Com. v. Carson, D.

J-S47012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DAVID CARSON

Appellant No. 999 EDA 2013

Appeal from the PCRA Order March 15, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0810901-1998

BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.: FILED AUGUST 27, 2014

Appellant, David Carson, appeals from the March 15, 2013 order

dismissing his petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1

The relevant facts of this case were summarized by the trial court on

direct appeal as follows.

[O]n July 15, 1998, [A]ppellant conspired with
Julius Edwards to rob 18[-]year-old [Romie] Webb.
Several witnesses observed Edwards in possession of
an AK47 assault rifle earlier that day. Edwards took

block of Price Street in Philadelphia sometime in the
afternoon. He and [A]ppellant then sat on the porch
together for most of the afternoon and evening.
____________________________________________

1
The Commonwealth has not filed an appellate brief in this matter.
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Webb lived on the 800 block of Price Street
and was selling drugs on the same corner where
[A]ppellant used to sell drugs before getting locked
up. People in the area knew that Webb kept the
crack cocaine he sold in a prescription pill bottle[,]
which he stashed under the bumper of a parked car.
At approximately [10]:25 p.m., [A]ppellant and

Edwards, wearing a striped shirt and armed with the
AK47, ordered Webb to give him money. Webb
responded that he had no money on him, and
handed him the pill bottle containing the drugs. As
Edwards was about to leave, [A]ppellant came
around the corner and shot Webb four times in the
back. Webb died later that night from gunshot
wounds.

After shooting Webb, [A]ppellant ran back into
an alley where he took off the blue Nautica
sweatshirt he was wearing and spoke briefly with his
brother, Aaron Carson. Appellant then returned to
the corner and leaned over Webb, saying that he
was going to be all right. When police arrived,
Appellant was instructed to move away.
Approximately thirty minutes after the shooting,

porch. The blue Nautica sweatshirt was on the

bottle was in [A]ppellan
AK47 that Edwards was carrying was leaning against
the rear of an adjoining property.

Trial Court Opinion, 10/12/05, at 2-3.

Both Appellant and Edwards were subsequently arrested in connection

with this incident, and on July 15, 1998, were charged with second-degree

murder and related offenses. On May 25, 1999, the trial court granted

hat of Edwards. Appellant waived

his right to a jury and, following multiple continuances, proceeded to a

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bench trial on December 10, 2003.2 On December 17, 2003, the trial court

found Appellant guilty of second-degree murder, robbery, criminal

conspiracy, and possessing an instrument of crime.3 Appellant filed a

motion for extraordinary relief, which was denied by the trial court following

a hearing on January 11, 2005. That same day, the trial court sentenced

Appellant to an aggregate term of life imprisonment. Appellant

subsequently filed timely post-sentence motions, which were denied by the

trial court on February 10, 2005.

On April 19, 2005, Appellant filed a notice of appeal. On March 10,

2005, the trial court ordered Appellant to file a concise statement of matters

complained of on appeal, pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b). Appellant filed his Rule 1925(b) statement on March 28,

2005, four days late. On June 28, 2006, a panel of this Court quashed

l due to its procedural defects. See Commonwealth v.

Carson, 905 A.2d 1040 (Pa. Super. 2006) (unpublished memorandum).

Appellant obtained new counsel, Jules Epstein, Esquire (Attorney

direct appeal rights nunc pro tunc. On July 19, 2006, the PCRA court

entered an order allowing the direct appeal, nunc pro tunc. On July 21,
____________________________________________

2
Appellant was represented at trial by Louis T. Savino, Jr., Esquire (Attorney
Savino).
3
18 Pa.C.S.A. §§ 2502(b), 3701, 903, and 907, respectively.

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O

sentence, and our Supreme Court denied his petition for allowance of appeal

on December 5, 2007. See Commonwealth v. Carson, 929 A.2d 235 (Pa.

Super. 2007) (unpublished memorandum), appeal denied, 937 A.2d 443

(Pa. 2007).

Esquire (Attorney Gelman), filed a timely PC

behalf. In said petition, Appellant argues, inter alia, that Attorney Savino

rendered ineffective assistance by failing to properly safeguard his right to

speedy trial, pursuant to Pennsylvania Rule of Criminal Procedure 600.4 See

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4
Rule 600 provides, in pertinent part, as follows.

Rule 600. Prompt Trial

(A) Commencement of Trial; Time for Trial

(2) Trial shall commence within the following time
periods.

(a) Trial in a court case in which a written
complaint is filed against the defendant shall
commence within 365 days from the date on which
the complaint is filed.

