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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAMSEY WOOD
Appellant No. 662 WDA 2015
Appeal from the PCRA Order April 16, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011834-2002
CP-02-CR-0012068-2002
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED APRIL 26, 2016
Appellant, Ramsey Wood, appeals from the order entered April 16,
2015, in the Court of Common Pleas of Allegheny County, which denied
Wood’s Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546,
petition. We affirm.
A panel of this Court summarized the facts behind Wood’s convictions
as follows.
On July 24, 2002 Wayne Staples, the victim, and Ramsey
Wood were patrons of Reese’s Supper Club, located on Fifth
Street near Viola in Duquesne, Pennsylvania. Locust Alley runs
behind the club. According to witnesses an argument or
disagreement broke out between the two. Staples and his
cousin, James Butler, left the club. Wood exited the club shortly
thereafter, complaining someone had called his girlfriend a bitch.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Butler saw Wood pull a silver automatic handgun from his
waistband, aim it at Staples’ head and pull the trigger. This
occurred on Locust Alley. This apparently triggered a gun battle,
as the police recovered numerous shell casings and bullet
fragments (from three separate 9 mm and one .45 caliber
weapon).[FN1] Staples suffered a single, through and through
gunshot wound to his head. The bullet entered in the area of his
left temple and exited his body through [the] right side of his
neck. The bullet fractured Staples’ top two cervical vertebrae
before exiting. Staples died five days after being shot. The
murder weapon was never located.
In his defense, Wood presented several witnesses who
claimed to have seen him at a convenience store in the
Hazelwood section, some miles away from the murder scene, at
the time of the shooting. These witnesses were members of a
local church who testified they were bringing between 15-25
children, ages 3 and up, who were members of the church drum
corps, to the store for treats. They testified such trips were a
regular occurrence. On the night in question, they testified they
saw Wood at the convenience store at about 10:30 p.m. and
Wood remained at the store for 15 to 20 minutes. On rebuttal,
the Commonwealth presented the testimony of the store owner
who stated she could remember no such regular visits by the
witnesses and a large number of children.
[FN1]
The other shooters were not identified.
Commonwealth v. Wood, 897 A.2d 524, at *2-3 (Pa. Super., filed Jan. 31,
2006) (unpublished mem.), appeal denied, 906 A.2d 1196 (Pa. 2006). A
jury convicted Wood of first degree murder and carrying a firearm without a
license. On February 18, 2004, the court sentenced Wood to life
imprisonment. This Court affirmed Wood’s judgment of sentence on appeal,
and the Pennsylvania Supreme Court denied allocatur. See Wood, supra.
On October 13, 2006, Wood filed a pro se PCRA petition. Counsel was
appointed, and subsequently requested and was granted permission to
withdraw. New counsel was then appointed and an amended PCRA petition
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was filed on July 3, 2013. The PCRA court conducted an evidentiary hearing
on Wood’s amended petition on August 12 and 15, 2014. The PCRA court
ultimately denied Wood’s petition. This timely appeal followed.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
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, 134 S. Ct. 639 (2013). “[Our] scope of review
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
level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted). “[T]his Court applies a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa.
2011) (citation omitted).
We proceed to address the merits of Wood’s claim that he is entitled to
a new trial based upon newly-discovered evidence. Wood claims that the
recently discovered testimony of eyewitnesses Antoine Strothers and Latel
Smith identifying Robert Felder as the individual who shot the victim
constitutes exculpatory evidence warranting a new trial. This newly
discovered testimony recants their testimony offered at trial.
To obtain relief based upon newly-discovered evidence under the
PCRA, a petitioner must establish that: (1) the evidence has
been discovered after trial and it could not have been obtained
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at or prior to trial through reasonable diligence; (2) the evidence
is not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.
Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004) (citation
omitted). The test is conjunctive; the defendant must show by a
preponderance of the evidence that each of these factors has been met in
order for a new trial to be warranted. See Commonwealth v. Pagan, 950
A.2d 270, 292 (Pa. 2008).
