victim nor taken to Reading. N.T. they with a while were in the Appellee not holding gun. night club; however, Mr. Harris was car- Santiago 891-892. Liza Ap- rying at 867. Mr. pellee went to the lot and two Harris past, in the he had parked. vehicles entered and N.T. 3/22/05 *9 seen the victim and in possession “Smack” at 892. The Hospédales victim and Ms. occasion; on firearms more than one exited one of the approached vehicles and however, it had been a while since he had and Appellee Santiago the N.T. sisters. seen the victim with a gun. N.T. Everyone at yelling, 3/22/05 893. started 3/22/05 spent at 868-869. Mr. Harris the rest of Liza Santiago Appellee heard “I say, want evening hospital the in one, due just one,” to his a fair give ame fair and finger; jacket lacerated he left his in a gun Hospédales began Ms. hitting Jenni Santi- in the car and it was never in ago. the victim’s N.T. Santiago at 895. Liza 3/22/05 Moyer, the by Mr. Kane that told fighting with Ms. physically started “Smack”, Robertson, victim, and yelled, got “She’s a/k/a Hospédales and someone N.T. dealing drugs. were knife, Leeann, away.” your a face 3/23/05 get fight- at Liza continued N.T. 896. 3/22/05 for a commu- who worked Appellee, gunshots, three and sustained ing, heard the di- nity facility under correctional eye from nick to the corner of her Corrections, Department rection of the girls’ The knife. N.T. at 897-898. 12, 2004, 3/22/05 he to March prior ended, leaving Appellee and Liza saw fight carry a firearm. N.T. had license at Liza in his N.T. 898. vehicle. 3/22/05 night Appellee at went 958. 3/23/05 Appellee the viсtim or did not observe night friends on the with some club night, although possession handgun, he had a loaded question, and of a possession she had seen the victim under the in his vehicle kept which N.T. previous occasions. at N.T. at 960-962. front seat. 3/22/05 3/23/05 905, victim Appellee dancing, 925. Liza never saw Appellee While 904— carrying gun. up N.T. 911. Dur- fined beside at and some of friends 3/22/05 The victim police questioning, Moy- Appellee. N.T. ing Liza saw Mr. 3/23/05 sig- hand throwing his friends started that he to and crying stating going er and other, walked Appellee to each nals charged selling drugs with “Smack” be The vic- away. N.T. at 967-968. and the N.T. at 904. Liza victim. followed tim and his friends in a rage indicated that the victim was said, bitch ass victim “Look this parking while he lot was in the and she at 969. Tra- mother fucker.” N.T. 3/23/05 way previously had him act that dur- seen area, Appellee approached Harris vis night at the club and when said, had reported what victim intruder, fought with an who had broken suddenly punched Appellee. someone apartment. into Liza’s N.T. then Appellee N.T. punching who continued saw that he was II23 Jason Macunas testified During the Appellee. supervisor, probation the victim’s scuffle, that the victim was Appellee saw probation following victim was on convic- of his carrying the waistband endangering tions for the welfare of chil- gun, Appellee as swatted pants, and possession dren of a amount of small reach- appeared the victim to be for which at 932. As a marijuana. N.T. 3/22/05 club’s slid across ing, probаtion, term of his the victim was not at 972-973. Bouncers floor. carry permitted and the victim up fight, and while broke that he owned a never told Mr. Macunas lot, the victim and in the outside The victim 937. and shout- ran “Smack” towards any of the terms of his never violated ed, mother fucker. “Bitch. Bitch ass however, indicat- probation; Mr. Macunas just got You your whooped. ass get Come drug random test in December of ed that a boy. a white Come your whooped by ass marijua- the victim had used 2003 revealed in the street. your whooped. ass Get get na. N.T. 3/22/05 you.” N.T. fucking kill I’ll follow the bounc- attempted testified he Trooper Kevin O’Brien As club, Robertson, indicat- Kelvin who back into interviewed ers Moyer shirt and Mr. Ms. grabbed “Schmiki” and that females named ed *10 N.T. in the face. Appellee punched club. N.T. guns night had Crabbe not ob- Appellee did at 976-977. Trooper O’Brien at 950-951. 3/23/05 3/23/05 anyone serve with a at your this time. fucking gonna ass. I’m fucking kill N.T. at pushed 977. The bouncers 3/23/05 you, you bitch ass mother N.T. fucker.” Appellee club, into away at Appellee thought 993-994. 3/23/05 from the Appellee directed into saw a handle underneath the victim’s kitchen, where Travis Harris was re- shirt and he noticed “Smack” and another ceiving assistance for his wound. N.T. male standing nearby. N.T. at 3/23/05 at 978. Appellee decided to drive 3/23/05 995. As Santiago Leeann telling Travis Harris hospital, to a and as home, go victim to Travis Harris called lee was trying to find the local hospital, Appellee, who told Mr. Harris that it was Santiago Liza callеd him. N.T. at 3/23/05 good not a time to talk because he was in Appellee 981. pick asked her if he could presence man, of a holding who was her toup help hospital, him find a and she gun. N.T. at Suddenly, 995-996. 