[J-80-2012]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 564 CAP
:
Appellee : Appeal from the Order of the Court of
: Common Pleas of Philadelphia County,
: Criminal Division, dated November 16,
v. : 2007 at No. CP-51-CR-1024821-1988
:
:
ANTHONY REID, :
: SUBMITTED: June 20, 2012
Appellant :
OPINION
MADAME JUSTICE TODD DECIDED: August 20, 2014
This is a capital appeal from the order of the Court of Common Pleas of
Philadelphia County denying Appellant Anthony “Tone Bey” Reid’s petition for relief
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. For the
reasons that follow, we affirm the order of the PCRA court.
I. Background
The facts underlying Appellant’s sentence are more fully discussed by our Court
on Appellant’s direct appeal. Commonwealth v. Reid, 642 A.2d 453 (Pa. 1994). A brief
summary of the facts, however, is required for our resolution of Appellant’s collateral
challenge to his conviction and sentence.
The evidence adduced at trial, and summarized in Reid, provides that on July 9,
1988, Mark Lisby (“the victim”) took approximately $500 worth of crack cocaine
capsules (“caps”) from his uncle Terrance Lisby (“Lisby”). The victim informed Lisby the
next day that he had used the caps, but did not have the money to pay Lisby. Lisby
worked for Lawrence Boston selling crack cocaine, and both of these individuals were
attempting to obtain membership in the Junior Black Mafia (“JBM”), a Philadelphia-
based crime syndicate. Boston and Lisby, in turn, worked for JBM member Kevin
Bowman. Once the victim understood that Bowman would be upset regarding the
missing drugs, he met with Bowman to explain the situation, and offered to make up for
the lost income the following week.
Two days later, Boston, who had not been paid by Lisby for the drugs, appeared
at the victim’s house at 2444 North Stanley Street in Philadelphia. Boston was joined
by Appellant, who was a member of the JBM. After a brief conversation, Appellant,
Boston, and the victim left the house and began walking west on Cumberland Street.
As the men approached the intersection of Cumberland Street and 31st Street, Appellant
drew a weapon and shot the victim once in the center of his chest, once in his upper
right chest beneath the collar bone, and once in the back of his right leg. The victim
died as a result of his wounds. Important for certain issues discussed below, at
Appellant’s first trial, Lawrence Boston testified as an eyewitness. At Appellant’s
second trial, Boston invoked his privilege against self-incrimination under the Fifth
Amendment to the United States Constitution, and, after establishing Boston was
unavailable, Boston’s testimony from his first trial in which he inculpated Appellant as
the shooter was read into the record. Further, Michael Dozier testified that he
witnessed the murder and that Appellant shot the victim.
[J-80-2012] - 2
After Appellant's arrest, he was charged with murder of the first degree,1 carrying
a firearm without a license,2 possessing an instrument of crime,3 and criminal
conspiracy.4 In December 1989, Appellant was brought to trial before Philadelphia
Court of Common Pleas Judge Albert Sabo and a jury. The jury found Appellant guilty
of criminal conspiracy, but was unable to reach a verdict on the remaining charges.
Appellant was retried from December 12, 1990 through January 9, 1991, and convicted
of the remaining charges.
During the penalty phase, the Commonwealth provided evidence that Appellant
had been convicted of the March 13, 1989 murder of Neil Wilkinson and shooting of
Darryl Woods, and the murder of Michael Waters, a 16-year-old boy, who had thrown
snowballs at Appellant’s car. The jury was also informed of Appellant's prior conspiracy
conviction at his first trial in this matter. The record of the guilt trial was incorporated
into evidence at the penalty phase. While the trial court refused to allow Appellant to
present evidence regarding his specific religion (Muslim), he was permitted to explain
that he had embraced a religious philosophy that had endorsed morality and that
requires one to change and reform, and that he had become a new person as a result of
his religion. He also presented background character evidence and his age at the time
of his murder, 20 years old. Appellant did not testify. At the conclusion of the penalty
trial, the jury found one aggravating circumstance — Appellant had a significant history
of felony convictions involving the use or threat of violence to the person5 — and no
1
18 Pa.C.S.A. § 2502(a).
2
18 Pa.C.S.A. § 6106.
3
18 Pa.C.S.A. § 907.
4
18 Pa.C.S.A. § 903.
5
42 Pa.C.S.A. § 9711(d)(9).
[J-80-2012] - 3
mitigating circumstances,6 mandating the imposition of the death penalty. Thereafter,
Appellant was sentenced to death for the first-degree murder conviction, 2½ to 5 years
imprisonment for the possession of an instrument of crime count, 2 ½ to 5 years
imprisonment for the carrying a firearm without a license count, to run consecutive to
each other and the sentence of death, and 5 to 10 years imprisonment for the criminal
conspiracy count from Appellant’s first trial, to run consecutive to all other sentences.
On direct appeal, Appellant was represented by his trial counsel, Samuel Stretton,
Esquire. This Court affirmed Appellant's judgments of sentence. Reid, 642 A.2d at 463.
Appellant filed a timely pro se PCRA petition on December 12, 1996. Collateral
review was assigned to the Honorable James Lineberger. Present appellate counsel,
Daniel Silverman, was appointed on February 23, 1998. On January 27, Appellant filed
an Amended PCRA Petition (“Amended Petition”). Subsequently, Appellant filed a
Supplemental Amended PCRA Petition on April 15, 1999, a Second Supplemental
Reproduced Record on May 3, 1999, a Second Supplemental Amended PCRA Petition
on July 11, 2000, a Third Supplemental Amended PCRA Petition on February 13, 2001,
a Petition to Review Police Archives on September 26, 2002, and an Addendum to the
Amended Supplemental PCRA Petition on March 29, 2004. The Commonwealth, on
November 21, 2001, filed a motion to dismiss Appellant’s petition. As discussed more
fully below, there is no indication that Appellant was granted permission to file late
petitions or to submit amended petitions.
On May 6, 2005, the PCRA court entered a Notice to Dismiss pursuant to
Pa.R.Crim.P 907, finding Appellant’s PCRA petition to be without merit. Appellant
objected, and, as explained more fully below, on July 8, 2005, the Commonwealth by
6
Appellant requested the jury to find two mitigating circumstances, the age of the
defendant, and the “catch-all” mitigator. 42 Pa.C.S.A. § 9711(e)(4), (8).
[J-80-2012] - 4
letter agreed to a hearing on certain issues.7 On August 19, 2005, the PCRA court
entered an order scheduling a hearing, so limited, but Appellant opposed the
Commonwealth’s proposal, and no hearing was conducted. Subsequently, Judge
Lineberger retired, and the appeal was reassigned to Judge William Mazzola.
Thereafter, Appellant filed additional motions, inter alia, for recusal, expert funds, and
discovery regarding his Batson claims. The Commonwealth filed a response, in
addition to a motion to dismiss. By order dated October 17, 2007, the PCRA court
denied the request for a hearing and expert funds. Two days later, the court issued a
notice of intent to dismiss. Thereafter, the PCRA court formally dismissed Appellant’s
petition.
On August 28, 2009, Appellant filed a Pa.R.A.P. 1925(b) statement, followed by
a Supplemental Statement on September 10, 2009, and a Final Statement on October
1, 2009.8 On March 8, 2011, the PCRA court filed an extensive 260-page opinion
addressing Appellant’s claims in both this appeal and Appellant's collateral appeal
regarding the Waters murder.9
II. Analysis
In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination is “supported by the record and free of legal error.” Commonwealth v.
7
These issues involved Appellant’s claim pursuant to Batson v. Kentucky, 476 U.S. 79
(1980); new penalty phase witnesses; and after-discovered recantation witnesses.
8
Again, there is no indication that Appellant was granted leave to supplement.
9
Appellant was convicted of first-degree murder, criminal conspiracy, possession of an
instrument of crime, and carrying a firearm without a license in the Waters matter. On
direct appeal, this Court affirmed Appellant’s judgment of sentence. Commonwealth v.
Reid, 626 A.2d 118 (Pa. 1993). Appellant filed a PCRA petition in that case, which was
dismissed on November 16, 2008, along with Appellant’s PCRA petition in the instant
case. Appellant’s appeal from the dismissal of his PCRA petition in the Waters case is
found at No. 563 CAP; J-79-2012.
[J-80-2012] - 5
Rainey, 928 A.2d 215, 223 (Pa. 2007). Counsel is presumed to be effective, and a
petitioner has the burden to establish counsel was ineffective. Commonwealth v. Miller,
819 A.2d 504, 517 (Pa. 2002). To overcome this presumption, and to be entitled to
PCRA relief, a petitioner must establish, by a preponderance of the evidence, that his
conviction or sentence resulted from one or more of the enumerated errors in 42
Pa.C.S.A. § 9543(a)(2); his claims have not been previously litigated or waived; and the
failure to litigate the issue prior to or during trial or on direct appeal could not have been
the result of any rational, strategic or tactical decision by counsel. Id. § 9543(a)(3),
(a)(4). An issue is previously litigated if “the highest appellate court in which [the
appellant] could have had review as a matter of right has ruled on the merits of the
issue.” Id. § 9544(a)(2). An issue is waived if appellant “could have raised it but failed
to do so before trial, at trial, . . . on appeal or in a prior state postconviction proceeding.”
Id. § 9544(b).
In order to obtain relief on a claim of ineffectiveness, a PCRA petitioner must
satisfy the performance and prejudice test set forth in Strickland v. Washington, 466
U.S. 668 (1984). In Pennsylvania, we have applied the Strickland test by requiring a
petitioner to establish that (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s error, with prejudice measured by whether
there is a reasonable probability that the result of the proceeding would have been
different. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Again, counsel is
presumed to have rendered effective assistance, and, if a claim fails under any required
element of the Strickland test, the court may dismiss the claim on that basis.
Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010).
[J-80-2012] - 6
Important for our review, Appellant's direct appeal was resolved before our
Court's decision in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). In Grant, our
Court abrogated the rule that ineffectiveness claims must be raised at the first
opportunity where a defendant has obtained new counsel. Under the pre-Grant rule,
however, an appellant was not required to raise ineffectiveness claims until he obtained
new counsel. Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977). The underlying
theory of such an approach was that it is unrealistic to expect appellate counsel to raise
his or her own ineffectiveness. Commonwealth v. Kimball, 724 A.2d 326, 332 (Pa.
1999). Here, as noted above, trial was held in late 1989 and early 1991, and Appellant
was represented at trial by Samuel Stretton, Esquire. Attorney Stretton also
represented Appellant on direct appeal. Finally, because this matter pre-dates Grant,
and trial counsel represented Appellant on direct appeal, for any claim of trial counsel
ineffectiveness that was not offered on direct appeal, which might otherwise be deemed
to be waived, and which would necessitate "layering" as explained in Commonwealth v.
McGill, 832 A.2d 1014 (Pa. 2003), such layering is not required, as this was Appellant's
first opportunity to challenge trial counsel's stewardship, as well as a failure of appellate
counsel (here the same) to preserve issues on direct appeal. See Commonwealth v.
Sepulveda, 55 A.3d 1108, 1117 n.7 (Pa. 2012).
Furthermore, as noted above, Appellant has filed a series of supplemental PCRA
petitions. The Commonwealth offers, and the PCRA court found, that the record does
not indicate that Appellant ever sought or received permission to file serial amended
petitions. Brief of Commonwealth at 7. Under our Rules of Criminal Procedure, “[t]he
judge may grant leave to amend or withdraw a petition for post-conviction collateral
relief at any time. Amendment shall be freely allowed to achieve substantial justice.”
Pa.R.Crim.P. 905(A).
[J-80-2012] - 7
In its opinion in this case, the PCRA court recognized the plethora of
supplements filed in this case, and observed:
[I]n no case is there any indication of a court being
requested to grant or otherwise granting permission to file
late petitions or to submit amended ones, let alone
establishing a time frame within which to do so. It should
therefore be incumbent upon the defendant to explain why
any of his various submissions should be considered in the
first place. We realize of course that there have been
several status listings of both cases, the proceedings and
outcome of most of which do not appear of record. It is
possible that the court may have entertained and extended
off-the-record accommodations, but, if that were the case,
the defendant should have clarified those omissions by
utilizing the procedures for establishing a reconstructed
record. Not having done so, the black letter law would seem
to require an outright dismissal of the petitions at issue.
Again, however, recalling the Court’s inclination to liberality
in these proceedings, this court will, of course, address all of
the issues raised by the submissions, limited to those
particular issues addressed by the defendant’s statement of
matters complained of on appeal.
PCRA Court Opinion, 2/14/11, at 17.
Notwithstanding the PCRA court’s indulgence in addressing all of Appellant’s
claims, it was Appellant’s duty to identify where in the record the supplemental petitions
were authorized and/or reconstruct the record if such authorization was provided off the
record. Appellant has failed to do so, even though this defect was raised by both the
PCRA court and the Commonwealth. This Court has condemned the unauthorized
filing of supplements and amendments to PCRA petitions, and has held that such
claims raised in such supplements are subject to waiver. See Commonwealth v. Elliott,
J-81-2013 (on November Vote List); Commonwealth v. Roney, 79 A.2d 595, 615 (Pa.
2013); Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012). Thus, although the vast
majority of Appellant’s claims were raised in his first counseled Amended Petition,
[J-80-2012] - 8
certain claims, which are discussed below, were raised for the first time in an apparently
unauthorized supplemental petition; accordingly, we find those claims to be waived.
A. Exculpatory Witnesses
Appellant first argues that trial counsel was ineffective, as he failed to investigate
and present the testimony of what he asserts to be “exculpatory” witnesses. In sum,
Appellant submits the “sworn declarations” of seven potential witnesses, who claim that:
Boston was the shooter; Dozier did not witness the murder; or that it was not Appellant
who murdered the victim.10 Appellant asserts that all of these witnesses were available
at the time of trial, their identities should have been discovered, there was no
reasonable basis for counsel to fail to investigate and obtain these witnesses’
statements, and that he was prejudiced by trial counsel’s failure to obtain the testimony
from these witnesses. Moreover, Appellant faults the PCRA court for failing to hold an
evidentiary hearing on this claim. Appellant requests an evidentiary hearing to resolve
the “material issues of fact” implicated by this claim.
