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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DARRYL D. BLACK, : No. 2183 EDA 2013
:
Appellant :
Appeal from the PCRA Order, June 28, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-1206101-2005
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 27, 2014
Darryl D. Black appeals from the order of June 28, 2013, dismissing
his PCRA1 petition without a hearing. We affirm.
The facts of this matter have been aptly and thoroughly summarized in
a prior opinion by the trial court, the Honorable M. Teresa Sarmina, as
follows:
On July 29, 2003, at around 7:30 pm,
James Scott (hereinafter, victim) was shot to death
in broad daylight in his row home located at 2219
Uber Street, in Philadelphia. He was shot seven
times -- three times in the back, twice in the left arm
and one time each in both the chest and the right
thigh. The victim was rushed to Temple University
Hospital where he was pronounced dead on
arrival.[Footnote 5]
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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[Footnote 5] The medical examiner
concluded that the cause of death was
multiple gunshot wounds. One base
jacketed medium-sized hollow point
bullet caused massive hemorrhaging
the lower back, penetrating his
diaphragm, twelfth rib, and lower right
lung, bouncing off of the vertebrae in the
thoracic spine, piercing the upper right
lung and the sub-clavian artery and,
The shooting punctuated a series of arguments
that had escalated over three or four days before the
shooting incident between the victim and his
neighbors, Sherron Dennis[Footnote 6] and
Carline Izzard. On the day of the shooting,
Sherron Dennis, Teia Dennis, Ms. Izzard, and the
was invited, but had not yet arrived.[Footnote 7] An
intense argument erupted involving Sherron Dennis,
Ms. Izzard and the victim. The victim left
Sherron
[appellant] arrived, Sherron Dennis told him of the
dispute she had with the victim. [Appellant] asked
her the whereabouts of the victim, and she told him
e victim] was probably upstairs in his
-- perceptibly
angry -- walked off toward Susquehanna Avenue.
though it also appears on various
exhibits, and in the Quarter Sessions file
pertaining to her solicitation charge, as
[Footnote 7] [Appellant] was Sherron
Thereafter, at just before 7:30 pm, a second
argument ensued between the victim, who was on
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the front step of his home, and Sherron Dennis. As
the victim argued, [appellant] approached on
Uber Street from the direction of Susquehanna
[appellant] had changed into a black hoodie and
black glasses. When [appellant] arrived in front of
exited through the back of his t-shirt. The victim
spun around and retreated inside his home.
[Appellant] followed the victim into the residence,
and closed the door behind them. Several more
shots were heard. Shortly thereafter, [appellant]
[Footnote 8] Shortly before the shooting,
Kenneth Collins and a few family
members and friends had gathered
around the front step of his residence at
2311 North Uber Street. Collins was
seated on the step. A stocky male
passed by them at a distance of
approximately six or seven feet coming
from Susquehanna Avenue on
Uber
home. All of his clothing was black. The
home, raised his arm and began shooting
at the victim. Upon hearing the shots,
the gathering in front of
residence dispersed, and Collins
scrambled into his home. Once inside,
Collins heard several more gunshots.
Coincidentally, at that same time, Officers
Ronald Gilbert and Aaron Green of the Philadelphia
Highway Patrol, were parked in their marked patrol
car at the intersection of Susquehanna Avenue and
Uber Street.[Footnote 9] As soon as the shots rang
out, they looked in the direction of the incident and
saw the shooter firing from the pavement into the
residence at 2219 Uber Street. They exited their
patrol car and ran toward the scene, but the shooter
disappeared into the house. As they closed in on the
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residence, [appellant] emerged from the
house.[Footnote 10] [Appellant] fired one shot
directly at Officer Gilbert, but missed, and then
[appellant] ducked for cover. He ran across the
street, past S.J. who was outside playing with a
ball,[Footnote 11] and into a parking lot.
Officer Gilbert observed [appellant] standing next to
a dumpster with his gun drawn and he fired four
shots at [appellant], but missed.[Footnote 12]
[Appellant] fled to the 2200 block of 20th Street
[Footnote 9] They were there to execute
a warrant at a location unrelated to this
incident.
[Footnote 10] Officer Gilbert testified
that he was able to observe the shooter
at this point for a period of
approximately five (5) to ten (10)
seconds. He identified him from a photo
array.
appears in the certified record; however,
she will be referred to herein by her
initials, S.J. See Commonwealth v.
Bryson, 860 A.2d 1101, n 2 (Pa.Super.
2004). Twelve year old S.J. was playing
with a ball with her friends in a lot
located between Uber and 20th Streets.
