*1 78 A.3d Pennsylvania, Appellee
COMMONWEALTH of v.
Anthony REID, Appellant. Supreme Pennsylvania. Court of Submitted June 2012. Aug.
Decided 2014. *9 Silverman,
Daniel Esq., Anthony for Reid. Burns, Hugh Wilcox, J. Esq., Philadelphia, Suzan Elena Esq., Office, District Philadelphia Attorney’s Amy Zapp, Esq., General, PA of Attorney Office Pennsyl- Commonwealth of vania.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
OPINION Justice TODD.
This is capital appeal from the order of the Court of Common Pleas of Philadelphia County denying Appellant An- thony Bey” “Tone Reid’s petition for relief under the Post (“PCRA”), Conviction Relief Act §§ Pa.C.S.A. 9541-9546. follow, For the reasons that we affirm the order of the PCRA court. Background
I.
The facts underlying Appellant’s sentence are more fully
discussed
our
on Appellant’s
direct appeal. Com-
Court
Reid,
monwealth v.
(1994).
The evidence adduced at summarized (“the provides 9, 1988, victim”) that on July Mark Lisby took approximately worth of crack cocaine capsules (“caps”) $500 from his Lisby uncle Terrance (“Lisby”). The victim informed not Lisby day caps, the next that he had used but did have Lisby. Lisby worked for Lawrence Boston money pay cocaine, selling crack and both of these individuals were attempting membership to obtain the Junior Black Mafia *10 (“JBM”), Philadelphia-based syndicate. a crime Boston and turn, in worked for member Kevin Lisby, JBM Bowman. Once the victim understood that Bowman would be upset he met with Bowman to regarding missing drugs, explain situation, make for up offered to the lost income the following week. later, Boston, days
Two who had not been paid by Lisby drugs, appeared at the victim’s house at North Stanley Philadelphia. joined by Street Boston was Appel- lant, who was a member of the After a JBM. brief conversa- tion, Boston, and victim Appellant, left the house and began walking west on Cumberland As the men Street. the intersection of approached Cumberland Street and 31st Street, Appellant weapon drew and shot the victim once in chest, the center upper right of his once his chest beneath bone, the collar and once in the back of his right leg. The victim died as a result of his wounds. for certain Important below, trial, Appellant’s issues discussed first Lawrence trial, eyewitness. Boston testified as an At second Boston invoked his self-incrimination under privilege against Constitution, and, the Fifth Amendment the United States unavailable, establishing testimony after Boston was Boston’s from his first trial in which he as the inculpated Appellant Further, shooter was read into the record. Michael Dozier testified that he witnessed the murder and that shot the victim. arrest,
After he was with murder of the charged license,2 degree,1 carrying possessing first a firearm without a crime,3 an instrument of and criminal In Decem- conspiracy.4 2502(a). § 1. 18 Pa.C.S.A. §
2. 18 Pa.C.S.A. 6106. §
3. 18 Pa.C.S.A. 907. §
4. 18 Pa.C.S.A. 903. 1989, ber brought to trial before Philadelphia Judge Court Common Pleas Albert Sabo and a jury. The jury found of criminal guilty conspiracy, but was unable reach a verdict on the remaining charges. Appel- lant was retried from December through January 1991, and convicted of the remaining charges.
During penalty phase, the Commonwealth provided evidence that Appellant had been of the convicted March 1989 murder of Neil shooting Woods, Wilkinson and of Darryl Waters, and the murder of Michael a 16-year-old boy, who had thrown snowballs at Appellant’s car. The was also informed of Appellant’s prior conspiracy conviction at his first trial in this matter. The record of the guilt trial was incorpo rated into evidence at the penalty phase. While the trial court refused to allow to present evidence regarding his (Muslim), specific religion he was permitted explain that he had embraced a religious philosophy that had endorsed moral *11 ity and that one requires change reform, and and that he had become a person new as a result of his religion. He also presented background character evidence and his age the murder, time of his years old. Appellant did not testify. At trial, the conclusion of the penalty jury found one aggravating a significant had history circumstance — felony convictions involving the use or threat of violence to the person5 circumstances,6 no mitigating mandating the —and imposition of the Thereafter, death penalty. Appellant was sentenced to death for the first-degree conviction, murder 2lk to 5 years imprisonment for the possession of an instrument of 2jé count, crime to 5 years imprisonment for the a carrying count, firearm without a license to run consecutive to each death, other and the sentence of and 5 to 10 years imprison ment for the criminal conspiracy count from Appellant’s first trial, to run consecutive to all other sentences. On direct appeal, Appellant counsel, was represented by his trial Samuel 9711(d)(9). § 5. 42 Pa.C.S.A. circumstances, Appellant requested
6.
mitigating
find
two
defendant,
age of the
mitigator.
and the "catch-all"
42 Pa.C.S.A.
9711(e)(4), (8).
§
Stretton,
judg
affirmed
Esquire.
This Court
Reid,
of sentence.
On the PCRA court entered a Notice to pursuant finding Appellant’s Dismiss to Pa.R.Crim.P. and, petition Appellant objected, PCRA to be without merit. below, 8, 2005, as on explained fully July more the Common- wealth letter to a on certain issues.7 agreed hearing On 19, 2005, August court entered an order scheduling limited, hearing, so but Appellant opposed Common- proposal, hearing wealth’s and no was conducted. Subse- retired, Judge Lineberger and the was reas- quently, appeal Thereafter, signed Judge William Mazzola. filed alia, recusal, funds, motions, expert additional inter his Batson claims. The Commonwealth discovery regarding *12 a order By filed a addition to motion to dismiss. response, 17, 2007, the request dated October the PCRA court denied later, hearing expert days for a and funds. Two the court Thereafter, issued a notice of intent to dismiss. PCRA formally Appellant’s petition. court dismissed Appellant’s pursuant Batson v. Ken- 7. These issues involved claim 79, 1712, (1986); tucky, penalty 69 new 476 U.S. 106 S.Ct. 90 L.Ed.2d witnesses; phase and after-discovered recantation witnesses. 1925(b) 28, 2009, filed a August On Pa.R.A.P. statement, a on by Supplemental Septem- followed Statement 10, 2009, 1, ber and a Final on October 2009.8 On Statement 8, 2011, the court filed an extensive 260-page March PCRA addressing claims in both this opinion Appellant’s appeal appeal regarding collateral the Waters murder.9 Analysis
II. relief, In the denial of PCRA we examine reviewing by whether the PCRA court’s determination is “supported of legal Rainey, record and free error.” Commonwealth v. (2007). 215, 67, 928 593 Pa. A.2d Counsel is presumed effective, be and a has the burden to establish petitioner Miller, counsel was ineffective. Commonwealth v. 572 Pa. (2002). To overcome this presumption, relief, establish, and to be entitled to PCRA a must petitioner evidence, by preponderance a of the that his conviction or sentence resulted from one or more of the enumerated errors 9543(a)(2); § in 42 Pa.C.S.A. his claims have not been previ waived; ously litigated or and the failure to litigate the issue to or prior during trial or on direct could not have been appeal rational, the result of any strategic or tactical decision 9543(a)(3), (a)(4). § counsel. Id. An issue is liti previously if “the gated highest appellate court in which appellant] [the could have had review as a matter of right has ruled on the 9544(a)(2). § merits of the issue.” Id. An issue is waived if appellant trial, “could have raised it but failed to do so before trial, ... on or in a appeal prior postconviction state 9544(b). § proceeding.” Id. Again, granted
8.
there is no indication that
leave to
supplement.
murder,
first-degree
conspiracy,
9.
was convicted of
criminal
crime,
possession
carrying
of an instrument of
a firearm without a
appeal,
license in the Waters matter. On direct
this Court affirmed
Reid,
Appellant’s judgment of sentence. Commonwealth v.
(1993).
case,
petition
93
ineffectiveness,
In order to obtain relief on a claim of
satisfy
a PCRA
must
and
petitioner
performance
prejudice
v.
668,
Washington,
Strickland
test set forth in
466
104
U.S.
(1984).
2052,
In Pennsylvania,
S.Ct.
Important
our
direct
was
appeal
v.
resolved before our Court’s decision in
Grant,
Grant,
(2002).
48,
572 Pa.
Furthermore, above, as noted has filed a series of *14 supplemental offers, PCRA petitions. The Commonwealth found, and the PCRA court that the record does not indicate ever sought or received permission to file serial petitions. amended Brief of Commonwealth at 7. Under our Procedure, Rules of Criminal judge may grant “[t]he leave to amend or withdraw a petition post-conviction collateral relief at any time. Amendment shall be freely allowed to 905(A). achieve justice.” substantial Pa.R.Crim.P. case, In its opinion in this the PCRA court recognized the plethora case, of supplements filed in this and observed: no any
[I]n case is there indication of a court being request- grant ed to or otherwise granting permission to file late petitions ones, or to submit amended let alone establishing a time frame within which to do so. It should therefore be incumbent upon the defendant explain why any of his various submissions should be considered in the first place. We realize of course that there have been several status cases, listings of both the proceedings and outcome of most of which do not appear of record. It possible is that the court may have entertained and extended off-the-record accommodations, but, if case, that were the the defendant should have clarified those omissions by utilizing the proce- dures for establishing reconstructed record. Not having so, done the black letter law would seem to require an outright dismissal of petitions however, Again, issue. recalling the Court’s inclination to liberality in these pro- will, ceedings, course, this court address all of the issues submissions, raised by limited to those particular issues addressed by defendant’s statement of matters com- plained of on appeal. 2/14/11,
PCRA
Opinion,
Court
at 17.
Notwithstanding
PCRA court’s indulgence in addressing
claims,
all of Appellant’s
it was Appellant’s duty to identify
where in the record the
were author-
supplemental petitions
if
ized
reconstruct
the record
such authorization was
and/or
so,
off the record.
has failed to do
even
provided
this defect was raised
both the
court and the
though
Commonwealth. This Court has condemned the unauthorized
filing
supplements
petitions,
amendments to PCRA
has held that such claims raised in such
are
supplements
Elliott,
subject to waiver. See Commonwealth v.
A. Witnesses *15 ineffective, first Appellant argues that trial counsel was as he failed to investigate present and he testimony what sum, asserts to be In “exculpatory” Appellant witnesses. witnesses, submits the “sworn declarations” of seven potential shooter; who claim that: Boston was the Dozier did not murder; witness the or that it was not who mur- dered the victim.10 Appellant asserts that all of these wit- trial, nesses were available at the time of their identities discovered, should have been there was no reasonable basis for counsel to fail to investigate and obtain these witnesses’ statements, and that he was trial prejudiced by counsel’s failure to obtain the from these testimony witnesses. More- initially 10. The PCRA court noted that while claimed to offer individuals, (or declarations”) except "affidavits” “sworn from these Williams, they that of Damien were not sworn the declarant before an officer authorized to administer oaths or witnessed. The court went that, declarations, assuming on to determine even the truth of the Appellant’s claim of ineffective assistance of counsel failed. See Com- Brown, 461, (2005) monwealth v. 582 Pa. 872 A.2d 1169-70 C.J., (Castille, concurring) (offering unwitnessed and unsworn non- considerably affidavits are of less value than sworn affidavits questioning pleadings whether such should be relevant to issue of evidentiary hearing). entitlement to over, failing faults the PCRA court for to hold an on this claim. an evidentiary hearing requests evidentiary hearing to resolve the “material issues of fact” implicated by this claim.