3/23/05 answered affirmatively. N.T. at 3/23/05 grabbed the victim Leeann Santiago by As Appellee 981. driving to Liza San- hair, her and Appellee told him to “back tiago’s apartment, hospital he saw the up.” N.T. at 997. The victim re- 3/23/05 dropped off Travis Harris. N.T. at 3/23/05 Leeann, this,” leased said “fuck Appellee 982. Santiago called back Liza grabbed his gun, for which was in his and made plans Santiago for Liza to drive waistband. N.T. at Appellee 997. 3/23/05 Appellee Reading. N.T. at 983. 3/23/05 withdrew his gun, which was still Appellee arrived at Santiago’s Liza apart- holster, and fired three times. N.T. ment, and waiting dress, while for Liza to at 998. Appellee testified he shot 3/23/05 Appellee moved his car and decided to visit at the victim in order not be shot him- Leeann Santiago. N.T. at 986. 3/23/05 self. N.T. at 1000. After he fired 3/23/05 Appellee his gun took from underneath his knowing his and not whether he had seat, holster, car put on his and walked to anyone, shot Appellee jumped into ve- Santiago’s Leeann apartment, while he hicle and drove towards Pottsville. N.T. was talking to Travis Harris on the tele- Appellee called Tra- 3/23/05 phone. N.T. at 986-987. Appellee 3/23/05 said, vis Harris and “I just my gun. fired indicated he took the gun with him be- I don’t know what the I hell ... don’t cause he knew “Smack” lived the area know happened. what the hell I can’t and he was afraid. N.T. at 1049. 3/23/05 somebody believe that would come after Upon arrival apartment, Leeann’s over, me over a female.” N.T. 3/23/05 Leeann Appellee told that the victim was Appellee 1001. then picked up Travis going to kill him if he caught him. N.T. mini-mart, Harris and Travis Harris at 988. With Leeann holding onto him anyone. asked if he shot N.T. arm, Appellee and Leeann walked to Appellee indicated that he did lot, and Jenni and Liza Santia- not think that his any- bullets had struck joined go them. N.T. at 989. A one. N.T. drove pulled vehicle into the parking lot and Ms. Reading Hospital, where he re- Hospédales, victim, Zachary Terry, injuries ceived treatment Crabbe, he had re- and Ms. who Appellee thought at ceived from male, fight, club the time was exited the vehicle. day, next he learned that the victim had Hospédales Ms. im- mediately ran died. N.T. began over and fighting Santiago. with Jenni then contacted defense counsel and turned shirt, While reaching under his the victim himself police. into the screamed, fucker, “Mother gonna I’m kick testified that he did go
555 questioned when misconduct mitted the intent with apartment complex to the Troyen, and the witness Aimee at 1010. anyone. N.T. character billing of the use of in permitting court erred trial ¶ cross-examination, ad- Appellee 26 On location of depict the mannequin to in when he first saw the victim mitted no found We bullet wounds. decedent’s lot, Appel- apartment complex af- and contentions Appellee’s merit of his own stаnding at the rear lee was August on of judgment sentence firmed his Appellee vehicle. N.T. 3/23/05 v. Ham- 16, Commonwealth 2006. See standing was admitted that the who 2-3, mond, 2005, A.2d MDA 909 1660 vehicle, Appellee’s front of 2006) 16, (unpub- (Pa.Super. Aug. filed 879 path to the driver’s blocking Appellee’s memorandum). lished Appellee side door. victim did not admitted that the further ¶ for a petition not file Appellee 29 his waist- completely remove his from Pennsylvania to the appeal allowance of fired three shots. Appellee band before however, January 19, Court; on Supreme After fired by 2007, represented who Appellee, the victim ran and drove counsel, timely counseled filed new away. N.T. 1064. evidentiary Following an petition. PCRA DeLong, 27 Marie who Diane Neider 2007, 22, February hearing held on teacher, Troyen, who is an is a Aimee 28, on June opinion entered and order Cox, banker, who worked investment Lane 2007, granted Appellee the PCRA court Kauffman, Marshall who of relief, judgment sen- vacated business, Zack gym upholstery owns a Spe- trial. tence, him a new granted Smith, officer, police who is a sheriff and relief cifically, court concluded the PCRA Smith, Appellee’s who is and Maxine basis that on the combined was warranted peace- grandmother, testified to failing was ineffective trial counsel and'law-abiding ful nature. to testi- call Achille Walker investigate and his trial recanted fy and Kelvin Robertson court found testimony. The PCRA testimony, 28 At the conclusion of tо be meritless.5 remaining lee’s claims third-degree convicted of Appellee was re- filed a motion Commonwealth to The charges,4 sentenced murder and related 2007, 24, consideration, July years twenty nine prison term of appeal. of a notice filed Commonwealth years, post-sentence and his motion for 2007, denied 25, the PCRA court July a direct On denied. filed relief was motion for reconsid- the Commonwealth’s contending prose- appeal to this Court requirements All Pa.R.A.P.1925 closing eration.6 misconduct in his cutor committed met. jury, com- have been prosecutor argument (2007) (discussing A.2d 1119 Pa. of Specifically, Appellee was convicted murder, 2501(a), reviewing § standard third-degree 18 Pa.C.S.A. of discretion abuse 2702(a)(1), assault, Opinion § aggravated rulings); 18 Pa.C.S.A. PCRA Court PCRA court's assault, 2701(a)(l-2), § simple Pa.C.S.A. (discussing Appellee’s 17-28 filed 6/28/07 endangering recklessly another four counts claims). remaining PCRA possessing § person, 18 Pa.C.S.A. 907(a- crime, § 18 Pa.C.S.A. an instrument 5, 2007, this Appellee filed in September 6.On b). alleging quash the Com- a motion to Court appeal premature monwealth’s notice did not abuse PCRA court conclude the We day prior to the PCRA was filed one since it remaining finding claims its discretion motion Commonwealth’s denying the court Reaves, v. See Commonwealth to be meritless. *12 556