There are two requirements for relief on an ineffectiveness claim for a failure to
present witness testimony. The first requirement is procedural. The PCRA requires
that, to be entitled to an evidentiary hearing, a petitioner must include in his PCRA
petition “a signed certification as to each intended witness stating the witness’s name,
address, date of birth and substance of testimony.” 42 Pa.C.S.A. § 9545(d)(1);
10
The PCRA court noted initially that while Appellant claimed to offer “affidavits” (or
“sworn declarations”) from these individuals, except for that of Damien Williams, they
were not sworn by the declarant before an officer authorized to administer oaths or
witnessed. The court went on to determine that, even assuming the truth of the
declarations, Appellant’s claim of ineffective assistance of counsel failed. See
Commonwealth v. Brown, 872 A.2d 1139, 1169-70 (Pa. 2005) (Castille, C.J.,
concurring) (offering unwitnessed and unsworn non-affidavits are of considerably less
value than sworn affidavits and questioning whether such pleadings should be relevant
to issue of entitlement to evidentiary hearing).
[J-80-2012] - 9
Pa.R.Crim.P 902(A)(15). The second requirement is substantive. Specifically, when
raising a claim for the failure to call a potential witness, to obtain relief, a petitioner must
establish that: (1) the witness existed; (2) the witness was available; (3) counsel was
informed or should have known of the existence of the witness; (4) the witness was
prepared to cooperate and would have testified on defendant’s behalf; and (5) the
absence of such testimony prejudiced him and denied him a fair trial. Commonwealth v.
Carson, 741 A.2d 686, 707 (Pa. 1999)
Appellant, without explanation, failed to include in his PCRA petition certification
information that satisfied the certification requirements of Section 9545(d)(1) or Rule
907(A)(15), with the exception of the affidavit of Damien Williams. Appellant’s failure to
comply with the simple and straightforward rules governing entitlement to an evidentiary
hearing should preclude Appellant’s requested relief of an evidentiary hearing.
Moreover, although the Commonwealth did not object to a hearing on certain after-
discovered/recantation witnesses, Appellant refused such a hearing. Even if such
foundational and simple requirements can be overlooked, and even if we overlook
Appellant’s rejection of the Commonwealth and the PCRA court’s offer of a hearing on
at least certain of these witnesses, as discussed below, Appellant has failed to satisfy
the further requirements for relief. Specifically, globally speaking, for each proposed
witness, Appellant fails to indicate how counsel was informed or should have known of
the existence of these witnesses, and the witnesses’ willingness to cooperate and to
testify on Appellant’s behalf. Before our Court, Appellant does not attempt to explain his
failure to comply with the PCRA or our Rules. These failures are fatal to his claim. See
Commonwealth v. Bryant, 855 A.2d 726, 748 (Pa. 2004) (failure to make proffer as to
whether witness was willing and able to testify was factor regarding ineffectiveness
claim for failure to call a witness). Thus, on this basis alone, Appellant is not entitled to
[J-80-2012] - 10
relief. Nevertheless, after individualized consideration of each of the witnesses trial
counsel allegedly failed to present, they do not bring the reliability of the death verdict
into legitimate question, and, thus, conclude that Appellant is not entitled to relief. We
address each witness in turn.
1. Kevin Bowman
Appellant first claims Boston confessed to Kevin Bowman that he, and not
Appellant, shot the victim; that Boston shot the victim out of fear of being attacked; and
that Boston had a weapon and Appellant did not. Additionally, Appellant claims that
Bowman would have purportedly testified that Michael Dozier, a witness to the shooting
who testified at Appellant’s trial, told Bowman, contrary to his trial testimony, that he did
not actually see the shooting.
The Commonwealth points out that Bowman, along with Appellant, was
convicted of the murder of Neil Wilkinson. Further, the Commonwealth offers, as noted
above, that Boston worked for Bowman, who was a JBM member. The Commonwealth
argues that, in 1999, Bowman claimed that Boston told him, in front of Appellant, that he
shot the victim. The Commonwealth asserts that Appellant, however, does not explain
why he waited more than 10 years to provide this information, whether Bowman would
have been willing to cooperate or testify on Appellant’s behalf, and whether Appellant
ever informed trial counsel of Bowman’s conversation with Boston. Finally, the
Commonwealth maintains that, because Bowman’s statement is hearsay, it is
inadmissible and Appellant could not be prejudiced by trial counsel’s failure to use that
statement. The PCRA court rejected the claim, noting the hearsay nature of the
proffered statements, that there was no indication the information was available for trial
or that trial counsel could have discovered such information, that it would have been
[J-80-2012] - 11
used only for impeachment purposes, and that it was cumulative of Boston's prior
inconsistent statements.
As offered by the Commonwealth, and noted by the PCRA court, Bowman’s
testimony would have constituted hearsay. Hearsay is inadmissible and, thus,
Appellant's claim fails on the merits. See Commonwealth v. Puksar, 951 A.2d 267, 278
(Pa. 2008). Moreover, while Bowman signed a statement claiming Boston’s confession
was made to Bowman in front of Appellant, Appellant in his PCRA petition never
claimed that he informed trial counsel of Bowman’s supposed conversation in which
Boston confessed to being the shooter. Likewise, the failure to show that Bowman
would have been willing to cooperate and testify on Appellant’s behalf also defeats
Appellant’s claim of ineffectiveness.
2. Darryl Gray
Appellant also points to Darryl Gray, whom Appellant submits was an eyewitness
to the shooting, and who claims that, while Appellant was present when the victim was
shot, it was another man who fired the gun. Moreover, Appellant offers that Gray saw
Dozier immediately after the shooting, at which time Dozier asked, “What happened?”
The implication of this statement was that Dozier did not see the murder. The
Commonwealth responds that, while in prison in 1999, Gray claimed to have been an
eyewitness to the shooting, but there is no indication as to why Gray waited more than
10 years to come forward. Further, the Commonwealth argues that Appellant does not
allege he informed trial counsel of this witness. The PCRA court rejected this claim,
finding that Appellant failed to state that Gray would have been willing to cooperate and
to testify on Appellant’s behalf.
Gray’s statement is similar to that offered by Bowman, and fails for the same
reasons. With respect to his testimony regarding Dozier, it is pure hearsay, and, thus,
[J-80-2012] - 12
cannot support a claim that trial counsel was ineffective for failing to present it. Puksar,
supra. Moreover, because Gray fails to indicate he would be willing to cooperate and
testify on Appellant’s behalf, Appellant’s claim fails on that basis as well.
3. Robert Durand and Frank Bynum
Appellant submits that Robert Durand, an investigator for the Federal Court
Division of the Defender Association of Philadelphia, would testify, inter alia, that Frank
Bynum told him that Boston confessed to Bynum that Boston shot the victim and that he
did so because he was in fear of being attacked. Also, Appellant offers that Bynum
stated to Durand that eyewitness Dozier was a heavy user of crack cocaine and had
been smoking crack for days before the murder. According to Durand, while Bynum did
not dispute the accuracy of these statements, Bynum refused to sign an affidavit and
refused to testify. As noted by the Commonwealth, the PCRA court found the
statements of both Durand and Bynum to be hearsay, but, also, that Bynum could only
hurt Appellant’s case because, if he testified, he would have been open to potentially
detrimental cross examination, including that Bynum was with Appellant when Appellant
admitted that he killed the victim, that Bynum was a JBM member who threatened
Dozier at gunpoint after he testified against Appellant, and that Bynum shot Randall and
Terrance Lisby when they confronted Boston about the victim’s murder.
The PCRA court’s hearsay analysis concerning both Durand’s and Bynum’s
testimony is correct, with Durand’s assertions constituting double hearsay; accordingly,
trial counsel was not ineffective for failing to provide such testimony. See Puksar.
Moreover, Durand’s statements do not explain how counsel was informed or should
have known of the existence of these witnesses, and the witnesses’ willingness to
cooperate and to testify on Appellant’s behalf. For all of these reasons, Appellant is not
entitled to relief on this claim.
[J-80-2012] - 13
4. Kevin Brown
Appellant contends that Kevin Brown would testify that Bowman’s trial testimony
was untrue, and that it was common knowledge in his neighborhood that Boston shot
the victim. As noted by the Commonwealth, Brown was a JBM drug dealer who grew
up with the victim and Appellant. At trial, Brown testified that he loaned Appellant his
bicycle which was found at the scene of the murder, and that he heard Appellant state,
“get down or lay down,” which, according to him, was a warning to the victim to
cooperate with the JBM or he would be killed. The Commonwealth adds that, on cross-
examination, Appellant accused Brown of implicating Appellant to gain favorable
treatment in his own criminal case and impeached him with inconsistencies between his
statement and his testimony. The PCRA court found Brown's statements to be hearsay,
insignificant in light of two witnesses to the murder who had not recanted, and lacked
any indication Brown would have provided this information at trial.
Appellant fails to provide how counsel should have been aware of this post-trial
recantation. Indeed, we find it hard to understand how counsel could be deemed to be
ineffective for not eliciting the recantation testimony that Brown, who was a prosecution
witness at trial, would provide a decade after trial.11 Finally, Brown did not indicate that
he would be willing to cooperate with the defense or to testify on behalf of Appellant.
Appellant is not entitled to relief on this claim.
5. Willie Brown
Appellant also submits Willie Brown witnessed the shooting, stated that Appellant
was not the shooter, and that Dozier did not witness the events. The Commonwealth
11
In his brief to our Court, Appellant does not argue that these statements constitute
“newly discovered” evidence, but complains that counsel was ineffective for failing to
present exculpatory evidence. Thus, we will address these questions as framed by
Appellant.
[J-80-2012] - 14
notes that Brown did not offer why he failed to come forward earlier in support of
Appellant, and did not indicate that he would be willing to cooperate with the defense or
to testify on behalf of Appellant. Further, the Commonwealth argues that Appellant,
who was present at the scene, failed to indicate that he informed trial counsel about this
witness. The PCRA court offered that Brown's claims are questionable regarding the
factual basis for his observations, as he knew both Appellant and Boston, but referred to
them as the “shooter and the other man,” and provided that, even if Appellant were not
the shooter, there was sufficient evidence to convict him as an accomplice.
As Brown did not explain why he failed to come forward earlier in support of
Appellant, and did not indicate that he would be willing to cooperate with the defense or
to testify on behalf of Appellant, and, because Appellant failed to establish how counsel
was informed or should have known of the existence of the witness, we find Appellant
failed to establish that trial counsel was ineffective and is not entitled to relief on this
claim. Moreover, we note that Appellant failed to include this witness in his “Statement
of Matters Complained of Pursuant to Rule 1925(b),” and it was not until a subsequent
“Supplemental Statement,” which was filed seemingly without leave of court, was this
name added. For all of these reasons, Appellant’s claim fails.
6. Randall Lisby
Appellant merely offers that Randall Lisby, the victim’s brother, “is on record for
saying numerous different things about what he was or knew about the killing of his
brother - including a shifting ‘identification’ of the shooter and what if anything was ever
‘confessed’ to him by [Appellant] or anyone else.” Brief of Appellant at 12. According to
the Commonwealth, Randall Lisby gave a statement to police that Appellant told him he
killed the victim, he was a member of the JBM, and that the drug-related killing was
because Appellant “had a job to do.” Brief of Commonwealth at 17. Initially, while Lisby
[J-80-2012] - 15
presently recants this statement, he did not aver he had been willing to cooperate with
the defense and to testify on behalf of Appellant. Moreover, like Brown, Randall was a
witness at trial and Appellant engaged in cross-examination of him. Trial counsel
elicited, inter alia, that Randall did not mention that Appellant had confessed to him at
Appellant's earlier trial, did not tell police about Appellant’s confession, and had
indicated Bynum had killed the victim. As counsel had no reason to investigate Randall
as a potential defense witness, let alone not foreseeing Randall’s recantation, we find
that Appellant has failed to establish that trial counsel was ineffective and that he is not
entitled to relief.
7. Damien Williams
Finally, Appellant offers that Damien Williams heard on the street that Boston
stated that he lied to save himself from a potential sentence of life imprisonment.
Evidently, Williams confronted Boston with these allegations in 1992 and Boston
confirmed that he had lied. While Appellant claims that “[t]his evidence was available at
the time of trial,” Brief of Appellant at 12, the Commonwealth notes that these
statements allegedly were made by Boston to Williams nearly two years after
Appellant’s trial, and, thus, could not serve as a basis for an ineffectiveness of counsel
claim. Again, before us, Appellant makes no claim with respect to after-discovered
evidence. Moreover, William's statements regarding the "word on the street," constitute
inadmissible hearsay. Finally, no assertion is offered that Randall was prepared to
cooperate and would have testified on Appellant’s behalf. For all of the above-stated
reasons, Appellant fails to establish his claim of trial counsel ineffectiveness.
B. Conflict of Interest
At his first trial, Appellant was represented by Harry Seay, Esquire. Lawrence
Boston, who, as noted above, was with Appellant at the time of the shooting, testified
[J-80-2012] - 16
against Appellant, claiming Appellant was the shooter. Boston was cross-examined by
Attorney Seay. At Appellant’s second trial, at which he was represented by Samuel
Stretton, Esquire, Boston exercised his Fifth Amendment privilege against self-
incrimination and did not testify. The trial court declared Boston unavailable, and
Boston’s testimony from Appellant’s first trial was read into the record.
According to Appellant, at the time of his first trial, Attorney Seay was either
concurrently representing Boston, or had previously represented Boston. This,
according to Appellant, was a conflict of interest and resulted in Boston not being fully
cross-examined by Attorney Seay at his first trial. While trial counsel at Appellant’s
second trial objected that Boston was not “unavailable,” Attorney Seay’s alleged conflict
of interest, which allegedly resulted in the lack of a full and fair opportunity to confront
Boston, was not raised. Appellant maintains that, because Attorney Seay represented
Boston at Appellant’s first trial, Attorney Seay could not have attempted to show that
Boston was the actual murderer or to otherwise impeach his testimony. Thus, Appellant
claims that trial counsel at his second trial was ineffective for failing to allege a conflict
of interest with prior counsel. Appellant adds that there was no tactical basis for failing
to object, and that he suffered prejudice as a result of counsel’s failure because, had
Boston’s testimony been excluded at Appellant’s second trial, he likely would have been
acquitted. Finally, Appellant urges that, even if there was an attorney-client relationship
between Boston and Seay prior to trial, issues of fact regarding that 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 had represented Boston at the
preliminary stages of an assault case, he did not represent Boston at Appellant’s first
trial. Further, the Commonwealth asserts that Appellant did not lack a full and fair
[J-80-2012] - 17
opportunity to cross examine Boston, as Attorney Seay “aggressively and extensively”
cross-examined him. Brief of Commonwealth at 21. Finally, the Commonwealth
contends that Appellant has failed to allege any deficiencies in that cross-examination,
and, thus, he has failed to establish prejudice.
