Case Information
*1 J-S02026-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA Appellee v. NAEEM JONES Appellant No. 1432 EDA 2016 Appeal from the PCRA Order April 28, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0006591-2007 BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ. MEMORANDUM BY STABILE, J.: FILED APRIL 19, 2017
Appellant, Naeem Jones, appeals from the April 28, 2016 order entered in the Court of Common Pleas of Philadelphia County (“PCRA court”), denying his petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The procedural history of the matter is undisputed. Following a jury trial from August 18-25, 2008, Appellant was found guilty of first-degree murder and possessing instruments of crime (“PIC”). 1
Appellant was sentenced to life without parole on the murder charge. After having his direct appellate rights reinstated on November 19, 2010, Appellant appealed ____________________________________________ 1 18 Pa.C.S.A. §§ 2502(a) and 907, respectively. *2 J-S02026-17 to this court. On November 15, 2011, this Court affirmed Appellant’s judgment of sentence. See Commonwealth v. Jones , 3389 EDA 2010, Unpublished Memorandum at 11 (Pa. Super. Filed Nov. 15, 2011). Our Supreme Court denied Appellant’s petition for allowance of appeal on April 4, 2012. Appellant filed a timely pro se PCRA petition on December 21, 2012. The PCRA court appointed counsel, who filed an amended PCRA petition on August 12, 2015, an addendum to the petition on October 15, 2015, and a motion to supplement evidence on January 20, 2016.
The PCRA court held a hearing on January 21, 2016, and April 1, 2016. Following post-hearing briefs by the parties, the PCRA court denied the petition on April 28, 2016. Appellant filed a timely appeal on May 4, 2016. The PCRA court did not direct Appellant to file a concise statement; however, the PCRA court filed a Pa.R.A.P. 1925(a) opinion on May 24, 2016.
Appellant raises three questions on appeal, which we quote verbatim. I. Was trial counsel ineffective for failing to request an alibi instruction
where counsel presented alibi testimony and argued that alibi in his closing? Was this failure the cause of significant prejudice to Appellant’s cause?
II. Was trial counsel ineffective for failing to object to the introduction of bad acts evidence, including a police photo, that met none of the exceptions of a Pa.R.E. 404§(b)(1)? Was this failure the cause of significant prejudice to Appellant’s cause?
III. Was after discovered evidence that was wholly exculpatory, credible and compelling enough to warrant a new trial? Appellant’s Brief at 1 (sic). - 2 - *3 J-S02026-17 Our standard of review of a PCRA court’s denial of a PCRA petition is well settled. We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de
novo
and our scope of review plenary.
Commonwealth v. Ford
, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted).
After careful review of the record, the briefs, and the relevant case law, we find that the PCRA court’s May 24, 2016 opinion, thoroughly and adequately addresses all of Appellant’s claims. See Trial Court Opinion, 5/24/2016, at 4-12. The PCRA court’s findings are supported by the record and are free of legal error. We direct that a copy of the PCRA court’s May 24, 2016 opinion be attached to any future filings in this case.
Order affirmed. - 3 - *4 J-S02026-17 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/19/2017
- 4 - *5 ,--- .. --· .. Circulated 03/23/2017 01:00 PM IN THE COURT OF COMMON PLEAS
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION CRIMINAL TRIAL DMSION COMMONWEALTH OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA : CP-51-CR-0006591-2007 CP-51-CR-0006591-2007 FILED FILED
v. CP,51.CR-0006591-2007 Comm. v. Jones, Naoam CP-51-CR-QoQ659127 Comm Jones Naeem
MAY 2 4 2016
MAY e>p;r;on 2016 Opiron
NAEEM JONES Criminal Appeals Unit NAEEM JONES Criminal Appeals Unit II 111111111111111111111
First Judicial Distrtct of PA
First Judicial District of PA
7451116811 7451116811 OPINION OPINION
McDermott, J. May 24 2016 May 24, 2016 McDermott Proceduralllistory
Procedural History
On November On November 8, 2006, the Petitioner, Naeem Jones, was arrested· and charged with 2006 the Petitioner Naeem Jones was arrested and charged with Murder and related offenses On August 25 2008 before the Honorable Carolyn Temin jury Murder and related offenses. On August 25, 2008, before the Honorable Carolyn Temin, a jury returned guilty verdicts to First-Degree Murder and Possession of an Instrument of Crime returned guilty verdicts to First-Degree Murder and Possession of an Instrument of Crime PlC On December 18 2008 Judge Temin imposed term of imprisonment of life without ("PIC"). On December 18, 2008, Judge Temin imposed a term of imprisonment of life without parole for First-Degree Murder. 1 The Petitioner did not file an appeal. parole for First-Degree Murder.1 The Petitioner did not file an appeal
On May 13 2009 the Petitioner filed Post-Conviction Relief Act PCRA petition On
May 13, 2009, the Petitioner filed a Post-ConvictionRelief Act ("PCRA") petition,
seeking reinstatement of his appellant rights.· On November 19, 2010, the Petitioner's direct seeking reinstatement of his appellant rights On November 19 2010 the Petitioners direct appeal rights were reinstated. On December 9, 2010, the Petitioner filed an appeal with Superior appeal rights were reinstated On December
2010 the Petitioner filed an appeal with Superior Court alleging that the evidence was insufficient to support First-Degree Murder. On November Court alleging that the evidence was insufficient to support First-Degree Murder On November 15, 2011, Superior Court affirmed his judgment of sentence. On December 7, 2011, the 15 2011 Superior Court affirmed his judgment of sentence On December
2011 the Petitioner filed a Motion to Vacate and/or Reconsider Fines, Costs, and Restitution, which Judge Petitioner filed Motion to Vacate and/or Reconsider Fines Costs and Restitution which Judge Temin denied on December 21. On April 4, 2012, the Supreme Court denied Petitioner's Temin denied on December 21 On April
2012 the Supreme Court denied Petitioners I The Petitioner received no further penalty on the PIC charge. The Petitioner received no ftrther penalty on the PlC charge
*6 Petition for Allowance of Appeal On December 21 2011 the Petitioner filed PCRA petition Petition for Allowance of Appeal. On December 21, 2011,
the Petitioner filed a PCRA -petition.