¶ 30 On appeal, the prevail Commonwealth To on a claim that counsel was contends the PCRA court erred in con constitutionally ineffective, [petition- cluding a new trial was warranted er] on the must overcome the presumption of that, coupled (1) basis with competence by Kelvin showing Robertson’s that: his un- recantation, after-discovered merit; (2) trial derlying arguable counsel claim of is in failing investigate ineffective particular fur pursued course of conduct ther and call testify Achille Walker to counsel did not have some reasonable behalf of begin at trial. We designed basis to effectuate his inter- analysis ests; (3) an of whether the PCRA court but for counsel’s ineffec- erred concluding tiveness, trial counsel was inef there is probabili- reasonable failing fective in to call ty Achille Walker to the outcome of challenged testify at trial.7 proceedings would have been different. A satisfy failure to any prong of the test The scope and standard of ap- review for require rejection ineffectiveness will
plicable appeal [to] PCRA are settled: of the claim. As a general proposition, an appel- late court reviews the PCRA court’s v * * findings if they to see supported are prevail To on a claim of ineffective- by the record from legal and free witness, ness for failure call a error. The scope court’s of review is (1) [petitioner] must demonstrate that: findings limited to the of the PCRA (2) existed; the witness the witness was court and the evidence on the record (3) available; trial counsel was informed of the PCRA hearing, court’s viewed оf the existence of the witness or should light most pre- favorable to the have known of existence; the witness’ party. vailing (4) the witness prepared cooper- 493, Commonwealth Duffey, v. 585 Pa. ate and would have testified on [the (2005) (citations 56, 889 A.2d 61 omit- (5) petitioner’s] behalf; and the absence ted). of the testimony prejudiced peti- [the
tioner]. Miller, 578, v. Commonwealth 868 A.2d The level of deference to the hearing (Pa.Super.2005) 581-582 (quotation omit- judge may vary depending upon wheth- ted). er the decision involved matters credi- ¶ During 31 the PCRA hearing, Appel- bility or matters applying govern- counsel, Jay lee’s trial Nigrini, Esquire, ing law to the facts as so determined. Private Investigator Drey, Hugh and Mr. Reaves, 134, Commonwealth v. 592 Pa. regarding investiga- Walker testified 141-142, (2007) 1119, (cita- 923 A.2d 1124 tion of Mr. Walker and the absence of his omitted). tions testimony at Appellee’s Specifically, trial. However, noted, for untimely reconsideration. as reproduced records. We decline to subsequently court entered an order dismiss on this basis. denying petition the Commonwealth’s re- consideration, therefore, we decline to permitted 7. We note that quash appeal on this basis. See Common- raise his ineffective assistance of trial counsel Little, wealth v. (Pa.Super.2005). A.2d 293 petition. claims for the first time in his PCRA Moreover, we note on December Grant, See Commonwealth v. 572 Pa. 2007, Appellee filed in this Court a motion to (2002). A.2d 726 dismiss on the basis Commonwealth filed *13 your Attorney]: And it was that, prior [District Attоrney Nigrini testified had no understanding that Mr. Walker trial, Appellee approximately he met with actually times, of what knowledge he was aware Mr. Walk- ten firsthand 6. Attor- in question? N.T. place night er’s existence. took 3/7/07 speak ney he did not Nigrini indicated [Attorney Nigrini]: That’s correct. regarding Mr. Walker personally with at 25. N.T. 2/22/07 witness; calling him as a possibility of Hugh however, investigator, private his ¶32 Drey Investigator Hugh Private N.T. Drey, with Mr. Walker. spoke 3/7/07 by Attorney Nigrini was hired testified he Drey Mr. Attorney Nigrini testified at 7. shooting at issue investigate investigate possible all wit- was hired to with generally directed Attorney Nigrini nesses, claim of Appellee’s who would aid N.T. speak. should Drey whom Mr. On N.T. 9-10. self-defense. 3/7/07 hear- During the PCRA at 35-36. 2/22/07 attorney, by the district cross-examination Appellee nor Common- ing, neither Nigrini that Mr. Walk- Attorney indicated Drey regarding his questioned Mr. wealth name was included in the Police er’s State N.T. investigation of Mr. Walker. 