The PCRA court found that there was no evidence that Attorney Seay
represented Boston in this matter. Further, the PCRA court found “no actual conflict of
interest existed in any event; even if Attorney Seay did at one time represent Boston,
that representation was not for this case, and it ended before Attorney Seay cross-
examined Boston in [Appellant’s] first trial.” PCRA Opinion, 2/14/11, at 125. The court
went on to note that Attorney Seay conducted an extensive cross-examination, as
suggested by the Commonwealth, and that the cross-examination “insinuates that
Boston killed Lisby because Lisby owed him money for drugs.” Id. at 126. The court
emphasized that Appellant failed to allege any basis on which the purported conflict of
interest resulted in a lack of fair representation.
As our Court recently explained, a petitioner “cannot prevail on a conflict of
interest claim absent a showing of actual prejudice.” Commonwealth v. Weiss, 2013
Pa. LEXIS 2617; 2013 WL 5848710 (Pa. filed Oct. 31, 2013); see also Commonwealth
v. Hawkins, 787 A.2d 292, 297 (Pa. 2001) (offering that petitioner must demonstrate
that counsel’s prior representation of Commonwealth witness adversely affected
counsel’s representation of petitioner under PCRA). We further explained that, although
prejudice is presumed when there exists an actual conflict of interest, this presumption
is only applicable when counsel actively represented conflicting interests. Weiss, at *62
n.16, *19 n.16. Where counsel does not actively represent conflicting interests, a claim
based upon the appearance of a conflict of interest lacks merit. Id.
[J-80-2012] - 18
Appellant’s claim is without merit, as it has no basis in fact or law. First,
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 prior to Boston’s testimony
at Appellant’s first trial. Furthermore, Boston testified that, at the first trial, he was
represented by Michael Wallace, Esquire. At Appellant’s second trial, Boston was
represented by Nino Tinari, Esquire. Second, as argued by the Commonwealth, and
found by the PCRA court, a review of the record reveals that Attorney Seay
aggressively and extensively cross-examined Boston, eliciting from Boston that Boston
hoped for sentencing consideration in his own criminal case, that he lied to police, that
he did not see Appellant with a gun, that Appellant had no motive to shoot the victim,
and that he recanted statements he made to police regarding Appellant shooting the
victim. Moreover, Attorney Seay repeatedly accused Boston of being the actual killer.
Thus, Appellant failed to demonstrate how Attorney Seay’s prior representation of
Boston in any way adversely impacted trial counsel’s representation of him, let alone
constituted actual prejudice. Commonwealth v. Karenbauer, 715 A.2d 1086, 1094 (Pa.
1998). Based upon the above, the PCRA court’s findings are supported by the record
and free from legal error, and Appellant is not entitled to relief.
C. Impeachment of Dozier with Dismissal of Charges
Appellant contends that, at the time Michael Dozier initially spoke with police and
implicated Appellant, he had one open burglary case and one open aggravated assault
case. Subsequently, both cases were dismissed. Further, Appellant claims that, after
Dozier agreed to testify as a Commonwealth witness, but before testifying at trial,
Dozier was arrested and charged in four separate cases, including two burglary cases,
one criminal mischief case, and one theft and conspiracy case. According to Appellant,
[J-80-2012] - 19
all of these cases were dismissed when Dozier was cooperating with the
Commonwealth and before he testified at trial. Appellant argues that trial counsel was
ineffective for failing to bring the dismissals of these six charges against Dozier to the
attention of the jury. Appellant asserts that this information should have been used for
impeachment purposes, trial counsel had no reason to fail to introduce this evidence,
and, as the Commonwealth's case depended largely upon two witnesses, Dozier and
Boston, he was prejudiced by trial counsel's deficient performance. Moreover, in cursory
fashion, Appellant asserts that, to the extent appellate counsel failed to raise this issue
on appeal, he was ineffective for failing to do so.
The Commonwealth responds that, because there were no open charges when
Dozier testified, trial counsel was not ineffective for failing to impeach Dozier. According
to the Commonwealth, Appellant's trial counsel could not be deemed to be ineffective
for not presenting evidence of alleged bias as the charges had been dismissed at time
of trial, citing Commonwealth v. Hill, 566 A.2d 252, 253 (Pa. 1989) (explaining jury must
be advised of bias when there are "outstanding criminal charges or because of any non-
final criminal disposition against” the witness). Further, the Commonwealth offers that
trial counsel did impeach Dozier with 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 promised anything as to any open charge.
Further, trial counsel cross-examined Dozier regarding crimen falsi convictions, and
established that he: was a crack addict who had been drinking heavily at the time of the
shooting, previously testified that he did not see Appellant shoot the victim, told a
defense investigator that he did not see Appellant shoot the victim, and only told police
this because they threatened to arrest him. Thus, according to the Commonwealth,
even if there were open cases against Dozier, Appellant was not prejudiced by
[J-80-2012] - 20
counsel’s failure to impeach Dozier with that evidence. Commonwealth v. Dennis, 715
A.2d 404, 408-09 (Pa. 1998) (finding counsel not ineffective for failing to impeach
witness regarding open cases as witness impeached in other ways).
The PCRA court first pointed out that there were no open pending criminal
matters against Dozier when he testified, and he was questioned about past charges for
which he pled guilty or was found guilty. The PCRA court found that Appellant failed to
develop whether the municipal court cases that were dismissed were the same matters
about which Dozier testified. Moreover, the PCRA court noted that Appellant failed to
provide the court with any details regarding whether these matters had relevance with
respect to the witness's credibility or bias. The PCRA court continued that Dozier's
testimony was both cumulative and corroborated. Thus, not only did Appellant fail to
explain how these charges would have been relevant or provided probative information,
the failure by counsel to explore these alleged open cases would not have affected the
outcome of the trial.
Initially, Appellant does not refute the PCRA court's assertion that this claim was
not developed below, and, thus, for this reason alone, relief should be denied. Further,
the PCRA court found, as a factual matter, that the charges that serve as the basis of
Appellant's claim were not open when Appellant testified. Thus, Appellant’s claim lacks
a factual predicate. Yet, even assuming, arguendo, there were open cases that were
dismissed shortly before Dozier testified, or at the time he testified, Dozier's testimony
was cumulative of, and corroborated, Boston's testimony. Importantly, as noted above
by the Commonwealth, Dozier was thoroughly cross-examined by trial counsel
regarding his less than pristine background and his motives for testifying against
Appellant. Appellant has simply failed to establish how he was prejudiced. Dennis,
supra.
[J-80-2012] - 21
D. Impeachment of Dozier with Evidence of Favorable Treatment
Appellant argues that, at the time of his trial, the Philadelphia District Attorney’s
office had a “policy and practice of providing significant Commonwealth witnesses in
homicide prosecutions free housing and cash stipends, especially where the witness is
perceived as unreliable, either because reluctant to testify or a drug addict (both of
which applied to Morris Dozier).” Brief of Appellant at 18. Appellant believed Dozier
received such benefits and sought discovery, inter alia, of any documents relating to
such benefits. At a hearing on the motion for discovery, the Commonwealth asserted
that it had reviewed the files in the matter and had found no responsive documents.
Appellant evidently requested criminal files of the witnesses, but the PCRA court denied
this request. According to Appellant, due to the denial of discovery, he could not
substantiate his allegations. Related to this argument, Appellant continues that, the
withholding of evidence of the provision of money or benefits to a witness would violate
Brady, supra. Appellant asserts that, because “the evidence of the benefits provided to
Dozier has never been disclosed by the Commonwealth,” even though a Brady claim
was not raised prior to the PCRA proceedings, it has not been waived. Thus, to the
extent prior counsel failed to discover and raise this claim at trial or on appeal, Appellant
argues he rendered ineffective assistance of counsel. Finally, Appellant notes that the
PCRA court rejected this claim as lacking in a factual basis, but submits that it “begs the
question whether Appellant was entitled to the requested discovery.” Brief of Appellant
at 20.
The Commonwealth retorts that Appellant’s claims that Dozier received cash and
hotel accommodations, that Appellant was improperly denied discovery, and that this
violated Brady, are all without factual support. Accordingly, the Commonwealth
contends that Appellant’s speculative accusations were inadequate to demonstrate
[J-80-2012] - 22
ineffectiveness. As noted by the Commonwealth, the PCRA court rejected this claim as
being “completely without any factual basis whatsoever and is patently frivolous.”
PCRA Opinion, 2/14/11, at 165.
Appellant is clearly not entitled to relief. Appellant, in his PCRA petitions, as
amended, only “believes and alleges” that Dozier received considerations. This is
insufficient to permit discovery, or to form the basis for a Brady claim. See
Commonwealth v. Brown, 872 A.2d 1139, 1157-58 (Pa. 2005) (request for information
based upon accommodations made for other witnesses in other cases “falls woefully
short of establishing entitlement to relief”) Id. at 1158; Commonwealth v. Lark, 746 A.2d
585, 591 (Pa. 2000) (alleged discovery violations in other cases where prosecution
made payments to witnesses “insufficient to demonstrate that any such violations
existed in this case”). Indeed, as he fails to provide even a minimal basis for his claim,
Appellant is asking for nothing more than a fishing expedition. Id. at 591.
E. Benefits of Terrance Lisby Deal with Commonwealth
Appellant offers that, as part of the Commonwealth’s case, a plea agreement
was entered into between the Commonwealth and Terrance Lisby, the victim’s uncle. In
exchange for his testimony against Appellant in this case, and against a co-defendant in
his own homicide case, Lisby was permitted to plead guilty to third-degree murder in his
own case and request that he be sentenced to at least five years imprisonment.
According to Appellant, trial counsel attempted to establish the full benefits of that deal
by introducing evidence that, if convicted of first degree murder, Lisby faced a sentence
of life imprisonment without the possibility of parole, and that the allegations against
Lisby supported the charge of first-degree murder. During counsel’s cross-examination
of Lisby, he attempted to elicit that Lisby faced a sentence of life “without parole.” The
Commonwealth objected, and the trial court stated to counsel for him to just refer to “life
[J-80-2012] - 23
imprisonment,” so that the issue of commutation would not have to be explained.
Appellant claims that the full terms of the plea agreement were important and that the
greater consequences faced by a witness if he or she did not accept the plea
agreement resulted in a greater motive to lie to secure the benefits of such a deal.
Here, Appellant maintains, the jury heard only that Lisby would be facing “life
imprisonment,” and that juries have misleading impressions of that term. According to
Appellant, most juries lack accurate information about the meaning of life imprisonment,
and believe such prisoners will actually be released after a term of years, citing
Simmons v. South Carolina, 512 U.S. 154 (1994) (plurality). Finally, Appellant, in
cursory fashion, also claims that trial counsel was prevented from developing
information about the underlying facts of Lisby’s homicide case, and that such facts
would have demonstrated how beneficial a deal Lisby had received.
The Commonwealth responds that, when trial counsel sought to emphasize that
life imprisonment meant life without parole, the prosecutor objected on the basis that life
without parole is not necessarily the case in some circumstances, and the trial court
offered, “[c]ommutation, let’s not get into that,” N.T. 1/2/1991, at 2.202-03, a rationale,
according to the Commonwealth, that trial counsel did not pursue further. The
Commonwealth maintains that the jury knew Lisby avoided a life sentence by pleading
guilty to third-degree murder, the plea agreement was read to the jury, Lisby testified to
his understanding of the requirements under the agreement, and Lisby was obligated to
testify against his co-defendant in his trial, and against Appellant. Finally, the
Commonwealth offers that the jury was informed that, if Lisby did not meet his duties
under the plea agreement, the agreement would be withdrawn, and he would face first-
degree murder charges and life imprisonment. According to the Commonwealth, the
jury was informed of the full extent of the “sweetheart deal,” including the sentence
[J-80-2012] - 24
Lisby faced absent the deal. Further, the Commonwealth offers that Appellant fails to
establish counsel lacked a reasonable basis for not further pressing the issue, as the
jury was informed that Lisby avoided life imprisonment and was aware of the substantial
benefit he gained by agreeing to cooperate.
The PCRA court determined that it did not prevent the jury from hearing that
Lisby was permitted to plead to third-degree murder to avoid a possible conviction for
first-degree murder, that, if convicted, Appellant would have been sentenced to life
without parole, and that he could be released only if the Governor granted him a
pardon. According to the PCRA court, when the prosecutor objected to the term
“without parole” and “pardon,” it did not rule on the objection and did not instruct the jury
to disregard those statements. Thus, the PCRA court reasoned that the jury was
permitted to consider the information.
At trial, Appellant’s counsel asked whether Lisby knew “there was no parole for
life imprisonment, the Governor could only pardon; am I right?” N.T., 1/2/91, at 2.202.
The Commonwealth objected, and the trial court responded by offering “Commutation,
let’s not get into that.” Id. at 2.202-03. Trial counsel continued, “That was part of what
you were offered; am I right?” Id. at 2.203. Lisby responded, “If that’s what you say,
sir.” Id. Thus, while somewhat unclear, whether the Commonwealth's objection to trial
counsel’s statement regarding life without parole was sustained, it appears the import of
the concept of life without parole except for commutation by the Governor was
conveyed to the jury. Furthermore, it appears that trial counsel thoroughly addressed all
aspects of Lisby’s plea agreement. Moreover, in closing, trial counsel, without
objection, noted that the only relief from life imprisonment was commutation by the
Governor, albeit in reference to Appellant. N.T., 1/10/91, at 8.76. Thus, Appellant’s
contention is without merit.
[J-80-2012] - 25
Even if Appellant’s claim had arguable merit, he cannot demonstrate prejudice.
Specifically, it appears that the jury had more than enough evidence to discredit Lisby
based upon the agreement itself, as well as testimony that Lisby was a murderer and a
drug dealer, that he and Boston confronted the victim about stolen drugs, that he lied to
police, lied under oath, testified inconsistently, and had a motive to kill the victim.
