J-S74009-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK L. WILLIAMS,
Appellant No. 2728 EDA 2013
Appeal from the PCRA Order Entered September 17, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005614-2009
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 23, 2014
Appellant, Mark L. Williams, appeals pro se from the post-conviction
court’s September 17, 2013 order denying his petition for relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
After careful review, we are compelled to vacate the court’s order and
remand for further proceedings.
In October of 2010, a jury convicted Appellant of first-degree murder
and carrying a firearm without a license. Appellant’s convictions stemmed
from the September 21, 2009 shooting death of Isaiah McLendon on N. 3 rd
Street in Darby, Pennsylvania. On December 7, 2010, Appellant was
sentenced to an aggregate term of life imprisonment without the possibility
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*
Retired Senior Judge assigned to the Superior Court.
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of parole. He filed a timely notice of appeal and, after this Court affirmed his
judgment of sentence on October 11, 2011, our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Williams,
37 A.3d 1227 (Pa. Super. 2011) (unpublished memorandum), appeal
denied, 42 A.3d 1060 (Pa. 2012).
On September 24, 2012, Appellant filed a timely pro se PCRA petition
raising various ineffective assistance of trial counsel claims. PCRA counsel
was appointed, but rather than filing an amended petition on Appellant’s
behalf, counsel filed a petition to withdraw and ‘no-merit’ letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Appellant filed
a timely pro se “Objection and Response” to counsel’s petition to withdraw.
On May 29, 2013, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss. Appellant again filed a timely pro se response.
Nevertheless, on September 17, 2013, the PCRA court issued an order
dismissing Appellant’s PCRA petition and granting counsel’s petition to
withdraw.
Appellant filed a timely pro se notice of appeal, as well as a timely
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. In
his pro se brief to this Court, Appellant sets forth the following four issues
(reproduced verbatim), each of which contain numerous sub-parts totaling
18 different claims:
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I. Whether PCRA counsel provided ineffective assistance in failing
to: a) provide any meaningful participation; b) properly certify
the PCRA as required under section 9545(d)(1); c) meet the
imposed requirements of Pa.R.Crim.P. 902 in regards to the
contents of the petition; d) meet the imposed requirements of
Pa.R.Crim.P. 904 and Turner/Finley; e) investigate and
properly raise defendant’s claims of trial counsel’s
[1]
ineffectiveness; f) develop Brady claims; and g) develop
after-discovered evidence claim?
II. Whether PCRA court committed reversible error of law,
abused it’s discretion and denied the defendant his state and
federal due process rights under the Pennsylvania and United
States Constitution in: a) granting PCRA counsel leave to
withdraw based upon a legally insufficient no-merit letter; b)
conduct an independent review of the record and give it’s
independent findings why defendant’s issues were without merit
pursuant to Turner/Finley and their progenies; c) grant an
evidentiary hearing on trial counsel ineffectiveness claims; and
d) grant an evidentiary hearing on the after-discovered
evidence?
III. Whether trial counsel provided ineffective assistance in
failing to: a) interview/investigate two known eye witnesses; b)
interview/investigate [Drug Enforcement Administration (DEA)]
Agent Robert Belcher; c) object or raise on direct appeal the
court denying compulsory process; d) object or raise on direct
appeal the court stating there was “a real reason” why the crime
occurred; e) object or raise on direct appeal the court stating
that the defendant admitted to committing the crime?
IV. Whether the prosecutor committed misconducts, reversible
error of law and denied the defendant his federal due process
rights under the United States Constitution in failing to: a)
disclose video surveillance footage of where the crime transpired
and in failing to make the defense aware of that evidence; and in
b) eliciting known false testimony and failing to correct known
false testimony?
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1
Brady v. Maryland, 373 U.S. 83 (1963).
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Appellant’s Brief at 4.
First, “[t]his Court’s standard of review from the grant or denial of
post-conviction relief is limited to examining whether the lower court’s
determination is supported by the evidence of record and whether it is free
of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has stated that:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.”