On August 122015 appointed PCRA counsel Susan Burt Esquire filed an Amended Petition On August 12, 2015, appointed PCRA counsel, Susan Burt, Esquire, filed an Amended Petition alleging layered claims of ineffective assistance and claim of after-discovered evidence Qn alleging layered claims of ineffective assistance and a claim of after-discovered evidence. On October 15 2015 PCRA counsel filed an addendum to that petition On December 28 2015 the October 15, 2015, PCRA counsel filed an addendum to that petition. On December 28, 2015, the Commonwealth filed Motion to Dismiss but did not oppose an evidentiary hearing with regard Conunonwealth filed a Motion to Dismiss, but did not oppose an evidentiary hearing with regard to the Petitioner's after-discovered evidence claim. to the Petitioners after-discovered evidence claim On January 20 2016 PCRA counsel
On January 20, 2016, PCRA counsel filed a Motion to Supplement Evidence of filed Motion to Supplement Evidence of Ineffectiveness of Trial Counsel arguing an additional claim On January 21 2016 this Court Ineffectiveness of Trial Counsel, arguing an additional claim. On January 21, 2016, this Court held an evidentiary hearing in which Robert Corbin testified concerning after-discovered held an evidentiary hearing, in which Robert Corbin testified concerning after-discovered evidence The hearing was bifurcated with Corbin testimony concluding on April evidence. The hearing was bifurcated, with Corbin's testimony concluding on April 1, 2016. 2016 Trial counsel Fred Harrison Esquire also testified on this date On April 21 the Trial counsel, Fred Harrison, Esquire also testi:~ed on this date. On April 21, the· Commonwealth filed Post-Hearing Brief requesting this Court to deny the Petitioner PCRA Commonwealth filed a Post-Hearing Brief requesting this Court to deny the Petitioner PCRA relief On April 25 2016 the Petitioner filed Supplemental Brief in Support of New Trial relief. On April 25, 2916, the Petitioner filed a Supplemental Brief in Support of a New Trial. On April 28 this Court dismissed the Petitioners claims On May On April 28, this Court dismissed the Petitioner's claims. Ori May 4, 2016, the Petitioner filed a
2016 the Petitioner filed Notice of Appeal to Superior Court. Notice of Appeal to Superior Court Facts
In its November 15, 2011 opinion, the SuperiorCourt summarized the facts as follows: In its November 15 2011 opinion the Superior Court summarized the facts as follows On the evening of February 20, 2006, the victim [Steven Bartley] and On the evening of February 20 2006 the victim Bartley and his friend, Terrance Speller ("Speller"), went to the Big Fells'a sports bar his Mend Terrance Speller Speller went to the Big Fellsa sports bar at 33rd and Reed Streets in Philadelphia. Although Speller was treating at 33rd and Reed Streets in Philadelphia Although Speller was treating the bar's patrons to drinks, he and the victim were not warmly received. the bars patrons to thinks he and the victim were not warmly received Testimony was presented that [the Petitioner] argued with Speller about Testimony was presented that Petitioner argued with Speller about the use of the juke box in the bar. Additionally, one of [the Petitioner's] the use of the juke box in the bar Additionally one of
Petitioners friends, Charles='Biggie" Waters ("Waters"), had a heated argument with Mends Charles Biggie Waters Waters had heated argument with the victim when the victim tried to talk to woman whom Waters stated the victim when the victim tried to talk to a woman whom Waters stated
was there with him and the [the Petitioner].
was there with him and the
Petitioner Later that evening Kamira Woods Woods was screaming in the Later that evening, Kamira Woods ("Woods") was screaming in the men's bathroom. James Frager ("Frager") and others rushed in and found mens bathroom James Frager Frager and others rushed in and found Speller with his pants and belt open Speller had his hands around Woods Speller with his pants and belt open. Speller had his hands around Woods'
2 ·t *7 Petitioner had dated Woods for five years neck. [The Petitioner] had dated Woods for five years but they broke up neck but they broke up the year before as she alleged he had hit her and threated her Frager the year before, as she alleged he had hit her and threated her. Frager testified that [the Petitioner] and the other men argued with Speller and Petitioner and the other men argued with Speller and testified that the victim about this incident until the bartender announced "last call" and the victim about this incident until the bartender announced last call and the bar patrons thereafter went out onto the street. . the bar patrons thereafter went out onto the street
Frager testified that when he left the bar, [the Petitioner] was standing Frager testified that when he left the bar Petitioner was standing outside with the victim, Speller, Waters, and Curtis Scott. A police officer outside with the victim Speller Waters and Curtis Scott police officer driving to the scene of an unrelated accident observed the victim talking driving to the scene of an unrelated accident observed the victim talking emphatically to another man outside the bar. As Frager got into his car[,] emphatically to another man outside the bar As Frager got into his car he heard gunshots, but did not observe anything. Frager then observed
he heard gunshots but did not observe anything Frager then observed
[the Petitioner] and others standing over the victim immediately after the Petitioner and others standing over the victim inunediately after the shooting.