(C) Computation of Time
(Footnote Continued Next Page)

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-6. Attorney

petition on July 23, 2009. Thereafter, Attorney Gelman filed a supplemental

supplemental amended petition. On February 1, 2013, the PCRA court

conducted an e

Both Appellant and Attorney Savino testified at said hearing. Following this

_______________________
(Footnote Continued)

(1) For purposes of paragraph (A), periods of delay
at any stage of the proceedings caused by the
Commonwealth when the Commonwealth has failed
to exercise due diligence shall be included in the
computation of the time within which trial must
commence. Any other periods of delay shall be
excluded from the computation.

(2) For purposes of paragraph (B), only periods of
delay caused by the defendant shall be excluded
from the computation of the length of time of any
pretrial incarceration. Any other periods of delay
shall be included in the computation.

Pa.R.Crim.P. 600(A)(2), (C)(1-2).

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petitions on March 15, 2013. On April 1, 2013, Appellant filed a timely

notice of appeal.5

On appeal, Appellant raises the following issues for our review.

I. Did the judges to whom this case was assigned
turn a blind eye to the flagrant violation of
Rule 600 and abdicate their responsibility to
enforce Rule 600 and the Federal speedy trial
right[,] which were eviscerated by the
incredible 5½ year delay in bringing Appellant
to trial?

A. Was trial counsel ineffective for for [sic]
continuing the case for over five years
and failing to file a motion to dismiss
based on aggravated delay in violation of

speedy trial right?

II. If Appellant cannot show actual prejudice, can

III. Was trial counsel ineffective because he failed
to assert his clie
the Federal Speedy trial right to a trial and
allowed his client to languish in a detention
center for over 5½ years?

IV. Was trial counsel ineffective because he failed

making process based upon demeanor
evidence and failed to move to [sic] for a new
trial based thereon?

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5
The PCRA court did not order Appellant to file a concise statement of errors
complained on appeal, pursuant to Rule 1925. The PCRA court, however,
di
on August 7, 2013. See PCRA Court Opinion, 8/7/13, at 3-13.

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V. Is Appellant entitled to a new trial because
appellate counsel was ineffective for failing to
raise a claim that the Commonwealth
presented insufficient evidence to sustain his
conviction because its witnesses were lacking

below the beyond a reasonable doubt
standard, claims that were raised by trial
counsel in post sentencing motions, and
denied?

VI. Was trial counsel ineffective for failing to
object properly to the introduction of the prior
sworn testimony given by Ms. Gorham at the
Edwards trial on the grounds that while it could
have been used to impeach her credibility at

sufficiently reliable to be used substantively?

claims in a slightly different order than presented in his appellate brief.

Additionally, to the extent Appellan

will be addressed concurrently.

On appeal from the denial of PCRA relief, our standard and scope of

supported by the record and without legal error. Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania

is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

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omitted). In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. Id.

§ 9543(a)(3). de novo standard of review to the

PCRA co Commonwealth v. Spotz, 18 A.3d 244,

259 (Pa. 2011) (citation omitted).

In Issue I, Appellant argues that the trial court abused its discretion by

1. To the extent Appellant is attempting to assert a

substantive Rule 600 claim, we conclude this claim is not cognizable under

the PCRA.

It is well settled that in order to be eligible for PCRA relief, a petitioner

must plead and prove by a preponderance of the evidence that his conviction

or sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2). These issues must not be previously litigated or waived. 42

Pa.C.S.A. § 9543(a)(3). In Commonwealth v. Price, 876 A.2d 988 (Pa.

Super. 2005), appeal denied, 897 A.2d 1184 (Pa. 2006), cert. denied, Price

v. Pennsylvania, 549 U.S. 902 (2006), a panel of this Court held the

following.

Generally, an appellant may not raise
allegations of error in an appeal from the denial of

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PCRA relief as if he were presenting the claims on
direct appeal. Commonwealth v. Brown, [872
A.2d 1139, 1146-1148 (Pa. 2005)] (stating claims
available on direct appeal are waived for purposes of
PCRA review and this waiver cannot be overcome,
absent full layered ineffectiveness of counsel
analysis).

Id. at 995 (citation formatting corrected); accord 42 Pa.C.S.A. § 9544(b)

(stating, an issue is waived if the petitioner could have raised it but failed to

do so before trial, at trial, during unitary review, on appeal or in a prior state

Instantly, Appellant could have raised this substantive Rule 600

challenge on direct appeal, but failed to do so; thus, this claim is not

cognizable under the PCRA. See Price, supra. Furthermore, to the extent

argument unavailing.

See -

600 claim is waived.

rendered

ineffective assistance of counsel by failing to properly safeguard his right to

speedy trial. Specifically, in Issues IA and III, Appellant contends that

Attorney Savino was ineffective by failing to file a motion to dismiss this

case on Rule 600 grounds, and in seeking multiple pre-trial continuances

Id. at 11, 21.

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Appellant further maintains that Attorney Savino was ineffective in failing to

Id. at 21-22. For the following

reasons, we disagree.

