Com. v. Johnson, A.

J-S29040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AQUIL JOHNSON :
:
Appellant : No. 848 EDA 2016

Appeal from the PCRA Order March 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005617-2009

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 28, 2017

Appellant Aquil Johnson appeals from the order entered by the Court

of Common Pleas of Philadelphia County dismissing Appellant’s petition

pursuant to the Post Conviction Relief Act (“PCRA”)1 without a hearing. After

careful review, we vacate the PCRA court’s order and remand for an

evidentiary hearing consistent with this decision.

Appellant was charged with aggravated assault and possession of an

instrument of crime in connection with the May 13, 2008 shooting of Kamal

Murray (“the victim”). On the day in question, the victim was sitting in the

passenger seat of his friend Byron Walker’s car, when an individual walked

____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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up to the vehicle and shot the victim three times. Shortly after Walker

rushed the victim to the emergency room, doctors were able to stabilize the

victim, who had bullets wounds in his arms and a minor wound to his chest.

The victim was given a low dose of morphine to ease the pain.

Once the victim’s condition was stabilized, he spoke with Officer Earl

Bonner and Officer Ayers2 and gave them a detailed description of the

shooter. Based on this information, Officer Ayers prepared an incident

report describing the perpetrator as an “eighteen-year-old black male, 5/11,

190 pounds, medium build, white thermal, blue jeans, possibly named Quil”

as well as noting that the perpetrator had protruding front teeth. Notes of

Testimony (N.T.), 8/3/10, at 145-152.

Shortly thereafter, Detective Joseph Murray and Detective Omar

Jenkins went to the hospital to present the victim with a photo array, from

which the victim identified Appellant as the shooter. The victim indicated

that “Quil” shot him after the two men had a fight regarding Quil’s disrespect

of the victim’s girlfriend. N.T., 8/3/10, at 130. The victim admitted that he

knew Appellant “all his life.” N.T., 8/3/10, at 132. Once the victim’s

interview was reduced to a written statement, the victim adopted the

statement by writing his initials at the bottom of each page.

____________________________________________

2
Officer Ayers’s first name is not mentioned in the trial transcripts.

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However, at Appellant’s trial, the victim recanted his identification of

Appellant and denied making any statement to police naming Appellant as

the shooter. Defense counsel presented four witnesses: alibi witness Talia

McNeil, character witnesses Mckieya Cook and Lorena Ebo, and Appellant

himself. Appellant vehemently denied shooting the victim, but admitted

that his nickname was “Quil” and that he has protruding front teeth.

At the conclusion of the trial, the jury convicted Appellant of

aggravated assault and possession of an instrument of crime. On

September 17, 2010, the trial court sentenced Appellant to an aggregate

imprisonment term of 12½ to 24 years. On July 27, 2012, this Court

affirmed the judgment of sentence. See Commonwealth v. Johnson,

2664 EDA 2010 (Pa.Super. July 27, 2012) (unpublished memorandum).

On May 13, 2013, Appellant filed a pro se PCRA petition. The PCRA

court appointed Atty. Joseph Schultz as Appellant’s PCRA counsel, who

subsequently filed a no-merit letter and a petition to withdraw. On July 24,

2015, Appellant filed an amended pro se petition, raising claims of PCRA

counsel’s ineffectiveness for inter alia, failing to investigate the issues

Appellant desired to appeal. On November 19, 2015, Appellant filed a letter

to the PCRA court, pointing out that counsel failed to address several issues

he wished to raise on collateral review.

On January 31, 2016, Atty. Schultz filed a supplemental amended

petition, claiming several of Appellant’s claims had arguable merit. On

February 5, 2016, the PCRA court notified Appellant of its intent to dismiss

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the petition without a hearing pursuant to Pa.R.Crim.P. 907. On February

23, 2016, Appellant filed a pro se response. On March 4, 2016, the PCRA

court dismissed Appellant’s petition.

On March 10, 2016, Appellant filed a notice of appeal. This Court

remanded the case for a Grazier hearing to determine if Appellant was

intelligently, knowingly, and voluntarily waiving his right to counsel on

collateral appeal. On May 3, 2016, the PCRA court entered an order

permitting Appellant to proceed with pro se representation. On July 5, 2016,

Appellant filed a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

Appellant raises ten issues for our review on appeal:

I. Did the PCRA court commit an error of law and fact when it
held that trial counsel was not ineffective for failing to prepare
for trial and having an alibi witness present an alibi for the
wrong date, and was PCRA counsel ineffective for failing to
further develope [sic] and litigate this issue?

II. Did the PCRA court commit an error of law and fact when it
held, without holding an evidentiary hearing, trial counsel was
not ineffective for failing to call Byron walker, Kieyanna Joyner
and Sherell Johnson to testify or request a brief adjournment to
get them to trial where these witnesses has exculpatory
evidence essential to the defense and where appellant submitted
affidavits from these witnesses to the PCRA court and a witness
certification form pursuant to 42 Pa.C.S. 9545(d)(1)?

III. Did the PCRA court commit an error of law and fact when it
held, without holding an evidentiary hearing, appellant was not
entitled to relief based upon his newly discovered evidence
where Orrin Jones signed a notarized affidavit stating he was an
eyewitness to the crime and appellant is not the person he seen
shoot the victim and where, appellant submitted an affidavit

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from this witness to the PCRA court and a witness certification
form pursuant to 42 Pa.C.S. 9545(d)(1)?