shooting
Testimony was presented that the victim died of multiple gunshot Testimony was presented that the victim died of multiple gunshot wounds and the manner of death was homicide Dr Gregory McDonald wounds and the manner of death was homicide. Dr. Gregory McDonald
stated that the victim sustained approximately nine to twelve gunshots[,]
stated that the victim sustained approximately nine to twelve gunshots fired from at least two semi-automatic weapons. The victim was shot fired from at least two semi-automatic weapons The victim was shot twice in the face at close range. Those bullets penetrated his skull, brain twice in the face at close range Those bullets penetrated his skull brain stem, and cerebellum[,] and immediately destroyed his ability to move stem and cerebellum and immediately destroyed his ability to move volitionally. The victim was also shot in the back, arms, legs, and chest. volitionally The victim was also shot in the back arms legs and chest Those bullets pierced his spine, liver, kidney, and lungs. Those bullets pierced his spine liver kidney and lungs
The Commonwealth presented evidence that later that day, [the The Commonwealth presented evidence that later that day Petitioner] called his friend, Vincent Dickerson ("Dickerson"), and stated Petitioner called his Mend Vincent Dickerson Dickerson and stated that there had been a problem with Woods at the bar. [The Petitioner] problem with Woods at the bar there had been that Petitioner stated that W cods had been prostituting herself and that he shot a man that stated that Woods had been prostituting herself and that he shot man that was trying to get involved on Woods' behalf involved on Woods behalf [The Petitioner]' told was trying to get
Petitioner told Dickerson that he thought the police were looking for him and that he did the police were looking for him and that he did Dickerson that he thought not know where to go or what to do. 2 The police encountered [the not know where to go or what to do.2 The police encountered Petitioner] later that night in an unrelated incident; he was in a car with Petitioner later that night in an unrelated incident he was in car with Biggie and others. The police stopped the car due to a suspicion of Biggie and others The police stopped the car due to suspicion of marijuana The car was searched and [the Petitioner] was arrested for drug marijuana The car was searched and Petitioner was arrested for drug possession.
possession
Woods gave a statement to the police on February 21, 2006 and Woods gave to the police on February 21 2006 and statement November 3, 2006. In her first statement, she omitted reference to [the 2006 In her first statement she omitted reference to November Petitioner]; in the second [statement], she overcame her fear of him and she overcame her fear of him and Petitioner in the second his history of violence and described his participation in the murder. his history of violence and described his participation in the murder Woods told police that she observed [the Petitioner] point a gun at the Woods told police that she observed gun at the
Petitioner point victim, stretch out his arm, and shoot at the victim numerous times. When victim stretch out his arm and shoot at the victim numerous times When [the Petitioner] Petitioner learned that Woods gave learned that Woods gave a statement to the police on
statement to the police on February 21, 2006, he sought her out the next day to ask if the· detectives February 21 2006 he sought her out the next day to ask if the detectives mentioned his name, whose picture they showed her, and whose names mentioned his name whose picture they showed her and whose names the police had. Thereafter, in early November, Dickerson also provided a the police had Thereafter in early November Dickerson also provided
2 Dickerson testified that the statement presented by the Commonwealth that the Petitioner confessed was fabricated testified that the statement presented by the Commonwealth that the Petitioner confessed was fabricated by police.
by police
I
*8 statement to the police detailing [the Petitioner's] involvement .in the Petitioners involvement statement to the police detailing in the murder. 3 [The Petitioner] was arrested on November 8, 2006. 2006 murder.3 Petitioner was arrested on November
A Cobra Arms M-11 semi-automatic weapon was found in an abandoned Cobra Arms M-l semi-automatic weapon was found in an abandoned house around the comer from 33rd street. Officer Ernest Bottomer;a forensic house around the corner from street Officer Ernest Bottomer forensic ballistics expert, testified that the gun was one of the murder weapon. Officer ballistics expert testified that the gun was one of the murder weapon Officer Bottomer testified that there was a least one other gun used in the murder. Bottomer testified that there was least one other gun used in the murder
The defense presented the testimony of Debbie Royster Royster The defense presented the testimony of Debbie Royster ("Royster''). Royster testified that when the shots rang out she was in the ladies room Royster testified that when the shots rang out[,] she was in the ladies' room of the bar with [the Petitioner]. Royster averred that she and [the Petitioner] of the bar with Petitioner Royster averred that she and Petitioner were doing cocaine together at that time and exited the bathroom upon that time and exited the bathroom upon were doing cocaine together at hearing the gunshots. hearing the gunshots
Commonwealth Naeem Jones 3389 EDA 2010 November 15 2011 non-precedential Commonwealth v. Naeem Jones, 3389 EDA 2010 (November 15, 2011) (non-precedential
decision) (internal citations omitted).
decision internal citations omitted Discussion
Discussion
The Petitioner raises four layered ineffective assistance of counsel claims along with a The Petitioner raises four layered ineffective assistance of counsel claims along with claim of after-discovered evidence. To obtain relief based on a claim of ineffective assistance of claim of after-discovered evidence To obtain relief based on claim of ineffective assistance of counsel, a petitioner must show that such ineffectiveness "in the circumstances of the particular in the circumstances of the particular counsel petitioner must show that such ineffectiveness case, so undermined the truth-determining process that no reliable adjudication of guilt or case so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006); 42 innocence could have taken place Commonwealth Jones 912 A.2d 268 278 Pa 2006 42 PaC.S. § 9543(aX2Xii). Counsel is strongly presumed to have rendered effective assistance and Pa.C.S 9543a2ii Counsel is strongly presumed to have rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. made all significant decisions in the exercise of reasonable professional judgment Strickland Washington 466 U.S 668 1984 Commonwealth Weiss 81 A.3d 767 783 Pa 2013 Washington, 466 U.S. 668 (1984); Commonwealth v. Weiss, 81 A.3d 7_67, 783 (Pa. 2013).