She overheard a verbal dispute between
At one point, the ball rolled away and
was retrieved by a man walking by. She
then observed as the same man
just stand on the pavement and shoot.
He walked up two steps and shot into the
later that night.
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[Footnote 12] Officer Green never fired
his weapon.
During the investigation of the area outside of
2219 Uber Street, Officer Leo Everett Rahill, of the
Crime Scene Unit, recovered ten (10) fired cartridge
cases and five (5) spent bullets. Inside, he located
four (4) more fired cartridge cases and one
additional (1) spent bullet.[Footnote 13] A Keltec
P-11 .9 millimeter semiautomatic handgun was
recovered from behind the dumpster, next to where
[appellant] had been standing. Officer John Cannon,
of the Firearms Identification Unit, examined the
firearm and the ballistics evidence and concluded
that the three (3) spent bullets recovered from the
near the dumpster.[Footnote 14]
[Footnote 13] A spent bullet was also
retrieved from the window frame of a
nearby residence.
[Footnote 14] The recovered Keltec
firearm did not contain any fingerprints
that could be used to identify the
shooter. Officer Cannon concluded that
ten (10) of the fired cartridge cases
(hereinafter, FCC) recovered, and five
(5) of the spent bullets recovered, had
been fired from the Keltec firearm. He
further concluded that four other (4)
FCCs, and two (2) spent bullets were
Two (2) spent bullets were inconclusive
as to whether they had been fired from
the Keltec firearm, although they had not
Two (2) additional spent bullets were
inconclusive as to whether they had been
although Officer Cannon concluded that
they had not been fired from the Keltec
firearm.
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Later that night, S.J., Kenneth
Collins[Footnote 15] and Officer Green[Footnote 16]
gave statements.[Footnote 17] The next day,
Ms. Izzard gave a statement. At that time, she
described the arguments that had taken place
leading up to the shooting, but did not describe nor
indicate that she knew the identity of the shooter.
[Footnote 15] At that time, Collins
about 30 or so. He was maybe five nine
to five eleven, heavier than me, kind of
stocky. I weigh 155 pounds. He was
wearing black clothes, a long sleeve
black shir
remember that it was a hoodie and he
notice his sneaks, just that he was
[Footnote 16] At that time, Officer Green
about medium complected, five nine, five
eleven, stocky build, bearded and low cut
[Footnote 17] Due to the discharge of his
weapon, Officer Gilbert was not
questioned until the investigation by
Internal Affairs Division Shooting Team
was concluded. Accordingly,
Officer Gilbert gave a statement over a
year after the shooting, in September of
2004.
The identity of the shooter remained unknown
until the case was taken up in June of 2004 by
Detective Timothy Bass of the Special Investigations
Unit. On June 2, 2004, Detective Bass
re-
him,[Footnote 18] but did not know his name.
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boyfriend as [appellant]. He prepared a
photographic line-
image and, on September 23rd and 24th of 2004,
presented it to Officer Green, Ms. Izzard, and
Officer Gilbert, all of whom selected the image of
[appellant] as the shooter.
[Footnote 18] Ms. Izzard first suggested
shooter during her June 2, 2004
during this argument did Sherron say
that she was going to get somebody to
whole time she was saying to [the
said it a couple of times, and [the victim]
you want, Sherron. I am not going
--
nd talk about
guy that shot [the victim], is that the
think it was him. By the way the guy
looked, you know, physically and all that,
It
Shortly thereafter, Sherron Dennis was
arrested on charges of criminal solicitation to commit
murder,[Footnote 19] and identified [appellant] as
the shooter.[Footnote 20] An arrest warrant was
subsequently issued for [appellant].
[Footnote 19] 18 Pa.C.S.A. § 902. This
matter was captioned at CP-51-CR-
0204221-2005.
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[Footnote 20] Pursuant to negotiations
D.A.) Office, Sherron Dennis agreed to
identify [appellant] on the record, and to
do to [s
to recommend a mere probationary
taken from her on November 30, 2004,
in the presence of her attorney, David
Nenner, Esquire, Assistant D.A., Anthony
Voci (hereinafter, Voci), and Detectives
Bass and Buckley. In that statement,
she identified [appellant] as the shooter.
She identified [appellant] by his
counsel, and Sherron Dennis. On April
18, 2005, Sherron Dennis appeared
before The Honorable Benjamin Lerner
and entered a plea of nolo contendere to
solicitation. She was found guilty and
received a probationary sentence. In
April of 2002, Detective James Griffin
had interviewed [appellant] in a matter
unrelated to this case, at which time and
[sic] [appellant] stated that his nickname
Trial court opinion, 8/4/08 at 2-6 (citations to the record omitted).