There are two for relief on an ineffective requirements ness claim for a failure present testimony. to witness The requirement procedural. first is The PCRA requires evidentiary be entitled to an a must include hearing, petitioner in his “a as petition signed PCRA certification to each intend name, address, ed witness stating witness’s date of birth 9545(d)(1); § and substance of testimony.” Pa.C.S.A. Pa. 902(A)(15). R.Crim.P. The second requirement is substantive. Specifically, raising when a claim for the failure call a witness, relief, potential to obtain a petitioner must establish (1) (2) existed; available; that: the witness the witness was (3) counsel was informed or should have known of the exis (4) witness; tence of the the witness prepared cooper (5) behalf; ate and would have testified on defendant’s absence of such testimony him and denied him prejudiced Carson, fair trial. Commonwealth v. (1999)
Appellant, explanation, without failed to include his petition certification information that satisfied the cer 9545(d)(1) requirements tification of Section or Rule 907(A)(15), exception with the of the affidavit of Damien Williams. Appellant’s failure to with the comply simple and straightforward rules governing entitlement to an evidentiary hearing should preclude Appellant’s relief of requested an Moreover, evidentiary hearing. although object did not to a hearing on certain after-discovered/recanta *16 witnesses, tion refused Appellant hearing. such a Even if overlooked, such foundational and simple requirements can be and if rejection even we overlook of Appellant’s the Common wealth and the PCRA court’s offer of a on at hearing least witnesses, below, certain these as discussed Appellant has failed to satisfy the further for relief. requirements Specifi witness, cally, globally speaking, for each proposed Appellant should fails to indicate how counsel was informed or have witnesses, known of the existence of these and witnesses’ testify to and to on behalf. willingness cooperate Appellant’s Court, attempt explain Before our does not to his Appellant failure to with the or our Rules. These failures comply v. Bryant, See Commonwealth are fatal to his claim. (failure (2004) proffer to make as to willing testify whether witness was and able to was factor witness). ineffectiveness claim for failure to call a regarding alone, on this basis is not entitled relief. Nevertheless, after individualized consideration of each of the allegedly present, they witnesses trial counsel failed to do not bring reliability of the death verdict into legitimate ques- thus, tion, and, conclude that is not entitled to relief. We address each witness in turn.
1. Kevin Bowman first claims Boston confessed to Kevin Bow he, victim; man Appellant, not shot the that Boston attacked; shot the victim out of of being fear and that Boston had a weapon Additionally, Appellant did not. claims that Bowman would have testified that purportedly Dozier, Michael a witness to the who testified at shooting trial, Bowman, contrary told to his trial testimony, that he did not actually shooting. see the Bowman,
The points along Commonwealth out that with was Appellant, convicted the murder of Neil Wilkinson. Further, offers, above, the Commonwealth as noted that Bos- Bowman, ton worked for who member. JBM The that, argues Commonwealth Bowman claimed that him, Boston told front of that he shot the victim. Appellant, however, The Commonwealth asserts that does not Appellant, explain why he waited more than 10 this years provide information, whether Bowman would have been willing behalf, cooperate testify or on and whether Appel- lant ever informed trial counsel of Bowman’s conversation with Boston. maintains Finally, because Bowman’s statement is it is inadmissible and hearsay, *17 by could not be trial counsel’s failure to prejudiced rejected claim,
use that statement. The court PCRA the statements, noting hearsay proffered nature of the there was no indication the information was available for trial information, or that trial counsel could have discovered such that it only would have been used for impeachment purposes, and that it prior was cumulative of Boston’s inconsistent statements. by Commonwealth,
As offered by and noted the PCRA court, testimony Bowman’s would have constituted hearsay. and, thus, is Hearsay inadmissible claim fails on Puksar, the merits. See Commonwealth v. 951 (2008). Moreover, A.2d while Bowman signed statement Boston’s confession claiming was made to Bowman in front Appellant, in his petition never claimed that he informed trial counsel of Bowman’s supposed conversation in which Boston confessed to being shooter. Likewise, the failure to show that Bowman would have been willing to cooperate testify on Appellant’s behalf also defeats Appellant’s claim of ineffectiveness. Darryl Gray
2. Appellant also points Darryl Gray, whom Appellant sub- mits was an eyewitness that, to the and who shooting, claims while Appellant shot, was present when the victim was it was another Moreover, man who fired the gun. Appellant offers that Gray saw Dozier after immediately at which shooting, asked, time Dozier happened?” “What The implication of this statement was that Dozier did not see the murder. The responds Commonwealth while in prison in Gray claimed to have eyewitness been an to the shooting, but there is no indication why Gray as to waited more than years Further, come forward. argues that Ap- pellant does not he allege informed trial counsel of this witness. rejected claim, The PCRA court this finding Appellant failed to Gray state that would have been willing cooperate and to on testify Appellant’s behalf. Bowman, offered
Gray’s statement is similar to that respect testimony fails for the same reasons. With to his Dozier, and, thus, it is cannot regarding pure hearsay, support failing a claim that trial counsel was ineffective for to present Puksar, Moreover, it. supra. Gray because fails to indicate *18 willing cooperate he would be to on testify behalf, claim fails on that basis as well. Bynum
3. Robert Durand and Frank Durand, Appellant submits that Robert an investiga tor for the Federal Court Division of the Defender Association alia, of Philadelphia, testify, would inter that Frank Bynum told him that Boston Bynum confessed to that Boston shot the victim and that he did so because he was in fear of being Also, attacked. Appellant Bynum offers that stated to Durand eyewitness that Dozier was a heavy user of crack cocaine and had been crack for smoking days before the murder. Accord Durand, to ing Bynum while did not dispute accuracy of statements, Bynum these refused to an sign affidavit and Commonwealth, refused to testify. by As noted PCRA court found the statements of both Durand and Bynum but, also, to be hearsay, Bynum that could only Appel hurt because, testified, lant’s case if he he would have been to open examination, potentially detrimental cross including By num was with when Appellant admitted that he victim, killed the that Bynum was a JBM member who threat ened Dozier at after gunpoint against he testified Appellant, and that Bynum shot Randall and Terrance when Lisby they confronted Boston about the victim’s murder.
The PCRA court’s hearsay analysis concerning both Du- correct, Bynum’s rand’s and is with testimony Durand’s asser- tions constituting hearsay; double trial counsel accordingly, was not ineffective for failing provide testimony. such See Moreover, Puksar. explain Durand’s statements do not how counsel was informed or should have known of the existence of witnesses, these and the witnesses’ willingness cooperate reasons, testify Appellant’s and to on behalf. For all of these Appellant is not entitled to relief on this claim.
4. Kevin Brown testify contends that Kevin Brown would untrue, trial testimony Bowman’s and that it was common in his knowledge neighborhood that Boston shot the Commonwealth, victim. As noted was a Brown JBM dealer who drug grew up Appellant. with victim and At trial, Brown testified that he loaned his bicycle murder, which was found at the scene of the and that he heard state, down,” which, “get lay down or according him, was a warning cooperate to the victim to with the or JBM he would be killed. The adds on cross- examination, Appellant accused Brown of implicating Appel lant to gain favorable treatment his own criminal case and him impeached with inconsistencies between his statement and testimony. his The court found Brown’s statements to hearsay, be insignificant light of two witnesses to the recanted, murder who had not any and lacked indication Brown would have provided this information at trial. *19 fails to
Appellant provide how counsel should have been Indeed, aware of this post-trial recantation. we find it hard to understand how counsel could be deemed to be ineffective for not eliciting Brown, the recantation testimony that who was a trial, prosecution witness at would a provide decade after trial.11 Finally, Brown did not indicate that he would be willing to with cooperate the defense or to on behalf testify of Appellant. Appellant is not entitled to relief on this claim.
5. Willie Brown
Appellant also submits Brown Willie witnessed the shooting, shooter, stated that Appellant was not the and that Dozier did not witness the events. The Commonwealth notes that Brown why did not offer he failed to come forward earlier of support Appellant, and did not indicate that he would be willing to with cooperate the defense or to on behalf of testify Court, In Appellant argue 11. his brief to our does not that these evidence, "newly statements constitute complains discovered” but that failing present exculpatory counsel was ineffective for evidence. questions we will Appellant. address these as framed Further, argues Appel- the Commonwealth Appellant. scene, he lant, failed to indicate that present who was this witness. The PCRA court informed trial counsel about questionable regarding offered that Brown’s claims are observations, Appellant as he knew both factual basis for his Boston, referred to them as the “shooter and the but man,” even if were not the provided Appellant other shooter, him as an there was sufficient evidence to convict accomplice. why
As Brown did not he failed to come forward explain that he Appellant, earlier in and did not indicate support to testify would be with the defense or on willing cooperate and, failed to establish Appellant, Appellant behalf of because known of how counsel was informed or should have witness, of the failed to establish existence we find is to relief on that trial counsel was ineffective and not entitled Moreover, this claim. we note that failed to include Complained this witness his “Statement of Matters 1925(b),” Pursuant to Rule and it was not until a subsequent Statement,” filed without “Supplemental seemingly which was court, reasons, of these leave of was this name added. For all claim fails. Lisby 6. Randall the vic merely Lisby, offers that Randall brother, different saying
tim’s “is on record for numerous of his killing about what he was or knew about things ‘identification’ of the shooter and brother-including shifting if him or anything by [Appellant] what was ever ‘confessed’ to at 12. to the anyone According else.” Brief of Commonwealth, Lisby police Randall a statement gave *20 victim, him he was a member of Appellant told he killed JBM, killing Appel was because drug-related that job Brief of at 17. Initial lant “had a to do.” statement, he not recants this did ly, Lisby presently while with the defense and to willing cooperate aver he had been Brown, Moreover, like Randall testify Appellant. on behalf Appellant engaged was a witness at trial and cross-examina- alia, elicited, him. tion of Trial counsel inter that Randall did not mention that had confessed to him at Appellant Appel- trial, lant’s earlier did not tell about police Appellant’s confes- sion, and had Bynum indicated had killed the victim. As counsel had no reason to Randall as a investigate potential witness, recantation, defense foreseeing let alone not Randall’s we find that has failed to establish trial counsel was ineffective and that he is not entitled to relief.
7. Damien Williams
Finally, Appellant offers that Damien heard Williams on the street that Boston stated that he lied to save himself from a sentence of life potential imprisonment. Evidently, Williams confronted Boston with these allegations 1992 and Boston confirmed that he had lied. While claims trial,” evidence was available at the time of “[t]his Brief of Appellant at the Commonwealth notes that these state ments allegedly were made Boston to nearly Williams two trial, and, thus, after years could not serve as a us, basis for an ineffectiveness of Again, counsel claim. before Appellant makes no claim respect with to after-discovered Moreover, evidence. William’s statements regarding the street,” “word on the constitute inadmissible hearsay. Final ly, no assertion is offered that prepared Randall was cooperate and would have testified on behalf. For reasons, all of the above-stated Appellant fails to establish his claim of trial counsel ineffectiveness.
B. Conflict Interest trial, At his first represented by Harry Seay, Boston, who, Esquire. above, Lawrence as noted was with at the time of the shooting, against testified Appel- lant, claiming Appellant was the shooter. Boston was cross- examined by Attorney Seay. trial, At Appellant’s second Stretton, which he was represented by Samuel Bos- Esquire, ton exercised his Fifth privilege against Amendment self- incrimination and did not testify. The trial court declared *21 unavailable, Boston and Boston’s from testimony first trial was read into the record. trial,
According Appellant, to at the time of his first Boston, was either Attorney Seay concurrently representing This, or previously represented had Boston. to according was a in Appellant, conflict interest and resulted Boston not being fully cross-examined by Attorney Seay his first trial. trial counsel at Appellant’s objected While second trial that “unavailable,” Boston was not Attorney Seay’s alleged conflict interest, which in allegedly resulted the lack of a full and Boston, fair opportunity to confront was not raised. that,
maintains because Attorney Seay represented Boston at trial, first Attorney Seay could not have attempted to show that Boston was the actual murderer or to otherwise impeach his testimony. Appellant claims that trial counsel at his second trial was failing ineffective for to allege conflict of interest with prior counsel. adds that there was no tactical basis failing object, to and that he because, suffered as a prejudice result of counsel’s failure had testimony trial, Boston’s been excluded at Appellant’s second he would likely have been acquitted. Finally, Appellant urges if even there was an attorney-client between relationship trial, Seay Boston and prior issues of fact that regarding relationship remain and an evidentiary hearing is required.