To overcome this strong presumption, the Petitioner has to satisfy the performance and To overcome this strong presumption the Petitioner has to satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668 {1984). The Strickland test prejudice test set forth in Strickland Washington 466 U.S 668 1984 The Strickland test applies by looking to three elements-whether: (1) the underlying· claim has arguable merit; (2) applies by looking to three elementswhether the underlying claim has arguable merit
·1 no reasonable basis existed for counsel's actions or failure to act; and (3) the petitioner has no reasonable basis existed for counsels actions or failure to act and the petitioner has shown that he suffered prejudice as a result of counsel's lapse, i.e., that there is a reasonable shown that he suffered prejudice as
result of counsels lapse i.e that there is reasonable 3 At trial, Woods did not contradict her statement, but indicated that she did not remember the incident due to ckug 3At trial Woods did not contradict her statement but indicated that she did not remember the incident due to drug use.
use
*9 probability that the result of the proceeding would have been different Commonwealth probability that the result of the proceeding would have been different. Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 2012) (citing Commonwealth v. Pierce, 527 A.2d 973, 975 Bennett 57 A.3d 1185 119596 Pa 2012 citing Commonwealth Pierce 527 A.2d 973 975 (Pa. 1987)). Failure to satisfy any prong of this test for ineffectiveness will require rejection of Pa 1987 Failure to satisfy any prong of this test for ineffectiveness will require rejection of the claim. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. Super. 2003). If a claim fails under the claim Commonwealth Fulton 830 A.2d 567 572 Pa Super 2003 If claim fails under any necessary element of the
Strickland
test, the court may proceed to that element first. Bennett, any necessary element of the Strickland test the court may proceed to that element first Bennett 57 A.3d at 1196. A "claim has arguable merit where the factual avennents, if accurate, could 57 A.3d at 1196 claim has arguable merit where the factual averments if accurate could establish cause for relief Commonwealth Pander 100 A.3d 626 631 Pa Super 2013 establish cause for relief." Commonwealth v. Pander, 100 A.3d 626, 631 (Pa. Super. 2013).
An adequate and properly layered claim must contain more than boilerplate assertions of An adequate and properly layered claim must contain more than boilerplate assertions of prior counsel's ineffectiveness, because "[sjuch an undeveloped argument, which fails to an undeveloped argument which fails to prior counsels ineffectiveness because meaningfully discuss and apply the standard governing the review of ineffectiveness claims, meaningfully discuss and apply the standard governing the review of ineffectiveness claims simply does not satisfy Appellant's burden of establishing that he is entitled to any simply does not satisfy Appellants burden of establishing that he is entitled to any
. . relief." Commonwealth v. Rivera, 816 A.2d 282 (Pa. Super. 2003) (quoting Commonwealth v. relief Commonwealth Rivera 816 A.2d 282 Pa Super 2003 quoting Commonwealth Abdul-Salaam, 808 A.2d 558 (Pa. 2001). A layered claim also cannot be sustained where the Abdul-Salaam 808 A.2d 558 Pa 2001 layered claim also cannot be sustained where the
. . . underlying-claim is unmeritorious. Commonwealth v. Williams, 950 A.2d 294, 300 (Pa. 2008); underlying claim is unmeritorious Commonwealth Williams 950 A.2d 294 300 Pa 2008 Commonwealth McGill 832 A.2d 1014 102 122 Pa 2003 This Court finds that the Commonwealth v. McGill, 832 A.2d 1014, 1021-22 (Pa. 2003). This Court finds that the
Petitioner has submitted properly layered claims.
Petitioner has submitted properly layered claims
In his first issue, the Petitioner claims that his first PCRA counsel was ineffective for issue the Petitioner claims that his first PCRA counsel was ineffective for In his first
. failing to raise the issue that trial counsel did not request records for a landline phone at failing to raise the issue that trial counsel did not request records for landline phone at Dickerson's home. 4 In his statement, Dickerson told police that the Petitioner called him on the Dickersons home.4 In his statement Dickerson told police that the Petitioner called him on the phone after the shooting and told him that Woods had been prostituting herself at a bar, and that phone after the shooting and told him that Woods had been prostituting herself at bar and that he shot a man who was trying to get involved on her behalf. The Petitioner also told Dickerson he shot man who was trying to get involved on her behalf The Petitioner also told Dickerson that he thought the police were looking for him and that he did not know where to go. N.T. the police were looking for him and that he did not know where to go N.T that he thought 4 This claim was added by the Petitioner in his January 20, 2016 Motion to Supplement Evidence of Ineffectiveness
This claim was added by the Petitioner in his January 20 2016 Motion to Supplement Evidence of Ineffectiveness of Trial Counsel. of Trial Counsel *10 8/21/2008 at 18890 At both the preliminary hearing and at trial Dickerson refuted his 8/21/2008 at ~ 88-90. At both the preliminary hearing and at trial, Dickerson refuted his statement and said that he did not own statement and said that he did not own a landline phone at 1518 Corlies Street at the time of the landline phone at 1518 Conies Street at the time of the call N.T 5/29/2007 at 67 N.T 8/21/2008 call. N.T. 5/29/2007 at 67; N.T. 8/21/2008 at 193. From a records subpoena issued to Verizon in at 193 From records subpoena issued to Verizon in landline at Dickersons home in 2015, the Petitioner maintains that there was no record of a landline at Dickerson's home in 2015 the Petitioner maintains that there was no record of 2006 Petitioner argues that because trial counsel knew about this issue from the preliminary 2006. 5 Petitioner argues that because trial counsel knew about this issue from the preliminary
hearing, he should have issued a subpoena before trial to verify that Dickerson did not have a
hearing he should have issued subpoena before trial to verify that Dickerson did not have landline phone. landline phone
The Petitioner has failed to meet his burden in demonstrating that the underlying claim The Petitioner has failed to meet his burden in demonstrating that the underlying claim has
arguable merit Based upon the evidence provided, this Court cannot conclude that