2/22/07- witness, Drey Mr. report potential as a fact, question- brief during his Walker, Drey Mr. and Mr. interviewed only witness ing, the reported Attorney Nigrini regard- back to Drey about questioned counsel pro- substance of Mr. Walker’s N.T. at 36-37. Schwartz. Norman 2/22/07 at 24. posed testimony. N.T. 3/7/07 cur- that he is 33 Mr. Walker testified Drey, with Mr. Based on conversation incarcerated, he friends with rently Attorney Nigrini made tactical decision victim, and the victim carried a not to call Mr. Walker as a witness. N.T. at 81- in blue moon.” N.T. “once following Specifically, at 24. was not indicated that he 82. Mr. Walker during the dis- exchange relevant occurred night altercation at the present during the attorney’s trict of Attor- cross-examination however, 11, 2004; a few ney why to club Nigrini as to he decided not on March altercation, Mr. Walker days prior call Mr. Walker as a witness: about with the victim had a conversation believe, I [Attorney Nigrini]: don’t Specifically, Appellee. N.T. had, actually upon based what I that he was Mr. Walker the victim told places gun [the victim]. the hands Appellee angry because being able to There was some talk about from, next time Santiago, and the dating to this date I Leeann get prior Smack, “going to based there’s believe but I don’t believe the victim saw physically put that he upon problems.” interview be hands, considering that, I after the altercation Walker club, was incarcerated at the time think he called Mr. night the victim know, there cer- facing charges. You victim had “beat that the report Walker express bias towards tainly could be the [Appellee]” ... out of the shit I be- Attorney’s Office. So the District 84. The victim told club. for not tactical reason lieve that was the get again.” him going “I’m Mr. Walker him. calling indicated Mr. Walker N.T. 2/22/07 Ac- the victim Attorney]: you’re So aware point, at this warned [District drug charges carry hille Walker had serious a license to Appellee had said, time? I against got him at the “I care. pending don’t and the victim 84. Mr. my back.” N.T. own [Attorney Nigrini]: Yes. Walker understood this to mean that the implicates decision matters of trial bouncers club had returned strategy. petitioner’s] It [the is burden the victim’s to him. N.T. to demonstrate that trial counsel had no 85. Mr. Walker testified that the declining reasonable basis for to call [a car, driving who was in his said he was particular person] as a witness. going Appellee. to see
Mr. Walker indicated he told this informa- however, Drey; tion to Mr. he never told “Generally, strategy where matters of Attorney Nigrini. this information to concerned, and tactics are counsel’s as- at Mr. 85-86. Walker stated that constitutionally sistance is deemed effec- testify he was Appellee’s available to at tive if he chose a particular course that trial but he testify. was never asked to designed had some reasonable basis cross-examination, at 86. On effectuate his client’s interests.” A Mr. Walker admitted that he was incarcer- claim of generally ineffectiveness cannot trial, ated the time of Appellee’s there through comparing, succeed in hind- multiple were drug charges pending sight, the trial strategy employed with against him, and he facing numerous pursued. alternatives not mandatory minimum prison. sentences in Washington, Commonwealth v. 592 Pa. 698, (2007) 721-722, 927 A.2d 599-600 ¶ 34 Based on the aforemen (citations omitted). quotation tioned, we find the properly PCRA court existed, concluded Mr. judice, Attorney Walker Walker the case sub Mr. testified, testify trial, Nigrini contradiction, was available to without Attorney Nigrini was informed of that he Mr. made tactical decision not tо call existence, Walker’s and Mr. Walker was Mr. as Walker a witness because Mr. prepared cooperate testify on behalf Walker was incarcerated and awaiting trial of Appellee. See PCRA Opinion Court’s on multiple drug charges. Mr. Walker However, filed spe we confirmed that he was incarcerated cifically disagree with the PCRA trial, court’s time Appellee’s multiple drug conclusion that met his burden of charges pending against Attorney him. proving Attorney Nigrini did not have Nigrini concluded that such information failing reasonable basis for to call Mr. negatively would affect Mr. Walker’s credi- testify Walker to at trial Ap on behalf of Moreover, bility. Nigrini Attorney testi- pellee and that the absence of Mr. Walk fied that he concluded Mr. Walker’s testi- er’s testimony prejudiced Appellee to the mony would not particularly be beneficial extent outcome of proceedings could, since Mr. Walker would have been different. most, him, establish that pri- told incident,
Failure to call a
per
witness is not
se
or to the
that he
possessed
counsel,
ineffective
gun.8 Attorney
assistance
for such
Nigrini concluded
conspicuously
8. We note that
absent from the
call he had with the
there is no testi-
hearing
any
PCRA
is
indication that
mony establishing
investigator
what either the
questioned
Attorney Nigri-
lee’s counsel
either
Attorney Nigrini's understanding
or
was of
Drey regarding
ni or Mr.