The Commonwealth contends first that Attorney Seay did not represent Appellant and Boston at the same time. While Attorney Seay represented had Boston at the preliminary case, stages of an assault represent he did not Boston at Further, Appellant’s first trial. the Commonwealth asserts that lack Appellant did not a full and fair opportunity cross Boston, examine Attorney Seay as and exten- “aggressively sively” cross-examined him. Brief of Commonwealth at 21. Finally, Commonwealth contends that has failed cross-examination, and, thus, deficiencies in allege any he prejudice. has failed to establish
The PCRA court found that there was no evidence that Further, in Attorney Seay represented Boston this matter. the PCRA court found “no actual conflict of interest existed event; any Attorney Seay even if did at one time represent Boston, case, was not for this and it ended representation Attorney Seay [Appellant’s] before cross-examined Boston 2/14/11, first trial.” at 125. The court went Opinion, *22 Attorney Seay on to note that conducted an extensive cross- examination, Commonwealth, as suggested by the and that the cross-examination “insinuates that Boston killed be- Lisby him Lisby money drugs.” cause owed for Id. at 126. The court that failed emphasized Appellant allege any basis on the purported which conflict of interest resulted in a lack of fair representation. recently
As our Court a explained, petitioner “cannot prevail on a conflict of interest claim absent a of showing Weiss, actual prejudice.” Commonwealth v. 2013 Pa. LEXIS (Pa. 2617, 31, 2013); 2013 5848710 WL filed Oct. see also Hawkins, 310, 292, Commonwealth v. 787 A.2d 297 (2001) that (offering petitioner must demonstrate that coun sel’s of prior representation Commonwealth witness adversely PCRA). affected counsel’s of representation petitioner under that, further explained although We prejudice presumed is interest, when there exists an actual conflict of this presump tion only applicable is when counsel actively represented Weiss, conflicting interests. at *62 n. *19 n. 16. Where interests, counsel does not actively represent conflicting claim based upon appearance of a conflict of interest lacks merit. Id. merit,
Appellant’s claim is without as it has no basis in fact First, or law. Appellant fails to refute the PCRA court’s factual determination that Attorney Seay did not represent Appellant and Boston at the same time. While Attorney Seay represented Boston in the preliminary stages of an assault case, this was to Boston’s prior testimony first Furthermore, that, trial, trial. Boston testified at the first he Wallace, was represented by Michael At Esquire. trial, Tinari, second Boston represented by Nino Esquire. Second, Commonwealth, as argued by and found court, a review of the record reveals that Attorney Boston, extensively cross-examined Seay aggressively from Boston that Boston consid- eliciting hoped sentencing case, he police, eration in his own criminal that he lied to did not see with a had no motive gun, Appellant victim, and that he recanted statements he made shoot Moreover, the victim. police regarding Appellant shooting Attorney Seay repeatedly being accused Boston of the actual killer. failed to demonstrate how Attorney Seay’s prior representation any way adversely of Boston in him, trial counsel’s let alone consti- impacted representation Karenbauer, tuted actual Commonwealth v. prejudice. (1998). above, Pa. Based upon findings the PCRA court’s are the record and supported by error, legal free from is not entitled to relief. Impeachment Charges C. of Dozier with Dismissal contends at the time Michael Dozier *23 initially with and spoke police implicated Appellant, he had one case and one open burglary open aggravated assault case. Further, both cases Subsequently, were dismissed. that, after agreed testify
claims Dozier to as a Commonwealth witness, trial, but before Dozier was arrested and testifying cases, charged cases, in four separate including burglary two case, one criminal mischief and one conspiracy theft and case. to all According Appellant, of these cases were dismissed when Dozier was with the cooperating Commonwealth and before he testified at trial. that trial counsel argues failing was ineffective for to six bring dismissals these charges against Dozier to the attention of the jury. Appellant asserts this information should have been used for im peachment trial counsel had no reason to fail purposes, to evidence, and, introduce this as the Commonwealth’s case witnesses, Boston, two Dozier and he depended largely upon was trial prejudiced by performance. counsel’s deficient Moreover, fashion, that, in cursory Appellant asserts to the appellate extent counsel failed to raise this issue on he appeal, was ineffective for to do so. failing responds
The Commonwealth because there were no testified, when Dozier trial counsel open charges was not ineffective for failing impeach According Dozier. to the Commonwealth, trial counsel could not be deemed to be ineffective for not evidence of presenting alleged bias as trial, charges had been dismissed at time of citing Com- Hill, (1989) 252, monwealth v. 523 Pa. 566 A.2d (explaining jury must be advised of bias when there are “outstanding charges any criminal or because of nonfinal witness). Further, criminal disposition against” the the Com- monwealth offers trial counsel did Dozier with impeach evidence that he was on house arrest on a pending contempt charge, Dozier’s entire criminal record was introduced into evidence, and Dozier had testified that he had not been Further, promised anything any open as to charge. trial counsel cross-examined Dozier regarding crimen convic- falsi tions, and established that he: was a crack addict who had been at the drinking heavily time of the shooting, previously testified that he victim, did not see shoot the told a investigator defense that he did not see shoot the victim, only police told this they because threatened to Commonwealth, arrest him. according even if Dozier, there were open against cases Appellant was not prejudiced by counsel’s failure to impeach Dozier with that Dennis, evidence. Commonwealth v. (1998)
408-09 (finding counsel not ineffective for failing impeach witness cases as regarding open witness impeached ways). other
The PCRA court first out pointed that there were no open criminal pending against testified, matters Dozier when he he questioned about past charges which he pled guilty *24 or guilty. was found The court PCRA found that Appellant failed to whether the develop municipal court cases that were dismissed were the same matters about which Dozier testified. Moreover, the PCRA court noted that Appellant failed to the court with provide any details whether regarding these matters had relevance respect with to the witness’s credibility or bias. The PCRA court continued that testimony Dozier’s Thus, was both cumulative and corroborated. not did only explain charges fail to how these would have been Appellant information, relevant or the failure provided probative by counsel to these cases would not have explore alleged open affected the outcome of the trial.
Initially, does refute the not PCRA court’s asser- below, and, thus, tion that this claim was not developed alone, Further, this reason relief should be denied. the PCRA found, matter, court as a factual charges that the that serve as the basis of Appellant’s claim were not when open testified. Appellant’s claim lacks a factual predicate. Yet, even assuming, there were arguendo, open cases that testified, were shortly dismissed before Dozier or at the time testified, of, he Dozier’s was cumulative testimony and corrob- orated, testimony. Boston’s Importantly, as noted above Commonwealth, Dozier thoroughly cross-examined by trial counsel regarding pristine his less than background and his motives for testifying against Appellant. has Dennis, failed simply to establish how he was prejudiced. supra. Impeachment
D. of Dozier with Evidence
of Favorable Treatment Appellant argues trial, at the time of his Philadelphia Attorney’s District office had a “policy prac tice of providing significant Commonwealth witnesses in homi cide prosecutions free and cash housing stipends, especially unreliable, where the perceived witness is as either because (both reluctant to or a testify drug addict of which applied Dozier).” Brief Morris at 18. Appellant believed alia, Dozier received such sought discovery, benefits and inter of any documents to such benefits. relating hearing At on discovery, the motion for the Commonwealth asserted that it had reviewed the files in the matter and had found no respon sive documents. criminal Appellant evidently requested files witnesses, of the but the court this request. denied due to the denial of he According Appellant, discovery, allegations. could not substantiate his Related to this argu- *25 ment, that, continues the of evidence of Appellant withholding provision money the or benefits to a witness would violate Brady, supra. asserts because “the evidence Appellant of the Dozier never been provided by benefits to has disclosed Commonwealth,” the even a claim was not though Brady the it prior proceedings, raised PCRA has not been waived. Thus, to the extent counsel failed to discover and raise prior this claim at trial or on appeal, Appellant argues he rendered Finally, ineffective assistance of counsel. notes that rejected court lacking PCRA this claim as in a factual basis, but submits that it “begs question Appel- whether lant was entitled to the requested discovery.” Appel- Brief of lant 20.
The Commonwealth retorts that claims that accommodations, Dozier received cash and hotel Appel- lant was denied improperly discovery, and that this violated Brady, are all without factual support. Accordingly, the Commonwealth contends that speculative accusa- tions were inadequate to demonstrate ineffectiveness. As Commonwealth, noted rejected court PCRA this claim as being “completely any without factual basis whatsoev- 2/14/11, er and is patently frivolous.” PCRA Opinion, at 165. clearly is not entitled to relief. Appellant, his amended, petitions, as “believes and only alleges” that Dozier received considerations. This is insufficient permit discovery, or to form the basis for a Brady claim. See Brown, 1139, 1157-58 Commonwealth v. 582 Pa. 872 A.2d (2005) for (request upon information based accommodations made for other witnesses other cases “falls woefully short of relief’) 1158; establishing entitlement Id. at Common Lark, (2000) wealth v. (alleged discovery violations in other prosecution cases where made payments to witnesses “insufficient to demonstrate that any case”). Indeed, such violations existed in this as he fails to provide claim, even a minimal for basis his is asking more than nothing fishing expedition. a Id. at 591. Lisby Deal with Commonwealth of Terrance E. Benefits that, as of the Commonwealth’s part offers case, entered into between Com agreement plea In ex the victim’s uncle. Lisby, monwealth and Terrance case, in this testimony against Appellant for his change *26 case, Lisby homicide was a co-defendant in his own against to murder in his own plead guilty third-degree to permitted years that he be sentenced to at least five request case and trial counsel According Appellant, attempt imprisonment. of deal by introducing ed to establish the full benefits that, murder, Lisby if convicted of first faced degree evidence a sentence of life without the of imprisonment possibility the parole, allegations against Lisby supported and that the During murder. counsel’s cross-exami charge first-degree nation he to elicit that faced a Lisby, attempted Lisby object sentence of life “without The parole.” ed, just trial court to counsel for him to refer to and the stated “life so that the issue of commutation would imprisonment,” that the full terms explained. Appellant not have to be claims the plea agreement important greater of the were and that faced a if he or she did not the consequences accept witness motive to lie to secure agreement greater resulted a plea Here, maintains, the of such the benefits a deal. “life jury only Lisby facing imprison heard would be ment,” juries and that have of that misleading impressions most lack accurate infor According Appellant, juries term. mation about the of life and believe meaning imprisonment, a term of prisoners actually years, such will be released after Carolina, v. 114 S.Ct. citing Simmons South U.S. (1994) 2187, 129 (plurality). Finally, Appellant, L.Ed.2d 133 fashion, trial counsel was cursory prevented also claims that facts of underlying from information about the developing case, homicide and that such facts would have demon Lisby’s how beneficial a deal had received. Lisby strated that, when trial counsel responds The Commonwealth meant life without imprisonment that life sought emphasize that life without objected the on the basis parole, prosecutor circumstances, the case in some parole necessarily is not offered, “[Commutation, that,” the trial court let’s not into get 1/2/1991, 2.202-03, rationale, N.T. to the according Com- monwealth, that trial counsel did not pursue further. The Commonwealth maintains that the knew jury Lisby avoided a life sentence by pleading guilty murder, to third-degree plea agreement was jury, Lisby read to the testified to his of the understanding requirements under the agreement, and Lisby obligated to testify against his co-defendant in his trial, and against Appellant. Finally, the Commonwealth of- fers that the jury was informed if Lisby did not meet his duties under the plea agreement, agreement would be "withdrawn, and he would face first-degree murder charges and life imprisonment. Commonwealth, to the According jury was informed of the deal,” full extent of the “sweetheart including sentence faced Lisby Further, absent the deal. the Commonwealth offers that Appellant fails to establish counsel lacked a reasonable basis for not further pressing issue, as the was informed that Lisby avoided life impris- onment and was aware of the substantial benefit he gained by *27 agreeing to cooperate.