has arguable merit Based upon the evidence provided this Court cannot conclude that Dickerson did not have a landline phone. In April 2015, the Petitioner subpoenaed Verizon Dickerson did not have landline phone In April 2015 the Petitioner subpoenaed Venizon requesting "[ a ]ny and all records of a telephone number issued to 1518 S. Corlies Street, telephone number issued to 1518 Corlies Street and all records of requesting Philadelphia PA during 2006 On April Philadelphia, PA during 2006." On April 2, 2015, Verizon's Legal Compliance Office 2015 Verizons Legal Compliance Office responded by stating that the subpoena was "being returned ... [as] no accounts, documents, responded by stating that the subpoena was being returned no accounts documents records, or other materials were responsive to the legal 'request, based upon the information records or other materials were responsive to the legal request based upon the information provided," Verizon added that, "land line records are telephone" number driven." (emphasis provided Verizon added that land line records are telephone number driven emphasis added). Verizon's response did not attest that there w_ere not landline phones at 1518 S. Corlies added Verizon response did attest that there were not landline phones at 1518 Corlies Street Rather, their response plainly indicated. that the subpoena was insufficient as the Street Rather their response plainly indicated that the subpoena was insufficient as the Petitioner needed to provide more information to fulfill the request. Moreover, even if'Verizon Petitioner needed to provide more information to fulfill the request Moreover even if Verizon could attest that it did not have any landline ·phones at the subject address, that information could attest that it did not have any landline phones at the subject address that information would still not be dispositive as Verizon was not the sole provider for landline phones in would still not be dispositive as Verizon was not the sole provider for landline phones in Philadelphia in 2006. For these reasons; this 'claim is dismissed. Philadelphia in 2006 For these reasons this claim is dismissed s The Petitioner attached Verizon's subpoena response to his January 21, 2006 Motion to Supplement Evidence of
The Petitioner attached Verizons subpoena response to his January 21 2006 Motion to Supplement Evidence of Ineffectiveness of Trial Counsel. Although Verizon's response was dated April 2, 2015, Ms. Burt stated that she did Ineffectiveness of Trial Counsel Although Verizons response was dated April 2015 Ms Burt stated that she did not receive the response until January 15, 2016, because it was directed to an address where she no longer received not receive the response until January 152016 because it was directed to an address where she no longer received mail.
*11 The Petitioner asserts that his first PCRA counsel failed to raise trial counsels failure to The Petitioner asserts that his first PCRA counsel failed to raise trial counsel's failure to
object to evidence thatthe Petitioner was arrested for a small amount of drugs within a day of the object to evidence that the Petitioner was arrested for small amount of drugs within day of the murder. At trial, Officer Gamble testified that he found a small amount of marijuana on the murder At trial Officer Gamble testified that he found small amount of marijuana on the Petitioner during vehicle stop about twenty hours after the shooting.6 N.T 8/21/2008 Petitioner during a vehicle stop, about twenty hours after the shooting. 6 N.T. 8/21/2008 at 234. at 234 At sidebar the judge sought the relevancy of the officers testimony The Commonwealth stated At sidebar, the judge sought the relevancy of the· officer's testimony. The Commonwealth stated that the testimony was relevantto show that the description of the Petitioner's clothing at the that the testimony was relevant to show that the description of the Petitioners clothing at the time of the stop matched his clothing from the shooting. Defense counsel stated that he was time of the stop matched his clothing from the shooting Defense counsel stated that he was cross-examining the officer to show that the Petitioner did not attempt to flee from police during cross-examining the officer to show that the Petitioner did. not attempt to flee from police during . the stop Id at 25 152 the stop. Id. at 251-52.
This Court finds that the Petitioner's claim is without merit as trial counsel offered a
This Court finds that the Petitioners claim is without merit as trial counsel offered
reasonable basison the recordon why he did not object to the officers testimony Further reasonable basis-on the record-on why he did not object to the.officer's testimony. Further, I I. the drug reference was minimal and no~ dwelled onby the Commonwealth. For these reasons.. the drug reference was minimal and not dwelled on by the Commonwealth For these reasons I I the Petitioner cannot show that without this testimony about a small amount of marijuana, a the Petitioner cannot show that without this testimony about small amount of marijuana i reasonable probability -existed that the result of the proceeding would have been different. See reasonable probability existed that the result of the proceeding would have been different See Commonwealth v. Weiss, 81 A.3d 767 (Pa. 2013) (finding a minimal drug reference that-was not Commonwealth Weiss 81 A.3d 767 Pa 2013 fmding minimal drug reference that was not dwelled on by the Com.tnonwealth did not amount toprejudice). dwelled on by the Commonwealth did not amount to prejudice The Petitioner also claims that his first PCRA counsel
The Petitioner also claims that his first PCRA counsel failed to· raise trial counsel's failed to raise trial counsels failure to object to the jury seeing the Petitioner's photograph related to the marijuana arrest. At failure to object to the jury seeing the Petitioners photograph related to the marijuana arrest At trial, when questioning a witness (James Frager) about hispolice statement, the Commonwealth trial when questioning witness James Frager about his police statement the Commonwealth showed the Petitioner's photograph related to· the marijuana arrest. At sidebar, trial counsel showed the Petitioners photograph related to the marijuana arrest At sidebar trial counsel indicated that he did not object because the Petitioner was arrested later that day for the subject indicated that he did not object because the Petitioner was arrested later that day for the subject homicide. N.T. 8/21/2008 at.54-55. homicide N.T 8/21/2008 at 54S 6 The drug charge was dismissed prior to trial.