“We acknowledge that, as a general matter, recantation evidence is
notoriously unreliable, particularly where the witness claims to have
committed perjury.” D’Amato, supra, at 825 (internal quotes and citation
omitted). See also Commonwealth v. McNeil, 487 A.2d 802, 807 n.4 (Pa.
1985) (opining that recantation evidence has often been recognized as one
of the least reliable forms of after-discovered evidence). “[A]n appellate
court may not interfere with the denial or granting of a new trial where the
sole ground is the alleged recantation of state witnesses unless there has
been a clear abuse of discretion.” Commonwealth v. Hammond, 953 A.2d
544, 561 (Pa. Super. 2008) (citation omitted).
Wood attached to his amended PCRA petition affidavits of both Antoine
Strothers and Latel Smith, in which each attested that they observed Robert
Felder, now deceased, shoot the victim on the night of July 24, 2002. This
testimony differed markedly from that which the eyewitnesses offered at
trial for the defense.
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At trial, Strothers testified that he was waiting in a car outside of the
nightclub on July 24, 2002 when he heard gunshots that hit his car window.
See N.T., Jury Trial, Nov. 19-25, 2003, at 568-75. Both Strothers and a
passenger were transported to the hospital, where Strothers informed the
police that he had not seen who fired the gun. See id. at 578. He further
stated that he had nothing to hide and that he was not afraid. See id. Smith
testified at trial that although he observed Wood at the nightclub on the
night of the shooting, he witnessed an unknown individual, not Wood, shoot
the victim. See id. at 658, 668-74.
Both eyewitnesses effectively recanted their earlier trial testimony
several years after the event in question when they identified Robert Felder
as the shooter. A prerequisite to relief based upon a claim of recantation
evidence is that “the evidence upon which the relief is sought must be
credible to the trial court.” Commonwealth v. Loner, 836 A.2d 125, 135
(Pa. Super. 2003) (citation omitted). Here, the PCRA judge was the fact-
finder whose duty it was to determine the credibility of the victim's
recantation testimony. Not surprisingly, in its Rule 1925(a) opinion, the
PCRA court explicitly found Strothers’s and Smith’s recantation evidence to
be “inherently unreliable.” PCRA Court Opinion, 8/27/15 at 2. We find no
abuse of discretion. Consequently, we agree with the PCRA court that the
recantation testimony does not entitle Wood to a new trial.
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Wood next asserts that trial counsel was ineffective by failing to call
his mother, Rhonda Wood, and grandmother, Dolores Powell, as witnesses in
support of his alibi defense. Wood claims that his mother and grandmother
would have placed him at home at the time the shooting occurred. Wood’s
claim does not warrant relief.
“The law assumes that counsel was effective, and the burden is on
appellant to prove otherwise.” Commonwealth v. McSloy, 751 A.2d 666,
228 (Pa. Super. 2000). “To plead and prove ineffective assistance of counsel
a petitioner must establish: (1) that the underlying issue has arguable merit;
(2) counsel’s actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel’s act or failure to act.” Commonwealth v.
Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc), appeal denied,
93 A.3d 463 (Pa. 2014) (citation omitted).
“Generally, counsel’s assistance is deemed constitutionally effective if
he chose a particular course of conduct that had some reasonable basis
designed to effectuate his client's interests.” Commonwealth v. Spotz, 84
A.2d 294, 311 (Pa. 2014) (citation omitted). “Where matters of strategy and
tactics are concerned, [a] finding that a chosen strategy lacked a reasonable
basis is not warranted unless it can be concluded that an alternative not
chosen offered a potential for success substantially greater than the course
actually pursued.” Id. at 311-12 (citation and quotes omitted). A failure to
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satisfy any prong of the test will require rejection of the claim. See id. at
311.
