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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KYSHIM M. HENDERSON,
Appellant No. 462 EDA 2014
Appeal from the PCRA Order January 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007718-2009
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 12, 2015
Kyshim M. Henderson appeals from the order entered January 29,
2014, dismissing his petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. We affirm.
In August 2008, Appellant was playing dice on North Franklin Place in
Philadelphia. A dispute arose between Appellant and Rashawn Howard when
Mr. Howard threatened to take money lying on the ground next to the game.
Appellant drew a gun and shot Mr. Howard six times in the legs and hips.
Mr. Howard died from his wounds.
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Appellant was arrested and charged with murder of the third degree,
possession of an instrument of crime (PIC), and related firearms offenses.1
In March 2010, a bench trial commenced. The Commonwealth introduced
testimony from three eyewitnesses, Lyle Littlejohn, Germane Thompson, and
Sheryl Smith. On the witness stand, Mr. Littlejohn and Mr. Thompson
recanted statements previously given to the police. However, the
Commonwealth introduced their prior inconsistent statements as substantive
evidence of Appellant’s guilt.
Following trial, the court found Appellant guilty of third-degree murder
and PIC.2 In June 2010, the trial court sentenced Appellant to eighteen to
thirty-six years’ incarceration, followed by five years’ probation. Appellant
timely appealed; this Court affirmed the judgment of sentence, and the
Supreme Court of Pennsylvania denied allowance of appeal. See
Commonwealth v. Henderson, 43 A.3d 525 (Pa. Super. 2012)
(unpublished memorandum), appeal denied, 48 A.3d 1247 (Pa. 2012).
In April 2013, Appellant timely filed a counseled petition for collateral
relief, asserting ineffective assistance of trial counsel on several grounds.
The PCRA court dismissed Appellant’s petition without a hearing. Appellant
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1
See 18 Pa.C.S. §§ 2502(c), 907(a), 6105(a)(1), 6106(a)(1), and 6108,
respectively.
2
The remaining charges were nolle prossed.
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timely appealed. The PCRA court did not direct Appellant to file a Pa.R.A.P.
1925(b) statement but issued a memorandum opinion explaining its
decision.
Appellant raises the following issues, restated for clarity:
1. Whether trial counsel was ineffective for failing to interview
Lyle Littlejohn prior to trial and, thereafter, failing to move to
suppress Mr. Littlejohn’s statement to police; and
2. Whether trial counsel was ineffective for failing to interview
and/or call Carl Bell or Antwain Young as trial witnesses.
See Appellant’s Brief at 3.
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
In this case, the PCRA court dismissed Appellant’s petition without a
hearing. See PCRA Court Order, 10/16/2014, at 1 (citing in support
Pa.R.Crim.P. 907). There is no absolute right to an evidentiary hearing.
See Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).
On appeal, we examine the issues raised in light of the record “to determine
whether the PCRA court erred in concluding that there were no genuine
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issues of material fact and in denying relief without an evidentiary hearing.”
Id.
We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(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, 533 (Pa. 2009) (citations
omitted). “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.” Id. A claim
will be denied if the petitioner fails to meet any one of these requirements.
Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa. Super. 2008)
(citing Commonwealth v. Natividad, 938 A.2d 310, 322 (Pa. 2007));
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
In his first issue, Appellant contends that the police statement
attributed to Mr. Littlejohn was involuntary and coerced. According to
Appellant, if trial counsel had interviewed Mr. Littlejohn prior to trial, he
could have filed a “persuasive pretrial motion” to suppress Mr. Littlejohn’s
statement. Appellant’s Brief at 19.
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Appellant’s claim is without merit. Appellant failed to identify any
additional information that trial counsel could have obtained from
interviewing Mr. Littlejohn prior to trial. Accordingly, we discern no error by
trial counsel in this regard. See Commonwealth v. Elliott, 80 A.3d 415,
439-40 (Pa. 2013) (concluding that, “absent a proffer” of information helpful
to a petitioner’s claim that counsel’s failure to interview a potential witness
prejudiced petitioner, the claim must fail); see also Appellant’s
Memorandum of Law in Support of his Petition for Post Conviction Relief,
04/23/2013, at 18 (acknowledging that “counsel in the instant case had to
have known based upon Littlejohn’s preliminary hearing testimony that his
police statement was involuntary and could be suppressed”).