IV. Did the PCRA court commit an error of law and fact when it
held, trial counsel was not ineffective for failing to object to the
trial judge’s refusal to give a mis-identification jury instruction
where the judge’s refusal deprived appellant of his Constitutional
Right to present a complete defense?

V. Did the PCRA court commit an error of law and fact when it
held, trial counsel was not ineffective for failing to object to the
admission of a non-testifying witness’s (Ayers) police report
where the report was prejudicial and violated appellant’s rights
to confront the witness against him?

VI. Did the PCRA court commit an error of law and fact when it
held, trial counsel was not ineffective for failing to object to the
trial judge’s jury instruction directing the jury to consider
[O]fficer Ayers police report and officer Bonner’s testimony as
substantive and impeachment evidence where the report and the
descriptive statements in the report as testified to by Bonner
were inadmissible?

VII. Did the PCRA court commit an error of law and fact when it
held, trial counsel was not ineffective for failing to object to the
prosecutor’s closing arguments where the prosecutor’s improper
remarks about the Bible; the truthfulness of appellant and
defense witnesses; everybody who has ever been shot in the
city; and why there was no identification in this case, inter alia,
deprived appellant of a fair trial?

VIII. Did the PCRA court commit an error of law and fact when it
held, appellant’s rights under Brady v. Maryland were not
violated by the prosecutor’s failure to disclose and turn over
material impeachment evidence pertaining to it’s key witnesses
Det. Ohmarr Jenkins and Kamal Murray where appellant’s Newly
Discovered evidence show Jenkins was involved in three other
cases in which defendants were framed with false statements
and court records show Kamal Murray was arrested several
times for crimen falsi offenses?

IX. Did the PCRA court commit an error of law and fact when it
denied appellant’s request for discover seeking material from the
Det. Jenkins cases and the Murray cases where the Daily News

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Paper Article discovered after trial, displaying Jenkins
misconduct in soliciting false statements to frame three other
people, constituted exceptional circumstances to warrant
discovery in this matter where the central issue in dispute in
appellant’s trial was whether a statement generated by this
detective was true or not?

X. Did any or all of the above errors violate appellant’s rights
under the 5th, 6th, and 14th amendments to the U.S. Constitution
and Art. 1 Sect. 9 of the Pa. Constitution?

Appellant’s Brief, at 4-6 (verbatim).

In reviewing the lower court’s decision to deny Appellant’s PCRA

petition without a hearing, we are guided by the following standard:

We first note that the right to an evidentiary hearing on a post-
conviction petition is not absolute. Commonwealth v. Jordan,
772 A.2d 1011, 1014 (Pa.Super. 2001). It is within the PCRA
court's discretion to decline to hold a hearing if the petitioner's
claim is patently frivolous and has no support either in the
record or other evidence. Id. It is the responsibility of the
reviewing court on 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).

Commonwealth v. Khalifah, 852 A.2d 1238, 1239–40 (Pa.Super. 2004).

In order to be eligible for PCRA relief, the petitioner must prove by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated circumstances found in 42 Pa.C.S. §

9543(a)(2), which includes the ineffective assistance of counsel. “It is well-

established that counsel is presumed effective, and to rebut that

presumption, the PCRA petitioner must demonstrate that counsel's

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performance was deficient and that such deficiency prejudiced him.”

Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 132 (2012) (citing

Strickland v. Washington, 466 U.S. 688, 687-91 (1984)). To prevail on

an ineffectiveness claim, the petitioner has the burden to prove that “(1) the

underlying substantive claim has arguable merit; (2) counsel whose

effectiveness is being challenged did not have a reasonable basis for his or

her actions or failure to act; and (3) the petitioner suffered prejudice as a

result of counsel's deficient performance.” Commonwealth v. Sneed, 616

Pa. 1, 17, 45 A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,

567 Pa. 186, 786 A.2d 203, 213 (2001)).

More specifically, with respect to the reasonable basis prong, our

courts will conclude that counsel's chosen strategy lacked a reasonable basis

only if the petitioner proves that “an alternative not chosen offered a

potential for success substantially greater than the course actually pursued.”

Commonwealth v. Hanible, 612 Pa. 183, 205–206, 30 A.3d 426, 439

(2011) (citation 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.” Commonwealth v. Johnson, 600 Pa. 329, 345–46, 966 A.2d

523, 532–33 (2009) (quoting Strickland, 466 U.S. at 694). The failure to

satisfy any one of the three prongs will cause the entire claim to fail.

Sneed, 616 Pa. at 18, 45 A.3d at 1106 (citation omitted).

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First, Appellant alleges that trial counsel was ineffective in failing to

prepare for trial and having a witness present an alibi for Appellant for the

wrong date. Appellant cites Henry v. Poole, 409 F.3d 48 (2nd Cir. 2005), in

which the United States District Court of Appeals for the Second Circuit

found that a defendant’s right to effective assistance of counsel was violated

when his attorney presented an alibi defense that proved to be false. The

Second Circuit has held that an “attempt to create a false alibi constitutes

evidence of the defendant's consciousness of guilt.” Id. at 65 (quoting

Loliscio v. Goord, 263 F.3d 178, 190 (2nd Cir. 2001) (citation omitted)).

See generally United States v. Parness, 503 F.2d 430, 438 (2nd Cir.