The drug charge was dismissed prior to trial *12 ThePetitioner fails to show prejudice as courts have held that an arrest photo itself does The Petitioner fails to show prejudice as courts have held that an arrest photo itself does not infer that the Defendant is a criminal. See Commonwealth v. Lawrence, 596 A.2d 165, 169 is criminal See Commonwealth Lawrence 596 A.2d 165 169 not infer that the Defendant (Pa. Super. 1991) (abrogated on other ground by Commonwealth v. Jette, 23 A.3d 1032 (Pa. Pa Super 1991 abrogated on other giound by Commonwealth Jette 23 A.3d 1032 Pa 2011)). In Lawrence, where a photographic array including the appellant's photograph was 2011 In Lawrence where photographic array including the appellants photograph was shown to the jury, the court held that "[ajlthough no testimony existed to explain police shown to the jury the court held that no testimony existed to explain police possession of the photo, the most that couldbe inferred from such a reference was that appellant possession of the photo the most that could be inferred from such reference was that appellant had had prior contact with the police and not a prior record or a previous conviction." 596 A.2d had had prior contact with the police and not prior record or previous conviction 596 A.2d at 169-70; see also Commonwealth v. Allen, 292 A.2d 272 (Pa. 1972) (no prejudice found where at 16970 see also Commonwealth Allen 292 A.2d 272 Pa 1972 no prejudice found where police assembled a photo array with the Petitioner's police photo); see also Commonwealth v. photo array with the Petitioners police photo see also Commonwealth police assembled Brown, 512 A.2d 596 (Pa. 1986) (where "mugshots" were shown to the jury, the court held that Brown 512 A.2d 596 Pa 1986 where mugshots were shown to the jury the court held that ''prior contact with the police in itself proves nothing. It doesnot prove a prior record or prior contact with the police in itself proves nothing It does not prove prior record or previous crime; it only proves a previous contact."). Prior contact with the police can occur previous crime it only proves previous contact. Prior contact with the police can occur under a variety of circumstances that are. not criminal in nature including involvement in a motor under variety of circumstances that are not criminal in nature including involvement in motor vehicle accident or violation, or being a witness or a victini to a crime; Commonwealth v. Young, vehicle accident or violation or being witness or victim to crime Commonwealth
Young 849 A,2d 1152, 1156 (Pa. 2004). At best, the photograph in the instant matter indicated prior 849 A.2d 1152 1156 Pa 2004 At best the photograph in the instant matter indicated prior contact with police; not a prior arrest or conviction." Because the Petitioner cannot show contact with police not prior arrest or conviction.7 Because the Petitioner cannot show prejudice, he is not entitled to relief.
.
prejudice he is not entitled to relief The Petitioner claims that. his first PCRA counsel was ineffective for failing to raise trial The Petitioner claims that his first PCRA counsel was ineffective for failing to raise trial
. I counsel, s failure to request an alibi instruction.. At trial, Royster testified that she was in the counsels failure to request an alibi instruction At trial Royster testified that she was in the bathroom doing drugs with the Petitioner at the time of the shooting; and that after hearing bathroom doing drugs with the Petitioner at the time of the shooting and that after hearing gunfire, she and the Petitioner ran to the bar's front door, which was locked by the .bartender, gunfire she and the Petitioner ran to the bars front door which was locked by the bartender 7 Even if the photograph did indicate a prior arrest,' the Petitioner cannot show prejudice as the jury was aware that
Even if the photograph did indicate prior arrest the Petitioner cannot show prejudice as the jury was aware that he was arrested for a small amount of marijuana. he was arrested for small amount of marijuana *13 temporarily preventing them from going outside N.T 8/22/2008 at 233 Defense counsel did temporarilypreventing them from going outside. N.T. 8/22/2008 at 233. Defense counsel did not request an alibi instruction; nor was one given in the jury charge. not request an alibi instruction nor was one given in the jury charge
Failure to request an alibi ~nstructio~ is 'not per se ineffectiveness. Commonwealth v. Failure to request an alibi instruction is not per se ineffectiveness Commonwealth Hawkins, 894 A.2d 716 (Pa. 2006). For counsel to be deemed ineffective for failing to request Hawkins 894 A.2d 716 Pa 2006 For counsel to be deemed ineffective for failing to request an alibi instruction, all three prongs of the Pierce/Strickland test for ineffectiveness must be met'. instruction all three prongs of the Pierce/Strickland test for ineffectiveness must be met an alibi Commonwealth Sileo 32 A.3d 753 Pa Super 2011 stating that there must be prejudice for Commonwealth v. Sileo, 32 A.3d 753 (Pa .. Super. 2011) (stating that there must be prejudice for ineffectiveness regarding failure to request an alibi instruction); see also Hawkins, 894 A.2d 716 ineffectiveness regarding failure to request an alibi instruction see also Hawkins 894 A.2d 716 (if counsel had a reasonable explanation for failing to request an alibi instruction, no if counsel had reasonable explanation for falling to request an alibi instruction no ineffectiveness is present). 8 · ineffectiveness is present.8
At the evidentiary hearing, trial counsel offered a reasonable explanation for not At the evidentiary hearing trial counsel offered reasonable explanation for not
requesting an alibi instruction. He articulated that he did not request one because the Petitioner requesting an alibi instruction He articulated that he did not request one because the Petitioner was still on the premises at the time of the shooting. Trial counsel believed an argument could was still on the premises at the time of the shooting Trial counsel believed an argument could still be made that the Petitioner left the bar and committed the murder . .N.T.. 4/01/2016 at 68-69. still be made that the Petitioner left the bar and committed the murder N.T 4/01/2016 at 6869