Further, Lisby was not an eyewitness, but explained Boston’s role as Lisby’s drug
supplier, that the victim had stolen the drugs, and that Appellant was tied to the JBM.
Thus, Lisby’s testimony was harmful to Appellant, but cumulative and inferior to other
incriminating evidence. Therefore, even if the jury had been informed that a life
sentence means life without parole, and it had rejected Lisby’s testimony as driven by a
plea deal, there was still significant evidence against Appellant. We find that Appellant
is not entitled to relief. Finally, regarding Appellant’s cursory claim that trial counsel was
prevented from developing information about the underlying facts of Lisby’s homicide
case, Appellant offers no authority or meaningful argument in support thereof. Thus,
this claim is waived for Appellant’s failure to develop the issue, Pa.R.A.P. 302, and, in
any event, fails for the same reasons set forth above.
F. Failure to Object to References to Terrance Lisby Deal to Testify Truthfully
As explained above, as part of the Commonwealth’s case, a plea agreement was
entered into between the Commonwealth and Terrance Lisby, the victim’s uncle. To
explain the terms of the agreement, the Commonwealth called Assistant District
Attorney Joseph Labar who testified, inter alia, that the agreement required Lisby to
“testify truthfully,” and that if, in the judgment of the Commonwealth, he violated that
condition, the Commonwealth would revoke the agreement. Appellant submits that this
testimony unfairly bolstered Lisby’s credibility over every other witness who is obligated
to testify truthfully. Moreover, Appellant claims that this evidence went further and
[J-80-2012] - 26
implied that the Commonwealth believed that Lisby was telling the truth. This,
according to Appellant, constituted improper vouching by the Commonwealth.
Appellant offers that trial counsel had no reason to fail to object — Lisby was an
important Commonwealth witness, and offered Appellant’s motive to kill the victim —
and this prejudiced Appellant in light of the weakness of the Commonwealth’s case.
The Commonwealth responds that the prosecutor offered no personal
assurances as to the veracity of Lisby’s testimony or suggested that, for reasons not
disclosed at trial, his testimony was truthful. Instead, the Commonwealth offers that the
prosecutor merely presented the terms and conditions of the agreement, as he was
mandated to do. That the agreement required truthfulness was not an endorsement of
Lisby’s testimony. Moreover, the Commonwealth claims that trial counsel had good
reason not to object, as the plea agreement was the focal point of his attack of Lisby’s
credibility. The PCRA court rejected this claim, finding that, while a prosecutor is not
permitted to express a personal belief as to a witness’s credibility, the circumstances
here did not suggest that the Commonwealth gave an opinion regarding the veracity of
Lisby.
Generally, a prosecutor commits improper bolstering when it places the
government’s prestige behind a witness through personal assurances as to the
witness’s truthfulness, and when it suggests that information not before the jury
supports the witness’s testimony. Commonwealth v. Williams, 896 A.2d 523, 541 (Pa.
2006). As noted by the Commonwealth, the prosecutor here did not personally assure
the veracity of Lisby’s testimony. Neither did the prosecution indicate there was
information outside of the trial that supported Lisby’s testimony. Rather, the prosecution
was required to fully disclose any offers of leniency, and the failure to do so could have
resulted in a new trial. Commonwealth v. Hallowell, 383 A.2d 909, 911 (Pa. 1978).
[J-80-2012] - 27
Furthermore, the mere reference that a plea agreement requires truthfulness does not
constitute improper vouching. Commonwealth v. Miller, 819 A.2d 504, 515 (Pa. 2002)
(prosecutor’s use of word “truthful” in direct examination of witness was permissible
articulation of parameters of plea agreement). Thus, we find no merit to Appellant’s
claim and the PCRA court’s determination is supported by the record and free of legal
error.
G. Failure to Request a Kloiber Instruction
Appellant contends that trial counsel was ineffective for failing to request a
Kloiber instruction with respect to witnesses Dozier and Boston. Commonwealth v.
Kloiber, 106 A.2d 820 (Pa. 1954). A Kloiber charge is appropriate where there are
special identification concerns: a witness did not have the opportunity to clearly view
the defendant, equivocated in his identification of a defendant, or had difficulty making
an identification in the past. Commonwealth v. Rollins, 738 A.2d 435, 448 n.14 (Pa.
1999); Commonwealth v. Gibson, 688 A.2d 1152, 1163 (Pa. 1997). However, “[w]hen
the witness already knows the defendant, this prior familiarity creates an independent
basis for the witness’s in-court identification of the defendant and weakens
ineffectiveness claims based on counsel failure to seek a Kloiber instruction.”
Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010) (citations omitted).
Appellant focuses upon Dozier failing to identify him when police showed him a
photograph of Appellant and the fact that he gave a statement to Appellant’s defense
team that Appellant was not the shooter. Additionally, Appellant stresses that Dozier’s
description of the shooter’s clothing was in conflict with another eyewitness’s description
of Appellant’s clothing at the time of the murder. Similarly, Appellant points to Boston’s
statement to Appellant’s defense team that Appellant was not the shooter, and that
Boston did not identify Appellant as the shooter in his first statement to the police. The
[J-80-2012] - 28
Commonwealth emphasizes that both Dozier and Boston were able to identify
Appellant, an individual they both knew well and observed from a close distance during
the murder. Yet, the Commonwealth explains that it was threats by the JBM that led to
both men’s initial refusal to identify Appellant as the murderer, and, thus, because the
ability to identify was not at issue, Kloiber is not implicated.
The PCRA court, in rejecting Appellant’s argument that trial counsel was
ineffective for failing to request a Kloiber charge, determined that both Dozier and
Boston were in a clear position to observe Appellant, but failed to initially identify him as
the assailant out of fear of reprisal by the JBM. The PCRA court went on to find that,
even if a Kloiber charge was warranted, in instructing the jury, the trial court explained
how to judge the testimony of a witness in general, and specifically for those who may
have given inconsistent statements, and, thus, Appellant failed to establish prejudice.
Initially, we note that Appellant fails to demonstrate that either Dozier or Boston
did not have an ability or opportunity to clearly view him at the time of the murder.
Dozier observed Appellant from less than 10 yards away, and knew him for years.
Moreover, Dozier signed a statement identifying Appellant and unequivocally identified
him at a preliminary hearing, and again later at trial. Similarly, Boston knew Appellant
and was standing next to him on a street corner when Appellant pulled his weapon and
murdered the victim, and, thus, could clearly view Appellant. Further, at Appellant’s first
trial in this matter, Boston unequivocally identified Appellant as the shooter. While at
the second trial, Boston invoked his Fifth Amendment privilege against self-
incrimination, and refused to testify, his prior testimony was read to the jury. Thus, both
men had the clear ability to identify Appellant as the shooter, and neither Dozier nor
Boston equivocated in their identification of Appellant at trial.
[J-80-2012] - 29
As noted above, however, Dozier and Boston initially did not identify Appellant as
the shooter to police. Both gave Appellant’s defense team statements that Appellant
was not the shooter. Both men, however, offered uncontradicted testimony at trial that
these statements exculpating Appellant were fueled by their fear of reprisals from the
JBM, who had threatened them on numerous occasions.
Our case law makes clear that the need for a Kloiber charge focuses on the
ability of a witness to identify the defendant. Our Commonwealth’s decisional law has
long held that prior inconsistent statements based upon fear of endangerment do not
equate to a prior failure of ability to identify a defendant. See Commonwealth v. Fisher,
813 A.2d 761, 770-71 (Pa. 2002) (opinion announcing the judgment of the court)
(providing no relief to PCRA petitioner based on conclusions Kloiber instruction litigated
on direct appeal where witnesses, who knew defendant prior to shooting, failed to
identify defendant at pre-trial line-up due to fear that identifying him would endanger her
and her family); Commonwealth v. Lee, 585 A.2d 1084, 1087 (Pa. Super. 1991) (finding
Kloiber instruction inappropriate where fear of identifying defendant cannot be equated
to failure to make identification); Commonwealth v. Smith, 495 A.2d 543, 548-49 (Pa.
Super. 1985) (opining that absence of Kloiber instruction did not require reversal of
judgment of sentence where rape victim’s initial statement to police that she did not see
her attacker’s face, but later identification of him at preliminary hearing and trial, was
due to witness being scared); cf. Ali, 10 A.3d at 304 (“Any perceived weaknesses in
N.M’s testimony attributable to her tender years, the circumstances of the horrific
experience, the subject matter, and her ability to recall details were matters of credibility
for the jury as factfinder to decide; but those issues did not undermine N.M’s actual
physical ability to identify appellant at the time and place of the murder, so as to trigger
the special identification testimony concerns underlying the Kloiber line of decisions.”)
[J-80-2012] - 30
Here, both Dozier and Boston had the plain ability to identify Appellant.
Moreover, both men had known Appellant for numerous years. Thus, their ability to
observe Appellant as the shooter was not at issue, and any claim of ineffectiveness for
a failure to seek such a charge is weakened substantially by Dozier and Boston having
known Appellant for years before the murder. While, prior to trial, Dozier and Boston
did not identify Appellant as the shooter, a point which was made clear at trial and
subjected to thorough cross examination, as concluded by the PCRA court, this was
because they were both in fear that the JBM would harm them or their families. Thus,
based upon the circumstances of their observations of Appellant, their having previously
known Appellant for years, and their explanation of why they did not initially identify
Appellant as the shooter, neither Dozier’s nor Boston’s ability to identify Appellant was
at issue. As such, these circumstances do not implicate Kloiber.
We acknowledge, however, that in making this determination, the PCRA Court
accepted that Dozier’s and Boston’s early refusal to identify Appellant as the murderer
was due to their fear of harm at the hands of the JBM. In doing so, the court embraced
their explanation without itself holding an express credibility reassessment hearing on
this issue. Such determinations are generally for the trial court, or the PCRA court after
hearing, and, thus, one approach would be to remand the matter to the PCRA court, to
hold a hearing, in which these same witnesses would be located, called to again testify,
presumably cross-examined, just as was the case at Appellant’s trial, and the PCRA
court could conduct an express credibility reassessment, reconsidering its prior
determination that the men failed to initially identify Appellant out of fear due to threats
by the JBM.
In these particular circumstances, however, we are satisfied that a remand is
unnecessary. The undisputed testimony of record discloses that Dozier and Boston
[J-80-2012] - 31
knew Appellant prior to the murder, were in clear view of the shooting, and initially
feared reprisals against them by the JBM if they testified against Appellant. All of this
testimony was subject to thorough cross examination. Further, the jury convicted
Appellant of murder of the first degree, a conclusion it came to by apparently crediting
the witnesses’ assertions that Appellant was the shooter. Finally, our prior case law
suggests that appellate courts may, in limited circumstances, resolve matters without an
express credibility determination hearing, where credibility (in light of implausibility)
seems facially apparent and on conclusions drawn from an existing record. See
Commonwealth v. Small, 980 A.2d 549, 559-61 (Pa. 2009); Commonwealth v. Gibson,
951 A.2d 1110, 1139 n.20 (Pa. 2008); Commonwealth v. Bryant, 855 A.2d 726, 748
(Pa. 2004). Finally, we note that appellate review of ineffectiveness matters is,
ultimately, de novo. Commonwealth v. Rios, 920 A.2d 790, 810 (Pa. 2007). Thus, in
these limited circumstances, we are satisfied that a remand for an express credibility
determination by the PCRA court in this matter is not necessary. Accordingly,
Appellant’s claim concerning the absence of a Kloiber instruction fails.
H. Failure of Cautionary Instructions for Bad Acts
Appellant argues that the Commonwealth was permitted to introduce evidence of
other crimes without limiting instruction and that prior appellate counsel was ineffective
for failing to raise this issue on appeal. Appellant offers that the other crimes evidence
was that Appellant was a member of the JBM, “a gang that sold drugs and engaged in
unlawful violence to protect its business and silence or intimidate rivals and potential
witnesses.” Brief of Appellant at 33. Appellant acknowledges that the evidence was
admissible for explaining why certain witnesses gave inconsistent statements, failed to
come forward, and were bribed to not testify, all due to fear of reprisal by the JBM.
Further, Appellant suggests that this evidence was admissible for establishing that
[J-80-2012] - 32
Appellant was a central player in the elimination of rival drug dealers by the JBM, and
as a motive for the murder. Appellant claims that, under Pennsylvania law, evidence of
a distinct crime is inadmissible against a defendant who is being tried for a different
crime due to the prejudicial effect of the admission of that evidence, citing
Commonwealth v. Claypool, 495 A.2d 176, 178 (Pa. 1985). According to Appellant,
other crimes evidence, however, must be accompanied with a cautionary instruction
which fully and carefully explains to the jury the limited purpose for which the evidence
has been admitted. Id. at 180. Appellant further presses, in cursory manner, that the
failure to give a limiting instruction also violates due process as it undermines the
fairness of the proceedings, and violates the Eighth Amendment to the United States
Constitution, as Appellant submits it deprived him of a fair and reliable capital
sentencing. Finally, according to Appellant, the Commonwealth is limited at the penalty
phase to evidence that supports an aggravating circumstance, and, here, such evidence
constitutes a non-statutory aggravator which, according to Appellant, was improperly
permitted to be considered by the jury. Appellant asserts that there was simply no
reason for counsel to fail to ask for such a cautionary instruction, or for counsel to fail to
raise this issue on appeal, and that he suffered prejudice as a result.
The Commonwealth first claims that this issue was considered by our Court on
direct appeal and found to be meritless. Reid, 642 A.2d at 461 & n.10. Thus, the
Commonwealth submits that, since this claim was already litigated and rejected, it is
unreviewable as being finally litigated. Further, the Commonwealth offers that the
evidence was relevant for more than the reasons offered by Appellant, and that his JBM
membership and drug dealing and intimidation of witnesses was relevant and
admissible to demonstrate motive and conspiracy — to show “that Appellant was a JBM
enforcer who killed the victim because he had stolen illegal JBM drugs.” Reid, 642 A.2d
[J-80-2012] - 33
at 461. Similarly, the PCRA court found the question of the admission of such bad acts
to have been addressed on direct appeal, and determined that not only did Appellant fail
to suggest an appropriate cautionary instruction for such admissible evidence, but that it
did not contain evidence of a prior crime, but only inferred such.