1974) (stating that “[i]t is axiomatic that exculpatory statements, when

shown to be false, are circumstantial evidence of guilty consciousness and

have independent probative force”).

We begin by noting that the Henry decision and the decisions of

federal district courts are not controlling law in our state courts. See

Commonwealth v. Haskins, 60 A.3d 538, 553 (Pa.Super. 2012)

(recognizing that “the holdings of federal circuit courts bind neither this

Court nor the trial court, but may serve as persuasive authority in resolving

analogous cases”) (citation omitted).

Nevertheless, even if considered for its persuasive value, the Henry

decision is distinguishable from the instant case. Appellant’s attorney did

not present a false alibi defense, but misspoke in questioning defense

witness Talia McNeil about Appellant’s whereabouts on May 30, 2009, when

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the shooting occurred on May 13, 2008. When counsel realized the error, he

corrected the mistake and repeated his line of questioning to Ms. McNeil so

that she could testify as to her knowledge of Appellant’s whereabouts on the

correct date. Ms. McNeil confirmed that she knew counsel meant to ask her

about her account of May 13, 2008, as it was a day she “wouldn’t forget”

being with Appellant. N.T., 8/4/10, at 26. Ms. McNeil then testified that she

recalled the day of the shooting because her phone “starting blowing up”

with messages from people accusing Appellant of the shooting that had just

occurred while she was with Appellant at a barbeque. N.T., 8/4/10, at 25.

Although counsel did not have a reasonable basis for questioning Ms.

McNeil about the wrong date, Appellant failed to show he was unfairly

prejudiced by defense counsel’s inadvertent reference that was corrected.

Despite counsel’s error, alibi witness Ms. McNeil repeatedly confirmed that

she remembered that she was with Appellant at the exact time that the

shooting occurred. Appellant has not shown that there is reasonable

probability that, but for counsel's error, the result of the proceeding would

have been different, we reject Appellant’s claim that he was prejudiced by

this error. Accordingly, this ineffectiveness claim fails.

Second, Appellant argues that trial counsel was ineffective in failing to

call Byron Walker and Kieyanna Joyner to testify in his defense.3

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3
Although Appellant claims in his statement of questions presented that trial
counsel was also ineffective in failing to call a third witness, Sherell Johnson,
(Footnote Continued Next Page)

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“To be entitled to relief on a claim of ineffectiveness for failure to
call a witness, [an] appellant must demonstrate [that]: the
witness existed, was available, and willing to cooperate; counsel
knew or should have known of the witness; and the absence of
the witness's testimony prejudiced [the] appellant.”
Commonwealth v. Birdsong, 611 Pa. 203, 24 A.3d 319, 334
(2011) (citing Commonwealth v. Fletcher, 561 Pa. 266, 750
A.2d 261, 275 (2000)). A PCRA petitioner cannot succeed on
such a claim if the proposed witness' testimony “would not have
materially aided him. In such a case, the underlying-merit and
prejudice prongs of the [ineffective assistance of counsel] test
logically overlap.” Commonwealth v. Baumhammers, 625 Pa.
354, 92 A.3d 708, 725 (2014). “To show prejudice, the
petitioner must demonstrate that there is a reasonable
probability that, but for counsel's allegedly unprofessional
conduct, the result of the proceedings would have been different.
A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. (citing Commonwealth v.
Gibson, 597 Pa. 402, 951 A.2d 1110, 1120 (2008)).

Commonwealth v. Brown, ---A.3d---, 3186 EDA 2015 (May 4, 2017)

(quoting Commonwealth v. Johnson, –––Pa.–––, 139 A.3d 1257, 1284

(2016)).

In his pro se PCRA petition, Appellant first asserted trial counsel was

ineffective in failing to secure the testimony of Byron Walker, who had

witnessed the shooting and rushed the victim to the emergency room.

Appellant attached a signed statement from Walker to his petition in which

_______________________
(Footnote Continued)

he provides no further discussion of this claim. Accordingly, we find this
particular argument to be waived for lack of development. “[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.” Commonwealth v.
Johnson, 604 Pa. 176, 191, 985 A.2d 915, 924 (2009) (citations omitted).

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Walker claimed that he saw a light skinned, tall man with braids shoot the

victim on the day in question. Walker also claimed that he gave this

information to defense counsel and was willing and available to testify on

Appellant’s behalf. However, Walker asserted that when he came to the

courtroom on the first day of Appellant’s trial, defense counsel told him that

he would call Walker when it was his turn to testify and never contacted him

thereafter.

Similarly, Appellant also claims that defense counsel should have

called alibi witness Kieyanna Joyner to corroborate Appellant’s claim that he

was at a barbeque at Ms. Joyner’s home when the shooting occurred.

Appellant asserts that this testimony from Mr. Walker and Ms. Joyner was

exculpatory evidence that would have changed the result of his trial.4

While the trial court found Appellant expressly approved of trial

counsel’s “strategy” to proceed with the trial without the testimony of Mr.

Walker or Ms. Joyner, the record does not support the trial court’s finding.