the substance of
only testimony
this
The
information.
estab-
provided
information
to them Mr. Walker
lishing Appellee’s
understanding
counsel's
as
prior
Appellee's
trial. While Mr. Walker
pro-
to what information Mr. Walker could
hearing
testified at the PCRA
that he told the
general
during
vide was established in
terms
investigator,
Drey,
telephone
Mr.
about the
this
sustains
burden
The Commonwealth
present during
since Mr.
was not
Walker
of the follow-
if
at least one
it establishes
shooting
and did not see
1)
reasonably
the accused did not
ing:
actually
place
could
Walker
danger of death or
believe that he was
of the inci-
the victim’s hands at the time
2)
injury; or
the accused
bodily
serious
testify
regarding
all
the encoun-
dent or
force;
the use of
provoked or continued
during the
confirmed
ter.
Walker
3)
duty to retreat
or
the accused had a
present
hearing
that was neither
possible with com-
retreat was
the vic-
during
shooting
nor observed
province of
safety.
It remains the
plete
v.
prior
tim
thereto. See Commonwealth
the ac-
whether
jury to determine
(2005)
Chmiel,
585 Pa.
information when being questioned by way apartment complex]. [the [Appellee’s] trial counsel. Opinion PCRA Court filed At the hearing, PCRA Robertson also testified that [the often carried a 45 We find victim] the PCRA court erred concluding Mr. hearing Robertson’s PCRA testimony would compelled have a differ- Williams, ent outcome at trial. supra. See most, At testimony Robertson’s PCRA Robertson [at the PCRA established that Appellee did not “throw” hearing] that he give was anxious to club, hand signals the night Attorney District exactly what he want- victim, Mr. carry who Robertson knew to ed, because Robertson had pending drug gun, had a gun access to after the charges and was hoping gain leniency club Regarding altercation. the absence charges. those [Appellee] presented of Appellee giving signals, hand which no evidence at the hearing re- leads to the conclusion the victim was the *18 garding disposition the of charges. those club, aggressor at the night testimony such admission,
By his own Robertson merely did would be cumulative of other testi- not hesitate to fashion his mony, trial testimo- which was given trial. See id. in ny way thought that he help would Numerous witnesses testified that the vic- him with the Commonwealth. His will- tim punch threw the first аt Appellee dur- ingness to certainly do so does not en- ing night the club altercation. forAs the credibility hance his respect with to his fact Mr. Robertson knew the victim often alone, testimony. current Standing it gun carried a and Mr. Robertson handed would be [Appel- insufficient to entitle gun night the victim a in the club parking trial; however, lee] to a new lot,11 Walker, his testimo- as with Mr. Mr. Robertson 11. We note that we gave gun further find the PCRA trial as to whether he the in concluding court erred in Mr. Robertson’s night parking the club's lot. In the absence testimony gun that he handed a to the victim counsel, questioning by Appellee’s of such we parking night in the lot of the club constitutes hearing conclude Mr. Robertson’s PCRA testi- "after-discovered” evidence. Mr. Robertson mony regarding giving Mr. Robertson the vic- never testified at trial that he did not hand the gun parking tim in the club lot could gun parking victim a in the club’s lot. by have been obtained at of the time trial Rather, explained during as Mr. Robertson Williams, diligence. supra. reasonable See hearing, questioned the PCRA he was never BY DISSENTING OPINION hearing PCRA that was admitted at the HUDOCK, J.: the in vehicle with present neither driving apartment victim as he was court concluded 1 The PCRA complex complex apartment nor at to investi- failing counsel was ineffective occurred. shooting lot when the The an witness. gate call available is, PCRA Mr. Robertson’s That while that after-discover- court also found PCRA testimony hearing could have established evidence, of recаntation in the form ed a gun had access to at trial that the victim witness, testimony by a Commonwealth point during evening, his testi some testimony that -wit- additional and some mony not have established that would justified the ness favorable carrying gun or even victim used the Majority The granting of a new trial. complex. As court’s reasoned assess- rejects the PCRA of six supra, diming indicated the course had a reason- concluding that counsel ment testimony, of days exception with the to call the strategic failing basis for able testimony, not Appellee’s self-serving and that question witness in eyewitness that the victim single respect with prejudice not establish shooting, time of the had I testimonial evidence. after-discovered police did not recover a from the Ma- myself disagreement with find area, surrounding victim or the and none thus, respectfully I dis- jority’s position, that a suggested the witnesses sent. or the removed from either the victim ¶ 2 claim At issue the ineffectiveness Moreover, surrounding assuming, area. investigate failure to relating to counsel’s arguendo, Mr. PCRA testimo Robertson’s pro- was the and call an available witness ny suggested have the victim was would testimony posed of Achille Walker. carrying for the reasons discussed the decedent’s and was a friend of Walker supra, jury still could have concluded peri- for a actually with the decedent lived prov the Commonwealth met its burden it, have Mr. of time. As fortune would od ing shooting of the victim was Appellee’s a call from the decedent received Walker justifiable McClen self-defense. See at the Live the incident Wire after don, supra. car driving in his the decedent was while reasons, meeting foregoing For all of the we en to his fateful route testimony According to grant- erred in lee. conclude the PCRA court their con- course of hearing, vacating Ap- PCRA petition, *19 to Mr. versation, stated the decedent sentence, direct- pellee’s judgment of up Appellee he had beaten that Walker Therefore, we reverse and ing new trial. and was he not finished and that proceedings consistent remand for further again.” to him PCRA “going go get with this decision. 