Initially, we observe this claim has not been previously litigated. Appellant raises
his claim as one of appellate counsel ineffectiveness, for failure to request a cautionary
instruction, and, thus, the specific issue before us has not been previously addressed.
Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005) (claim of ineffective assistance of
counsel distinct from underlying claim of trial court error). The underlying question of
the admissibility of evidence concerning Appellant’s association with the JBM, however,
was addressed in our opinion on direct appeal. Our Court determined such information
was admissible to establish motive and conspiracy, including the inference that
Appellant was a JBM enforcer who killed the victim because he had stolen JBM drugs.
Evidence of prior bad acts is generally inadmissible to prove character or to show
conduct in conformity with that character. Pa.R.E. 404(a)(1). Such evidence is,
however, admissible when offered to prove other relevant facts, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or res
geste to give context to events surrounding a crime. See Weiss, supra. While evidence
of prior bad acts may be relevant and admissible, due to the potential for
misunderstanding, cautionary instructions are sometimes required. Claypool, 495 A.2d
at 179.
The PCRA court opined that, because the evidence of Appellant’s association
with the JBM was relevant to establish motive, it did not require a cautionary instruction.
As offered by the Commonwealth, Appellant did not murder the victim “spontaneously;
he did so because he was a JBM enforcer with ‘a job to do.’” Brief of Commonwealth at
[J-80-2012] - 34
32. The evidence that Appellant now asserts required a limiting instruction — his
membership in the JBM — was directly relevant to demonstrate motive and conspiracy
in this appeal. Our Court noted on direct appeal that, while this information was directly
applicable to the charges against Appellant, it only implied prior criminal activity, and did
not refer to an actual previous crime or similar specific act. Reid, 642 A.2d at 461.
Thus, as found by the PCRA court, because Appellant’s association with the JBM, and
not any specific acts he committed in that association, was directly probative, it did not
require any instruction. Even assuming arguendo there is merit to Appellant’s claim that
trial counsel failed to request cautionary instructions, we find that in light of the mere
implication of criminal activity due to Appellant’s association with the JBM, and the other
evidence against Appellant as having murdered the victim, he has failed to establish
prejudice. Moreover, Appellant’s suggestion that the incorporation of the guilt phase
evidence into the penalty phase resulted in the same error, resulted in impermissible
consideration of non-aggravating factors, and required a cautionary instruction, fails for
the same reason and also because the trial court instructed the jury that “only”
Appellant’s significant history of felony convictions involving the use of threat or violence
can constitute an aggravating circumstance, and only if proven. N.T., 1/10/91, at 8.88.
Thus, we find that PCRA court’s determination is supported by the record and free of
legal error.
I. Jury Instructions Regarding Criminal Records
Appellant maintains that the trial court restricted the jury’s consideration of
impeachment evidence regarding each important Commonwealth witness, and that trial
counsel failed to object to this alleged error. Specifically, with respect to Dozier,
Appellant claims that he was arrested in Philadelphia County for two counts of theft and
receiving stolen property and unauthorized use of a vehicle. According to Appellant, the
[J-80-2012] - 35
trial court erroneously charged the jury that only arrests leading to crimen falsi
convictions could be used to challenge credibility. Appellant argues pending criminal
cases within the same jurisdiction are always admissible to show the witness’s bias and
motive to fabricate, citing Davis v. Alaska, 415 U.S. 308, 318 (1974). Appellant offers
the same claim with respect to Boston, whom Appellant asserts had pending
aggravated assault charges when he testified against Appellant. While the trial court
admitted the evidence of the pending charges, according to Appellant, it failed to
properly instruct the jury regarding how to consider such evidence, based on the jury’s
belief that only crimen falsi convictions could be used to impeach. Appellant asserts
that it was never contended that the “trial court’s instructions on crimen falsi
impeachment was in error, but rather that the trial court erred in failing to instruct the
jury on how it should consider evidence of the witnesses’ pending charges.” Brief of
Appellant at 39.
Additionally, Appellant offers that Terrance Lisby pled guilty to third-degree
murder, and that the Commonwealth dropped first-degree murder charges against him,
in exchange for Lisby’s testimony in both Appellant’s case and Lisby’s own murder
case. Part of that agreement was that the Commonwealth would make no
recommendation regarding Lisby’s sentence, and, according to Appellant, the
Commonwealth emphasized the open nature of that agreement. Appellant argues that
the trial court improperly instructed the jury that evidence of Lisby’s third-degree murder
conviction was admitted solely to inform the jury that an agreement had been reached
with the Commonwealth, yet, Appellant maintains it was equally admissible relative to
Lisby’s “subjective expectation of leniency and favorable treatment, regardless of the
existence or terms of an actual deal.” Brief of Appellant at 40. Thus, according to
[J-80-2012] - 36
Appellant, it was an expectation of leniency, and not just the agreement itself, that the
jury should have been able to consider and was prevented from doing so.
Moreover, Appellant points out that Kevin Brown had pending robbery and
related charges against him when he testified at Appellant’s trial. According to
Appellant, the trial court improperly limited the jury’s consideration of these charges to
whether any agreement existed, and failed to explain that Brown could have a
subjective expectation of favorable treatment regarding the disposition of these charges.
Also, Appellant claims that the trial court erred further by reminding the jury that Brown
denied that a deal existed. Finally, Appellant contends the trial court erred by
instructing the jury that only arrests leading to crimen falsi convictions could be used for
impeachment, and failed to explain to the jury that robbery was a crimen falsi offense
with which Brown could be impeached.
The Commonwealth initially responds that trial counsel did request the specific
instruction as to evidence of “a witness who has self interest or . . . benefit received,”
N.T., 1/8/91, 6.180-81, both before and after the jury charge. Thus, the Commonwealth
contends, for this reason alone, Appellant’s ineffectiveness claim is without merit.
Moreover, the Commonwealth claims the trial court properly stated the current law that
witness credibility may be impeached regarding an arrest, only if such arrest resulted in
a conviction for crimen falsi. Commonwealth v. Burton, 417 A.2d 611, 613 (Pa. 1980);
Suggested Standard Jury Instruction 4.08D (Crim). Further, the Commonwealth offers
that the trial court instructed the jury it should consider whether a witness had an
agreement with the Commonwealth in exchange for testifying, and whether there
existed an interest or motive that could have impacted the witness’s testimony. More
generally, the Commonwealth points to the instruction for the jury to take “all of the
surrounding circumstances and determine which witnesses you will believe and what
[J-80-2012] - 37
weight you will give their testimony.” N.T., 1/8/91, 6.148. The Commonwealth also
points to our decision on direct appeal, wherein we noted that the trial court instructed
the jury concerning its duty to make credibility determinations and that it “clearly
explained that any interest or motive of a witness that may color his recollection and
testimony could be considered in making such determinations.” Reid, 642 A.2d at 462.
Thus, according to the Commonwealth, even if Appellant failed to request a bias
instruction, he would not be entitled to relief.
The PCRA court first observed that the trial court’s instruction regarding the
limitation of consideration to crimen falsi convictions is a correct statement of the law,
citing Commonwealth v. Ross, 252 A.2d 661 (Pa. 1969). While acknowledging an
exception to establish bias, such as challenging a witness’s self-interest by questions
regarding possible or actual favored treatment in a non-final matter involving the same
prosecuting authority, citing, Commonwealth v. Evan, 512 A.2d 626 (Pa. 1986), the
PCRA court went on to opine that the trial court’s instructions, when viewed as a whole,
embraced those requirements for the admission and consideration of the witness’s
other crimes. The trial court first gave a general crimen falsi instruction, then charged:
There is evidence that Terrance Lisby pled guilty to third
degree murder. I had allowed this evidence in for the sole
purpose of informing you if any agreement exists between
him and the Commonwealth for his testimony in this case.
Terrance Lisby to my recollection would have the Assistant
District Attorney advise the judge as to his cooperation in
this case. Sentence would depend solely on the discretion
of the Judge beyond any mandatory sentence of five years
which is compelled by law.
There is also evidence that the witness Morris Dozier was
convicted of burglary, theft, and unauthorized use of an
automobile, which are crimes [of] crimen falsi. The only
purpose for which you may consider this evidence of prior
convictions is in deciding whether or not to believe all or part
[J-80-2012] - 38
of Morris Dozier’s testimony. In doing so you may consider
the type of crime committed, how long ago it was committed,
and how it may affect the likelihood that Morris Dozier has
testified truthfully in this case.
Kevin Brown has an outstanding charge of robbery, for
which he is presumed innocent. I had allowed this evidence
in for the sole purpose of informing you if any agreement
exists between him and the Commonwealth for his testimony
in this case. It is my recollection that Kevin Brown has
denied any deal of any kind.
N.T., 1/8/91, 6.155-6. According to the PCRA court, the charge made clear that, while a
judge would have the ultimate decision whether to accept a plea agreement, credibility
of the witness would depend upon his expectation and not whether an actual agreement
had been consummated. The trial court further instructed the jury with respect to
Lawrence Boston:
Some special rules may apply to your consideration of
Lawrence Boston’s testimony concerning the defendant’s
commission of the crime charged in this case. First, you
must decide whether or not Lawrence Boston himself joined
with someone in committing the crime with which the
Defendant is charged. Although Lawrence Boston did not
admit his involvement, other evidence could support a
contrary conclusion. So after considering all the evidence
you have heard you must first decide whether or not
Lawrence Boston himself participated as an accomplice in
the commission of the crime. [If the jury concludes Boston
participated in the crime, certain principles apply to his
testimony].
***
First, the testimony of Lawrence Boston as an accomplice
should be looked upon with disfavor because it comes from
a corrupt and polluted source. Second, you should examine
Lawrence Boston’s testimony closely and accept it only with
caution and care. Third, you should consider whether
Lawrence Boston’s testimony that the Defendant committed
[J-80-2012] - 39
the crime is supported in whole or in part by evidence other
than his testimony, for if it is supported by independent
evidence it is more dependable. Fourth, you may find the
Defendant guilty based on Lawrence Boston’s testimony
alone and even though it is not supported by any
independent evidence. And so to summarize, even though
you decide Lawrence Boston is an accomplice, his testimony
standing alone is sufficient evidence on which to find the
Defendant guilty if after following the foregoing principles you
are convinced beyond a reasonable doubt that Lawrence
Boston testified truthfully that the Defendant committed the
crime.
Id. at 6.157-60. According to the PCRA court, these charges, when read as a whole,
covered all aspects of the requirements of admission and consideration of the
witnesses’ other crimes. Further, the PCRA court refuted Appellant’s factual assertion
that, with respect to Morris Dozier, there were open charges against him regarding
receiving stolen property, theft, and unauthorized use of an automobile, determining that
the record did not support such assertions and that, because there were no outstanding
charges, it was proper to limit the jury’s consideration of his record to crimes of crimen
falsi. Finally, the PCRA court noted that, in Appellant’s direct appeal, our Court
suggested, regarding whether the trial court erred in failing to give a corrupt source
charge or accomplice liability instruction, that the trial court, with respect to making
credibility determinations, “clearly explained that any interest or motive of a witness that
may color his recollection and testimony could be considered in making such
determinations.” Reid, 642 A.2d at 462.
Based upon the above, we find that the trial court properly stated the current law
that witness credibility may be impeached regarding an arrest, only if such arrest
resulted in a conviction for crimen falsi. Burton, 417 A.2d at 613. Further, as offered by
the PCRA court, we note that the trial court instructed the jury it should consider
whether a witness had an agreement with the Commonwealth in exchange for testifying,
[J-80-2012] - 40
and whether there existed an interest or motive that could have impacted the witness’s
testimony. N.T., 1/8/91, at 6.155-6, 6.157-60. More generally, and as noted by the
Commonwealth, the jury was instructed it was to consider “all of the surrounding
circumstances and determine which witnesses you will believe and what weight you will
give their testimony.” Id. at 6.148. Additionally, the trial court instructed the jury that, in
considering witnesses’ testimony, “some have an interest or motive which may have
colored their recollection and testimony. And all such personal equations must enter
into your determination as to how much reliance you can place on the testimony of each
witness.” Id. at 6.149. Related thereto, as noted by the Commonwealth and the PCRA
court below, our Court on direct appeal noted that the trial court instructed the jury
concerning its duty to make credibility determinations and that it “clearly explained that
any interest or motive of a witness that may color his recollection and testimony could
be considered in making such determinations.” Reid, 642 A.2d at 462. Thus, we
conclude, when the instructions to the jury are considered as a whole, Appellant failed
to establish that he is entitled to relief. In any event, even if Appellant failed to request a
specific bias instruction, in light of the instructions taken as a whole, he did not suffer
prejudice which would entitle him to relief.
J. Failure to Instruct Jury that Presence at Scene is Insufficient to Convict
Appellant maintains that trial counsel was improperly denied an instruction on
mere presence, including that Appellant could not be convicted if he was merely present
at the scene, even if he fled the scene or exhibited other indicia of consciousness of
guilt. The trial court rejected this request, noting the charge on accomplice liability was
sufficient. According to Appellant, the lack of an instruction on mere presence enabled
the jury to convict Appellant based upon "its collective conclusion that he was present
[J-80-2012] - 41
and then acted to conceal that limited involvement." Brief of Appellant at 44. Appellant
maintains that his counsel on direct appeal was ineffective for failing to raise this issue.
The Commonwealth counters that the trial court properly instructed the jury as to
the elements of the crimes charged, which required more than mere presence. Further,
the trial court offered with respect to the accomplice charge that "[a] defendant does not
become an accomplice merely by being present at the scene or knowing about a crime."
N.T., 1/8/91, at 6.156.
In light of the trial court's charging the jury as to the elements of the crime, which
require more than mere presence, and that accomplice liability requires more than
merely being “present at the scene or knowing about a crime,” we find no trial court
error in refusing to give the instruction requested by Appellant. The jury knew that more
than mere presence was required to convict Appellant of any of the crimes charged.
Thus, we find that Appellant is not entitled to relief.12
K. Prosecutorial Misconduct - Juror Fear of Crime
Appellant next argues that his due process rights were violated as a result of the
Commonwealth’s alleged improper attacks on his character by describing America's
history with gangsterism, the untouchables, and implying Appellant was a "gangster,"
and referring to him as a "killer." According to Appellant, these comments were
intended to inflame the jury and to convince them Appellant was a "bad man who
deserves conviction because of his association with the JBM." Brief of Appellant at 45.