Even if trial counsel did not have a-reasonable basis for his inaction, this Court still finds Even if trial counsel did not have reasonable basis for his inaction this Court still finds that the Petitioner fails to show how counsel's failure to request an alibiinstruction prejudiced that the Petitioner fails to show how counsels failure to request an alibi instruction prejudiced him. Commonwealth v. AU, 10 A.3d 282 (Pa. 2010) (Petitioner has not suffered prejudice.from him Commonwealth Ali 10 A.3d 282 Pa 2010 Petitioner has not suffered prejudice from counsel's alleged deficient performance unless there is a 'reasonable probability that-the verdict counsels alleged deficient performance unless there is reasonable probability that the verdict would have been different). Trial counsel highlighted Royster's testimony in closing arguments would have been different Trial counsel highlighted Roysters testimony in closing arguments and argued not only that the jury_ should evaluate her testimony, but also that the Commonwealth and argued not only that the jury should evaluate her testimony but also that the Commonwealth had failed to offer a witness to refute her, including .subpoenaing the bartender who Royster had had falled to offer witness to refute her including subpoenalng the bartender who Royster had testified locked her and the Petitioner inside the bar N.T 8/25/2016 at 6364 The jurys verdict testified locked her and the Petitioner inside the bar .. N. T. 8/25/2016 at 63-64. The jury's verdict 8 Hawkins found that counselhad a reasonable basis for not requesting an alibi instruction where counsel stated that· 8Hawkins found that counsel had reasonable basis for not requesting an alibi
instruction where counsel stated that where alibi testimony is weak, highlighting that testimony explicitly as alibi evidence disserves the defendant's where alibi testimony is weak highlighting that testimony explicitly as alibi evidence disserves the defendants interests. Commonwealth v. Hawkins, 894 A.2d 716 (Pa. 2006). Hawkins 894 A.2d 716 Pa 2006 interests Commonwealth *14 indicates that they chose not to believe Royster's testimony. It is extremely unlikely-with or indicates that they chose not to believe Roysters testimony It is extremely unlikelywith or without an alibi instruction-that the jury would have believed Royster yet still convicted the without an alibi instructionthat the jury would have believed Royster yet still convicted the Petitioner of the crime. Petitioner of the crime
Moreover, the Commonwealth presented overwhelming evidence to support the Moreover the Commonwealth presented overwhelming evidence to support the
Petitioner's guilt. Two witnesses placed the Petitioner outside the bar at the time of the shooting. Petitioners guilt Two witnesses placed the Petitioner outside the bar at the time of the shooting Woods told police that she witnessed the Petitioner point gun at the victim and shoot him Woods told police that she witnessed the Petitioner point a gun at the victim and shoot him
[: numerous times. Frager testified that when he left the bar, the Petitioner was standing outside numerous times Frager testified that when he left the bar the Petitioner was standing outside :
with the victim. Immediately after hearing gunshots, Frager saw the Petitioner standing over the
with the victim Immediately after hearing gunshots Frager saw the Petitioner standing over the · victim. In addition to there being two witnesses, the Petitioner also confessed to the murder. victim In addition to there being two witnesses the Petitioner also confessed to the murder Following the shooting, the Petitioner told Dickerson of his involvement in the murder as well as Following the shooting the Petitioner told Dickerson of his involvement in the murder as well as his motive for the shooting. For these reasons, the Petitioner cannot demonstrate prejudice. his motive for the shooting For these reasons the Petitioner cannot demonstrate prejudice Thus, no relief is warranted. Thus no relief is warranted
This Court examined the cumulative prejudicial effect of the alleged errors of trial This Court examined the cumulative prejudicial effect of the alleged errors of trial
counsel, and finds there was no reasonable probability that had these matters been handled counsel and finds there was no reasonable probability that had these matters been handled differently, the result of the trial would have been different. None of the Petitioner's claims differently the result of the trial would have been different None of the Petitioners claims Johnson 966 A.2d 523 Pa 2009 stating that if necessitates a new trial. See Commonwealth v. Johnson, 966 A2d 523 (Pa."2009) (stating that if new trial See Commonwealth necessitates multiple instances of deficient performance are found, the assessment of prejudice properly may multiple instances of deficient performance are found the assessment of prejudice properly may be premised upon cumulation). Courts have consistently held that no number of failed claims be premised upon cumulation Courts have consistently held that no number of failed claims may collectively warrant relief if they fail to do so individually. Commonwealth v. Cox, 983 to do so individually Commonwealth Cox 983 may collectively warrant relief if they fail A.2d 666 (Pa. 2009) (citing Commonwealth v. Washington, 927 A.2d 586, 617 (Pa. 2007)). This A.2d 666 Pa 2009 citing Commonwealth Washington 927 A.2d 586 617 Pa 2007 This Court is satisfied that no cumulative prejudice relief is warranted. Court is satisfied that no cumulative prejudice relief is warranted
Lastly, the Petitioner makes a claim of after-discovered evidence. The Petitioner averred Lastly the Petitioner makes claim of after-discovered evidence The Petitioner averred
that on June J 7, 20 J 5-nine years after the murder-he became aware of a witness, Robert that on June 17 201 5nine years after the murderhe became aware of witness Robert 10
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*15 ----···· ----· Corbin. Corbin asserted that he witnessed the subject shooting while on his way to purchase . Corbin Corbin asserted that he witnessed the subject shooting while on his way to purchase cigarettes for his then-fiancé Corbin who knew the Petitioner from the neighborhood claimed cigarettes for his then-fiance. Corbin, who knew the Petitioner from the neighborhood, claimed that he did not see the Petitioner outside the bar at the time of the shooting and that two other that he did not see the Petitioner outside the bar at the time of the shooting and that two other men shot the victim N.T 1/21/20 16 4060 men shot the victim. N.T. 1/21/2016 40-60.