On December 11, 2007, following a jury trial, appellant was found
guilty of first degree murder, aggravated assault, carrying a firearm without
a license, and possessing an instrument of crime. Appellant was sentenced
to life imprisonment for first degree murder, and a consecutive, aggregate
sentence of 7 to 19 years for the remaining convictions. Appellant filed a
timely direct appeal, and on April 20, 2009, this court affirmed.
Commonwealth v. Black, 974 A.2d 1176 (Pa.Super. 2009) (unpublished
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memorandum), appeal denied, 983 A.2d 725 (Pa. 2009). On November 5,
2009, our supreme court denied allowance of appeal. Id.
On August 12, 2010, appellant filed a timely pro se PCRA petition.
On June 28, 2013, following notice pursuant to Pa.R.Crim.P., Rule 907,
42
followed. Appellant has complied with Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A., and the PCRA court has filed an opinion.
Appellant complains that the PCRA court erred in dismissing his
petition without an evidentiary hearing, where he would have been able to
prove that he was entitled to relief due to trial counsel ineffectiveness.
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
discretion to decline to hold a hearing if the
support either in the record or other evidence. Id.
It is the responsibility of the reviewing court on
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appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,
1239-1240 (Pa.Super. 2004).
ineffectiveness under the PCRA, Appellant must
demonstrate (1) that the underlying claim is of
was without a reasonable basis designed to
i.e. there is
a reasonable probability that but for the act or
omission in question the outcome of the proceeding
would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
Commonwealth v. Douglas, 537 Pa. 588, 645
A.2d 226, 230 (1994).
Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).
In his first issue on appeal, appellant argues that trial counsel was
ineffective for allowing the jury to review the police report of Officer Green,
which was not in evidence. As the PCRA court explains, during their
deliberations, the jury asked to see the original police reports of
Officers Gilbert and Green. (PCRA court opinion, 12/6/13 at 7.) The court
an exhibit, nor moved into evidence, and therefore could not be provided to
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them. (Id. at 8.) The court told the jury to rely on their own recollection of
Id.)
Shortly thereafter, the jury asked whether they could have portions of
read back to them. (Id.) At that point, trial counsel interjected, suggesting
through his testimony to find the relevant portions. (Id.) Trial counsel
opined that it was better to just give the jury the entire statement. (Id.,
citing notes of testimony, 12/11/07 at 11-12.) The trial court specifically
asked appellant whether he was in agreement with counsel, and he
responded in the affirmative. (Id.) The trial court also warned appellant
that the matter could be considered immune from future collateral attack.
(Id.) Appellant stated that he understood. (Id.)
knowing, voluntary, and intelligent decision
concerning trial strategy will not later be heard to
complain that trial counsel was ineffective on the
Commonwealth v. Paddy,
569 Pa. 47, 800 A.2d 294, 316 (2002) (citing
Commonwealth v. Abu Jamal, 553 Pa. 485, 720
A.2d 79, 93 (1998)). To do otherwise, the Court
e
a ready-made ineffectiveness claim to be raised in
Id. In Paddy, the
ineffectiveness for failing to call alibi witnesses. We
fundamental reason that Paddy agreed at trial to
Id. at 315. As in this case, the trial court
engaged Paddy in a colloquy as to the decision not to
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call the alibi witnesses. He replied that trial counsel
had explained her decision not to call the witnesses
and that he agreed. He further stated that he
understood that he had a right to call the witnesses.
We dismissed his claim, stating:
As Paddy expressed the view that the
decision not to call alibi witnesses was
decision has not been shown to have
been unknowingly, involuntarily, or
unintelligently made, this allegation of
ineffectiveness lacks arguable merit.
Id. at 316.
Commonwealth v. Rios, 920 A.2d 790, 803 (Pa. 2007).
cannot now be heard to complain that it was the wrong decision.
Moreover, appellant cannot show how he was prejudiced. Appellant
fact, in his initial report, Officer Green did not identify appellant as the
shooter. Furthermore, Officer Green was cross-examined extensively
regarding the statements he made in the police report, so the jury was
already aware of the substance of those statements.
somehow violated his constitutional right of confrontation. However, as the
PCRA court notes, appellant cross-examined Officer Green thoroughly
regarding alleged omissions or inconsistencies between his initial statements
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contained in the police report and his trial testimony. (PCRA court opinion,
12/6/13 at 9-
the shooter in very general terms and did not identify appellant as the
Officer that his memory was fresher at that
time. (Id.) Appellant cannot possibly demonstrate how he was prejudiced
which he assented.