The PCRA court determined that it did not prevent the jury from hearing Lisby was permitted plead to third- degree murder to avoid a possible conviction for first-degree murder, convicted, if Appellant would have been sen- tenced to life without parole, and that he could be released only if the granted Governor him a pardon. According to the court, when the prosecutor objected to the term “with- parole” out “pardon,” it did not objection rule on the did not instruct the jury disregard Thus, those statements. the PCRA court reasoned that the jury permitted was consider the information. trial,
At Appellant’s counsel asked whether Lisby knew “there was no parole for life imprisonment, the Governor could only pardon; N.T., 1/2/91, right?” am I at 2.202. The Com- objected, monwealth and the trial responded court by offering “Commutation, let’s not get into that.” Id. at 2.202-03. Trial continued, counsel “That was of part you offered; what were am I right?” Id. at Lisby 2.203. “If responded, that’s what unclear, Thus, the sir.” Id. while somewhat whether you say, objection regard- to trial counsel’s statement Commonwealth’s sustained, import without was it the of ing parole appears life by of for commutation concept parole except the life without Furthermore, it conveyed jury. to the Governor thoroughly aspects that trial counsel addressed all appears Moreover, counsel, in trial Lisby’s plea agreement. closing, objection, only imprison- without noted that the relief from life Governor, ment was commutation albeit reference to N.T., 1/10/91, Thus, conten- Appellant. Appellant’s at 8.76. tion is without merit. merit, if claim had Appellant’s arguable
Even he cannot prejudice. Specifically, jury demonstrate it that the appears had more than evidence to discredit based enough Lisby upon itself, as as agreement testimony Lisby well was a dealer, drug murderer and a that he and Boston confronted the victim about stolen that he lied to lied under drugs, police, oath, testified and had a to kill inconsistently, motive Further, victim. Lisby eyewitness, was not an but explained Boston’s role as Lisby’s drug supplier, that the victim had stolen the drugs, and that was tied to the JBM. Thus, Lisby’s testimony was harmful to but cumu- Appellant, Therefore, lative and inferior to other incriminating evidence. even if the had been informed that a life sentence means parole, rejected Lisby’s testimony life without and it had as deal, aby plea significant driven there was still evidence against Appellant. We find that is not entitled to Finally, regarding cursory relief. claim that trial counsel was from information about the prevented developing case, facts offers no underlying Lisby’s homicide authority or thereof. meaningful argument support issue, develop this claim is waived for failure to *28 302, and, event, any Pa.R.A.P. in fails for the same reasons set forth above. case, above, a
As as of the Commonwealth’s explained part was entered into between the Commonwealth plea agreement the uncle. To the terms Lisby, explain and Terrance victim’s of the the called Assistant District agreement, Commonwealth alia, inter testified, Attorney Joseph Labar who that the if, agreement required Lisby “testify truthfully,” to and that Commonwealth, judgment the of the he violated that condi- tion, the Commonwealth would revoke the agreement. Appel- lant this testimony unfairly Lisby’s submits bolstered every over other witness who is credibility obligated testify Moreover, truthfully. claims that this evidence went further and implied that the Commonwealth believed This, Lisby telling the truth. according Appellant, improper vouching by constituted the Commonwealth. Appel- lant object— offers that trial counsel had no reason to fail to witness, Lisby important was an Commonwealth and offered motive to kill the victim —and this prejudiced light of the weakness of the Commonwealth’s case.
The responds that the prosecutor offered no personal assurances as to the veracity Lisby’s testimony or that, trial, suggested reasons not disclosed at his testimony Instead, was truthful. the Commonwealth offers that merely prosecutor presented the terms and conditions of the he agreement, as was mandated to do. That the agreement required truthfulness was not an endorsement of Lisby’s Moreover, testimony. the Commonwealth claims that trial good object, counsel had reason not to plea agreement as the was the focal point his attack of Lisby’s credibility. The rejected claim, court this while finding prosecu- tor is not permitted express a personal belief as to a witness’s credibility, the circumstances here suggest did not that the Commonwealth gave an opinion regarding veraci- ty of Lisby.
Generally, a prosecutor commits bolster improper ing when it places government’s prestige behind a witness through personal truthfulness, assurances as to the witness’s and when it suggests that information not before Commonwealth v. supports testimony. witness’s Williams, (2006). As noted
113 Commonwealth, the here did not prosecutor personally the Lisby’s testimony. assure the of Neither did the veracity indicate there was information outside of the trial prosecution Rather, the supported Lisby’s testimony. prosecution required fully any leniency, was to disclose offers of and the failure to do so could have resulted in a new trial. Common- Hallowell, (1978). 232, 909, wealth v. 477 Pa. 383 A.2d 911 Furthermore, the mere reference that a re- plea agreement quires improper vouching. truthfulness does not constitute Miller, (2002) 623, 504, Commonwealth v. 572 Pa. 819 A.2d 515 (prosecutor’s use of word “truthful” in direct examination of witness was of permissible parameters plea articulation of agreement). we find no merit to claim and Appellant’s the court’s determination is supported by the record and free of legal error. Request Failure to
G.
a Kloiber Instruction
Appellant contends that trial counsel was ineffec
tive for
to
failing
request Kloiber instruction with
to
respect
Kloiber,
witnesses Dozier and Boston. Commonwealth v.
378
412,
(1954).
Pa.
conflict with another description clothing Similarly, the time of the murder. points Boston’s statement to defense team that shooter, Appellant was not and that Boston did not identify as the shooter in his first statement to The police. emphasizes that both Dozier and *30 identify Boston were able to an individual Appellant, they both knew well and observed from a close distance the during Yet, murder. the explains that it was threats by the JBM that led to both men’s initial refusal to identify murderer, and, thus, Appellant as the ability because the to issue, identify was not at implicated. Kloiber is not court, The PCRA in rejecting Appellant’s argument trial counsel was ineffective for failing request to a Kloiber charge, determined that both Dozier and Boston in were a clear position Appellant, observe but failed to initially him identify as the assailant out of fear reprisal by the JBM. The court went PCRA on to find even if a Kloiber warranted, charge instructing jury, trial court explained how to judge testimony of a witness in general, specifically and for those may given who have inconsistent statements, and, thus, Appellant failed to prejudice. establish
Initially, we note that fails to demonstrate that either Dozier or Boston ability did not have an or opportunity to clearly view him at the time of the murder. Dozier observed Appellant yards from less than 10 away, and knew Moreover, him for years. Dozier signed a statement identify- ing Appellant and him unequivocally identified at a prelimi- nary hearing, again later at trial. Similarly, Boston knew Appellant and was next to him standing on a street corner when Appellant pulled weapon victim, his and murdered the and, thus, Further, could clearly Appellant. view at Appel- matter, lant’s first trial in this Boston unequivocally identified Appellant as the trial, shooter. While at the second Boston invoked his Fifth privilege Amendment self-incrimina- against tion, and refused to his testify, prior testimony was read to the jury. both men ability had the clear to identify Appel- shooter, equivocated lant as the and neither Dozier nor Boston at trial. their identification however, above, did not initially As noted Dozier Boston as the shooter to Both identify Appellant police. gave Appel- lant’s defense team statements that was not the men, however, shooter. Both offered uncontradicted testimo- at trial that these statements were ny exculpating Appellant JBM, fueled their fear of from the who had reprisals threatened them on numerous occasions.
Our case law makes clear that the need for a Kloiber charge
focuses on the
of a witness to
ability
identify
defendant.
Our Commonwealth’s decisional law has
held that
long
prior
inconsistent statements based
fear of
upon
endangerment do
not
to a
failure of
equate
prior
ability
identify defendant.
Fisher,
v.
Pa.
See Commonwealth
770-
(2002)
court)
of the
(opinion announcing
judgment
(providing
petitioner
no relief
based on conclusions
witnesses,
litigated
appeal
Kloiber instruction
on direct
where
who
*31
prior
shooting,
identify
knew defendant
to
failed to
defen-
dant at
him
pre-trial line-up
identifying
due to fear that
would
Lee,
endanger her and her
Commonwealth v.
401
family);
(1991)
591, 585 A.2d
Pa.Super.
(finding Kloiber
instruction
where fear of
defendant
inappropriate
identifying
identification);
equated
cannot be
to failure to make
Common-
Smith,
wealth v.
548-49
Pa.Super.
(1985) (opining that absence of Kloiber instruction did not
reversal of
of sentence where
victim’s
require
judgment
rape
initial statement to
that she did not see her attacker’s
police
face, but
of him at
preliminary hearing
later identification
trial,
scared);
Ali,
being
was due to witness
We that in this making determina- tion, the accepted PCRA Court that Dozier’s and Boston’s refusal early identify Appellant as the murderer was due to their fear of harm at so, the hands of the In doing JBM. court explanation embraced their without itself an holding express credibility reassessment hearing on this issue. Such generally court, determinations are for the trial or the PCRA and, thus, court after hearing, one approach would be to court, remand the matter to the PCRA a hearing, hold which these located, same witnesses would be again called to testify, cross-examined, presumably just as was the case at trial, and the PCRA court could conduct an ex- press reassessment, credibility its reconsidering prior deter- mination that the men failed to initially identify Appellant out of fear due to threats by the JBM. *32 circumstances, however,
In these particular we are satisfied that a remand is The unnecessary. undisputed of testimony record discloses that Dozier and Boston knew Appellant prior murder, to the were in clear view of shooting, the and initially feared reprisals against by them if they JBM testified All against Appellant. subject of this was testimony to thor-
117 Further, Appel- convicted cross examination. ough by conclusion it came to degree, murder of the first lant of assertions that Appellant the witnesses’ apparently crediting that suggests our case law Finally, prior was the shooter. circumstances, resolve mat- may, courts in limited appellate credibility hearing, an determination express ters without (in facially seems credibility light implausibility) where an record. existing and on conclusions drawn from apparent Small, 549, 425, 559- v. 602 Pa. 980 A.2d See Commonwealth Gibson, 402, (2009); 951 A.2d 61 Commonwealth v. 1110, (2008); 579 Bryant, 1139 n. 20 Commonwealth v. Pa. (2004). 119, 726, that Finally, appellate 855 A.2d 748 we note is, ultimately, review of ineffectiveness matters de novo. (2007). Rios, Pa. 810 Commonwealth v. circumstances, in these we are satisfied that a limited credibility by remand for an determination the PCRA express court in this matter is not necessary. Accordingly, Appellant’s claim the absence of a Kloiber instruction fails. concerning Cautionary
H. Failure of Instructions for Bad Acts permitted that the Commonwealth was Appellant argues crimes instruction limiting introduce evidence of other without prior appellate failing and that counsel was ineffective raise this issue on offers that the other appeal. Appellant a member of the Appellant crimes evidence was that JBM, gang drugs engaged “a that sold unlawful vio- lence to its business and silence or intimidate rivals protect Appellant witnesses.” Brief of at 33. potential explaining that the evidence was admissible for acknowledges statements, failed to why gave certain witnesses inconsistent forward, testify, come and were bribed to not all due to fear Further, this suggests reprisal by JBM. was a establishing evidence was admissible for drug in the elimination of rival dealers player central JBM, for the murder. claims and as a motive law, is inad- evidence of a distinct crime Pennsylvania under being a defendant who is tried for a different against missible of that crime due to the effect of admission prejudicial evidence, Pa. v. citing Claypool, *33 (1985). A.2d to other crimes According Appellant, evidence, however, must be with a accompanied cautionary instruction which and to the the fully carefully explains purpose limited for which the evidence has been admitted. Id. manner, at 180. further Appellant presses, cursory that the failure to a instruction give limiting process also violates due as it undermines the fairness of the proceedings, and violates Constitution, Amendment to the Eighth United States as it him of deprived submits a fair and reliable capital sentencing. Finally, according Appellant, the Common- wealth is limited at the to evidence that penalty phase sup- circumstance, and, here, an ports aggravating such evidence which, constitutes a non-statutory aggravator according Appellant, was to be improperly permitted by considered jury. Appellant simply asserts that there was no reason for instruction, counsel to fail to ask a cautionary for such or for counsel to fail appeal, to raise this issue on and that he prejudice suffered as a result.
The Commonwealth first claims that this issue was consid-
ered
our Court on direct
and
appeal
found to be meritless.
Reid,
Evidence of
bad acts is
inadmissible to
conformity
character or to show conduct in
with that charac-
404(a)(1).
is, however,
ter. Pa.R.E.
Such evidence
admissible
facts,
motive,
when offered to
other relevant
such as
prove
intent,
opportunity,
preparation, plan, knowledge, identity,
mistake,
absence of
gestae
give
or res
context to events
Weiss,
surrounding a crime.
supra.