2/22/07, then Hearing, Walker Reversed; Judgment of Sen- 47 Order alone,” it to “leave warn- the decedent told Quash Reinstated; to De- Motion tence had a license to that ing him Denied; nied; to Dismiss Jurisdic- Motion Walker, carry According Id. to Mr. Relinquished. tion statement, the decedent this response to gotten he had indicated that reportedly paraphrased HUDOCK, Mr. Walker A own back. J. FILES I “I don’t care. saying, as the decedent DISSENTING OPINION. got my own back.”12 Id. pending charges drug for trafficking, this weighed fact would have against his credi- ¶3 The court concluded that bility. As the PCRA court concluded that counsel was in failing ineffective to inter- testimony would have been relevant to Walker, call view and who indicated possession establish the decedent’s aof that he had related pri- the above to the gun shortly before shooting, rejected it investigator vate Ap- retained to assist counsel’s first basis. While Mr. Walker’s pellee’s Despite defense. Mr. Walker re- testimony necessarily place would not lating the details of his conversation with gun in the decedent’s hands at the time investigator, Appellee’s decedent to the shooting, certainly it would have acted trial personal counsel did not conduct a to bolster claim that the dece- interview Mr. Walker and not call was, fact, dent armed. for the As credi- him as a witness. The fur- PCRA court claim, bility the court found that counsel’s ther concluded that Mr. Walker’s testimo- concern was unfounded because numerous ny would have helpful been relevant and to Commonwealth pending witnesses also had to defense establish that the decedent drug charges, and the natural bias for possessed a one gun in the critical moments having pending charges is toward leading up to the shooting. This evidence Commonwealth. The also bias toward the would have been relevant and helpful Commonwealth arises due either to refute the numerous witnesses who tes- fact the position tified Commonwealth is in a they had never seen the dece- ask for carrying dent favorable treatment as “I should the wit- the statement got my ness provide helpful cooperation, implies own back” or due to he had had fact that previously. antagonize few would want to by testifying against Commonwealth ¶4 Trial provided counsel two reasons their position while is awaiting one himself for not interviewing Mr. calling Walker or disposition of criminal charges. testify. him to Trial counsel postulated ¶5 that, as Mr. present Majority Walker was not The concludes the PCRA scene the shooting, “place he could respect Walker, not court erred with to Mr. as gun” in the decedent’s hands. Trial coun- counsel had a strategic calling basis sel opined further as Mr. Walker had the witness. The Majority also implies Well, testimony 12. The whole of Mr. Walker’s casts A. he said when he sees Dez it’s upon attempting doubt the idea that he going problems. to be quote following the decedent verbatim. The Hearing, N.T. PCRA passage at 82-83. The passage point: demonstrates this referencing reacquisition the decedent’s of a gun has a similar feel to it: Well, A. it during was about like the time Well, me, says look, says A. I your me going through client —he got my don't care. I own back. I was like personal something little and [the me well, just leave it alone. friends, said, being decedent] like I we had Q. stop you got Lets’ there. He tells a conversation inside the mall. We were about, back? talking the mall and we you were know, A. Yeah. going him and through Dez it. *20 Although They’re arguing Id. at 84. girl, Mr. Walker did not about the use Leeann. They the arguing were word when asked the over her. she—he about decedent So me, like, look, getting gun going responded tells he’s his I’m to do back he affirma- know, tively. open keeрs question such and such. You he This the run- leaves whether ning actually "gun” mouth about me. decedent used the term or Q. back, you go got you When simply to be clear whether Mr. Walker construed what for the he court. When said is got- such—what decedent stated to he mean that had you such and such? Do remember? ten the back appears It to Hearing, N.T. PCRA prejudice failed to Appellee that establish As demonstrates passage from to call Mr. Walker. me above the failure that the above, court addressed outlined the PCRA presumption that Mr. Walker counsel’s it strategic argument and found basis favorably Appellee, to testify would not join I While lacking. in this assessment. forego even a reason to giving counsel thus will not be sec- strategy a reasonable trial I accept cannot interviewing Mr. Walker. court, by I no guessed ond the PCRA see failing to personally for this as basis failing to basis for interview reasonable to that to determine interview Walker First, it and call Mr. Walker. should be actually willing testify. to he was which noted that neither trial counsel nor ¶ Further, “I usage phrase, of the from negative effort Majority established reason,” tactical also that was the believe calling Nor does trial counsel