Further, even if Appellant is correct that Mr. Littlejohn’s statement to
police was coerced, Appellant was without standing to move for its
suppression. See, e.g., Commonwealth v. Millner, 888 A.2d 680, 692
(Pa. 2005) (“[A] defendant cannot prevail upon a suppression motion unless
he demonstrates that the challenged police conduct violated his own,
personal privacy interests.”); Commonwealth v. Brown, 342 A.2d 84, 91
(Pa. 1975) (“[I]t is settled law that [an] appellant lacks standing to assert
the alleged deprivation of another’s constitutional rights.”) (quoting
Commonwealth v. Butler, 291 A.2d 89, 90 (Pa. 1972)).
Appellant suggests that his lack of standing is immaterial, as the
admission of Mr. Littlejohn’s statement was a violation of Appellant’s right to
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due process. However, Appellant’s position is without legal support. To the
contrary, the Supreme Court of Pennsylvania has held expressly:
[The admission of] prior inconsistent statements of witnesses
who testify at trial, where such statements were properly
admitted, but recanted at trial, does not offend due process
provided the makers of such statements have been made
available for cross examination[.]
Commonwealth v. Brown, 52 A.3d 1139, 1184 (Pa. 2012). Here, Mr.
Littlejohn testified at trial, recanted his prior police statement, and was
cross-examined by trial counsel. Accordingly, Appellant suffered no violation
of his right to due process.
Appellant also contends that trial counsel was ineffective for failing to
interview and call as trial witnesses Carl Bell or Antwain Young. Appellant
submitted affidavits from both potential witnesses.
Specifically, Mr. Bell attested that on the night of Mr. Howard’s
murder, he heard several gunshots. See Affidavit of Carl Bell, 03/27/2013,
at 1. According to Mr. Bell, he started walking toward the crime scene and
witnessed an unknown black male leaving the area. Id. at 1-2. Mr. Bell
gave a statement to police. Id. at 2. Further, Mr. Bell attests that the
police wanted him to identify Appellant as the shooter, but he refused to do
so. Id. at 3.
Mr. Young attested that on the night of the murder, he was at home
watching his son and did not hear of the shooting until later. See Affidavit
of Antwain Young, 04/02/2013, at 1. Mr. Young also suggests that friends
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told him that Ms. Smith testified at Appellant’s trial that she witnessed him
fleeing the crime scene with Appellant. Id. at 2. Mr. Young specifically
denied being with Appellant following the shooting. Id.
Regarding Mr. Bell’s proffered testimony, Appellant suggests that it
“may have established reasonable doubt.” Appellant’s Brief at 23. Further,
according to Appellant, Mr. Young’s testimony “would have impeached” the
testimony of Ms. Smith and rendered the Commonwealth’s evidence
unreliable. Id. at 27.
In order to establish ineffectiveness for failure to call a witness, a
petitioner must demonstrate:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to
testify for the defense; and (5) the absence of the testimony of
the witness was so prejudicial as to have denied the defendant a
fair trial.
Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012) (citing
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009)).
Here, Appellant’s claim is devoid of merit. His conviction was
supported by eyewitness accounts establishing that Appellant shot Mr.
Howard multiple times. Weighed against this compelling evidence, the
proffered testimony of Mr. Bell is immaterial. Mr. Bell did not himself
witness the crime, and his affidavit suggests nothing more than the
possibility that an unknown man was in the neighborhood at the time Mr.
Howard was murdered. Moreover, as noted by the PCRA court, Mr. Bell’s
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statement to police, largely consistent with his affidavit, was introduced at
trial by Appellant’s trial counsel during his cross-examination of Detective
Centeno. See Opinion, 10/30/2014, at 11 (citing Notes of Testimony,
03/29/2010, at 148-51).
Similarly, the proffered testimony of Mr. Young does not exculpate
Appellant. Mr. Young did not witness the murder, nor can he provide
Appellant with an alibi. Indeed, as noted by the PCRA court, “[a]t most, Mr.
Young’s affidavit does nothing more than provide himself with an
uncorroborated alibi.” Id. at 11. Accordingly, Appellant cannot demonstrate
that the absence of testimony from either Mr. Bell or Mr. Young was so
prejudicial as to have denied him a fair trial. Sneed, 45 A.3d at 1109.
For the above reasons, we discern no error in the PCRA court’s
decision to dismiss Appellant’s petition without a hearing. Appellant’s claims
are without merit. He is entitled to no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2015
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