See
While evidence of
prior
admissible,
bad
may
acts
be relevant and
due to the
potential for misunderstanding, cautionary instructions are
sometimes required. Claypool,
The PCRA court
because the
of
opined
evidence
association with the
Appellant’s
JBM was relevant to establish
motive, it did not require
cautionary
a
instruction. As offered
Commonwealth,
by
Appellant did not murder the victim
“spontaneously; he did so because he was a
enforcer
JBM
”
job
with ‘a
to do.’ Brief of Commonwealth at 32. The
evidence that
now asserts
a
in-
required
limiting
struction —his
in the
relevant
membership
directly
JBM—was
to demonstrate motive and
in this
conspiracy
appeal. Our
Court noted on direct
while this information was
appeal
directly applicable
charges against Appellant,
only
to the
it
implied
activity,
criminal
and did not refer to an actual
prior
Reid,
previous
specific
crime or similar
act.
instructions, of mere of light implication we find that JBM, due to association with the activity criminal against Appellant having and the other evidence as murdered Moreover, victim, prejudice. he has failed to establish of the Appellant’s suggestion incorporation guilt evidence into the resulted in the same phase penalty phase error, resulted in consideration of impermissible non-aggrava- factors, instruction, ting required cautionary fails for the same reason and also because the trial court instructed the “only” Appellant’s significant history felony con- involving victions use threat or violence can constitute circumstance, N.T., aggravating an if only proven. 1/10/91, at 8.88. we find that court’s determina- tion is the record and free of supported by legal error. Jury Regarding
I.
Instructions
Records
Criminal
maintains
jury’s
that the trial court restricted the
impeachment
consideration of
evidence
each
regarding
impor-
witness,
tant Commonwealth
and that
trial counsel failed to
object
to this alleged
Specifically,
error.
with
respect
*35
Dozier,
claims that he was arrested in
Appellant
Philadelphia
County for two counts of theft and
stolen
receiving
property
and unauthorized use of a
According
Appellant,
vehicle.
to
the trial court erroneously charged
jury
only
the
that
arrests
leading to crimen
convictions could be
challenge
used to
falsi
credibility. Appellant argues
criminal
pending
cases within
jurisdiction
the same
are always admissible to show the wit-
Alaska,
Davis v.
fabricate,
ness’s bias
citing
and motive to
308, 318,
(1974).
U.S.
94 S.Ct.
Additionally, murder, and that the Commonwealth third-degree to guilty him, exchange charges against murder first-degree dropped own Lisby’s in both case Lisby’s testimony the Part of that was that Common- agreement murder case. Lisby’s regarding would make no recommendation wealth sentence, and, the to according Appellant, of that open agreement. the nature emphasized the that improperly jury that the trial court instructed argues conviction was admit- Lisby’s third-degree murder evidence had been jury agreement to inform the that an solely ted Commonwealth, it maintains yet, Appellant reached with the Lisby’s “subjective expecta- admissible relative to equally treatment, regardless of the leniency tion of and favorable at or terms of an actual deal.” Brief of existence expectation it was an according Appellant, 40. itself, jury that leniency, just agreement and not from prevented have been able to consider and was should doing so.
Moreover, pend- out that Kevin Brown had Appellant points him when he testified charges against and related ing robbery the trial court According Appellant, trial. charges of these jury’s limited the consideration improperly existed, explain and failed to any agreement whether of favorable treat- subjective expectation Brown could have a Also, charges. Appel- of these regarding disposition ment by reminding the trial court erred further lant claims that Finally, existed. that Brown denied that a deal jury only by instructing the trial court erred contends to crimen could be used for leading arrests convictions falsi *36 jury robbery failed to to the that impeachment, explain im- was a crimen Brown could be offense with which falsi peached. trial counsel did initially responds
The that Commonwealth as to evidence of “a witness the instruction request specific received,” N.T., 1/8/91, interest or ... benefit who has self 6.180-81, Thus, jury charge. both before and after the the contends, alone, for this reason Commonwealth Moreover, ineffectiveness claim is without merit. the Com- monwealth claims the trial court stated the current properly law be credibility may impeached regarding that witness an arrest, if resulted in a conviction for only such arrest crimen Burton, 13, Commonwealth v. Pa. falsi.
(1980); (Crim). Suggested Jury Standard Instruction 4.08D Further, Commonwealth offers the trial court in- it jury structed should consider whether a witness had an agreement with the Commonwealth in exchange testifying, and whether an there existed interest or motive that could have impacted testimony. generally, witness’s More to the points instruction for the to take “all of the circumstances and determine surrounding which witnesses will believe what you weight you will their give N.T., 1/8/91, testimony.” 6.148. The Commonwealth also to our points appeal, decision on direct wherein we noted that the trial court instructed the jury concerning its to make duty credibility determinations and that it “clearly explained that interest any may or motive of a witness that color his recollec- tion and testimony making could be considered such deter- Reid, minations.” 642 A.2d at according 462. to the Commonwealth, even if failed to request a bias instruction, he would not be entitled to relief.
The PCRA court first observed that the trial court’s instruc-
tion
the limitation of
regarding
consideration to crimen falsi
law,
convictions is a correct statement of the
citing Common-
Ross,
(1969).
wealth v.
There is also evidence that the witness Morris Dozier was theft, use burglary, convicted of and unauthorized of an automobile, The only which are crimes crimen [of] falsi. this evidence of purpose you may prior for which consider convictions is in whether or not to believe all or deciding In testimony. doing you may of Morris Dozier’s so part committed, it type long ago consider the of crime how committed, may and how it affect the likelihood that Morris in truthfully Dozier has testified this case.
Kevin Brown has an outstanding charge robbery, which he is innocent. I had allowed this evidence presumed if purpose informing you any agreement for the sole exists him and the for his testimo- between It Kevin ny my this case. is recollection that Brown has denied deal of kind. any any
N.T., 1/8/91, court, charge 6.155-6. to the PCRA According made clear while a would have the ultimate judge of the accept plea agreement, credibility decision whether to expectation witness his and not whether depend upon would an actual had been consummated. The trial court agreement further instructed the with to Lawrence Boston: jury respect special may apply your
Some rules consideration of Lawrence Boston’s the defendant’s testimony concerning First, you the crime in this case. charged commission of joined himself must decide whether or not Lawrence Boston with someone in the crime with which the committing Defendant is Lawrence Boston did not charged. Although involvement, evidence could a con- support admit his other considering you after all the evidence trary conclusion. So or not Lawrence you have heard must first decide whether himself as an in the commis- participated accomplice Boston participat- the crime. concludes Boston [If sion of crime, testimony]. ed in the certain to his principles apply
[*] [*] [*] First, testimony accomplice of Lawrence Boston as an *38 should be looked with disfavor because it comes from a upon Second, you and source. should examine corrupt polluted closely Lawrence Boston’s and it with testimony accept only Third, you caution and care. should consider whether Law- rence Boston’s that the Defendant committed the testimony in in supported part by crime is whole or evidence other than his if testimony, supported by independent for it is Fourth, it more dependable. you may evidence is find the guilty testimony Defendant based on Lawrence Boston’s alone and even though supported by any indepen- it is not summarize, you dent evidence. And so to even though decide Lawrence Boston is an his accomplice, testimony alone standing is sufficient evidence on which to find the if guilty following Defendant after the foregoing principles you beyond are convinced a reasonable doubt that Lawrence Boston testified truthfully Defendant committed the crime. court,
Id. at 6.157-60.
to the
these
According
charges,
whole,
read
aspects
when
as a
covered all
of the requirements
of admission and consideration of the witnesses’ other crimes.
Further, the PCRA court refuted
factual assertion
that,
Dozier,
respect
with
to Morris
there were open charges
against
theft,
him regarding receiving
property,
stolen
automobile,
unauthorized
determining
use
an
that the rec-
that,
ord did not
such assertions
support
because there
were no
it
outstanding charges,
proper
jury’s
to limit the
Finally,
consideration
his record to crimes of crimen falsi.
that,
the PCRA court noted
in
direct
appeal, our
suggested,
Court
whether the trial court
in
regarding
erred
failing
give
corrupt
charge
accomplice liability
a
source
or
instruction,
court,
that the trial
respect making
with
credi-
determinations,
bility
interest or
“clearly explained
any
and testi-
color his recollection
may
motive of a witness that
in
such determinations.”
making
could be considered
mony
Reid,
Based
upon
credibility may be
stated the current law that witness
properly
arrest,
if
resulted in
only
an
such arrest
regarding
impeached
Burton,
613.
crimen falsi.
for
417 A.2d at
a conviction
court,
Further,
note that the trial
by
as offered
the PCRA
we
instructed the
it should consider whether witness
jury
court
exchange
had an
with the Commonwealth
agreement
existed an interest or motive
and whether there
testifying,
N.T.,
testimony.
the witness’s
impacted
that could have
1/8/91,
6.155-6,
6.157-60. More
and as noted
generally,
Commonwealth,
was instructed it was to consider
jury
“all of the
circumstances and determine which
surrounding
give
what
will
their
you
weight you
witnesses
will believe and
Id. at 6.148.
court in
Additionally,
the trial
testimony.”
testimony,
witnesses’
considering
structed
have colored
may
“some have an interest or motive which
And all
testimony.
personal equa
their recollection and
such
*39
as to how much
your
tions must enter into
determination
Id.
you
place
testimony
reliance
can
on the
of each witness.”
thereto,
by
at
Related
as noted
the Commonwealth and
6.149.
below,
noted that
appeal
the PCRA court
our Court on direct
make
jury
duty
the trial court instructed the
its
to
concerning
“clearly explained
determinations and that it
credibility
or motive of a witness that
color his recollec
any
may
interest
testimony
making
tion and
could be considered
such deter
Reid,
conclude,
Thus,
J. Failure to to is Insufficient Convict Scene improperly trial counsel was maintains that Appellant presence, including Appel- denied an instruction on mere if merely present lant could not be convicted he was at the scene, even if he fled the scene or exhibited other indicia of guilt. rejected request, consciousness of The trial court this on was sufficient. Ac- noting charge accomplice liability cording Appellant, the lack of an instruction on mere enabled the to convict “its presence jury Appellant upon based collective conclusion that he was and then acted to present conceal that limited Brief Appellant involvement.” at 44. maintains that his counsel on direct Appellant appeal ineffective for failing raise this issue.
The counters that the trial properly court jury instructed the as to the elements of the charged, crimes Further, which more than mere required presence. the trial court offered with to the respect accomplice charge that “[a] defendant does not become an accomplice merely by being N.T., 1/8/91, at the scene or a present knowing about crime.” at 6.156.
In of the trial court’s light charging jury as to the crime, elements of the which more require pres- than mere ence, and that accomplice liability requires more than merely being “present crime,” at the scene or knowing about we find no trial court error in refusing give the instruction requested by Appellant. The knew that more than mere presence was to convict required any of the crimes charged. we find that is not entitled to relief.12
K. Prosecutorial Misconduct —Juror Fear of Crime next argues rights that his due were process as a violated result of the Commonwealth’s alleged improper attacks on his character describing history America’s with untouchables, gangsterism, implying was a *40 and to him “gangster,” referring as a “killer.” to According brief, Appellant suggests 12. In his further that the trial court erred in refusing jury guilt by to instruct the that evidence of consciousness of enough failing itself is never to convict and counsel was ineffective for preserve appeal. Appellant plainly develop this on issue As fails to fashion, any meaningful this claim in it is not reviewable. Common- Hutchinson, 277, (2011). wealth v. 25 300 A.3d these comments were intended to inflame the Appellant, and to convince them was a “bad man who deserves conviction because of his association with the JBM.” Brief of prior at 45. claims counsel was ineffec- claim, and, tive for failing preserve this while certain raising comments, counsel prosecutorial had no reasonable basis to fail to raise all allegedly improper appeal. comments on Fi- nally, Appellant preserved claims had counsel and raised this claim on direct there is a likelihood he would appeal, be granted relief from his convictions.