Appellant claims prior counsel was ineffective for failing to preserve this claim, and,
12
In his brief, Appellant further suggests that the trial court erred in refusing to instruct
the jury that evidence of consciousness of guilt by itself is never enough to convict and
counsel was ineffective for failing to preserve this issue on appeal. As Appellant plainly
fails to develop this claim in any meaningful fashion, it is not reviewable.
Commonwealth v. Hutchinson, 25 A.3d 277, 300 (Pa. 2011).
[J-80-2012] - 42
while raising certain prosecutorial comments, counsel had no reasonable basis to fail to
raise all allegedly improper comments on appeal. Finally, Appellant claims that, had
counsel preserved and raised this claim on direct appeal, there is a likelihood he would
be granted relief from his convictions.
The Commonwealth counters that Appellant’s claims are unfounded, notes the
PCRA court properly denied relief, and that our Court on direct appeal reviewed the
"entire argument" by the Commonwealth and concluded there was no misconduct or
ineffective assistance of counsel. Reid, 642 A.2d at 460.
A prosecutor is free to present argument with logical force and vigor so long as
there is a reasonable basis in the record for the prosecutor's remarks. Commonwealth
v. Tedford, 960 A.2d 1, 32 (Pa. 2008). Further, reversible error arises from a
prosecutor's comments “only where the unavoidable effect is to prejudice the jur[ors],
forming in their minds a fixed bias and hostility toward the defendant such that they
could not weigh the evidence objectively and render a fair verdict.” Id. at 33. To
succeed on a claim of ineffective assistance of counsel based on trial counsel's failure
to object to prosecutorial misconduct, the defendant must demonstrate “that the
prosecutor's actions violated a constitutionally or statutorily protected right, such as the
Fifth Amendment privilege against compulsory self-incrimination or the Sixth
Amendment right to a fair trial, or a constitutional interest such as due process.” Id. at
29.
After reviewing the prosecutor’s closing statement in its entirety, we conclude
that none of the comments had the unavoidable effect of prejudicing the jurors, or
creating a fixed bias or hostility which would prevent them from rendering a fair verdict
based on the evidence. The Commonwealth’s reference to “gangster” was in accord
with the evidence which indicated Appellant's killing of the victim was part of performing
[J-80-2012] - 43
a "job" for the JBM — the motive for the killing — and, similar thereto, the
Commonwealth's reference to Appellant as a "killer" was not impermissible.
Commonwealth v. Porter, 569 A.2d 942, 946 (Pa. 1990) (where evidence supported
remark, prosecutor's description of defendant as "cold-blooded killer" was permissible);
see also Commonwealth v. Jones, 610 A.2d 931, 943 (Pa. 1992) (reference to
defendants as "murdering, child-killing, backshooting trio,” "slaughterers," and
"executioners" was within bounds of vigorous oratory permitted a prosecutor in closing
argument).13 Accordingly, trial counsel was not ineffective for failing to object to the
Commonwealth’s closing argument, and Appellant’s claim of appellate counsel
ineffectiveness also fails.
L. Admission of Former Testimony of Lawrence Boston
Boston was declared unavailable to testify because of his exercise of his Fifth
Amendment right against self-incrimination at Appellant’s second trial, and, as a result,
Boston’s former testimony from Appellant's first trial was read into the record. Appellant
maintains this was improper. Specifically, Appellant contends that, once a witness
makes a knowing and intelligent waiver of the privilege against self-incrimination in one
proceeding, it is waived for future proceedings in the same case, as long as his
testimony sought in a later proceeding would not require the disclosure of new
information, citing Commonwealth v. Hall, 565 A.2d 144, 150 n.19 (Pa. 1989) and
Commonwealth v. McGrogan, 568 A.2d 924 (Pa. 1990). Appellant argues his trial
counsel properly objected at his second trial that Boston was not legally "unavailable"
13
Additionally, Appellant also argues the Commonwealth engaged in other misconduct
by references to Philadelphia's social ills and by blaming groups like the JBM and
individuals like Appellant for causing those problems, and by urging the jury not to "let
him walk out of here." Appellant failed to include these assertions in his 1925(b)
statement, and, thus, they are not reviewable. Commonwealth v. Castillo, 888 A.2d
775, 779-80 (Pa. 2005).
[J-80-2012] - 44
since Boston had previously waived his Fifth Amendment rights and so compelling his
testimony would not require the disclosure of new information. More specifically,
Appellant asserts that, while at the first trial Boston acknowledged being at the scene of
the murder, his testimony from the first trial was not self-incriminating. According to
Appellant, Boston's testimony at Appellant's second trial would not have required the
disclosure of any new information that would have placed him in jeopardy. Therefore,
Appellant reasons that Boston's waiver of his Fifth Amendment rights at Appellant's first
trial precluded him from asserting the privilege at Appellant's second trial. Appellant
asserts that counsel, however, failed to preserve this issue on appeal, and, thus, was
ineffective. Appellant adds there was no reasonable basis for failing to raise this claim
on appeal, and that, due to Boston being a crucial witness for the Commonwealth, and
because Appellant was deprived of his right to confront Boston at his second trial, had
counsel raised this issue on direct appeal, there was a reasonable likelihood the
outcome at trial would have been different.
The Commonwealth offers the general rule that the waiver of a privilege against
incriminating one's self in an initial proceeding does not impact the right to invoke the
privilege in a subsequent proceeding. Hall, 565 A.2d at 155. Thus, the Commonwealth
contends Appellant's statement of the law is simply wrong. Moreover, the
Commonwealth maintains that, while Appellant claims that, because Boston had not
been charged in this case he did not risk self-incrimination, this was not true. As offered
by the Commonwealth, Boston's account of the events of the murder implicated him as
a co-conspirator and led to Appellant's conviction for criminal conspiracy. Both Boston
and Appellant were at the scene of the murder, both had a motive to kill the victim, and
both men went together to confront the victim regarding the theft of drugs that Terrance
Lisby was selling for Boston. Further, the Commonwealth highlights that Boston
[J-80-2012] - 45
admitted to selling drugs, lying to police in an initial statement, and implicated himself in
an outstanding aggravated assault case. Under these circumstances, the
Commonwealth argues, Boston had reason to believe he was in danger of prosecution,
and, therefore, his exercise of his right against self-incrimination was proper.
The PCRA court noted the general rule that waiver of the privilege against self-
incrimination in one proceeding does not affect the right to invoke it in an independent
proceeding, citing Commonwealth v. Rogers, 372 A.2d 771, 779 (Pa. 1977). It
acknowledged Appellant's assertion that, once a waiver of the privilege has been made,
such waiver applies in a later proceeding as long as the subsequent proceeding would
not require the disclosure of new information, and as long as the former testimony did
not implicate the witness in any wrongdoing. However, according to the PCRA court, as
there was no showing that Boston consulted with his attorney or that he was aware of
the privilege, or that he knew the testimony could be used against him, the court
reasoned it could not be said that Boston made a valid waiver at Appellant's first trial.
The PCRA court continued that Appellant makes no attempt to demonstrate that
Boston's testimony was not incriminating or that Appellant was denied a full opportunity
to cross examine Boston at Appellant's first trial. The PCRA court concluded Boston's
former testimony clearly implicated him in wrongdoing and that the Commonwealth was
clear that charges against him were a possibility. Thus, the PCRA court deemed
Appellant's claim to be without merit.
As noted by the PCRA court and the Commonwealth, the general rule is that
waiver of the privilege against self-incrimination in one proceeding does not affect the
right to invoke it in an independent proceeding. Rogers, 372 A.2d at 779. While
Appellant contends this ability to invoke the privilege in a later proceeding does not
apply when the disclosure of new information is not compelled, citing Hall, 565 A.2d at
[J-80-2012] - 46
151 n.19, our Court in Hall did not embrace this notion, and this specific limitation on the
right against self-incrimination has not been adopted as the law of Pennsylvania.
Moreover, Appellant’s reliance on McGrogan for this novel proposition is clearly inapt,
as, in that case, the witnesses’ prior testimony was not incriminating. Here, as noted
above, Boston's testimony at Appellant's first trial was incriminating with respect to
numerous charges, and he remained exposed to charges by the Commonwealth. Thus,
the general rule applies and the trial court properly found Boston to have been
unavailable. Appellant's claim is without merit.
M. Batson claim
Appellant argues that the PCRA court erred in denying his motion for relief based
on his claim that the prosecution exercised its peremptory strikes on the basis of race
and gender in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and, further, that
prior counsel was ineffective for failing to raise and litigate this claim. Brief of Appellant
at 49. Appellant further contends the PCRA court improperly denied his motion for
discovery, his motion for funds to hire an expert, and his motion for an evidentiary
hearing, which would have allowed him to further develop his Batson claim.
In Batson, the United States Supreme Court held that a prosecutor’s challenge of
potential jurors solely on the basis of race violates the Equal Protection Clause. 476
U.S. at 89. In order to demonstrate a Batson violation, an appellant must make a prima
facie showing that the prosecutor has exercised peremptory challenges on the basis of
race. Id. at 96. If the appellant succeeds, the burden shifts to the prosecutor to
articulate a race-neutral explanation of its peremptory challenges. Id. at 97. Finally, the
trial court must determine whether the defendant has carried his burden of proving
purposeful discrimination. Id. at 98.
[J-80-2012] - 47
Where, as here, a Batson claim arises only in the context of an allegation of
ineffectiveness of counsel, an appellant is not entitled to the benefit of the burden of
persuasion as to whether there is a race-neutral explanation for the prosecutor’s use of
peremptory challenges. Commonwealth v. Uderra, 862 A.2d 74, 86 (Pa. 2004). Rather,
the appellant bears the burden throughout the inquiry and must demonstrate “actual,
purposeful discrimination by a preponderance of the evidence,” as well as meeting the
“performance and prejudice” standard for demonstrating counsel’s ineffectiveness
discussed above. Id. at 87. To satisfy his burden, an appellant raising a Batson claim
must make a record specifically identifying the race of all the venirepersons removed by
the prosecution, the race of the jurors who served, and the race of the jurors acceptable
to the Commonwealth who were stricken by the defense. See Commonwealth v.
Sepulveda, 55 A.3d 1108, 1132 n.23 (Pa. 2102). (noting that we have required
information about race of potential jurors peremptorily challenged by the
Commonwealth, the race of potential jurors acceptable to the Commonwealth but
peremptorily challenged by the defense, and the composition of the jury selected).
As noted above, in the instant case, Appellant did not raise a Batson claim at trial
or on direct appeal. According to Appellant, trial counsel did not object to any of the
Commonwealth’s peremptory challenges and did not make a record of the race of jurors
struck and accepted by the Commonwealth. Appellant further argues that he attempted
to establish the race of the remaining jurors during the PCRA proceeding, but that the
PCRA court erroneously denied his motion for discovery relating to juror race.
Nevertheless, Appellant asserts he was able to determine the race of many of the jurors
by using voter registration records and obtaining affidavits from certain jurors, which
enabled him to make the following proffer:
Leaving aside those jurors struck for cause or struck by the
defense before the Commonwealth made a choice whether
[J-80-2012] - 48
to accept or strike the juror, there were thirty-nine (39)
potential jurors available for peremptory strikes by the
prosecutor. Of these 39 people whom the prosecutor had an
opportunity to strike, 15 were black, 16 were white, and 8 are
unknown. Of that almost evenly balanced pool, the
prosecutor struck 9 blacks, 3 whites, and 6 unknown. By
contrast, the prosecutor accepted 6 blacks, 14 whites, and 1
unknown.
Brief of Appellant at 50 (quoting Appellant’s Response to Commonwealth’s Motion to
Dismiss). Appellant contends that the “pattern of strikes is grossly disproportionate,”
Brief of Appellant at 50, and, in his brief to this Court, he alleges that, following his
proffer, “the Commonwealth conceded that Appellant was entitled to an evidentiary
hearing on his Batson claim.” Id. (referencing letter dated July 8, 2005 from ADA
Michelle Seidner to Judge Lineberger).
Upon review, we find no error in the PCRA court’s denial of Appellant’s request
for discovery, funds, an evidentiary hearing, and relief based on his Batson claim. With
respect to Appellant’s request for an evidentiary hearing, the decision whether to grant
an evidentiary hearing is within the discretion of the PCRA court and will not be
overturned absent an abuse of discretion. Sepulveda, 55 A.3d at 1134. As discussed
above, after the Commonwealth filed its initial motion to dismiss, Appellant responded
that he was entitled to an evidentiary hearing on, inter alia, his Batson claim. See
Appellant’s Consolidated Response to Commonwealth’s Motion to Dismiss, 7/12/02.
On May 6, 2005, in response to a motion by the Commonwealth, the PCRA court issued
notice of its intent to dismiss Appellant’s Amended PCRA petition as without merit. On
June 3, 2005, however, the Commonwealth advised Appellant and the court that it
would not object to an evidentiary hearing on certain limited issues, including
Appellant’s Batson claim, in light of the fact that this Court had recently remanded
several capital cases for evidentiary hearings.
[J-80-2012] - 49
Accordingly, the PCRA court scheduled an evidentiary hearing on Appellant’s
Batson claim for June 15, 2005. However, on June 8, 2005, defense counsel advised
the court by letter that (1) he was unable to attend the scheduled hearing; (2) he did not
believe it was necessary for him attend the hearing if the court simply intended to
dismiss Appellant’s Amended PCRA petition; and (3) if the court did not intend to
dismiss the petition, he was requesting the matters be relisted so that he could appear.
Accordingly, the PCRA court relisted the matter for July 13, 2005. In a letter dated June
21, 2005, however, defense counsel objected to the hearing, suggesting, inter alia, that
it was unfair for the Commonwealth to agree to an evidentiary hearing when it
previously maintained that no hearing was warranted, and that, if the court intended to
conduct an evidentiary hearing, the judge should recuse himself. Counsel further
averred:
If the Court does anything other than dismiss these cases,
we will need the Court to set aside no fewer than three
consecutive weeks for these protracted hearings. In
addition, I will need to request substantial expert funds and
file various motions, including additional discovery motions,
in order to properly present our case.
Fifth, if the Court is inclined to accede to the
Commonwealth’s new position, then we intend to file a
formal motion for sanctions to address its unprofessional
conduct. These should include an Order precluding the
Commonwealth from cross-examining any defense
witnesses, from presenting any witnesses, and from making
any written or oral argument.