Generally, counsel’s performance is presumed to be
constitutionally adequate, and counsel will only be deemed
ineffective upon a sufficient showing by the petitioner. To obtain
relief, a petitioner must demonstrate that counsel’s performance
was deficient and that the deficiency prejudiced the petitioner. A
petitioner establishes prejudice when he demonstrates “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” … [A] properly pled claim of ineffectiveness
posits that: (1) the underlying legal issue has arguable merit;
(2) counsel’s actions lacked an objective reasonable basis; and
(3) actual prejudice befell the petitioner from counsel’s act or
omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
In Appellant’s first issue, he essentially contends that PCRA counsel
acted ineffectively by filing an inadequate petition to withdraw and no-merit
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letter. After careful review, we are compelled to agree with Appellant that
PCRA counsel failed to adequately examine, in his Turner/Finley no-merit
letter, two of Appellant’s trial counsel ineffectiveness claims. We will discuss
those two ineffectiveness claims first.
Appellant contends that trial counsel was ineffective for failing to
object when the trial court denied Appellant “his right to compulsory
process” by dismissing two potential defense witnesses. Appellant’s Brief at
42. Those witnesses, James Shepard and Stephan Fenwick, both invoked
their right to remain silent after claiming that their testifying at Appellant’s
trial would incriminate them. The PCRA court described the proposed
testimony of these defense witnesses as follows:
At trial, defense counsel expressed his intention to call two
witnesses: James [Shepard] and Stephan Fenwick. [Shepard]
was available to testify, but his attorney, Stephen Gilson, Esq.,
advised him not to do so. [Shepard] would have attacked the
credibility of Jeffrey Mason, the jailhouse snitch [who testified
that Appellant made inculpatory statements while incarcerated].
[Shepard] would have testified that he witnessed Mason
reviewing paperwork in [Appellant’s] cell. This testimony would
allegedly raise the inference that Mason became familiar with
[Appellant’s] case by reading paperwork, not by hearing
[Appellant] admit to the crime. Stephan Fenwick was to rebut a
portion of Gregory Graham’s account of his whereabouts on the
day and night of the shooting.[2]
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2
Gregory Graham was also charged in the murder of McLendon, and entered
a plea agreement pursuant to which he testified for the Commonwealth at
Appellant’s trial. In Graham’s appeal from his judgment of sentence, we
described his testimony at Appellant’s trial as follows:
(Footnote Continued Next Page)
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PCRA Court Opinion (PCO), 3/3/14, at 9-10 (unpaginated).
The trial court appointed Timothy Plasenti, Esq., to represent Shepard
and Fenwick. On October 19, 2010, Attorney Plasenti informed the court
that he consulted with both witnesses and advised each of them to invoke
their right to remain silent. Attorney Plasenti was then asked by the court to
explain how Shepard’s testimony would “tend to incriminate” him. N.T.
Trial, 10/19/10, at 7. When Attorney Plasenti began to respond, the
Commonwealth interjected, indicating that it was not appropriate for the
court to ask such a question, which could “interfere with the attorney/client
relationship.” Id. at 8. Attorney Plasenti then stated that he “would be
more comfortable not answering[,]” but nevertheless indicated that
Shepard’s testimony would be incriminating because “he has an open
_______________________
(Footnote Continued)
At [Appellant’s] trial, [Graham] testified that he drove
[Appellant] to an alley behind [the scene of the crime].
[Appellant] exited the car and told [Graham] to meet him at a
Save-A-Lot store. While parked at the nearby Save-A lot store,
[Graham] heard gunshots in the distance. Shortly after the shots
rang out, [Appellant] appeared at the Save-A-Lot, got into
[Graham’s] car and said, “I shot that n[*****] and wonder if
he’s dead.” [Graham] then drove [Appellant] to Philadelphia.
Later, [Appellant] telephoned [Graham] and solicited his
assistance in disposing of the murder weapon. A week or so
later, [Graham] retrieved the gun from its hiding place and
placed it in his van, which was towed to Virginia and loaded on a
Florida-bound train. After arriving in Florida, [Graham] took the
gun apart and “spread” it across various locations in
Jacksonville, Florida.
Commonwealth v. Graham, No. 738 EDA 2011, unpublished
memorandum at 2 (Pa. Super. filed February 8, 2012).
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criminal matter.” Id. Without requesting any further elaboration from
Attorney Plasenti, the court dismissed Shepard as a witness. Id. at 9.
In regard to Fenwick, Attorney Plasenti stated:
[Attorney Plasenti]: Your Honor[,] I spoke at length with Mr.