The Commonwealth counters that Appellant’s claims are unfounded, relief, notes the court denied properly that our appeal Court on direct reviewed the “entire argu- ment” Commonwealth and concluded there was no Reid, misconduct or ineffective assistance of counsel. A.2d at 460.
A prosecutor is free to present argument logical with force vigor so as there is a long reasonable basis the record for the prosecutor’s remarks. Commonwealth v. Tedford, 598 (2008). Further, Pa. reversible error arises from a prosecutor’s “only comments where the unavoid- jur[ors], able effect is to in their prejudice forming minds a fixed bias and hostility toward the defendant such that they could not the evidence weigh objectively and render a fair verdict.” Id. at 33. To succeed on a claim of ineffective assistance of counsel based on trial object counsel’s failure to misconduct, prosecutorial the defendant must demonstrate “that the actions prosecutor’s constitutionally violated a or statutorily such as the Fifth protected right, Amendment or the privilege against compulsory self-incrimination Sixth trial, Amendment to a fair or a right constitutional interest such as due Id. at 29. process.”
After reviewing prosecutor’s closing statement its entirety, we conclude none the comments had jurors, unavoidable effect of or a fixed prejudicing creating hostility bias or which would them from prevent rendering fair The verdict based on the evidence. Commonwealth’s
128 the evidence which in accord with “gangster” reference to of part perform- victim was killing of the Appellant’s indicated killing and, motive for the for the “job” a JBM —the ing — as thereto, reference to the Commonwealth’s similar Porter, v. Commonwealth not impermissible. “killer” was a (1990) (where 942, sup- evidence 162, 946 569 A.2d 524 Pa. defendant as “cold- remark, prosecutor’s description ported v. see also Commonwealth permissible); killer” was blooded (1992) (reference Jones, 931, to 591, 943 610 A.2d 580 Pa. trio,” backshooting “murdering, child-killing, defendants as vigor- bounds of and “executioners” was within “slaughterers,” closing argument).13 in oratory prosecutor permitted ous to failing not ineffective for trial counsel was Accordingly, Appel- and closing argument, object to the Commonwealth’s fails. ineffectiveness also claim of counsel appellate lant’s Testimony Boston of Lawrence L. Admission of Former his testify because of was declared unavailable Boston right self-incrimina- against of his Fifth Amendment exercise result, trial, and, Boston’s as a at second tion trial was read into the from first testimony former improper. Specifically, maintains this was record. that, knowing makes a and once a witness Appellant contends self-incrimination against of the intelligent privilege waiver in the same proceedings it is waived for future proceeding, one case, proceeding in a later long testimony sought as as his information, citing not the disclosure new require would Hall, 75, 144, v. A.2d 150 n. 19 Commonwealth 523 Pa. (1989) 568 A.2d McGrogan, v. 523 Pa. and (1990). object- properly his trial counsel Appellant argues “unavailable” legally that Boston was not ed at his second trial his Fifth Amendment Boston had waived previously since require not testimony so his would rights compelling engaged argues Additionally, Appellant also the Commonwealth 13. by Philadelphia's ills and by social other misconduct references causing groups like blaming like the JBM and individuals urging "let him walk out of problems, not to those 192503) in his include these assertions failed to here.” statement, and, thus, v. Castil- they not reviewable. Commonwealth are lo, (2005). 779-80 disclosure of new information. More specifically, Appellant asserts at the first trial Boston acknowledged being while murder, testimony at the scene of the his from the first trial was not self-incriminating. Boston’s According Appellant, testimony Appellant’s second trial would not have required of any disclosure new information that would have placed *42 Therefore, him in that reasons jeopardy. Appellant Boston’s of his Fifth at first trial rights Appellant’s waiver Amendment Appellant’s at asserting privilege him from the precluded counsel, however, failed that trial. asserts Appellant second and, thus, was ineffective. appeal, on this issue preserve to failing basis for to no reasonable was adds there Appellant that, being to Boston a due on and appeal, this claim raise Commonwealth, and because for the crucial witness his second confront Boston at of his to right deprived was there was appeal, on direct trial, raised this issue had counsel trial would have been likelihood the outcome a reasonable different. rule that the waiver general offers the
The Commonwealth
self in an initial
incriminating one’s
against
privilege
of a
to invoke the
right
privilege
not
the
impact
does
proceeding
Hall,
the
The PCRA does not proceeding in one self-incrimination privilege against independent proceeding, invoke it in an right affect Rodgers, v. citing Commonwealth (1977). It once a acknowledged Appellant’s assertion made, waiver in a privilege applies waiver of the has been such proceeding long later as as the would subsequent proceeding information, require not the disclosure of new long and as as testimony former did not implicate the in any witness However, wrongdoing. according court, to the PCRA as there was no showing Boston consulted with his attorney or that he was aware of the or that he privilege, knew the him, the court reasoned it be used against could testimony could not valid waiver at Appel- be said that Boston made a lant’s first trial. The PCRA court continued that Appellant makes no attempt to demonstrate that Boston’s testimony was not incriminating or was denied a full opportu- *43 cross examine at nity Appellant’s Boston first trial. The im- testimony clearly Boston’s former PCRA court concluded him in and that the wrongdoing plicated Thus, clear that him were a the charges against possibility. PCRA court deemed claim to Appellant’s be without merit.
As noted the PCRA court and the Common wealth, general the rule is that waiver of the privilege against proceeding self-incrimination one does not affect the right in an independent proceeding. Rodgers, to invoke it ability at 779. While contends this to invoke the apply in a later does not when the privilege proceeding Hall, citing disclosure of new information is not 565 compelled, 19, A.2d at 151 n. our Court in Hall did not embrace this notion, specific and this right against limitation on the self- Pennsylvania. incrimination has not been as the law of adopted Moreover, reliance on for this novel McGrogan as, case, clearly is in that the witnesses’ proposition inapt, Here, above, testimony was not as noted prior incriminating. at testimony Appellant’s incriminating Boston’s first trial was
131 charges, exposed with to numerous and he remained respect charges by general the Commonwealth. rule and the trial court found Boston to have been applies properly unavailable. claim is without merit.
M. Batson claim that the court erred in his Appellant argues denying PCRA motion for relief based on his claim that the prosecution exercised its strikes on the basis of race and peremptory 79, in violation of Batson v. gender Kentucky, 476 U.S. (1986), and, further, S.Ct. L.Ed.2d 69 that prior counsel was ineffective for to raise failing litigate this claim. Brief of at 49. further contends court improperly discovery, denied his motion for his motion for hire expert, funds to an and his motion for an which him evidentiary hearing, would have allowed to further his Batson claim. develop Batson,
In held Supreme United States Court that a prosecutor’s challenge jurors on the basis of potential solely 89,106 race violates the Equal Protection Clause. 476 U.S. violation, 1712. In S.Ct. order to demonstrate a Batson an appellant must make a that the prima showing prosecu- facie tor has peremptory challenges exercised on the basis of race. succeeds, Id. at 1712. If appellant S.Ct. prosecutor burden shifts to the to articulate a race-neutral explanation of its peremptory challenges. Id. at 106 S.Ct. Finally, 1712. the trial court must determine whether the defendant has carried his burden of proving purposeful dis- 98,106 crimination. Id. at S.Ct. 1712.
Where, here, only as a Batson claim arises in the counsel, context an allegation appel of ineffectiveness of an *44 lant is not entitled to the benefit the burden persuasion of explanation as to whether there is a race-neutral for the use of prosecutor’s peremptory challenges. Commonwealth v. (2004). Uderra, 74, Rather, Pa. 862 A.2d 86 the 580 and appellant throughout inquiry bears the the must burden “actual, purposeful by prepon- demonstrate discrimination 132 evidence,” the meeting “performance
derance of the as well as counsel’s ineffec- demonstrating standard for prejudice” at 106 1712. To tiveness discussed above. Id. S.Ct. burden, a Batson claim must satisfy appellant raising his an identifying make a record the race of all the specifically removed the the race of the venirepersons by prosecution, served, jurors jurors who and the race of the to the acceptable stricken the defense. by Commonwealth who were See Com- 1108,1132 23 Sepulveda, monwealth v. n. (2102). (noting required that we have information about race jurors peremptorily challenged by the Common- potential wealth, jurors the race of to the potential acceptable Common- defense, but the and the peremptorily challenged by wealth selected). of the composition above, case, As noted the instant did not raise a claim trial or appeal. According Batson on direct to object trial did not Appellant, any counsel to of the Common- peremptory challenges wealth’s and did not make a record of jurors accepted by the race of struck and the Commonwealth. further that he argues attempted to establish the race of the remaining jurors during proceeding, the PCRA but that the court erroneously denied his motion for discov- Nevertheless, ery juror race. relating Appellant asserts he jurors was able to determine the race of of the many by using registration voter records and affidavits from obtaining certain jurors, which him following enabled to make the proffer: jurors aside those struck for
Leaving by cause or struck the defense before Commonwealth made a choice whether (39) juror, or strike the accept thirty-nine there were jurors potential peremptory available for strikes these 39 whom prosecutor. people prosecutor Of had an strike, black, white, opportunity to 15 were 16 were and 8 are unknown. evenly pool, Of that almost balanced blacks, whites, 9 prosecutor By struck 3 and 6 unknown. contrast, blacks, whites, prosecutor accepted unknown.
Brief of at 50 (quoting Appellant’s Response Dismiss). Commonwealth’s Motion to contends that *45 Brief of grossly disproportionate,” of strikes is “pattern Court, that, 50, and, alleges he in his brief to this Ap- conceded that proffer, his “the Commonwealth following on his Batson evidentiary hearing was entitled to an pellant 8, from ADA July letter dated (referencing claim.” Id. Lineberger). to Judge Michelle Seidner review, find no error in the PCRA court’s Upon we funds, eviden for an Appellant’s request discovery, denial of on his claim. With hearing, and relief based Batson tiary hearing, for an request evidentiary to respect Appellant’s evidentiary hearing to an is within the grant decision whether court and will not be overturned discretion of PCRA at 1134. Sepulveda, an abuse of discretion. absent above, filed its initial As discussed after the Commonwealth dismiss, that he was entitled to Appellant responded motion to on, alia, inter his Batson claim. See evidentiary hearing an Motion Response Consolidated to Commonwealth’s Appellant’s Dismiss, 6, 2005, in to a motion May response On 7/12/02. Commonwealth, court issued notice of its by the the PCRA petition intent to dismiss Amended PCRA as Appellant’s 3, 2005, however, the without merit. On June object that it not to an advised and the court would issues, including on certain limited evidentiary hearing Appel claim, lant’s Batson of the fact that this Court had light hear recently capital evidentiary remanded several cases ings. evidentiary court an
Accordingly, the PCRA scheduled claim for 2005. How- hearing on Batson June ever, 8, 2005, on defense counsel advised the court June (1) hearing; letter that he was unable to attend the scheduled (2) necessary he did not believe it was for him attend the if the court intended to dismiss hearing simply (3) Amended if the court did not intend to petition; the matters be relisted petition, requesting dismiss the he was relist- the PCRA court appear. Accordingly, so that he could matter for 2005. In a letter dated June July ed the 2005, however, objected sug- hearing, defense counsel to the alia, inter that it was unfair for the Commonwealth gesting, to an when it maintained agree evidentiary hearing previously warranted, that no if the court hearing intended evidentiary hearing, judge to conduct an should recuse himself. further averred: Counsel cases,
If anything the Court does other than dismiss these we need the aside no will Court set fewer than three consecutive protracted hearings. weeks for these In addi- *46 tion, I request expert will need to substantial funds and file motions, motions, including discovery various additional properly present order to our case.