After the Commonwealth rested its case, defense counsel indicated that
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4
PCRA counsel initially found this claim to be frivolous, as he incorrectly
claimed in his no-merit letter that Appellant neither identified any witnesses
who counsel should have called nor gave the substance of the witnesses’
testimony. PCRA counsel’s assertion was clearly false as Appellant’s pro se
petition identified these claims in detail and included signed witness
statements from Mr. Walker and Ms. Joyner. PCRA counsel later realized his
error after Appellant filed a letter to the PCRA court, complaining about
counsel’s representation. PCRA counsel then filed an amended petition,
asserting that Mr. Walker and Ms. Joyner were critical witnesses that were
essential to Appellant’s defense.

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J-S29040-17

several of the witnesses he intended to call were not present in the

courtroom. Defense counsel indicated that he wished to begin his case with

the testimony of Byron Walker, an eyewitness who was present when the

victim was shot in the passenger seat of Walker’s car. The following

exchange occurred outside the presence of the jury:

[Trial Court:] It is now 10:00. We convened at 9:00. We are
still waiting for -- rather [defense counsel] is waiting for a
defense witness so that he can get started.

While we are waiting, [defense counsel], [the prosecutor]
indicated that you had two additional witnesses that he believed
to be alibi witnesses. Can we just sort this out on the record?

[Defense Counsel:] We have alibi witnesses subpoenaed, and we
have a fact witness, Mr. Byron Walker, subpoenaed. It is our
intention to not use the alibi witnesses, to use Mr. Walker, to put
Mr. Walker on the stand and ask him factual questions, and then
[Appellant] will testify. So it is [Appellant], and then our case
should be concluded.

[Trial Court:] Mr. Walker, is that the man who was allegedly
driving the car when the shooting occurred?

[Defense Counsel:] That’s correct. He was driving. He was
driving [Appellant].

[Trial Court:] And [Appellant] is on board with this change in
strategy?

[Defense Counsel:] He is.

[Prosecutor:] I did not understand -- I believe they were new
alibi witnesses?

[Trial Court:] Who were you referring to?

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[Prosecutor:] I was referring to specifically the two young ladies.
It looks like J-O-H-A-N-Y-A-E Cook; I’m assuming that’s a
female, and Sherill Baker.

[Trial Court:] Who are those people?

[Defense Counsel:] One lady, Ms. Cook, I believe is a friend,
and Ms. Baker is a half sister.

[Trial Court:] Will they be witnesses in your case?

[Defense Counsel:] Your Honor, they were here earlier, and they
were here yesterday. I don’t think I’m going to be able to get
them in here today. I’m having trouble getting my witnesses
in[.]

N.T., 8/4/10, at 11-13.

In discussing how the defense wished to proceed, trial counsel

confirmed that he intended to present Mr. Walker as a witness:

[Trial Court:] So you’re going to put on Mr. [Byron]
Walker?

[Defense Counsel:] Yes.

[Trial Court:] You’re going to put on someone to testify that
your client has a reputation for being non-violent. Is that person
in the room?

[Defense Counsel:] Yes.

[Trial Court:] And you’re going to put on the defendant?

[Defense Counsel:] Yes.

[Trial Court:] Hopefully, when we go out, Mr. Walker will
be here.

N.T., 8/4/10, at 15 (emphasis added).

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Just moments later, after counsel and the trial judge reconvened in the

presence of the jury, the following exchange occurred:

[Trial Court to Prosecutor:] Ok. … [A]re you ready to proceed?

[Prosecutor:] Yes, Your Honor.

[Trial Court to Defense Counsel:] Have you and [Appellant]
discussed how you will proceed?

[Defense Counsel:] Yes, your Honor.

[Trial Court:] Is he in agreement?

[Defense Counsel:] He is in agreement.

[Trial Court:] Is that correct, sir?

[Appellant:] Yes.

N.T., 8/4/10, at 15-16.

Based on this colloquy, the PCRA court found Appellant agreed to a

“voluntary waiver” of his right to call Mr. Walker as a witness. T.C.O. at 10

(citing Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa.Super. 2000)

(providing that “a defendant who made a knowing, voluntary, intelligent

waiver of [his right to testify in his own defense] may not later claim

ineffective assistance of counsel for failure to testify”)). However, the PCRA

court’s finding is a mischaracterization of the trial transcript. Before the trial

court asked Appellant if he agreed with how trial counsel intended to

proceed, trial counsel had indicated that he planned to call Mr. Walker to

testify when he arrived in the courtroom. Thus, this colloquy does not show

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that Appellant waived his right to challenge trial counsel’s decision not to

secure the testimony of Mr. Walker.

Moreover, while the PCRA court characterized defense counsel’s

decision not to call Mr. Walker as a witness as “strategic,” it does not explain

what counsel’s reasoning was for failing to secure the testimony of Mr.

Walker, who had witnessed the shooting and claimed Appellant was not the

shooter. While the parties agree that Mr. Walker was not present in the

courtroom the day the defense presented its case, the parties agree that Mr.

Walker had been subpoenaed to testify and was present in the courtroom on

the first day of testimony. The PCRA court did not address Appellant’s

assertion that counsel should have requested a brief adjournment to secure

Mr. Walker’s presence in the courtroom. Appellant argues that the absence

of Walker’s testimony was prejudicial as Walker was willing and available to

testify and could have offered critical testimony identifying someone other

than Appellant as the shooter in this case. Appellant’s pro se petition

contains a signed statement from Mr. Walker confirming these assertions.