Fenwick about his proposed or potential testimony as a witness
in this trial. I spoke with Mr. Fenwick about information I
received from both defense counsel and from the Assistant
District Attorney prosecuting this case regarding that testimony
and other information received by both of those parties. And
then we talked about[,] and I understand that[,] Mr. Fenwick
has an open criminal case here in Delaware County. Based on
those conversations, it was my advice yesterday and it is my
advice to Mr. Fenwick today and it is Mr. Fenwick’s desire to
invoke his Fifth Amendment right not to be compelled to testify
in this court case.
Id. at 10-11. After asking Fenwick if counsel’s statements were correct, to
which Fenwick replied in the affirmative, the court dismissed Fenwick as a
witness. Id. at 11.
Appellant claimed in his pro se PCRA petition, and reiterates on appeal,
that the trial court erred by allowing these witnesses to invoke their privilege
against self-incrimination simply because they had open criminal cases
pending in the same county. Appellant maintains that the court should have
inquired further into how their testifying at Appellant’s trial would
incriminate them. Because the court did not conduct such an inquiry,
Appellant maintains that his trial counsel should have objected to the court’s
dismissal of these witnesses.
In PCRA counsel’s Turner/Finley no-merit letter, he construed
Appellant’s claim in the following manner: “Defendant asserts that trial
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counsel was ineffective for failing to call Stefan Fenwick and James Shepard
to testify on his behalf.” No-Merit Letter, 5/6/13, at 15 (unpaginated).
Counsel then went on to conclude that counsel was not ineffective for failing
to call these witnesses because each witness “invoked his 5th Amendment
right not to testify.” Id.
From our review of Appellant’s pro se PCRA petition, it is obvious that
PCRA counsel misconstrued Appellant’s argument. Appellant did not allege
that counsel was ineffective for failing to call Shepard and Fenwick; instead,
he argued that counsel should have objected to the court’s acceptance of
these witnesses’ invocation of their right to remain silent. PCRA counsel did
not address this claim in his Turner/Finley no-merit letter, and Appellant
expressly challenged that failure in his pro se response to counsel’s petition
to withdraw. See “Objection and Response,” 5/28/13, at 17-19. On appeal,
Appellant reiterates his arguments that (1) trial counsel acted ineffectively
regarding the trial court’s decision to dismiss these witnesses, and (2) PCRA
counsel ineffectively omitted a discussion of this claim from his no-merit
letter.
We are compelled to agree with Appellant that PCRA counsel’s
Turner/Finley no-merit letter was inadequate. Counsel clearly
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misconstrued Appellant’s issue and did not properly analyze the merits
thereof.3
Moreover, while the PCRA court correctly characterized Appellant’s
ineffectiveness claim, it nevertheless provided a very cursory analysis
thereof. The court stated:
Although [Appellant] now asserts that this Court
“improperly” permitted the witnesses to invoke their rights
against self-incrimination, he does not explain why this ruling
was improper. This Court can think of no reason. The privilege
against self-incrimination is of constitutional force. Both
witnesses consulted with counsel before invoking the privilege.
Therefore, it is recommended that the Superior Court reject the
assertion that this Court erred when it allowed the witnesses to
invoke it.
PCO at 10.
Initially, we disagree with the PCRA court that Appellant does not
sufficiently explain why the trial court erred in accepting Shepard’s and
Fenwick’s invocation of their right to remain silent. While Appellant’s
argument may not be particularly eloquent, the essence of his claim is clear:
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3
The Commonwealth similarly misinterprets Appellant’s argument and
concludes it is meritless, stating:
Neither trial counsel nor PCRA counsel was ineffective for failing
to call James Shepard or Stephan Fenwick as a witness. Both
men consulted with an independent attorney and on the advice
of said attorney elected to assert their Fifth Amendment rights to
refrain from testifying. Therefore, neither counsel can be
ineffective for failing to call them as witnesses.
Commonwealth’s Brief at 18.
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the trial court’s inquiry was insufficient to determine that these witnesses
had a reasonable fear of self-incrimination and, as such, Appellant’s trial
counsel should have objected to the court’s dismissing them.