To prevail on a claim of ineffective assistance of counsel under the

PCRA, a petitioner must plead and prove by a preponderance of the evidence

-determining process

42 Pa.C.S.A. § 95 (1) the

Koehler, supra at 132, citing Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987). ounsel is presumed effective,

and to rebut that presumption, the PCRA petitioner must demonstrate that

Koehler, supra at 131 (citation omitted).

Instantly,

relief, as the record establishes that Appellant has failed to satisfy the third

prong of the aforementioned ineffectiveness test, by proving that he suffered

actual prejudice as a result of

to dismiss on the basis of Rule 600 or pursue his speedy trial rights claim.

See Koehler, supra at 132. The record reveals that Appellant has

conceded in both his supplemental amended petition and in Issue II of his

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appellate brief that although he

See Supplemental PCRA Petition,

This Court has recognized that presumptive prejudice is not sufficient

delay in prosecution, a defendant must show that the passing of time caused

actual prejudice Commonwealth v. Neff, 860 A.2d 1063, 1074 (Pa.

Super. 2004) (citation omitted; emphasis added), appeal denied, 878 A.2d

863 (Pa. 2005). o demonstrate prejudice, appellant must show there is a

Commonwealth v. Michaud, 70

A.3d 862, 867 (Pa. Super. 2013) (citation omitted). A peti ailure to

satisfy the prejudice prong of the ineffectiveness test will defeat an

ineffectiveness claim. See Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa.

f it is clear that [the petitioner] has not

demonstrated that

of the proceedings [pursuant to the third prong of the Koehler test], the

claim may be dismissed on that basis alone and the court need not first

determine whether the first and second prongs [of the

Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007).

Based on the foregoing, Appellant has failed to meet his burden of

proof with respect to the prejudice prong of his Rule 600 ineffectiveness

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claim, and thus, his claim in this regard must fail. See Philistin; see also

Commonwealth v. Fitzgerald, 979 A.2d 908, 911 (Pa. Super. 2009)

any of the prongs, th[is] Court need not address the remaining prongs of

appeal denied, 990 A.2d 727 (Pa. 2010).

Commonwealth presented insufficient evidence to sustain his conviction

claim that the witnesses who identified him lacked credibility implicates the

weight of the evidence. See Commonwealth v. Montalvo, 956 A.2d 926,

932 n.6 (Pa. 2008) (holding that a claim that the evidence is insufficient

challenges the weight, and not the

cert. denied, Montalvo v. Pennsylvania, 556

U.S. 1186 (2009).6

____________________________________________

6
This claim essentially mirrors that raised by Appellant in Issue VII in the
wherein he contends Attorney
Epstein was ineffective for failing to raise and argue the weight of the
evidence. See -41. Although Appellant did not

proceed to address it in conjunction with Issue V.

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Upon careful

ineffectiveness claim in this regard merits no relief. The record establishes

that Appellant has failed to satisfy the first prong of the aforementioned

underlying [weight of the evidence]

See Koehler, supra.

Instantly, the trial court addressed both the sufficiency and weight of

claims in this regard were devoid of merit. Specifically, the trial court

reasoned as follows.

[T]here was direct and circumstantial evidence
proving beyond a reasonable doubt that [A]ppellant
was the shooter. In regard to the direct evidence,

Gordon denied that she was able to identify the
shooter, she previously testified under oath in co-

[A]ppellant shoot and kill Webb. She further

wearing a blue Nautica sweatshirt when he shot the
victim, and that he always carried a .9 millimeter
handgun, the murder weapon in this case. Based on

testimony from the co-
credible.

There was also ample compelling

Dorthea Crosby testified that just moments after the
shooting she observed [A]ppellant, wearing a dark
long-sleeve Nautica sweatshirt, and Edwards in a
striped shirt, running towards Boyer Street. Ms.
Crosby, as well as other witnesses who lived in the
neighborhood had often seen [A]ppellant wearing

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that shirt. She also had seen him recently in
possession of a .9 millimeter handgun. Crosby
observed [A]ppellant take off the sweatshirt when he
stopped to speak briefly with his brother before
returning to the spot where the victim lay dying.
When arrested by police on the porch of his home
shortly after the incident, the blue Nautica sweatshirt

pill bottle taken in the robbery was in his pants
pocket. The striped shirt worn by Edwards was

AK 47 assault weapon was discovered leaning up
against the rear of the property adjoining

Commonwealth witness Oscar Granger was
unable to see who was doing the shooting, but was
able to observe Edwards and another male run to the
Boyer Street alley immediately after the shooting.
The second male was wearing a long sleeve dark
color shirt and was tucking what appeared to be a
weapon into his waistband. Although Granger

identify this second male, he had identified him as

[A]ppellant turned towards him as he ran and said

this prior testimony credible.