Fifth, if the Court is inclined to accede to the Common- position, wealth’s new then we intend to file a formal motion for sanctions to unprofessional address its conduct. These should include an precluding Order Commonwealth from witnesses, cross-examining defense from any presenting any witnesses, and from written or making any argument. oral ... continue to maintain our long-held position [W]e the issues we raised evidentiary deserve an but we hearing, only want an if it can evidentiary hearing be fair. 6/21/05, Judge Letter from Daniel Silverman to Lineberger, 3. 19, 2005, August
On court PCRA issued an order recusal, denying motion for and a scheduling 15, 2005, (1) hearing for on the issues of September Appel- (2) claim; lant’s Batson doctor and family mitigation member (3) trial; at the testimony penalty phase of Appellant’s and 31, 2005, witnesses. On August after-discovered/recantation Appellant’s counsel filed another motion for continuance seek- ing to have the rescheduled. hearing acting Before on the motion, retired, and, Judge Lineberger in December Mazzola, cases were to the Honorable assigned William follow- which time ing Appellant filed additional motions for discovery funds, expert and alleging newly and discovered Batson claims, all of which Judge Mazzola denied. set forth procedural
We
the above
history
demonstrate
an
evidentiary
was offered
on his
hearing
claim,
Batson
but
frustrated the
repeatedly
PCRA court’s
he cannot now
hearing. Accordingly,
to conduct
attempt
no
hearing.
that he was denied a
we find
complain
improperly
claim that the PCRA court
merit
evidentiary hearing.
denied him an
Likewise,
claim that the
court
reject Appellant’s
we
request
discovery. Discovery
denied his
for
improperly
permissible only upon
death
collateral
is
penalty
proceedings
court,
cause shown. Pa.R.Crim.P.
only
good
leave of
for
902(E)(2).
discovery
court’s denial of
for
We review PCRA
Sattazahn, 597 Pa.
an abuse of discretion. Commonwealth v.
(2008).
discovery
A.2d
In his
request,
in a civil suit filed
Appellant sought
produced
documents
Bruce
in June 1997. In
Sagel against Philadelphia Magazine
lawsuit,
1997, Sagel
which was withdrawn in December
claimed that the
of comments he was
magazine’s publication
to have
a 1990 lecture on
selection
alleged
during
made
requested copies
Sagel’s
defamed him.
of
answers
documents,
as
interrogatories
request
production
to the
Sagel’s deposition transcript, pertaining
well as
lawsuit.
addition,
Sagel’s
In
lecture notes.
Appellant sought copies
*47
Discovery,
According
Motion for
Appellant’s
See
2/21/06.
necessary
the
he
were
to enable
Appellant,
sought
documents
him to
a
case of
establishing
prima
meet his burden
facie
However,
under Batson.
this Court has deter-
discrimination
lecture
relating
Sagel
mined that information
to the
notes is
establish the
discrimination.
required purposeful
insufficient to
1145 n.
Ligons,
Commonwealth v.
(2009). Thus,
discovery
unsup-
19
motion for
Appellant’s
cause,
not err in
by good
and the PCRA court did
ported
reason,
the
the
denying
motion. For
same
Appellant’s
for funds to retain ex-
Appellant’s request
court’s denial of
Baldus,
in
including
infra,
testify
Professor David
see
perts,
of his Batson claim was not erroneous.
support
Appellant’s
with
to the merits of
Batson
Finally,
regard
claim,
to relief. As
Appellant
we hold that
is not entitled
above,
that the
struck 9
prosecutor
noted
contends
Appellant
jurors,
only
but struck
3 of
potential
of 15
African American
jurors,
jurors,
16
Caucasian
and 6 of 8 unknown
potential
of strikes.
pattern
in a
resulting
“grossly disproportionate”
the
contends
Initially,
Brief at 50.
Appellant’s
jurors
of the race of
failing
potential
to make a record
by
Commonwealth,
by
to the
but excluded
acceptable
who were
defense,
even a
prima
the
is unable to establish
the prosecutor
case of discrimination. The fact
that
fade
Caucasians,
than
in and of
struck more African Americans
itself,
purposeful
is insufficient to demonstrate
discrimination
totality
Ligons,
when
the
of the circumstances.
considering
Moreover,
the
identify
Nevertheless, in further of his Appellant, support contention discrimination, the in prosecution engaged purposeful makes an oft-asserted claim of a culture of discrimination in District he Philadelphia Attorney’s Specifically, Office. analysis asserts that an Professor David Baldus demon- by case, strates that in Roger King, prosecutor was “over two venire likely times more strike a black person compared to one who was not black.” Brief at 52 (emphasis original). Appellant also contends that a study by pattern Professor Baldus documents a of racial jury discrimination in selection in Philadelphia during 1997. years through argues further training infamous 1987 on selection tape prepared by former Assistant McMa- Philadelphia Attorney District Jack hon an inference” that District “supports Philadelphia discrimination, Attorney’s engaged purposeful Office as do lecture notes taken during training prosecutors lecture for delivered Bruce Sagel 1990. Id. at 53. *48 previously
This Court
has held that evidence that a prosecu-
tor was found to have violated Batson in a
case is
prior
insufficient to demonstrate that the prosecutor
impermissibly
jurors
struck
in a later case.
137 in a establish discrimination subse- purposeful insufficient to case, that the allegation prosecutor mere quent to strike an African likely” his case “was over two times more juror juror support American than a Caucasian cannot his claim of discrimination. purposeful contention, to the McMahon we have regard
With
repeatedly emphasized
training tape
that the McMahon
is not
case,
sufficient to establish a Batson violation in a particular
where,
here,
as
“the
at an
particularly
prosecutor
appellant’s
McMahon,
trial was someone other than
and the time of the
trial was
appellant’s
temporally remote from
creation of
Jones,
the videotape.” Commonwealth v.
951
(2008).
A.2d
We likewise have determined that the
Baldus
and the
lecture notes are insufficient to
study
Sagel
establish purposeful
Ligons,
discrimination.
N. Denial of Sentencing Effective Counsel at next contends that the PCRA court erred in an denying evidentiary hearing without his claim that he did not receive effective sentencing assistance of counsel at the phase Specifically, Appellant alleges his trial. that counsel meaningful pre-trial mitigation investigation; “conducted no failed to develop history more than the most minimal life mitigation; failed to mental health evi- develop mitigation dence; to the none presented jury virtually compelling defense; mitigation explain available to the and failed to to the the evidence of in a [Appellant’s] membership gang.” Brief of at 57-58. further asserts that duty thoroughly investigate mitigat- counsel has a available ing evidence before whether such evidence should be deciding v. presented, citing Taylor, Williams U.S. S.Ct. (2000). 1495,146 L.Ed.2d 389 Id. at 58. *49 grant reiterate that the decision whether to an eviden-
We
within the discretion of the
court
tiary hearing is
and
will not
an abuse of discretion. Sepulve-
be overturned absent
da,
case,
In the instant
foster beg sisters but I it based on the evidence. I beg it based on the evidence of which I mitigation, suggest to you outweigh aggravating would circumstance in this case because there is and none of rule hope you can out the fact that he changing reforming is and and there is no contrary testimony to that. What happened happened and reform, years two later there is there is change, there is life, and him him the hope, give give opportunity to spend the rest of his life in Because he prison. deserves to live. By the evidence in this case.
Id. at 8.86-87.
Thereafter, during charge jury, its to the the trial court instructed the that it could consider two mitigating crime, circumstances: at the Appellant’s age time of the any other evidence regarding character and record of and the circumstances of the offense. Id. at 8.88. however, The jury, mitigating found no circumstances. now that argues trial counsel was ineffective for witnesses,” to contact failing “readily other available including sister, mother, an additional foster Appellant’s foster birth mother. Brief of Appellant at 59. Accord- ing Appellant, these additional witnesses would have estab- alia, child; lished, abused as a had inter injuries. Appel- and sustained two head development; slow had knowing contends despite lant further care, obtain records from been in foster trial counsel failed to Alliance, super- which organization the Women’s Christian care; Philadelphia public vised his foster his records from the attended; and records from Penn- schools which Appellant *50 all of which Hospital, purportedly hurst State School and of mental history would have documented his birth mother’s retardation and his own difficulties in school. impairments and also claims that trial counsel was ineffective for Appellant health who would have failing present expert to a mental of mental Appellant variety testified that suffered from care environment and disorders as a result of his foster Further, claims it was incum- poverty. childhood bent trial counsel to evidence to to the upon provide explain joined a jury why Appellant gang.
The Appellant’s Commonwealth notes that foster sisters family,” testified that were raised in a and they “supportive that, in purported Supple- affidavits included his alleged mental Record Reproduced describing Appellant’s childhood, they changed abusive their tune.” Id. at “abruptly above, 50. Based on the the maintains that trial counsel’s “decision to as drawn to a present [Appellant] parental deprived ‘bad crowd’ due to a lack of love and a childhood, who was now a man with a and changed supportive reasonable,” and cannot form loving family, objectively claim. Id. at 49. Additionally, the basis of an ineffectiveness has failed to estab- Commonwealth asserts lish had the additional evidence prejudice by showing jury, been and considered would presented mitigating outweighed have found a circumstance that [Ap- and substantial circumstance of “undisputed aggravating pellant’s] history killing people.” Id. significant Petition, alleged
In his Amended PCRA to discuss the failing trial counsel was ineffective circumstance weighing aggravating against of the sole proper circumstance, against mitigating each rather than mitigating at 93 Amended PCRA Petition collectively. circumstances ¶ trial Appellant’s present allegations regarding 180 et seq. members, to other obtain his family counsel’s failure contact records, foster care mental health present school and in a Appellant’s membership gang, evidence and evidence of however, Supplemental were raised for the first time his Petition, months later. As dis- Amended PCRA filed three to have appear cussed the PCRA court does not supra, claim is as a filing. authorized such waived supra pp. result. See 436-38.14 Moreover, as we have discussed above with regard Appel- claim, lant’s Batson after the Commonwealth filed its initial Petition, motion to dismiss Amended Appel- on, evidentiary lant that he was entitled to an argued hearing alia, inter his Batson claim and the issue of whether trial counsel was ineffective for failing investigate, prepare, relevant evidence at present mitigating sentencing. Although evidentiary the Commonwealth to an on these agreed hearing and, issues, although Judge scheduled a Lineberger hearing occasions, on several Appellant repeatedly sought delay *51 hearings; sought recusal of the court demanded judge; PCRA funds”; “substantial demanded three consecutive expert during “protracted” hearings; weeks which to conduct threat- ened to file a formal motion against for sanctions the Com- monwealth; and an order that would sought preclude the witnesses, “cross-examining any Commonwealth from defense separate argument 14. We also note that in a of section his Amended Petition, Appellant PCRA contends that his death sentence should be jury penalty vacated because the trial court’s instructions to the at the phase erroneously weigh aggravating advised the how to and mitigating part argument, Appellant circumstances. As of this asserts: paper jury apparently The fact that on this did not find even one mitigating circumstance does not somehow render "harmless” this matter, significant general many grievous error. As a so errors were applicable mitigating committed in connection with the otherwise surprising mitigation circumstances that it is not that no was found. First, mitigating trial counsel failed to introduce abundant evidence (3) supported mitigators. that would have at least three distinct See Supplemental Amended Petition. ¶ However, supplemental Amended PCRA Petition at 94-95 183. petition amended PCRA to which he refers was at the not record time. witnesses, and from written any making any from presenting argument.” Judge or oral Letter from Daniel Silverman to 6/21/05, we concluded with to Lineberger, regard at 3. As Batson claim, hearing Appel- the absence of a on lant’s claim was the result of his own mitigation dilatory demands, tactics and excessive and he cannot now complain that he a improperly hearing. was denied Mitigation Preclusion of Evidence
O. of Conversion to Islam that, trial, at he to enter into Appellant argues attempted Islam, evidence that he had converted to was an active and violence, devout Muslim who denounced and had adopted followed for one’s religiously-based guidelines conducting af- fairs. claims that witnesses were prepared testi- fy to these facts and the of his conversion. sincerity *52 ny, as the was not with a full presented picture transformation, “that Appellant’s brought it was about through genuine religious religion conversion and what that teaches,” why and that he was from prevented explaining jury should credit that evidence. Brief of at 73. Appellant to our resolution of this points
The Commonwealth
Court’s
that
had not
determining
Appellant
issue on direct appeal
was able to present
established
and that
prejudice
Appellant
that he was involved
philosophy
evidence about his moral
and
Reid,
Ultimately,
in a new
The court noted that claim was underlying PCRA on direct and that new previously litigated appeal, review, relevant presenting claim on collateral all and control- ling authority proof prejudice “specious.” and was 2/14/11, Court at 56. the court reasoned Opinion, Specifically, Appellant permitted present that' at trial to evidence of his adherence to a moral and that he was philosophy involved religion, in a new and that this endorses philosophy morality and one to requires change noting and reform. While that the Islam, prohibited trial court from mentioning PCRA court concluded failed to establish prejudice.