Moreover, we disagree with the PCRA court that Appellant’s claim is
clearly meritless. Our Supreme Court has stated:
It is clear that under both our state and federal constitutions, a
criminal defendant has a right of compulsory process to obtain
witnesses in his favor. Pa. Const. art. I § 9. See Washington v.
Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
However, this right is qualified to the extent of existing
testimonial privileges of witnesses, including the privilege
against self incrimination. Id. at 23, n. 21, 87 S.Ct. at 1925, n.
21.
Commonwealth v. Allen, 462 A.2d 624, 627 (Pa. 1983) (emphasis
omitted). The Court has also discussed a witness’ invocation of his privilege
against self-incrimination as follows:
The standard against which a trial judge must determine
whether a witness may properly invoke a claimed Fifth
Amendment privilege was set forth in Commonwealth v.
Carrera, 424 Pa. 551, 227 A.2d 627 (1967).
When [a witness is called to testify], he or she is not
exonerated from answering questions merely upon the
declaration that in so doing it would be self-incriminating.
It is always for the court to judge if the silence is justified,
and an illusory claim should be rejected. However, for the
court to properly overrule the claim of privilege, it must be
perfectly clear from a careful consideration of all the
circumstances, that the witness is mistaken in the
apprehension of self-incrimination and the answer
demanded cannot possibly have such tendency. (Emphasis
[omitted], citations omitted.)
Id. at 553-54, 227 A.2d at 629.
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If an individual possesses reasonable cause to apprehend
danger of prosecution, “it is not necessary that a real danger of
prosecution exist to justify the exercise of the privilege against
self-incrimination.” Id. “Moreover, the privilege extends not only
to the disclosure of facts which would in themselves establish
guilt, but also to any fact which might constitute an essential link
in a chain of evidence by which guilt can be established.” Id.
See Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95
L.Ed. 1118 (1951). “The trial judge in appraising the claim must
be governed as much by his personal perception of the
peculiarities of the case as by the facts actually in evidence[.]”
Id. at 487, 71 S.Ct. at 818 (citation omitted). To require the
witness to prove the basis of the claim would force the disclosure
of the information the Fifth Amendment was designed to protect
against. Id. at 486, 71 S.Ct. at 818.
Allen, 462 A.2d 624, 627 (Pa. 1983).
Here, neither Shepard nor Fenwick was called to the stand and
questioned before asserting the privilege against self-incrimination; instead,
they asserted “[a] blanket privilege” which “generally is not permitted.”
Commonwealth v. Kirwan, 847 A.2d 61, 65-66 (Pa. Super. 2004)
(citations omitted). In Allen, our Supreme Court affirmed the trial court’s
acceptance of a ‘blanket privilege,’ and found “[a] specific factual inquiry
was … unnecessary[,]” where “the testimony of record was sufficient to
suggest [the witness’] complicity in the crime.” Allen, 462 A.2d at 627.
Here, however, there is nothing in the record indicating that Shepard or
Fenwick was involved in McLendon’s murder, and the simple fact that they
had ‘open cases’ also did not suggest how their testimony at Appellant’s trial
would be incriminating. Therefore, Allen supports Appellant’s argument
that defense counsel should have requested a more specific factual inquiry
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to determine if Shepard and Fenwick had reasonable cause to fear
prosecution.
We also note that while this Court has declared that “there is no
mandatory procedure for deciding whether the privilege against self-
incrimination should be allowed,” we have held that “one acceptable
procedure is to hold an in camera review.” Commonwealth v. Treat, 848
A.2d 147, 149-150 (Pa. Super. 2004).
In the usual case, the trial court could take the witness, the
witness' counsel and defense counsel (the Commonwealth could
not be present for obvious reasons) into chambers. In private,
and off the record, the court could review the witness' testimony
and make an informed decision about whether the witness has to
testify. If the privilege is sustained, the court could even make
some discrete on-the-record remarks that would explain why the
privilege would be appropriate while avoiding revealing any
incriminatory information the court might have obtained.
Another option would be for the Commonwealth to grant the
witness immunity.
Id. at 150.
In Treat, the defendant was charged in a domestic violence incident
against the victim, who sought to invoke her right to remain silent when
called to the stand during his trial. Treat, 848 A.2d at 149. The court
conducted an in camera hearing, at which defense counsel stated “that he
believed the victim’s testimony would potentially subject her to prosecution
for false reports, unsworn falsifications to authorities and other charges.”