Next, appellant argues that trial counsel was ineffective for failing to
polluted source instruction. Appellant states that Dennis was initially
charged with murder but the charge was reduced to solicitation, with the
recommendation of a probationary sentence, if she agreed to testify against
him. In addition, Dennis was in custody on a probation violation when she
-19.)
Appellant is simply mistaken. In fact, as the PCRA court explains, trial
counsel did question Dennis regarding her plea agreement with the
Commonwealth and the reduction in charges. (PCRA court opinion, 12/6/13
at 10-11.) Dennis testified that in exchange for having the charges reduced
to solicitation and being freed on bail, she agreed to identify the gunman.
(Id. at 11, citing notes of testimony, 12/4/07 at 212-215.) Trial counsel got
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Id.) Therefore, trial counsel
In addition, trial counsel did request a corrupt and polluted source
instruction and the trial court granted it. The trial court did instruct the jury
that Dennis, as an accomplice, was a corrupt and polluted source and her
testimony should be viewed with caution. (Id. at 12; trial court opinion,
8/4/08 at 14-15, citing notes of testimony, 12/6/07 at 179-182.) Therefore,
s in the record.
In his third and final issue on appeal, appellant argues that trial
counsel was ineffective for failing to object to prosecutorial misconduct.
Specifically, appellant contends that the prosecuting attorney expressed her
personal opinion
that the Commonwealth committed prosecutorial misconduct by questioning
Dennis about alleged threats by appellant.
One
testimony, the Commonwealth argued to the jury that it was undisputed that
there was an argument between Dennis and the victim. (PCRA court
opinion, 12/6/13 at 15-16, citing notes of testimony, 12/6/07 at 159-160.)
every other witness testified there was an argument involving Dennis,
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Izzard, and the victim. (Id.) The assistant district attorney then remarked,
her? Does [defense counsel] even believe her? Because what did he say,
the first thing he said to you? Everyone agrees there was an argument on
Id.)
inconsistent with every other eyewitness, a
own representations. It was not in dispute that an argument occurred. At
no time did she imply that defense counsel was intentionally trying to
mislead the jury or solicit false testimony. While the attorney for the
Common
lacks arguable merit.
Regarding the alleged threats, Dennis testified at trial that she could
not remember whether she saw the man who shot the victim. This
conflicted with her prior statement in which she identified appellant as the
perpetrator. Dennis disavowed her prior statement, testifying that it was
untrue. (PCRA court opinion, 12/6/13 at 14.) To explain why Dennis would
be distancing herself from her prior statement, the Commonwealth asked
office, in which she alleged that someone had called her and threatened to
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kill her and her children. (Id. at 13, citing notes of testimony, 12/4/07 at
193-195.) Dennis was placed in a hotel and given money to help her move.
(Id.) Dennis denied telling Assistant District Attorney Anthony Voci that she
had been threatened, but admitted that she was in fear. (Id.)
Subsequently, ADA Voci was called to testify regarding his conversations
with Dennis. ADA Voci testified that Dennis called him in a panic, stating
that someone had threatened to kill her and her children if she came to
court. (Trial court opinion, 8/4/08 at 20, citing notes of testimony, 12/5/07
at 183-184.) ADA Voci made arrangements with victim services to put
Dennis and her family up in a hotel until such time as they could be
relocated. (Id.) The trial court gave the jury a limiting instruction,
cautioning them that this testimony was only for purposes of assessing
Id. at
20-21.)
A related issue has already been addressed on direct appeal, where
appellant argued that the trial court erred in denying his motion for mistrial
after ADA Voci testified that Dennis had been threatened. Commonwealth
v. Black, No. 1091 EDA 2008, unpublished memorandum at 5-6 (Pa.Super.
filed April 20, 2009). This court affirmed on the trial court opinion. Id. at
7-
admissible for impeachment purposes under Pa.R.E. 607(b). (Trial court
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opinion, 8/4/08 at 20.) In addition, the testimony was relevant to explain
change in her story. (Id. at 21.)
As such, the matter could be considered previously litigated. This
testify regarding these threats. Furthermore, the testimony was clearly
ad
she denied having been threatened. There was no basis for objection. In
addition, appellant would be unable to prove prejudice where several other
eyewitnesses, including two police officers, identified appellant as the
ineffectiveness fails.2
patently without merit
and have no support in the record or from other evidence, the PCRA court
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2014
2
Several other issues raised in the PCRA court have been abandoned on
appeal.
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