Initially, we note that this issue was not on raised issue, and, thus, appeal, is a distinct has not been previously Collins, essence, litigated. supra. In asserts be fore us that trial and counsel did not do a appellate sufficient job this issue. there litigating Assuming, arguendo, is merit claim, he still has not established that he was so as to him prejudiced afford relief. As noted the Common wealth, court, the PCRA and our Court on direct appeal, was able present evidence about his adherence to a moral and that he was involved in a new philosophy, religion, and that this philosophy morality requires endorses one to essence, change and reform. In information only Appel lant offering specific religion was denied was the he had practice. recognize chosen to While we that the exclusion of error, mitigation factors can be reversible v. South Skipper Carolina, (1986), 476 U.S. 106 S.Ct. 90 L.Ed.2d e(8) religious values could be relevant to the “catchall” *53 this mitigator,15 light surrounding in of the circumstances matter, significant history the of a of including aggravator felonies, we find that the trial court’s prohibiting violent in Appellant naming religion from his did not result such prejudice that the result in his matter would have been Thus, different. we find that is not entitled to Appellant relief. Permitting
P. Trial Court Error in Commonwealth Aggravating to Prove Circumstance with Hearsay
Inadmissible next Appellant argues the trial court erred in the permitting Commonwealth, over objection, defense its prove aggrava- ting circumstance with hearsay, inadmissible and that appel- late counsel was ineffective failing preserve and litigate this issue. To establish that had a significant history convictions, of violent felony the Commonwealth intro- testimony duced from Detective Chester Koscinski that Neil head, Wilkinson was shot the and that the jury convicted murder, of first-degree and returned a sentence of life imprisonment. Similarly, Detective Paul stated that Raley Michael Waters was murdered a gunshot wound to the chest, the convicted first-degree murder therefor, that Appellant was sentenced to death. Trial objected counsel testimony hearsay to the on but grounds, trial objections. court overruled his pursue Counsel did not this claim on appeal.
Appellant argues because Detective Koscinski’s testimony was based on the of an and the reports eyewitness examiner, medical and Detective Raley’s testimony was based him, on what others told men testimony both was inadmissible which violated his hearsay, right to confront and cross-examine witnesses. Brief of Appellant Appel at 75-76. lant claims there was no way to cross-examine these officers as their testimony was based of others. upon reports 9711(e)(8). § 15. 42 Pa.C.S.A. basis for appel- contends there was no reasonable to raise this issue on appeal.
late counsel not contention that the disputes Appellant’s The Commonwealth because the de- testimony improper hearsay, detectives’ they to the tectives had “first-hand information as crimes— saw the victims’ bodies and were court when verdicts Brief of at 64. were delivered.” *54 contends that were witnesses they competent Commonwealth Id. Further, aggravating as to the circumstance. the Com- monwealth claims that a court clerk also testified and pro- court records According duced official for both cases. to the Commonwealth, gave each detective a one-sentence descrip- tion of the murder with no manner beyond detail of death. on appellate cannot succeed his claim that counsel in failing was ineffective to raise this issue on because appeal claim in Appellant’s underlying the trial court erred admitting the evidence is without merit. Detective Koscinski testified that he in participated investigation both and the murder, arrest of in connection with the Wilkinson and that he present was for the trial in that case. The same true for Raley. Appellant was Detective fails to offer evidence in support allegation of his that the testimony detectives’ was others, only based on the reports thereby constituting the trial court err in hearsay. Accordingly, allowing did not evidence, the Commonwealth to introduce this and appellate counsel was not ineffective for to raise the issue on failing appeal.
Q. Imprisonment to Failure Instruct That Life
is Without Parole
next
argues
process
that his due
rights
were violated when the trial court failed to
give
jury a
“life-means-life”
sentencing hearing
instruction at his
pursuant
Simmons,
supra. Appellant contends
that,
because the
issue,
his
put
dangerousness
Commonwealth
future
the trial
court was
to instruct the
if
required
jury
sentenced to
life
he would
imprisonment,
ineligible
parole.
be
however,
Simmons
out,
points
As the Commonwealth
1991,
predating
trial was
in 1994 and
decided
Simmons,
Prior to
Simmons
years.
three
by approximately
an instruction to the
prohibited
in this
the law
Com-
parole.
life
meant
life without
imprisonment
Edwards,
818,
monwealth v.
Pa.
555 A.2d
830-31
trial,
(1989).
Therefore, because, at the time of Appellant’s
forbidden, the trial court did not err
Simmons
instruction was
Further,
an instruction sua
sponte.
failing
give
such
failing
cannot be deemed ineffective for
to re-
trial counsel
instruction,
such an
and we do not find counsel ineffec-
quest
in the law. Common-
failing
anticipate changes
tive for
(1997).
Gibson,
v.
wealth
claim fails.
Accordingly, Appellant’s
Effect of Errors
R. Cumulative
that, if this
concludes that he
Appellant argues
Court
any
on the
effect of
prejudicial
is not entitled to relief based
error, he is entitled to relief because of the cumulative
single
forth in his appellate
effect of all of the errors set
prejudicial
*55
It is
“no number of failed ineffective
brief.
well-settled that
they
claims
warrant relief if
fail to do so
may collectively
ness
Johnson,
v.
individually.” (2009).
However,
that, “if
we have recognized
A.2d
found,
are
multiple
performance
instances of deficient
cu
may
premised upon
assessment of
be
prejudice properly
(citations omitted).
In
Sepulveda,
T. Trial Court Error to Address Appellant’s Petition for Permission to
Review Police Archive Files next contends the in PCRA court erred his to review denying request police files for exculpatory evidence. Appellant’s request The basis for was his allegation that the Commonwealth failed to disclose the extent of incen trial, tives provided to Commonwealth witnesses at and an allegation police archive files have been found to cases, contain material in other Brady likely contain case, similar material in this including any regarding records the Commonwealth providing incentives to Michael Dozier.16 Brief of Appellant at 84. Commonwealth,
The
in arguing Appellant was not entitled
files,
to review the police
suggests Appellant’s request was a
mere fishing expedition, Appellant’s
as
is
request
speculative
and based
three
upon
unrelated cases which
housing
Brief
provided
witnesses.
of Commonwealth at 69-70.
stated,
As previously
request
for discovery during
902(E)
collateral
is
proceedings
governed by Rule
of the
Pennsylvania
Procedure,
Rules of Criminal
which allows for
discovery upon leave of court after a showing
good
cause.
A showing
good
requires
just
cause
more than
a generic
potentially exculpatory
demand for
evidence that might be
discovered if a defendant
permitted
is
to review the requested
Sattazahn,
court,
materials.
U. of Evidence to
Conviction First Trial 17, 2012, April On our granted Appellant’s Court motion to amend his brief to raise an In this additional issue. final issue, evidence, claims that the Bos- particular ton’s was insufficient testimony, support conspiracy conviction at first trial accomplice and the instruc- given Specifically, Appellant tions at his second trial. claims *57 that, reading the into the record of Boston’s testimo- following trial, only jury from first the conclusion the ny Appellant’s his invoking privilege could have reached was that Boston was self-incrimination because he was afraid he would be against According found to be the actual shooter. to Appellant, to or testimony Boston’s failed establish “concerted action Brief of Appellant.” Appellant shared motive with Amended Thus, conspiracy charge at 1. contends the was not Appellant case, supported by the evidence in this and that counsel was object ineffective for to instruction at failing to the trial. that, as Appellant strategy claims trial counsel’s was to chal- lenge Appellant participated any way killing, the object. counsel had no reasonable for strategy failing to Moreover, submits prejudiced, jury he was as the rendered a unanimous verdict as to at the first only conspiracy trial.
Further, trial, second Appellant claims that object trial counsel failed to to the accomplice liability instruc- tion which “the appeared give Court as a substitution for conspiracy charge.” the Amended Brief of Appellant at 2. Again, Appellant argues that there was no reasonable trial strategy object not to and he was prejudiced by this instruc- tion by “providing the with an unfair link to the first murder degree charge.” Amended Brief of at 2. Thus, Appellant charge maintains that the and the conspiracy instructions for accomplice liability supported were not the evidence.
The Commonwealth that our responds Court reviewed the Reid, of the sufficiency appeal. evidence on direct supra. The out points independent Commonwealth after review evidence, of the including Boston’s our found testimony, Court that sufficient evidence existed to convic- support Appellant’s Commonwealth, according tions. to the sufficiency finally the evidence claim has been litigated. Moreover, emphasizes Commonwealth that Appellant failed to acknowledge proper standard of review applicable sufficiency challenges views the evidence in the light most favorable to the Commonwealth as verdict winner. Further, credibility stresses that determi- nations, testimony, such as that Boston’s are for concerning claim that the evidence was jury. Regarding Appellant’s instruction, the Com- support accomplice insufficient monwealth shows that and Boston worked for the dealer, as an enforcer and The victim had respectively. JBM it, taken crack cocaine without paying *58 Boston to the and escorted him to the went victim’s home comer, facts, street where he was shot. Based on these the the trial court an accom- argues properly gave Commonwealth plice instruction. a claim reviewing challenging sufficiency
When the evidence, an court views “the evidence in the appellate most light favorable to the Commonwealth as verdict winner to determine if the evidence and all reasonable inferences derived therefrom are sufficient to establish all the elements v. Commonwealth of the offense a doubt.” beyond reasonable Vandivner, (2009). 617, 1170, 1176 First, 599 Pa. 962 A.2d our Court conducted a review on direct sufficiency appeal Moreover, Appellant’s affirmed convictions. as noted above Commonwealth, by the there is more than sufficient evidence from trial to sustain the instruction for accomplice liability. claim fails on the Appellant’s merits.
III. Conclusion conclusion, herein, In for the reasons stated we affirm the dismissing order of the PCRA court all of claims. EAKIN, BAER, Chief Justice CASTILLE and Justices join opinion. McCAFFERY and STEVENS files a dissenting opinion. Justice SAYLOR SAYLOR, dissenting. Justice case, with in the I have my position companion
Consistent difficulty by with a number of the reasons offered the PCRA court in of the dismissal of the support summary remand for corrective measures. petition and would summarily
For
court
dismissed
example,
post-conviction
ineffective for
Appellant’s claim that his trial counsel was
instruction
failing
request
special, cautionary
concerning
identification
reliability
eyewitness
per
(1954).
Kloiber,
412, 106
v.
378 Pa.
A.2d 820
In the companion
case, I
the court
a mate
explained
erroneously displaced
rial circumstance in which a Kloiber
is
charge
required —when
eyewitness’s positive
identity
an
statements as to
are weak
identify
ened
failure to
the defendant on one or more
prior
occasions—and
shifted the
improperly
analysis
time-of-trial
Reid,
witness
See Commonwealth v.
explanations.
2014).
(Aug.
My
Anthony Appellant. Supreme Pennsylvania. Court of
Submitted June 2012. Aug.
Decided 2014. notes on direct our appeal, rejected Court the trial court’s rationale precluding this evidence —the prohibition beliefs, on questioning regarding religious witness his or her 5902(b) § 42 Pa.C.S.A. determined that it could be ad- —and defendant; missible and relevant to the character of a found appellate counsel had failed to articulate or support Appellant’s claim that he had been prejudiced by ruling. challenges now the PCRA court’s determination it that would have been inadmissible for a witness to testify Moreover, that Appellant undergone had a transformation. takes issue with the court’s assertion mention of the or words “Muslim” “Islam” should be “avoided 2/14/11, like the Ac- plague.” Opinion, PCRA Court 57. the court’s as to the cording Appellant, view wisdom irrelevant, offering testimony such as it was for Appellant present jury. Appellant evidence he wanted to the maintains that he was this exclusion of testimo- prejudiced