With respect to Appellant’s claim that counsel was ineffective in failing

to call alibi witness Kieyanna Joyner, the PCRA court reasoned that Appellant

“failed to prove counsel knew or should have known that [this witness] even

existed, let alone were willing to testify.” PCRA Opinion, at 10. However,

the PCRA court failed to explain how it came to that conclusion without

holding an evidentiary hearing at which trial counsel would testify.

Moreover, the PCRA court’s finding that Appellant was not prejudiced by

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counsel’s failure to call these witnesses “in light of the overwhelming

evidence of guilt” is not convincing as the prosecution’s key witness recanted

his testimony.

Our precedent establishes that counsel’s failure to present the

testimony of an eyewitness who was willing and available to testify for the

defense and was known to defense counsel may be ineffective assistance.

See Brown, supra. Certainly, the testimony of Mr. Walker and Ms. Joyner

is material to Appellant's defense and, if believed, could have had a

substantial impact on the verdict. Accordingly, after reviewing the record, we

determine that Appellant has carried his burden of showing a sufficient

factual issue to warrant a hearing.

Third, Appellant claims the PCRA court erred in denying his claim that

he is entitled a new trial in light of after-discovered evidence of the

eyewitness testimony of Orrin Jones. Appellant attached a notarized

statement from Mr. Jones to his PCRA petition, in which Mr. Jones denied

that Appellant was the shooter as he had observed a tall man with braids

shoot the victim.

To warrant a new trial based on after-discovered evidence, a petitioner

must show that the evidence:

1) has been discovered after trial and could not have been
obtained at or prior to the conclusion of trial by the exercise of
reasonable diligence; 2) is not merely corroborative or
cumulative; 3) will not be used solely to impeach a witness's
credibility; and 4) is of such a nature and character that a
different verdict will likely result if a new trial is granted.

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Commonwealth v. Cousar, ___Pa.___, 154 A.3d 287, 311 (2017) (quoting

Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1284 (2005)

(citation omitted)). The PCRA court summarily dismissed Appellant’s after-

discovered evidence claim by concluding that Appellant failed to establish

that this eyewitness could not have been discovered at or prior to trial

through reasonable diligence or that Mr. Jones’ testimony would have

changed the outcome of the case.

However, we find that Appellant alleged sufficient facts to warrant an

evidentiary hearing to evaluate his claim further. Appellant contended that

he could not have presented Mr. Jones’s testimony at trial as Mr. Jones had

not come forward and admitted that he had witnessed the shooting until

after Appellant’s trial had concluded. Mr. Jones’s description of the shooter

was similar to the description given by Byron Walker. If found to be

credible, Mr. Jones’s testimony that someone other than Appellant was the

shooter would certainly have changed the outcome of the case. See

Commonwealth v. Conley, 365 A.2d 858, 861 (Pa.Super. 1976)

(remanding for an evidentiary hearing on the appellant’s claim that he had

after-discovered evidence of a witness who would testify that the appellant

was not the perpetrator of the crime). Accordingly, the PCRA court erred in

denying Appellant an evidentiary hearing on this issue.

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Fourth, Appellant claims trial counsel was ineffective in failing to object

to the trial court’s refusal to give an “identification” instruction. Appellant

suggests that he was entitled to a Kloiber instruction,5 asserting that the

victim was unable to identify the shooter as he was shot from behind at

night and was under the influence of morphine when he was interviewed by

the police. Our Supreme Court has established the following with respect to

claims of mistaken identity:

Under Kloiber, “a charge that a witness'[s] identification
should be viewed with caution is required where the eyewitness:
(1) did not have an opportunity to clearly view the defendant;
(2) equivocated on the identification of the defendant; or (3) had
a problem making an identification in the past.”
Commonwealth v. Gibson, 547 Pa. 71, 688 A.2d 1152, 1163
(1997) (citing Kloiber). Where an eyewitness has had
“protracted and unobstructed views” of the defendant and
consistently identified the defendant “throughout the
investigation and at trial,” there is no need for a Kloiber
instruction. Commonwealth v. Dennis, 552 Pa. 331, 715 A.2d
404, 411 (1998). When the witness already knows the
defendant, this prior familiarity creates an independent basis for
the witness's in-court identification of the defendant and
weakens ineffectiveness claims based on counsel failure to seek
a Kloiber instruction. See Commonwealth v. Fisher, 572 Pa.
105, 813 A.2d 761, 770–71 (2002) (Opinion Announcing
Judgment of the Court) (witness's in-court identification valid
based on witness having known defendant for eleven years);
Commonwealth v. [Freddie] Johnson, 433 Pa. 34, 248 A.2d
840, 841–42 (1969) (witness had known defendant for three
years prior to robbery and murder; no trial court error in not
issuing Kloiber instruction); see also Commonwealth v.
[Clarence] Johnson, 419 Pa.Super. 625, 615 A.2d 1322,
____________________________________________

5
Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954).

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1335–36 (1992) (witness knew defendant and “had seen him on
several occasions” prior to murder; defendant not entitled to
Kloiber instruction because witness's in-court identification was
supported by independent basis).

Commonwealth v. Ali, 608 Pa. 71, 106, 10 A.3d 282, 303 (2010).