. . . [W]e continue to maintain our long-held position that the
issues we raised deserve an evidentiary hearing, but we only
want an evidentiary hearing if it can be fair.
Letter from Daniel Silverman to Judge Lineberger, 6/21/05, at 3.
[J-80-2012] - 50
On August 19, 2005, the PCRA court issued an order denying Appellant’s motion
for recusal, and scheduling a hearing for September 15, 2005, on the issues of (1)
Appellant’s Batson claim; (2) doctor and family member mitigation testimony at the
penalty phase of Appellant’s trial; and (3) after-discovered/recantation witnesses. On
August 31, 2005, Appellant’s counsel filed another motion for continuance seeking to
have the hearing rescheduled. Before acting on the motion, Judge Lineberger retired,
and, in December 2005, the cases were assigned to the Honorable William Mazzola,
following which time Appellant filed additional motions for discovery and expert funds,
and alleging newly discovered Batson claims, all of which Judge Mazzola denied.
We set forth the above procedural history to demonstrate that Appellant was
offered an evidentiary hearing on his Batson claim, but repeatedly frustrated the PCRA
court’s attempt to conduct the hearing. Accordingly, he cannot now complain that he
was denied a hearing. Thus, we find no merit to Appellant’s claim that the PCRA court
improperly denied him an evidentiary hearing.
Likewise, we reject Appellant’s claim that the PCRA court improperly denied his
request for discovery. Discovery in death penalty collateral proceedings is permissible
only upon leave of court, and only for good cause shown. Pa.R.Crim.P. 902(E)(2). We
review a PCRA court’s denial of discovery for an abuse of discretion. Commonwealth v.
Sattazahn, 952 A.2d 640, 662 (Pa. 2008). In his discovery request, Appellant sought
documents produced in a civil suit filed by Bruce Sagel against Philadelphia Magazine
in June 1997. In the lawsuit, which was withdrawn in December 1997, Sagel claimed
that the magazine’s publication of comments he was alleged to have made during a
1990 lecture on jury selection defamed him. Appellant requested copies of Sagel’s
answers to interrogatories and request for production of documents, as well as Sagel’s
deposition transcript, pertaining to the lawsuit. In addition, Appellant sought copies of
[J-80-2012] - 51
Sagel’s lecture notes. See Appellant’s Motion for Discovery, 2/21/06. According to
Appellant, the documents he sought were necessary to enable him to meet his burden
of establishing a prima facie case of discrimination under Batson. However, this Court
has determined that information relating to the Sagel lecture notes is insufficient to
establish the required purposeful discrimination. Commonwealth v. Ligons, 971 A.2d
1125, 1145 n.19 (Pa. 2009). Thus, Appellant’s motion for discovery was unsupported
by good cause, and the PCRA court did not err in denying Appellant’s motion. For the
same reason, the PCRA court’s denial of Appellant’s request for funds to retain experts,
including Professor David Baldus, see infra, to testify in support of his Batson claim was
not erroneous.
Finally, with regard to the merits of Appellant’s Batson claim, we hold that
Appellant is not entitled to relief. As noted above, Appellant contends that the
prosecutor struck 9 of 15 potential African American jurors, but struck only 3 of 16
potential Caucasian jurors, and 6 of 8 unknown jurors, resulting in a “grossly
disproportionate” pattern of strikes. Appellant’s Brief at 50. Initially, the Commonwealth
contends that, by failing to make a record of the race of potential jurors who were
acceptable to the Commonwealth, but excluded by the defense, Appellant is unable to
establish even a prima facie case of discrimination. The fact that the prosecutor struck
more African Americans than Caucasians, in and of itself, is insufficient to demonstrate
purposeful discrimination when considering the totality of the circumstances. Ligons,
971 A.2d at 1144. Moreover, as Appellant fails to identify the racial composition of his
jury, we lack an adequate record upon which to evaluate his Batson claim. See
Sepulveda, 55 A.3d at 1132 n.23. Accordingly, we conclude Appellant has failed to
establish purposeful discrimination based on the prosecutor’s use of preemptory strikes.
[J-80-2012] - 52
Nevertheless, Appellant, in further support of his contention that the prosecution
engaged in purposeful discrimination, makes an oft-asserted claim of a culture of
discrimination in the Philadelphia District Attorney’s Office. Specifically, he asserts that
an analysis by Professor David Baldus demonstrates that Roger King, the prosecutor in
Appellant’s case, was “over two times more likely to strike a black venire person
compared to one who was not black.” Appellant’s Brief at 52 (emphasis original).
Appellant also contends that a study by Professor Baldus documents a pattern of racial
discrimination in jury selection in Philadelphia during the years 1981 through 1997.
Appellant further argues that the infamous 1987 training tape on jury selection prepared
by former Philadelphia Assistant District Attorney Jack McMahon “supports an
inference” that the Philadelphia District Attorney’s Office engaged in purposeful
discrimination, as do lecture notes taken during a training lecture for prosecutors
delivered by Bruce Sagel in 1990. Id. at 53.
This Court previously has held that evidence that a prosecutor was found to have
violated Batson in a prior case is insufficient to demonstrate that the prosecutor
impermissibly struck jurors in a later case. Ligons, 971 A.2d at 1145. As we have held
that a finding of a prior Batson violation is insufficient to establish purposeful
discrimination in a subsequent case, Appellant’s mere allegation that the prosecutor in
his case “was over two times more likely” to strike an African American juror than a
Caucasian juror cannot support his claim of purposeful discrimination.
With regard to the McMahon contention, we have repeatedly emphasized that
the McMahon training tape is not sufficient to establish a Batson violation in a particular
case, particularly where, as here, “the prosecutor at an appellant’s trial was someone
other than McMahon, and the time of the appellant’s trial was temporally remote from
the creation of the videotape.” Commonwealth v. Jones, 951 A.2d 294, 305 (Pa. 2008).
[J-80-2012] - 53
We likewise have determined that the Baldus study and the Sagel lecture notes are
insufficient to establish purposeful discrimination. Ligons, 971 A.2d at 1145 n.19. Thus,
as Appellant has failed to demonstrate purposeful discrimination, the PCRA court did
not err in denying him relief on his Batson claim.
N. Denial of Evidentiary Hearing and Effective Counsel at Sentencing
Appellant next contends that the PCRA court erred in denying without an
evidentiary hearing his claim that he did not receive effective assistance of counsel at
the sentencing phase of his trial. Specifically, Appellant alleges that counsel “conducted
no meaningful pre-trial mitigation investigation; failed to develop more than the most
minimal life history mitigation; failed to develop mental health mitigation evidence;
presented to the jury virtually none of the compelling mitigation available to the defense;
and failed to explain to the jury the evidence of [Appellant’s] membership in a gang.”
Brief of Appellant at 57-58. Appellant further asserts that counsel has a duty to
thoroughly investigate available mitigating evidence before deciding whether such
evidence should be presented, citing Williams v. Taylor, 529 U.S. 362 (2000). Id. at 58.
We reiterate that the decision whether to grant an evidentiary hearing is within
the discretion of the PCRA court and will not be overturned absent an abuse of
discretion. Sepulveda, 55 A.3d at 1133-34. In the instant case, trial counsel presented
four witnesses at Appellant’s penalty trial, including three of Appellant’s foster sisters,
Lydia Banks, Lillian White, and Linda Curry. These witnesses testified, inter alia, about
Appellant having lived his childhood in foster care, having been abandoned by his
mother and father; that they lived in poverty; but were taught “right from wrong” and to
“respect others.” N.T., 1/10/91, at 8.60. They also offered that, since being
incarcerated, Appellant was “changing his life around,” embracing religion and
[J-80-2012] - 54
education, and that he was like a “new person.” Id. at 8.56. In his closing to the jury,
trial counsel argued, inter alia:
It is a rational analysis -- beg [sic] you for his life as his foster
sisters did, but I beg it based on the evidence. I beg it based
on the evidence of mitigation, which I suggest to you would
outweigh the aggravating circumstance in this case because
there is hope and none of you can rule out the fact that he is
changing and reforming and there is no contrary testimony to
that. What happened happened and two years later there is
change, there is reform, there is hope, and give him life, give
him the opportunity to spend the rest of his life in prison.
Because he deserves to live. By the evidence in this case.
Id. at 8.86-87.
Thereafter, during its charge to the jury, the trial court instructed the jury that it
could consider two mitigating circumstances: Appellant’s age at the time of the crime,
and any other evidence regarding the character and record of Appellant and the
circumstances of the offense. Id. at 8.88. The jury, however, found no mitigating
circumstances.
Appellant now argues that trial counsel was ineffective for failing to contact other
“readily available witnesses,” including an additional foster sister, Appellant’s foster
mother, and Appellant’s birth mother. Brief of Appellant at 59. According to Appellant,
these additional witnesses would have established, inter alia, that Appellant was abused
as a child; had slow development; and sustained two head injuries. Appellant further
contends that, despite knowing that Appellant had been in foster care, trial counsel
failed to obtain records from the Women’s Christian Alliance, the organization which
supervised his foster care; his records from the Philadelphia public schools which
Appellant attended; and records from Pennhurst State School and Hospital, all of which
purportedly would have documented his birth mother’s history of mental retardation and
impairments and his own difficulties in school. Appellant also claims that trial counsel
[J-80-2012] - 55
was ineffective for failing to present a mental health expert who would have testified that
Appellant suffered from a variety of mental disorders as a result of his foster care
environment and childhood poverty. Further, Appellant claims it was incumbent upon
trial counsel to provide evidence to explain to the jury why Appellant joined a gang.
The Commonwealth notes that Appellant’s foster sisters testified that they were
raised in a “supportive family,” and that, in purported affidavits Appellant included in his
Supplemental Reproduced Record describing Appellant’s alleged abusive childhood,
they “abruptly changed their tune.” Id. at 50. Based on the above, the Commonwealth
maintains that trial counsel’s “decision to present [Appellant] as drawn to a ‘bad crowd’
due to a lack of parental love and a deprived childhood, who was now a changed man
with a supportive and loving family, was objectively reasonable,” and cannot form the
basis of an ineffectiveness claim. Id. at 49. Additionally, the Commonwealth asserts
that Appellant has failed to establish prejudice by showing that, had the additional
evidence been presented and considered by the jury, the jury would have found a
mitigating circumstance that outweighed the “undisputed and substantial aggravating
circumstance of [Appellant’s] significant history of killing people.” Id.
In his Amended PCRA Petition, Appellant alleged that trial counsel was
ineffective for failing to discuss the proper weighing of the sole aggravating
circumstance against each mitigating circumstance, rather than against mitigating
circumstances collectively. Amended PCRA Petition at 93 ¶ 180 et seq. Appellant’s
present allegations regarding trial counsel’s failure to contact other family members,
obtain his school and foster care records, and present mental health evidence and
evidence of Appellant’s membership in a gang, however, were raised for the first time in
his Supplemental Amended PCRA Petition, filed three months later. As discussed
[J-80-2012] - 56
supra, the PCRA court does not appear to have authorized such filing. Thus,
Appellant’s claim is waived as a result. See supra pp. 7-9.14
Moreover, as we have discussed above with regard to Appellant’s Batson claim,
after the Commonwealth filed its initial motion to dismiss Appellant’s Amended PCRA
Petition, Appellant argued that he was entitled to an evidentiary hearing on, inter alia,
his Batson claim and the issue of whether trial counsel was ineffective for failing to
investigate, prepare, and present relevant mitigating evidence at sentencing. Although
the Commonwealth agreed to an evidentiary hearing on these issues, and, although
Judge Lineberger scheduled a hearing on several occasions, Appellant repeatedly
sought to delay the hearings; sought recusal of the PCRA court judge; demanded
“substantial expert funds”; demanded three consecutive weeks during which to conduct
“protracted” hearings; threatened to file a formal motion for sanctions against the
Commonwealth; and sought an order that would preclude the Commonwealth from
“cross-examining any defense witnesses, from presenting any witnesses, and from
making any written or oral argument.” Letter from Daniel Silverman to Judge
14
We also note that in a separate argument section of his Amended PCRA Petition,
Appellant contends that his death sentence should be vacated because the trial court’s
instructions to the jury at the penalty phase erroneously advised the jury how to weigh
the aggravating and mitigating circumstances. As part of this argument, Appellant
asserts:
The fact that on paper this jury apparently did not find even
one mitigating circumstance does not somehow render
“harmless” this significant error. As a general matter, so
many grievous errors were committed in connection with the
otherwise applicable mitigating circumstances that it is not
surprising that no mitigation was found. First, trial counsel
failed to introduce abundant mitigating evidence that would
have supported at least three (3) distinct mitigators. See
Supplemental Amended Petition.
Amended PCRA Petition at 94-95 ¶183. However, the supplemental amended PCRA
petition to which he refers was not of record at the time.
[J-80-2012] - 57
Lineberger, 6/21/05, at 3. As we concluded with regard to Appellant’s Batson claim, the
absence of a hearing on Appellant’s mitigation claim was the result of his own dilatory
tactics and excessive demands, and he cannot now complain that he was improperly
denied a hearing.
O. Preclusion of Mitigation Evidence of Conversion to Islam
Appellant argues that, at trial, he attempted to enter into evidence that he had
converted to Islam, was an active and devout Muslim who denounced violence, and had
adopted and followed religiously-based guidelines for conducting one’s affairs.
Appellant claims that witnesses were prepared to testify to these facts and the sincerity
of his conversion. Appellant notes that, on direct appeal, our Court rejected the trial
court’s rationale for precluding this evidence — the prohibition on questioning a witness
regarding his or her religious beliefs, 42 Pa.C.S.A. § 5902(b) — and determined that it
could be admissible and relevant to the character of a defendant; and found appellate
counsel had failed to articulate or support Appellant’s claim that he had been prejudiced
by the ruling. Appellant now challenges the PCRA court’s determination that it would
have been inadmissible for a witness to testify that Appellant had undergone a
transformation. Moreover, Appellant takes issue with the PCRA court’s assertion that
mention of the words “Muslim” or “Islam” should be “avoided like the plague.” PCRA
Court Opinion, 2/14/11, at 57. According to Appellant, the court’s view as to the wisdom
of offering such testimony was irrelevant, as it was for Appellant to present the evidence
he wanted to the jury. Appellant maintains that he was prejudiced by this exclusion of
testimony, as the jury was not presented with a full picture of Appellant’s transformation,
“that it was brought about through a genuine religious conversion and what that religion
teaches,” and that he was prevented from explaining why the jury should credit that
evidence. Brief of Appellant at 73.