Id. Despite stating that “the possibility that the victim would incriminate
herself was ‘ridiculous[,]’ … the trial court sustained her claim of privilege[,]
citing the statement of [her] counsel that [she] could incriminate herself.”
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Id. This Court ultimately overruled the trial court’s decision, emphasizing
that “although the trial court did have an in camera discussion with counsel,
… no one offered anything to substantiate the claim of privilege.” Id.
The same is true in the present case. Although Shepard and Fenwick
had counsel who advised them to assert their right to remain silent because
they had ‘open cases,’ there is nothing in the record indicating how or why
Shepard’s or Fenwick’s testimony would have incriminated them in this, or
any other, criminal case. Accordingly, Appellant’s claim that defense counsel
should have objected to the court’s accepting these witnesses’ invocation of
their right to remain silent has arguable merit. See also Commonwealth
v. Rolon, 406 A.2d 1039 (Pa. 1979) (finding the trial court erred by
accepting witness’ invocation of his privilege against self-incrimination where
the witness never took the stand, the court did not permit Rolon to establish
the line of questions he would have asked the witness, and there was
nothing in the record linking the witness to the crime). However, because
the PCRA court dismissed this claim without a hearing, we are unable to
assess whether counsel had a reasonable basis for his decision not to raise
such an objection.
Accordingly, we are compelled to vacate the PCRA court’s order
denying Appellant’s petition and remand for an evidentiary hearing on this
particular trial counsel ineffectiveness claim. Additionally, we conclude that
the PCRA court erred in allowing PCRA counsel to withdraw where counsel
wholly failed to address this issue in his Turner/Finley no-merit letter, and
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the claim has arguable merit necessitating further examination.
Consequently, we direct that Appellant be appointed new PCRA counsel to
represent him at the PCRA hearing addressing this issue.
We reach the same conclusion regarding another trial counsel
ineffectiveness claim asserted by Appellant. Specifically, Appellant takes
issue with trial counsel’s failure to object to the following instruction by the
trial court, provided at the conclusion of Gregory Graham’s testimony:
The Court: All right. Okay. You may step down. … One of the
things that you need to know about witnesses is that one way of
challenging their credibility is to demonstrate that they gave
what is called prior inconsistent statements and in this case
[defense counsel] has given – asked about statements that this
witness[,] Mr. Graham[,] gave to Detective Pitts. One of the
statements was did you tell Detective Pitts that the decedent[,]
Isaiah McLendon[,] was a drug dealer or was involved in drugs
and he may have said that to Detective Pitts and it was
obviously inconsistent because he knew the real reason
why this homicide occurred. There’s no evidence in this case
that Isaiah McLendon was involved in dealing drugs and I want
to make that clear to you. The reason for that testimony was
not to indicate that the decedent was involved in drug dealing,
but to show the inconsistent statements of the witness. Okay.
N.T. Trial, 10/15/10, at 145. Appellant claims that this instruction was
prejudicial because it encouraged the jury to disbelieve Graham’s initial
statement to police, in which he did not implicate Appellant in the murder,
and to instead believe Graham’s trial testimony that Appellant shot
McLendon. Appellant argues that if defense counsel had objected to this
instruction, “the court would have corrected it’s [sic] error or granted a
mistrial.” Appellant’s Brief at 52.
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Appellant clearly cited (and quoted) in his pro se PCRA petition the
above-stated instruction by the trial court. See PCRA Petition, 9/24/12, at
23. Nevertheless, in PCRA counsel’s Turner/Finley no-merit letter, counsel
only reviewed the court’s closing jury instruction (provided on October 20,
2010) and concluded that “nothing in the transcripts of the jury charge …
indicate that the trial court told the jury that there was a ‘real reason’ that
McLendon was killed and Gregory Graham knew that reason.” No-Merit
Letter at 14 (unpaginated). In other words, PCRA counsel did not review the
comments proffered by the trial court on October 15, 2010, following
Graham’s testimony. Appellant objected to PCRA counsel’s examination of
this issue in his pro se response to counsel’s no-merit letter. See “Objection
and Response,” 5/28/13, at 9. Because our review of Appellant’s pro se
PCRA petition confirms that he clearly identified, and cited to, the court’s
above-quoted comment, we agree with Appellant that PCRA counsel failed to
properly review this issue in his Turner/Finley no-merit letter.