However, the record clearly shows that the facts in this case did not

warrant a jury instruction on mistaken identity. The victim gave a statement

to police at the hospital immediately after the shooting in which gave a

detailed description of the shooter named “Quil” as an “eighteen-year-old

black male, 5/11, 190 pounds, medium build, white thermal, blue jeans”

with protruding front teeth. N.T., 8/3/10, at 145-152. Moreover, the victim

confirmed that he knew Appellant “all his life” and indicated that on the day

of the shooting he quarreled with Appellant, who he claimed was being

disrespectful to his girlfriend. N.T., 8/3/10, at 101-103.

While the victim asserts his statement to police was unknowing as he

had been given morphine at the hospital, his treating physician, Dr. Basil

Harris, M.D., Ph.D., indicated that the victim was administered a relatively

low dose of morphine. Both Dr. Harris and Detective Murray testified that

the victim was lucid, was aware of his surroundings, and was able to

communicate effectively with the police when he gave his statement.

As a result, a Kloiber instruction would have been inappropriate as

the record shows the victim indicated that he clearly viewed Appellant at the

time of the shooting, admitted that he had known Appellant all of his life,

and was able to communicate effectively when he gave his statement

identifying the shooter to police. Accordingly, counsel cannot be deemed

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ineffective for failing to raise a meritless claim. Commonwealth v. Staton,

632 Pa. 400, 412, 120 A.3d 277, 284 (2015).

Fifth, Appellant argues that counsel was ineffective in failing to object

to the admission of a police report into evidence in which the victim gave his

initial description of the shooter. Appellant specifically claims that the

admission of the report violated his constitutional right to confront the

witnesses against him as the report’s author, Officer Ayers, did not testify at

trial. In Crawford v. Washington, 541 U.S. 36, 59 (2004), the United

States Supreme Court held that “[t]estimonial statements of witnesses

absent from trial have been admitted only where the declarant is

unavailable, and only where the defendant has had a prior opportunity to

cross-examine.”

We need not evaluate whether this claim has any merit, as counsel’s

failure to object to the admission of the police report had no prejudicial

effect. Before the introduction of the police report, Detective Murray had

testified from personal knowledge that the victim identified Appellant as his

shooter in a signed statement which was then admitted into evidence. In

addition, Officer Earl Bonner, who introduced the police report into evidence,

testified that he had witnessed the victim give his initial description of the

shooter and confirmed that Officer Ayers’s report reflected the victim’s

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statement.6 Had defense counsel objected to the prosecution’s failure to

present Officer Ayers as witness, the Commonwealth then could have had

Officer Bonner testify to the victim’s initial description of the shooter from

his own memory. Therefore, the record supports the conclusion that there

was no reasonable probability that the result of the proceeding would have

been different had trial counsel insisted that Officer Ayers also testify and be

subject to cross-examination. Accordingly, this ineffectiveness claim fails.

Sixth, Appellant argues that trial counsel was ineffective in failing to

object to the trial court’s instruction allowing the jury to consider the

aforementioned police report as substantive evidence of Appellant’s guilt.

However, the trial transcripts show that Appellant is mischaracterizing the

trial court’s instruction; the trial court told the jury that the victim’s prior

inconsistent statement to police identifying Appellant as the shooter could be

considered substantive evidence.

Our Supreme Court has recognized that a witness’s prior inconsistent

statement is admissible as substantive evidence if “the statement is given

under oath at a formal legal proceeding; or the statement had been reduced

to a writing signed and adopted by the witness; or a statement that is a

contemporaneous verbatim recording of the witness's statements.”
____________________________________________

6
The Commonwealth contends it admitted the report through Officer Bonner
“to expedite [his] testimony and summarize his observations” and claimed
“[h]ad [defense] counsel objected, the Commonwealth would just have
presented Officer Ayers as a witness.” Brief for the Commonwealth at 26.

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Commonwealth v. Lively, 530 Pa. 464, 471, 610 A.2d 7, 10 (1992) (citing

Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986)).

Appellant fails to explain why the jury could not consider the victim’s

prior inconsistent statement as substantive evidence. On the night of the

shooting, the victim gave a statement to police identifying Appellant as the

shooter. After the statement was reduced to writing, it was signed by the

victim. At trial, the victim recanted this identification, claimed he did not

remember giving this statement to police, and denied signing anything. In

response, the prosecutor presented the victim with a copy of his signed

statement. Again, the victim denied making the statement. The

Commonwealth then called Detective Murray who testified that he witnessed

the victim making this identification. Detective Murray opined that the

victim was not intoxicated while giving the statement as he was “lucid” and

“able to communicate in a coherent manner.” N.T., 8/3/16, at 133. As it

was proper for the jury to consider the victim’s prior inconsistent statement

as substantive evidence, we find counsel was not ineffective in failing to

object to a proper jury instruction.

Seventh, Appellant claims the trial counsel was ineffective in failing to

object to prosecutor’s remarks in closing argument, which Appellant

characterizes as prosecutorial misconduct. In Commonwealth v. Cox, 983

A.2d 666 (Pa. 2009), our Supreme Court provided the following discussion of

the phrase “prosecutorial misconduct”:

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The phrase “prosecutorial misconduct” has been so abused
as to lose any particular meaning. The claim either sounds in a
specific constitutional provision that the prosecutor allegedly
violated or, more frequently, like most trial issues, it implicates
the narrow review available under Fourteenth Amendment due
process. See Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct.
3102, 97 L.Ed.2d 618 (1987) (“To constitute a due process
violation, the prosecutorial misconduct must be of sufficient
significance to result in the denial of the defendant's right to a
fair trial.”) (internal quotation marks omitted); Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d
431 (1974) (“When specific guarantees of the Bill of Rights are
involved, this Court has taken special care to assure that
prosecutorial conduct in no way impermissibly infringes them.”).
However, “[t]he Due Process Clause is not a code of ethics for
prosecutors; its concern is with the manner in which persons are
deprived of their liberty.” Mabry v. Johnson, 467 U.S. 504,
511, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The touchstone is
the fairness of the trial, not the culpability of the prosecutor.
Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d
78 (1982).
***
Moreover, ineffectiveness claims stemming from a failure to
object to a prosecutor's conduct may succeed when the
petitioner demonstrates that the prosecutor's actions violated a
constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or
the Sixth Amendment right to a fair trial, or a constitutional
interest such as due process. Cf. [Commonwealth v.] Carson,
[590 Pa. 501,] 913 A.2d [220,] 236 [(2006)] (“In order to obtain
relief for alleged prosecutorial ‘misconduct,’ a petitioner must
first demonstrate that the prosecutor's action violated some
statutorily or constitutionally protected right.”).

Cox, 983 A.2d at 685.

Moreover, it is well-established that:

it is well settled that any challenged prosecutorial comment must
not be viewed in isolation, but rather must be considered in the
context in which it was offered. Commonwealth v. Correa, 444
Pa.Super. 621, 664 A.2d 607 (1995).
***

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J-S29040-17

[L]ike the defense, the prosecution is accorded reasonable
latitude, may employ oratorical flair in arguing its version of the
case to the jury, and may advance arguments supported by the
evidence or use inferences that can reasonably be derived
therefrom. Commonwealth v. Carson, 590 Pa. 501, 913 A.2d
220 (2006); Commonwealth v. Holley, 945 A.2d 241
(Pa.Super. 2008). Moreover, the prosecutor is permitted to fairly
respond to points made in the defense's closing, and therefore, a
proper examination of a prosecutor's comments in closing
requires review of the arguments advanced by the defense in
summation. Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d
501 (2005).

Commonwealth v. Faurelus, 147 A.3d 905, 914–15 (Pa.Super. 2016)

(quoting Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016)).

Appellant specifically argues that trial counsel should have objected to

the prosecutor’s suggestion in closing argument that the reason that the

victim recanted his identification of Appellant as the shooter was that he was

intimidated by fear of retribution.7 However, the prosecutor’s closing

argument was not improper as the particular comment was a reasonable

inference based on the evidence and was also a fair rebuttal to defense

counsel’s own rejection of this theory in his closing argument.

In the following portion of closing arguments, defense counsel asked

the jury to find the victim’s recantation testimony to be credible and his

statement to the police on the night of the shooting to be unreliable:

____________________________________________

7
In his statement of questions involved, Appellant also asserts the
prosecutor improperly referred to the Bible in his closing argument. As
Appellant failed to include any further discussion of this claim in his appellate
brief, it is waived for lack of development. See Johnson, supra, 604 Pa. at
191, 985 A.2d at 924.

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J-S29040-17

I submit to you that [the victim] was so intoxicated that he
didn’t remember exchanging with the police, and if you don’t
remember what you said, because you were under the influence
of drugs, and later, when you become lucid, and you’re out of
the hospital, and you’re not under the influence of Morphine, and
you come into court twice under oath and testify without having
the drugs in your system and say, No, I didn’t see who shot me.
No, I don’t remember giving that statement, No, I could not
have signed that document. No, I didn’t circle that picture.
What’s more trustworthy? What can you have hang your hat on
[sic]? What are you more comfortable with, the testimony he
gives here in open court while you can watch him testify in open
court? Or this statement, that he didn’t even write, this scribbly
statement, that was given while he was in the ER bleeding and
under the influence of drugs? What is more reliable to you?

The Commonwealth are attributing this change of story,
not to the fact that he was under the influence in the hospital
and not of sound mind to identify anyone or give a statement,
they’re attributing this to the code on the streets and to -- I
don’t even know, to some kind of coercion. Well, you’re here,
ladies and gentlemen, to evaluate the evidence, and there is no
evidence, none whatsoever, that [the victim] was threatened,
paid off, or that there is any kind of code that he lives by. There
is no evidence of that.

When the Commonwealth argues to you that’s why he
changed his story, you must disregard that, because your oath
as jurors is that you will not speculate and guess as to what
could have happened.

N.T., 8/4/10, at 89-91.

Thereafter, the prosecutor responded to the remarks made by defense

counsel:

Every single one of you knows what happened in this case, every
single one. This was real pain. This was real blood. This was
real broken bones. This was real fear. There is a reason, and
your common sense tells you what the reason is. There is a
reason why [the victim] came into the courtroom and denied
identification in this case. Why? Why? He lives around the
corner, right around the corner. I forget what the exact location

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J-S29040-17

is, one block, block and a half, two, two blocks, tops. He knows,
the defendant, he where [the victim] lives. [sic] His family
knows. Everybody that testified for the defense knows. Murray
knows that they know.

Every time that somebody is shot in the city or the victim of a
crime, they have to go through this. They know they are going
to have to get up there and face the defendant and they know
the defendant and his family and his friends know where he
lives. No snitching.

N.T., 8/4/10, at 99-100.