For new trial based on after-discovered evidence the Petitioner must show by For a new trial, based on after-discovered evidence, the Petitioner must show by a
preponderance of the evidence that: (1) the evidence has been discovered after trial and it could
preponderance of the evidence that the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not not have been obtained at or prior to trial through reasonable diligence the evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a
is not being used solely to impeach credibility and it would likely compel cumulative it PCRA court is different verdict. Commonwealth v. D 'Amato, 856 A.2d 806, 823 (Pa. 2004). A PCRA court is different verdict Commonwealth Amato 856 A.2d 806 823 Pa 2004 tasked with assessing witnesss credibility at PCRA hearing and its credibility tasked with assessing a witness's credibility at a PCRA hearing, and its credibility determinations should be provided great deference by a reviewing court. Johnson, 966 A.2d at determinations should be provided great deference by reviewing court Johnson 966 A.2d at 539 one of the primary reasons PCRA hearings are held in the first place is so that credibility 539 ("one of the primary reasons PCRA hearings are held in the first place is so that credibility determinations can be made; otherwise, issues of material fact could be decided on pleadings and determinations can be made otherwise issues of material fact could be decided on pleadings and affidavits alone."). affidavits alone.
This Court finds Corbin's testimony contrived, inconsistent, and incredible. First, This Court finds Corbins testimony contrived inconsistent and incredible First Corbin's story on why he waited nine years to come forward. lacked believability. Corbin Corbin story on why he waited nine years to come forward lacked believability Corbin testified that he failed to come forward at his mother's request. N.T. 4/1/2016 at 41-42. A year testified that he failed to come forward at his mothers request N.T 4/1/2016 at 4142
year later when his motherdied, Corbin again failed to come forward, even though he knew the later when his mother died Corbin again failed to come forward even though he knew the wrong man had been arrested for the murder-he claimed that his father prevented him from wrong man had been arrested for the murderhe claimed that his father prevented him from doing so. When his father moved away a few years later, Corbin failed to come forward yet doing so When his father moved away
few years later Corbin failed to come forward yet again.
In
the subsequent years, no longer afraid nor under his parents' control-and admittedly again In the subsequent years no longer afraid nor under his parents controland admittedly still able to identify the two shooters-Corbin still failed to go the police or inform anyone of still able to identify the two shootersCorbin still failed to go the police or inform anyone of what he saw that night. N.T. 1/21/2016 at 59; N.T. 4/1/2016 at 45-49. what he saw that night N.T 1/21/2016 at 59 N.T 4/1/2016 at 4549
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*16 Next, Corbin's testimony was inconsistent. The record reflects that the shooting occurred Next Corbin testimony was inconsistent The record reflects that the shooting occurred right after last call at or about a.m In Corbins statement attached to the Petitioners right after "last call," at or about 2 a.m. In Corbin's statement attached to the Petitioner's petition, Corbin asserted that he was outside the bar at 1 :45 a.m. when he witnessed the shooting. petition Corbin asserted that he was outside the bar at 145 a.m when he witnessed the shooting
· ! Yet at the evidentiary hearing, Corbin stated that he was outside the bar at 12:40 a.m. N.T. Yet at the evidentiary hearing Corbin stated that he was outside the bar at 1240 a.m N.T
I
1/21/2016 at 43. This Court finds this disparity even more glaring since Corbin testified that he at 43 This Court finds this disparity even more glaring since Corbin testified that he 1/21/2016 knew what time the bar closed2 a.m.because the bar close at the same time every night knew what ti.me the bar closed-2 a.m.-because the "bar close[ d] at the same time every night." N.T 4/01/2016 N.T. 4/01/2016 at 9 (emphasis added). 9
at emphasis added.9 Finally, Corbin's testimony also conveniently eliminated all of the people who were Finally Corbins testimony also conveniently eliminated all of the people who were outside the bar at the time of the shooting. As noted above, Corbin stated that he still could outside the bar at the time of the shooting As noted above Corbin stated that he still could identify the two shooters; yet when shown photographs at the evidentiary hearing of Terrance identify the two shooters yet when shown photographs at the evidentiary hearing of Terrance Speller, Steven Barkley (the victim), Curtis Scott, Charles "Biggie" Waters, as well as James Speller Steven Barkley the victim Curtis Scott Charles Biggie Waters as well as James Fragerwho witnessed the aforementioned people and the Petitioner outside the bar 10Corbin Frager-who witnessed the aforementioned people and the Petitioner outside the bar 10 -Corbin failed to identify any of them as being present outside the bar at the time of the shooting. Id. at of them as being present outside the bar at the time of the shooting Id at failed to identify any 2225 4849 54 Because Corbin was unable to identify any of the participants outside the bar 22-25, 48-49, 54. Because Corbin was unable to identify any of the participants outside the bar,
this
Court finds it exceedingly unlikely that he could say with any level of certainty that the this Court finds it exceedingly unlikely that he could say with any level of certainty that the Petitioner was not one of those participants. Accordingly, this Court finds Corbin's testimony Petitioner was not one of those participants Accordingly this Court fmds Corbins testimony unlikely to compel a different verdict. different verdict unlikely to compel For the foregoing reasons these claims are DENIED
For the foregoing reasons, these claims are DENIED. BY THE COURT, BY THE COURT
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Barbara A. McDermott, J Barbara McDermott 9 This Court is not persuaded by the fact that Corbin later gave an accurate time for the shooting on day two of the This Court is not persuaded by the fact that Corbin later gave an accurate time for the shooting on day two of the bifurcated evidentiary hearing. bifurcated 1 ° Frager testified that everyone he saw inside the bar that night was outside when he left the bar right before the evidentiary hearing Frager testified that everyone he saw inside the bar that night was outside when he left the bar right before the shooting. N.T. 8/21/2008 at 30-31. Woods also told police that Frager was outside the bar atthe time of the at 3031 Woods also told police that Frager was outside the bar at the time of the shooting N.T 8/21/2008 shooting. N.T. 8/2212008 at 56. shooting N.T 8/22/2008 at 56
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