It also appears that the PCRA court did not adequately examine
Appellant’s petition and the portion of the record cited therein. Instead, the
court adopted an analysis nearly identical to that proffered by PCRA counsel
in his no-merit letter. Namely, the court presumed Appellant was referring
to the jury instruction the trial court provided before the jury retired to
deliberate. See PCO at 8-9. After assessing that portion of the record, the
PCRA court stated that,
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the jury instructions in this case, taken as a whole, were clear
and had no tendency to mislead the jury. [The trial court]
instructed the jury regarding Gregory Graham. [The trial court]
also instructed the jury regarding motive. The charge did not
suggest that the jury was told that there was a “real reason”
that the victim was killed and that Gregory Graham knew that
reason. [Appellant’s] argument is without merit.
Id. at 9.
In sum, it is apparent from our review of the record that PCRA counsel
and the court both failed to properly address Appellant’s claim of trial
counsel’s ineffectiveness. Accordingly, because we are remanding for an
evidentiary hearing regarding Appellant’s first ineffectiveness claim,
discussed supra, we direct that PCRA court permit Appellant to further
develop the instant ineffectiveness claim at that hearing, as well.
Appellant raises various other claims, which, for the reasons stated
below, we conclude are either meritless or waived. Accordingly, these issues
need not be addressed on remand.
First, Appellant argues that trial counsel was ineffective for failing to
investigate “two known [eyewitnesses,]” Melvin Gross and Richard Gardner.”
Appellant’s Brief at 32. The PCRA court points out that “[t]he name ‘Richard
Gardner’ surfaced for the first time in [Appellant’s] Statement of [Errors]
Complained of on Appeal.” PCO at 11 (unpaginated). Appellant did not
raise in his pro se PCRA petition any issue regarding trial counsel’s
ineffectiveness for failing to investigate Richard Gardner. We also see no
mention of Gardner in Appellant’s pro se response to PCRA counsel’s petition
to withdraw or in his response to the PCRA court’s Rule 907 notice of its
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intent to dismiss. Thus, Appellant’s ineffectiveness claim regarding Richard
Gardner is waived. See Commonwealth v. Washington, 927 A.2d 586,
601 (Pa. 2007) (“Any claim not raised in the PCRA petition is waived and not
cognizable on appeal.”) (citing Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
However, Appellant did argue in his pro se PCRA petition that trial
counsel ineffectively failed to investigate Marvin Gross, thus preserving this
assertion for our review. Appellant contends that trial counsel should have
investigated Mr. Gross (and, presumably, called him to the stand at trial)
because Mr. Gross was an eyewitness to the shooting and his description of
what occurred was “somewhat different” than the testimony of the
Commonwealth’s eyewitness, Andrea Ebo. See Appellant’s Brief at 34.
Appellant does not elaborate on how Mr. Gross’ account of the shooting
differed from Ms. Ebo’s.
The PCRA court concluded that Mr. Gross would have provided a
description of the shooter that was consistent with Ms. Ebo’s description.
See No-Merit Letter, 5/6/13, at 12; PCO at 11 (unpaginated). The court
explained:
[Mr.] Gross stated that he saw a black male wearing a black or
gray hoodie and red backpack shoot the victim. This account is
consistent with that of Andrea Ebo, who testified that the
shooter was a dark-skinned African-American man of medium
height wearing a black hoodie.
PCO at 11. Thus, the PCRA court reasoned that “[Mr.] Gross’[] testimony
would have been of little assistance to [Appellant].” Id. Appellant’s
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undeveloped argument does not convince us that the court’s conclusion was
erroneous. Thus, this claim of trial counsel’s ineffectiveness is meritless.
Appellant also argues that trial counsel was ineffective for failing to
investigate DEA Agent Belcher, who “could possibly have [had] evidence
favorable to the defense….” Appellant’s Brief at 36. Essentially, Appellant
claims that Agent Belcher must have possessed video surveillance footage of
the murder based on the agent’s testimony that he had various cameras set
up in the area of the shooting, and also because a fellow inmate informed
Appellant that the agent had surveillance cameras in the area of N. 3 rd
Street. See Appellant’s Brief at 37-38. Appellant maintains that trial
counsel ineffectively failed to investigate whether Agent Belcher possessed
such video surveillance evidence. However, Appellant did not raise this
claim in his pro se PCRA petition. Accordingly, he has waived his argument
that trial counsel was ineffective for failing to investigate Agent Belcher.