Mr. Walker. after thinking counsel’s seemingly reflects establish an alternative Majority or the have called Mr. why might the fact he not strategy pursued precluded that counsel Walker, decision that oc not- reasonеd Walker’s calling of Mr. Walker. Mr. strategizing. of pre-trial curred at the time fact, with the testimony, in was consistent short, I court that theory agree in self- In defense that acted defense, trial as the decedent was armed and no reasonable possessed counsel appeared reaching for his when potentially be foregoing use strategy Thus, calling shot him. Mr. Walk- Further, like testimony ful of Mr. Walker. mutually er was not exclusive to another court, I believe Mr. Walker’s the PCRA designed tact taken counsel to advance relevancy standard. testimony satisfies the Appellee’s defense. As the trial court cor- if logically it tends “Evidence is relevant assesses, worst, rectly jury would “[a]t case, tends a material fact establish him.” Trial simply have believed proba more or less to make a fact at issue 6/28/07, Opinion, Court or supports a reasonable inference ble or
¶ 6 I have further reason to conclude fact.” regarding a material presumption Stallworth, decision to not call Mr. counsel’s Pa. v. Commonwealth not the of a reasoned product (2001). Walker was Here, by 117-118 781 A.2d testimony Trial counsel’s strategy. trial pos that the decedent was establishing hearing seemingly the PCRA reflects immediately prior to the of a session retrospective of his decision rationalization particularly confrontation with thinking divulging rather than at the evidence that the dece with the additional time of trial. Counsel states: down, seeking to track dent was had, believe, I upon
I don’t based what that the is created a reasonable inference actually places gun in the hands of ques time was armed at the decedent some talk decedent.] There was [the theory of the Certainly, Appellee’s tion. gun prior being get about able by this evidence. is bolstered case from, Smack, I but I believe this date not addressed matter was 8 While the upon his interview believe based don’t in a hearing, time of the PCRA in his hand physically put the Common- motion for reconsideration incarcer- considering I think he was testimony objected to the proposed wealth facing You charges. ated at time denying reconsid- hearsay grounds. know, could be the ex- certainly there state- eration, found the the PCRA court District Attor- bias towards the press my back” got “I own of the decedent ment I that was ney’s Office. So believe *21 to one or pursuant would be admissible calling him. reason for not tactical hearsay exceptions: more excited utter- dent. Mr. Walker also related a discus- ance, present impression sense or state of sion with the days prior decedent a few to exception. mind I any have doubts that shooting of in similarly which he indicat- exceptions these three apply would ed that Appellee, going when saw “it’s statement question,13 but pres- problems.” N.T., at issue to be Hearing, ently is the Thus, PCRA court’s initial order even assuming portion that the reliеf, granting an order decided without of the decedent’s admitting statement to any hearsay argument/objection expressed getting his might back be precluded by the Commonwealth at the time of retrial, from admission testimony hearing. (to Since Commonwealth did not Kelvin be infra), Robertson discussed argue that the passage would have been would have or the same similar effect as hearsay, inadmissible due to it is However, difficult Mr. testimony. Walker’s what to conclude that the court erred grant- gained would be from the other admissible upon relief this basis. Additionally, independent statements is evidence from there are portions other of Mr. Walker’s an admitted friend of the decedent that the putative testimony, which I believe would expressed decedent his go intent to “get trial, be admissible at equally that are Appellee again,” which further dovetailed beneficial Appellee to if even the statement with threats made a days few earlier. The that the regained decedent had possession theory Commonwealth’s of the case—and of weapon to precluded. be the manner in which por- trayed that of an walking individual —was Walker, According to Mr. after ad- through lot housing of the ministering a beating Appellee, the de- complex looking for individuals to shoot. cedent expressed pursue his intent Ap- short, portrayed Commonwealth pellee further. The reportedly decedent Appellee аs a possessed man with revenge stated, “I’m going go get him again.” hunting down the decedent. The above- This demonstrates the decedent’s state of discussed evidence would great have had mind, specifically great anger and ani- defense, to Appellee’s relevance which con- mosity and, toward the Appellee, in my was, fact, tended it doing decedent opinion, would be admissible under the “hunting” and not the exception state mind to the hearsay way other around. rule.14 testimony by This Mr. Walker would bolster claim that testimony/recantation 10 The testimo- aggressor decedent was the inei- ny of Kelvin Robertson was the second express I opinion mind, no existing as to whether clarant’s then state of emo- testimony might tion, sensation, be admissible condition, under another physical or such exception hearsay propounded rule not intent, motive, plan, design, as mental feel- litigated. ing, pain, bodily A health. statement of memory prove or belief offered to the fact hearsay exception provides: 14. This remembered or believed is included in this Hearsay exceptions; Rule 803. availabili- execution, exception only if it relates to the ty of declarant immaterial revocation, identification, or terms of de- statements, following The as hereinafter clarant's will. defined, are not the hearsay excluded rule, though even the declarant is available as a witness: (3) mental, emotional, еxisting Then or physical condition. A statement of the de- *22 the decedent an inference that Appel- to create granting