[I]n the particular context of the alleged failure to call witnesses,
counsel will not be deemed ineffective unless the PCRA petitioner
demonstrates: (1) the witness existed; (2) the witness was
available; (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 was so
prejudicial to petitioner to have denied him or her a fair trial.
Commonwealth v. Miner, 44 A.3d 684, 687 (Pa. Super. 2012) (citation
omitted).
In rejecting Wood’s claim, the PCRA court determined that the
testimony of the proposed alibi witnesses was merely cumulative and would
only have corroborated the testimony of other witnesses already presented
at trial. See PCRA Court Opinion, 8/27/15 at 3. While we do not necessarily
agree with the court’s conclusion that the alibi testimony was merely
cumulative, as the testimony would have placed Wood at home closer to the
time of the shooting than the testimony offered by other alibi witnesses
called at trial, we agree that the absence of the testimony did not deny
Wood a fair trial.
The Commonwealth established at trial that the shooting occurred at
approximately 11:45 p.m. See N.T., Jury Trial, Nov. 19-25, 2003, at 50,
200-01. As previously noted, defense witnesses placed Wood at a
convenience store for approximately twenty minutes that evening beginning
at approximately 10:20 p.m. At the PCRA evidentiary hearing, Wood’s
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mother testified that Wood left for the convenience store around 10-10:30
p.m., returned at approximately 11:00 p.m. and stayed home for the rest of
the evening. See N.T., PCRA Hearing, 8/12/14, at 33-36. Wood’s
grandmother testified similarly that Wood left for the convenience store
around 10:30 or 11 p.m., returned in approximately one half hour, and then
remained home. See id. at 47-50.
Trial counsel admitted at the PCRA hearing that he was aware of this
testimony and that both witnesses were available, and indeed were
sequestered, for trial. See id. at 9-12. However, counsel explained that
there were other witnesses who testified that they had seen Wood at the
convenience store around the time of the shooting and that he believed that
testimony would have been sufficient to raise a doubt as to Wood’s presence
at the scene of the shooting. See id. at 15. Although counsel could not
specifically recall his thought process with respect to this case, he
additionally posited that he would not have called these particular witnesses
because, in his experience, jurors may see a bias when a mother and
grandmother or close family relations testify. See id. at 15-16.
Counsel’s strategy, in declining to put forth the testimony of witnesses
whom the jury may perceive to be biased, is eminently reasonable. We are
further satisfied that counsel’s decision to not call Wood’s mother and
grandmother as alibi witnesses did not deny Wood a fair trial as other
witnesses who testified at trial placed Wood at the convenience store around
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the time of the murder.1 Accordingly, we do not find that counsel was
ineffective on this basis.
Wood lastly claims that trial counsel was ineffective for providing
inaccurate advice regarding a plea agreement offered by the
Commonwealth. Wood contends that trial counsel erroneously advised him
that even if he rejected the plea agreement and was ultimately convicted at
trial, he would not receive any more time than contemplated in the plea
agreement to third degree murder. See Appellant’s Brief at 47.
At the PCRA evidentiary hearing, trial counsel testified that although
he did not recall whether a plea offer had been made, he remembers that he
discussed with Wood the penalties he was facing, including that the penalty
for first degree murder was a life sentence. See N.T., PCRA Hearing,
8/12/14, at 102-03. The trial court explicitly credited counsel’s testimony.
PCRA Court Opinion, 8/27/15 at 3. “The PCRA court’s credibility
determinations are binding on this Court when they are supported by the
record.” Commonwealth v. Hutchinson, 25 A.3d 277, 284 (Pa. 2011)
(citation omitted). We therefore agree that Wood’s remaining ineffective
assistance of counsel claim is without merit.
Based on the foregoing, we find no abuse of discretion in the PCRA
court’s order dismissing Wood’s PCRA petition.
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1
Two eyewitnesses identified Wood as the shooter at trial.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2016
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