See Washington, 927 A.2d at 601.
Appellant also maintains that trial counsel was ineffective for not
objecting to the trial court’s jury instruction “that [Appellant] admitted to
committing the crime.” Appellant’s Brief at 55. Specifically, the court
stated:
[The Court]: There is also evidence that the Defendant
made an admission that he was the shooter to the police.
Now what I am about to tell you about that admission and only
that admission, because if you find that the Defendant made
admissions to other people other than police officers you should
evaluate that testimony in the ordinary way. But when a
Defendant makes an admission of guilt to a police officer, you
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have to look at that admission in a very specific way. We are
talking about Officer Pitts’s testimony that the Defendant
walked into the room after he was released from the cell
and stated that he was the shooter, that he did it. This is
what we are talking about. You may not consider that statement
as evidence unless you find that he made the statement
voluntarily.
N.T. Trial, 10/20/10, at 58-59 (emphasis added).
Appellant argues that defense counsel should have objected to this
instruction because there was no evidence that Appellant admitted to the
shooting. However, Detective Brian Pitts testified that Appellant made the
following statement to him: “Listen, this is what I’m going to tell you, I did
it. It was me. Nobody knows the true facts. Nobody’s going to identify me.
I want to tell you….” N.T. Trial, 10/15/10, at 187. We conclude that
Detective Pitts’ testimony that Appellant stated to him, “I did it[,]” was
sufficient to justify the court’s jury instruction regarding an admission by
Appellant. Accordingly, we see no error in trial counsel’s failure to object to
this instruction.
In addition to his various claims of trial counsel’s ineffectiveness,
Appellant also avers that the Commonwealth committed a Brady violation
by failing to turn over video surveillance footage of the street on which the
murder occurred. Appellant claims that such footage was in the possession
of Agent Belcher. Not only is this claim waived because it was not raised in
Appellant’s pro se petition, but Appellant’s contention that such video
footage exists is purely speculative. Moreover, in support of his contention
that Agent Belcher possessed this footage, Appellant cites portions of his
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trial testimony; clearly, if we accept Appellant’s argument that the agent’s
testimony proves he possesses video footage of the murder, then Appellant
became aware of this fact at the time of trial and could have asserted this
purported Brady violation on direct appeal. For these reasons, Appellant’s
claim is waived. 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for
relief, a petitioner must prove that “[t]he allegation of error has not been
previously litigated or waived”); 42 Pa.C.S. § 9544(b) (directing that “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 post[-
]conviction proceeding”).
Appellant also avers that the Commonwealth elicited false testimony
from witnesses, and/or knowingly permitted witnesses to make untrue
statements on the stand. Appellant does not frame his argument as a claim
of trial/appellate counsel ineffectiveness, and he does not discuss why this
assertion could not have been raised on direct appeal. Accordingly, it is
waived. See 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(b).
Lastly, we will address Appellant’s assertions that PCRA counsel acted
ineffectively by filing an inadequate Turner/Finley no-merit letter, and that
the PCRA court erred in granting counsel’s petition to withdraw. As
discussed herein, it is apparent that PCRA counsel failed to properly assess
two of Appellant’s trial counsel ineffectiveness issues, and at least one of
those issues has arguable merit. Therefore, we are compelled to vacate the
PCRA court’s order denying Appellant’s petition and remand for the
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appointment of new PCRA counsel, who shall be permitted to file an
amended petition on Appellant’s behalf. See Commonwealth v. Massina,
2013 WL 4399018, at *1 (Pa. Super. 2013). We also direct that the PCRA
court conduct an evidentiary hearing on the following two claims: (1) trial
counsel was ineffective for failing to object to the trial court’s accepting
Shepard’s and Fenwick’s invocation of their right to remain silent, and (2)
trial counsel was ineffective for failing to object when the trial court
instructed the jury that Graham knew the ‘real reason’ that this murder
occurred. The PCRA court may also address at the hearing any other issues
raised in PCRA counsel’s amended petition that warrant further review.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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