[J-80-2012] - 58
The Commonwealth points to our Court's resolution of this issue on direct appeal
determining that Appellant had not established prejudice and that Appellant was able to
present evidence about his moral philosophy and that he was involved in a new religion.
Reid, 642 A.2d at 459-60. Ultimately, the Commonwealth argues that Appellant fails to
explain how testimony identifying him as a Muslim, as opposed to some other specific
faith, was relevant to mitigation or would have changed the outcome.
The PCRA court noted that the underlying claim was previously litigated on direct
appeal, and that Appellant’s new claim on collateral review, presenting all relevant and
controlling authority and proof of prejudice was “specious.” PCRA Court Opinion,
2/14/11, at 56. Specifically, the court reasoned that Appellant was permitted at trial to
present evidence of his adherence to a moral philosophy and that he was involved in a
new religion, and that this philosophy endorses morality and requires one to change and
reform. While noting that the trial court prohibited Appellant from mentioning Islam, the
PCRA court concluded Appellant failed to establish prejudice.
Initially, we note that this issue was not raised on appeal, is a distinct issue, and,
thus, has not been previously litigated. Collins, supra. In essence, Appellant asserts
before us that trial and appellate counsel did not do a sufficient job litigating this issue.
Assuming, arguendo, there is merit to Appellant’s claim, he still has not established that
he was so prejudiced as to afford him relief. As noted by the Commonwealth, the
PCRA court, and our Court on direct appeal, Appellant was able to present evidence
about his adherence to a moral philosophy, and that he was involved in a new religion,
and that this philosophy endorses morality and requires one to change and reform. In
essence, the only information Appellant was denied offering was the specific religion he
had chosen to practice. While we recognize that the exclusion of mitigation factors can
be reversible error, Skipper v. South Carolina, 476 U.S. 1 (1986), and that religious
[J-80-2012] - 59
values could be relevant to the e(8) “catchall” mitigator,15 in light of the circumstances
surrounding this matter, including the aggravator of a significant history of violent
felonies, we find that the trial court’s prohibiting Appellant from naming his religion did
not result in such prejudice that the result in his matter would have been different.
Thus, we find that Appellant is not entitled to relief.
P. Trial Court Error in Permitting Commonwealth to Prove Aggravating
Circumstance with Inadmissible Hearsay
Appellant next argues the trial court erred in permitting the Commonwealth, over
defense objection, to prove its aggravating circumstance with inadmissible hearsay, and
that appellate counsel was ineffective for failing to preserve and litigate this issue. To
establish that Appellant had a significant history of violent felony convictions, the
Commonwealth introduced testimony from Detective Chester Koscinski that Neil
Wilkinson was shot in the head, and that the jury convicted Appellant of first-degree
murder, and returned a sentence of life imprisonment. Similarly, Detective Paul Raley
stated that Michael Waters was murdered by a gunshot wound to the chest, the jury
convicted Appellant of first-degree murder therefor, and that Appellant was sentenced to
death. Trial counsel objected to the testimony on hearsay grounds, but the trial court
overruled his objections. Counsel did not pursue this claim on appeal.
Appellant argues that, because Detective Koscinski’s testimony was based on
the reports of an eyewitness and the medical examiner, and Detective Raley's testimony
was based on what others told him, the testimony of both men was inadmissible
hearsay, which violated his right to confront and cross-examine witnesses. Brief of
Appellant at 75-76. Appellant claims there was no way to cross-examine these officers
15
42 Pa.C.S.A. § 9711(e)(8).
[J-80-2012] - 60
as their testimony was based upon the reports of others. Appellant contends there was
no reasonable basis for appellate counsel not to raise this issue on appeal.
The Commonwealth disputes Appellant’s contention that the detectives’
testimony was improper hearsay, because the detectives had "first-hand information as
to the crimes − they saw the victims’ bodies and were in court when the verdicts were
delivered." Brief of Commonwealth at 64. Thus, the Commonwealth contends that they
were competent witnesses as to the aggravating circumstance. Id. Further, the
Commonwealth claims that a court clerk also testified and produced official court
records for both cases. According to the Commonwealth, each detective gave a one-
sentence description of the murder with no detail beyond the manner of death.
Appellant cannot succeed on his claim that appellate counsel was ineffective in
failing to raise this issue on appeal because Appellant’s underlying claim that the trial
court erred in admitting the evidence is without merit. Detective Koscinski testified that
he participated in both the investigation and the arrest of Appellant in connection with
the Wilkinson murder, and that he was present for the trial in that case. The same was
true for Detective Raley. Appellant fails to offer evidence in support of his allegation
that the detectives’ testimony was based only on the reports of others, thereby
constituting hearsay. Accordingly, the trial court did not err in allowing the
Commonwealth to introduce this evidence, and appellate counsel was not ineffective for
failing to raise the issue on appeal.
Q. Failure to Instruct That Life Imprisonment is Without Parole
Appellant next argues that his due process rights were violated when the trial
court failed to give the jury a “life-means-life” instruction at his sentencing hearing
pursuant to Simmons, supra. Appellant contends that, because the Commonwealth put
[J-80-2012] - 61
his future dangerousness at issue, the trial court was required to instruct the jury that, if
sentenced to life imprisonment, he would be ineligible for parole.
As the Commonwealth points out, however, Simmons was decided in 1994 and
Appellant's trial was in 1991, predating Simmons by approximately three years. Prior to
Simmons, the law in this Commonwealth prohibited an instruction to the jury that life
imprisonment meant life without parole. Commonwealth v. Edwards, 555 A.2d 818,
830-31 (Pa. 1989). Therefore, because, at the time of Appellant’s trial, a Simmons
instruction was forbidden, the trial court did not err in failing to give such an instruction
sua sponte. Further, trial counsel cannot be deemed ineffective for failing to request
such an instruction, and we do not find counsel ineffective for failing to anticipate
changes in the law. Commonwealth v. Gibson, 688 A.2d 1152, 1169 (Pa. 1997).
Accordingly, Appellant’s claim fails.
R. Cumulative Effect of Errors
Appellant argues that, if this Court concludes that he is not entitled to relief based
on the prejudicial effect of any single error, he is entitled to relief because of the
cumulative prejudicial effect of all of the errors set forth in his appellate brief. It is well-
settled that “no number of failed ineffectiveness claims may collectively warrant relief if
they fail to do so individually.” Commonwealth v. Johnson, 966 A.2d 523, 532 (2009).
However, we have recognized that, “if multiple instances of deficient performance are
found, the assessment of prejudice properly may be premised upon cumulation.”
Sepulveda, 55 A.3d at 1150 (citations omitted). In the instant case, we noted a lack of
prejudice as the sole reason regarding the claim that Appellant was precluded from
informing the jury that he had converted to Islam and was an active and devout Muslim.
After review of this issue, we are confident that there is no cumulative error warranting
relief.
[J-80-2012] - 62
S. Failure to Hold an Evidentiary Hearing
Appellant makes a generic claim that he asked for an evidentiary hearing on "the
claims and all disputed issues of fact." Brief of Appellant at 81. Yet, other than general
assertions regarding the PCRA court's error for failing to hold a hearing, Appellant has
failed to provide any details, here, to allow meaningful judicial review. Moreover, we
have addressed specific instances above where Appellant has raised as error the failure
of the PCRA court to hold a hearing. Thus, we reject Appellant's general claim of PCRA
court error.
T. Trial Court Error in Refusing to Address Appellant’s Petition for Permission to
Review Police Archive Files
Appellant next contends the PCRA court erred in denying his request to review
police files for exculpatory evidence. The basis for Appellant’s request was his
allegation that the Commonwealth failed to disclose the extent of incentives provided to
Commonwealth witnesses at trial, and an allegation that the police archive files have
been found to contain Brady material in other cases, and likely contain similar material
in this case, including any records regarding the Commonwealth providing incentives to
Michael Dozier.16 Brief of Appellant at 84.
The Commonwealth, in arguing Appellant was not entitled to review the police
files, suggests Appellant’s request was a mere fishing expedition, as Appellant's request
is speculative and based upon three unrelated cases in which housing was provided to
witnesses. Brief of Commonwealth at 69-70.
As previously stated, a request for discovery during collateral proceedings is
governed by Rule 902(E) of the Pennsylvania Rules of Criminal Procedure, which
allows for discovery upon leave of court after a showing of good cause. A showing of
16
We addressed a variant of this regarding Dozier in Part II, D.
[J-80-2012] - 63
good cause requires more than just a generic demand for potentially exculpatory
evidence that might be discovered if a defendant is permitted to review the requested
materials. Sattazahn, 952 A.2d at 662. The PCRA court, in addressing Appellant’s
claim, observed, inter alia:
the Petition requesting production of the police archive file
alleges . . . (3) that the Commonwealth failed to disclose any
incentives it provided to the witnesses to testify in the Lisby
murder case, (4) that PCRA counsel was informed that the
Defender Association of Philadelphia has in its possession a
police archives file, but that the file has been ordered sealed
and the Association has refused to turn it over, (5) that “. . . it
has been alleged that similar police files in other cases have
revealed the existence of previously undisclosed exculpatory
evidence, . . .”, and concludes with a general discussion of
the law requiring the prosecution to turn over all exculpatory
material in its possession.
PCRA Court Opinion, 2/14/11 at 112-13. The PCRA court opined there is “a complete
lack of any evidence to support the [Appellant’s] other allegations.” Id. at 113. We
agree with the PCRA court that Appellant’s request for discovery of the police files,
which primarily was based on speculation that potentially exculpatory evidence might
exist because exculpatory evidence has been found in police files in other cases, was
insufficient to satisfy the good cause requirement. See Commonwealth v. Collins, 957
A.2d 237, 271-72 (Pa. 2008) (discovery request based on mere speculation of potential
exculpatory evidence was the same sort of generic plea for hypothetical evidence that
we have rejected as falling far short of the “good cause” requirement); Commonwealth
v. Bryant, 855 A.2d 726, 750 (Pa. 2004) (rejecting discovery request of petitioner who
“merely speculate[d] as to possible trial court errors, or potentially exculpatory
evidence”); Carson, 913 A.2d at 261 (rejecting “fishing expedition for possible
exculpatory evidence”). Thus, we find no abuse of discretion by the PCRA court in
denying Appellant’s discovery request to review the police files.
[J-80-2012] - 64
U. Sufficiency of Evidence to Support Conspiracy Conviction at First Trial
On April 17, 2012, our Court granted Appellant’s motion to amend his brief to
raise an additional issue. In this final issue, Appellant claims that the evidence, in
particular Boston’s testimony, was insufficient to support the conspiracy conviction at
Appellant’s first trial and the accomplice instructions given at his second trial.
Specifically, Appellant claims that, following the reading into the record of Boston’s
testimony from Appellant’s first trial, the only conclusion the jury could have reached
was that Boston was invoking his privilege against self-incrimination because he was
afraid he would be found to be the actual shooter. According to Appellant, Boston’s
testimony failed to establish “concerted action or shared motive with Appellant.”
Amended Brief of Appellant at 1. Thus, Appellant contends the conspiracy charge was
not supported by the evidence in this case, and that counsel was ineffective for failing to
object to the instruction at trial. Appellant claims that, as trial counsel’s strategy was to
challenge that Appellant participated in any way in the killing, counsel had no
reasonable strategy for failing to object. Moreover, Appellant submits he was
prejudiced, as the jury rendered a unanimous verdict only as to conspiracy at the first
trial.
Further, at Appellant’s second trial, Appellant claims that trial counsel failed to
object to the accomplice liability instruction which “the Court appeared to give as a
substitution for the conspiracy charge.” Amended Brief of Appellant at 2. Again,
Appellant argues that there was no reasonable trial strategy not to object and he was
prejudiced by this instruction by “providing the jury with an unfair link to the first degree
murder charge.” Amended Brief of Appellant at 2. Thus, Appellant maintains that the
conspiracy charge and the instructions for accomplice liability were not supported by the
evidence.
[J-80-2012] - 65
The Commonwealth responds that our Court reviewed the sufficiency of the
evidence on direct appeal. Reid, supra. The Commonwealth points out that, after
independent review of the evidence, including Boston’s testimony, our Court found that
sufficient evidence existed to support Appellant’s convictions. Thus, according to the
Commonwealth, Appellant’s sufficiency of the evidence claim has been finally litigated.
Moreover, the Commonwealth emphasizes that Appellant failed to acknowledge that the
proper standard of review applicable to sufficiency challenges views the evidence in the
light most favorable to the Commonwealth as verdict winner. Further, the
Commonwealth stresses that credibility determinations, such as that concerning
Boston’s testimony, are for the jury. Regarding Appellant’s claim that the evidence was
insufficient to support the accomplice instruction, the Commonwealth shows that
Appellant and Boston worked for the JBM as an enforcer and dealer, respectively. The
victim had taken crack cocaine without paying for it, and Appellant and Boston went to
the victim’s home and escorted him to the street corner, where he was shot. Based on
these facts, the Commonwealth argues the trial court properly gave an accomplice
instruction.
When reviewing a claim challenging the sufficiency of the evidence, an appellate
court views “the evidence in the light most 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 of the offense beyond a reasonable doubt.”
Commonwealth v. Vandivner, 962 A.2d 1170, 1176 (Pa. 2009). First, our Court
conducted a sufficiency review on direct appeal and affirmed Appellant’s convictions.
Moreover, as noted above by the Commonwealth, there is more than sufficient evidence
from trial to sustain the instruction for accomplice liability. Appellant’s claim fails on the
merits.
[J-80-2012] - 66
III. Conclusion
In conclusion, for the reasons stated herein, we affirm the order of the PCRA
court dismissing all of Appellant’s claims.
Mr. Chief Justice Castille and Messrs. Justice Eakin, Baer, McCaffery and
Stevens join the opinion.
Mr. Justice Saylor files a dissenting opinion.
[J-80-2012] - 67
Commonwealth v. Reid, A., Aplt
Court: Supreme Court of Pennsylvania
Date filed: 2014-08-20
Citations: 99 A.3d 427, 627 Pa. 78
Copy CitationsCombined Opinion