Trial Court Opinion, 10/12/05, at 7-9 (citations to notes of testimony

omitted).

We agree with the conclusions of the trial court, and decline to disturb

weight of the evidence is predicated on the credibility of trial testimony, our

Commonwealth v.

Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009), appeal denied, 3 A.3d 670

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Spotz, supra. Accordingly, we

conclude that Attorney Epstein was not ineffective in failing to raise this

meritless weight claim on direct appeal. See Philistin, supra (stating,

Pierce] test will defeat an

(citation omitted).

In his final two claims on appeal, Appellant argues that Attorney

Savino rendered ineffective assistance of counsel by failing to make various

objections during trial. Specifically, in Issue IV, Appellant contends Attorney

ma

considered the demeanor of the witnesses and speculated that they knew

Appellant was the shooter, and m

Id. at 23-

26, 31.7 For the following reasons, we disagree.

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7
Specifically, Appellant cites the following statements of the trial court in
support of his argument.

THE [TRIAL] COURT: I really believe, after
watching, in all honesty, when I watched the
witnesses, and I watched them carefully, my opinion
(Footnote Continued Next Page)

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Our review of the record reveals that Appellant has failed to establish

undermined the truth-determining process that no reliable adjudication of

2 Pa.C.S.A. § 9543(a)(2)(ii).

Specifically, Appellant has failed to demonstrate

should have objected. See Koehler, supra.

contention, the record reflects that the trial court did not base its verdict on

mere speculation or the demeanor of the witnesses who testified at trial.

_______________________
(Footnote Continued)

is every witness that testified knew he was the

witnesses like you have, and you know your
witnesses, okay. You had that shirt, why, why

corroborate these witnesses. These witnesses were
poor. They lied at one time they changed their
story, changed the story back then and she changed
to [sic] story back then.

Now how many times do I have to do that [hesitate]
in this case? A number of times. Every witness you
put up, I have to hesitate about, because they have
given different statements. They have lied to police.

-24, quoting N.T., 12/17/03, at 79, 32-33, and 36-37,
respectively.

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Rather, as discussed, supra, the trial court reviewed the direct and

circumstantial evidence presented by the parties at trial at great length, and

the crimes charged. See Trial Court Opinion, 10/12/05, at 7-9. As such,

n making

object on this meritless basis must fail.

In Issue VI, Appellant further argues that Attorney Savino was

ineffective in failing to object to the introduction of the prior sworn testimony

of witness Naeemah Gorham at co-

at 34. App

Id. at 34, 36-37.

Again, we disagree.

The record reveals that Appellant has failed to satisfy prong one of the

aforementioned ineffectiveness test by proving the underlying legal

Koehler, supra. Our Supreme Court has long

recognized that a prior inconsistent statement of a non-party witness is

admissible as substantive evidence if the statement was given under highly

reliable circumstances and if the declarant is a witness at trial, subject to

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cross-examination. Commonwealth v. Romero, 722 A.2d 1014, 1017 (Pa.

1999), cert. denied, Romero v. Pennsylvania, 528 U.S. 952 (1999);

accord Commonwealth v. Lively, 610 A.2d 7, 9-10 (Pa. 1992). The

Lively Court noted the following three circumstances in which a prior

inconsistent statement may be deemed sufficiently reliable and trustworthy

to be admissible as substantive evidence. First, when it was made under

oath in a formal legal proceeding; second, when it was a writing signed and

adopted by the declarant; or third, when it was a contemporaneous verbatim

recording of the statement. Lively, supra at 10. These three

circumstances have been formalized as Pennsylvania Rule of Evidence

803.1(1), which provides as follows.

Rule 803.1. Exceptions to the Rule Against
Hearsay--Testimony of Declarant Necessary

The following statements are not excluded by the
rule against hearsay if the declarant testifies and is
subject to cross-examination about the prior
statement:

(1) Prior Inconsistent Statement of Declarant-
Witness. A prior statement by a declarant-witness
that is inconsistent with the declarant-witness's
testimony and:

(A) was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, or in
a deposition;

(B) is a writing signed and adopted by the declarant;
or

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(C) is a verbatim contemporaneous electronic,
audiotaped, or videotaped recording of an oral
statement.

Pa.R.E. 803.1(1).

-

trial was admissible as substantive evidence in the case sub judice, as it

-examination. See id.

This is especially true in light of the fact that Gorham testified inconsistently

testimony credible. See egard

were other more logical courses of action which counsel could have pursued;

Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011)

Philistin, supra.

Based on the foregoing, we conclude that Appellant has failed to

satisfy prong two of the aforementioned ineffectiveness test by proving how

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sworn testimony lacked an objective reasonable basis. Accordingly,

s claim in this regard must fail.

For all the foregoing reasons, we conclude that the PCRA court

March 15, 2013 order of the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014

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