basis for the PCRA court was, fact, unarmed. hearing, At lee a new trial. the “Smack,” who, Robertson, like Ac- a/k/a/ ¶ Conversely, through evi- Walker, of the dece- friend hille got claimed that the decedent dence dent’s, testimony trial had testified that his he was back, through statements that he had indicated been false to the extent again, and the go get Appellee looking to ges- threatening hand that made the handed outside fact that he was gun) hand (imitating shape the of a tures Wire, that the dece- imply seeks to Live the Live Wire toward the decedent fact, time of the was, in armed the dent prior altercation. More nightclub extent the Common- To the incident. testified importantly, Mr. Robertson to create the favorable entitled wealth is Wire, at the Live the occurred after manner, is in this inference a firearm to the decedent and handed that inference. equally entitled to rebut carried a frequently also that the decedent highlighted in of the matter is The crux testimony corresponds with and gun. This statement, “during the Majority’s testimony of Mr. dis- supports Walker days testimony, with the of six course Certainly, the combination cussed above. self-serving testi- Appellee’s exception substantially of the two accounts bolsters that single eyewitness mony, not Appellee’s claim that the decedent wаs at the time of the victim had armed at the scene. Majority Opinion, at 563. shooting....” point; Appellee’s tes- precisely is This Majority 11 The error on the finds self- naturally be viewed as timony would of the PCRA it con- part court because to his why is it is essential serving, which regarding hand cludes that the evidence corroborating evidence to have some case gestures was cumulative of other evidence wholly or disinterest- from less interested testimony that the would not establish that tended to make parties. ed Evidence actually possessed decedent that testimony far more credible Appellee’s handgun at the While the testimo- scene. exist, jury did regard this which ny place the of Mr. Robertson would not Moreover, testimonial evi- not hear. this scene, it decedent’s hands at friends the decedent dence came from certainly proposition much makes the think, who, inter- would have no one would likely more and counters the Common- This is the basis Appellee. in helping est only testimony that not was the wealth’s grant PCRA court’s decision for the seen with a that he decedent not but relief, rationale. I concur with that such, carry As was not known to part, that Majority argues, relevancy 13 The the test of this evidence satisfies lacking because is reality, prejudice both sides forth set above. that could have concluded jury fact upon inference. The relying here are met its burden of had did not Commonwealth othеr at the scene witnesses shooting of the proving that handgun does not the decedent with see justifiable self-defense. victim was conclusively that the decedent was prove at 563. The fact Opinion, unarmed, Majority the Commonwealth’s nor does Com- found that the jury could have the decedent to the effect that evidence disproved sufficiently monwealth carry handgun estab- not known to the in- theory misdirects carrying lee’s self-defense was not lish that the decedent Rather, is not whether question The quiry. shooting. at the time of the one found, they whether so but jury could have upon the above relies the Commonwealth *23 justifiable could have shooting found the
and whether the helps additional evidence STATE FARM MUTUAL AUTOMO- support theory. that Earlier its Opin- BILE INSURANCE COMPA- ion, Majority, alluding require- NY, Appellant ment of self-defense that has duty one v. retreat, if retreat was possible with com- plete safety, suggests Appellee could WARE’S VAN STORAGE and Wilson not establish self-defense because he did Rodriguez, Appellees. jump into his car and leave the scene. Superior Pennsylvania. Court of The Majority’s position ignores Appellee’s testimony everything “moved so fast.” Submitted Jan. Trial, 3/17-24/05, posi- 993. This Filed June ignores tion further the fact that would not have realized that the decedent deadly
was about to use force until he
began handgun. to reach for his At that
point, it would have been too late to re- safety.
treat with
¶ Moreover, believed, if Appellee is
he neither provoked nor continued the use
of force. While and the decedent earlier,
were in a that fight was up parties
broken and both left each oth- company. Only
er’s later did the two meet and,
up again if evidence is
believed, this encounter resulted when the pursued Appellee
decedent with malicious short,
intent. if jury Ap- credited
pellee’s evidence and expected believed the
testimony which presented, was not Appel-
lee would have established killing that the justifiable Thus,
awas homicide. the lack
of the above-discussed evidence in- prejudicial
deed as the evi-
dence was crucial enough that its absence
so truth-determining undermined the pro- that no adjudication
cess rehable guilt
lee’s or innocence could have taken
place reasons, at trial. For the above I correctly
believe that the PCRA court de-
termined that satisfied the re-
quirements for obtaining relief under the Thus, is entitled to a new trial.
I dissent.