We agree with the PCRA court’s finding that the prosecutor’s remarks

constituted only vigorous advocacy that included fair deductions and

inferences from relevant evidence. After defense counsel first attempted to

denounce the theory that the victim recanted due to fear of retribution, the

prosecutor had latitude to respond to this argument. As Appellant has not

shown that the prosecutor’s comment in any way denied him his right to a

fair trial, we find this ineffectiveness claim to be meritless.

Appellant’s next two issues are related. In his eighth claim, Appellant

argues that the PCRA court erred in holding that the Commonwealth did not

commit a Brady violation8 as he asserts that the prosecution failed to

disclose material impeachment evidence related to two of its witnesses. In

his ninth claim, Appellant argues that the PCRA court denied his request for

discovery to obtain these materials that had allegedly been withheld by the

prosecution.

____________________________________________

8
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

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J-S29040-17

According to Brady and the subsequent decisional law, the

prosecution must disclose all exculpatory information that is material to the

guilt or punishment of an accused defendant, including impeachment

evidence. See Commonwealth v. Hutchinson, 611 Pa. 280, 25 A.3d 277,

310 (2011) In order “to establish a Brady violation, an accused must prove

three elements: [1] the evidence at issue was favorable to the accused,

either because it is exculpatory or because it impeaches; [2] the evidence

was suppressed by the prosecution, either willfully or inadvertently; and [3]

prejudice ensued.” Id. (quoting Commonwealth v. Lambert, 584 Pa.

461, 884 A.2d 848, 854 (2005) (citation omitted)).

Appellant first claims that the Commonwealth withheld evidence that

would impeach the credibility of Detective Omar Jenkins, who was present

with Detective Murray at the hospital when the victim gave his statement

identifying Appellant as the shooter. To support this claim, Appellant

attached a newspaper article that contains allegations that Detective Jenkins

and another officer coerced individuals to make false statements.

Appellant does not explain why the Commonwealth should have

provided him with this newspaper article, which was published three years

after his trial ended. Appellant fails to recognize that newspaper articles are

not evidence; rather, such articles are inadmissible hearsay as they contain

out-of-court allegations that can only suggest that evidence may exist. See

Commonwealth v. Castro, 625 Pa. 582, 595, 93 A.3d 818, 825 (2014).

Moreover, Appellant’s claim that Detective Jenkins may have committed

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J-S29040-17

misconduct in his case is pure conjecture; Appellant does not claim that the

victim’s statement was coerced by the police but argued that the victim was

under the influence of morphine in the emergency room and could not have

made a knowing statement to police. As a result, we conclude this claim is

meritless.

Similarly, Appellant argued that the Commonwealth committed a

Brady violation in failing to disclose that the victim had been arrested

several times for crimen falsi offenses. However, prior arrests do not

constitute admissible evidence; “the veracity of a witness may not be

impeached by prior arrests which have not led to convictions.”

Commonwealth v. Chmiel, 585 Pa. 547, 604, 889 A.2d 501, 534 (2005).

See also Com. v. Reid, 627 Pa. 78, 125, 99 A.3d 427, 455 (2014)

(providing that “witness credibility may be impeached regarding an arrest,

only if such arrest resulted in a conviction for crimen falsi”).9 Our Supreme

Court has held that “inadmissible evidence cannot be the basis for a Brady

violation.” Commonwealth v. Lambert, 584 Pa. 461, 475, 884 A.2d 848,

857 (2005). Accordingly, this claim fails.

In the same manner, we reject Appellant’s argument that the PCRA

court erred in denying his request for discovery with respect to the
____________________________________________

9
Even assuming arguendo that Appellant was allowed to present evidence of
the victim’s prior arrests for crimen falsi offenses, Appellant does not show
what value this information would have for the defense as it would impeach
the victim and his recantation of his identification of Appellant.

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J-S29040-17

allegations about Detective Jenkins contained in the newspaper article

published three years after his trial. Our rules of criminal procedure provide

that on collateral review, “no discovery shall be permitted at any stage of

the proceedings, except upon leave of court after a showing of exceptional

circumstances.” Pa. R. Crim. P. 902(E)(1). In a similar case, this Court held

that “[m]ere speculation that Brady materials may exist does not constitute

a showing of exceptional circumstances as required by this rule.”

Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa.Super. 2006).

Appellant has not shown exceptional circumstances to warrant

discovery on collateral review. As noted above, Appellant’s citation to the

allegations about Detective Jenkins set forth in the newspaper article is not

relevant evidence that would be admissible at trial. Further, Appellant’s

suggestion that Detective Jenkins committed misconduct in this case is pure

speculation. Appellant does not identify what exculpatory evidence he would

search for if granted additional discovery; the irrelevant allegations in the

cited newspaper article do not entitle him to go on a fishing expedition for

possible exculpatory evidence. Accordingly, the PCRA court did not err in

denying Appellant’s discovery request.

Lastly, Appellant argues that the cumulation of all the purported errors

set forth in his petition entitled him to collateral relief. Although two of

Appellant’s ten claims warrant a remand for an evidentiary hearing,

Appellant has not stated a basis for collective relief on his failed claims. Our

Supreme Court has held that “no number of failed [ ] claims may collectively

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J-S29040-17

warrant relief if they fail to do so individually.” Commonwealth v. Spotz,

610 Pa. 17, 146, 18 A.3d 244, 321 (2011). As a result, Appellant’s claim of

cumulative error fails.

For the foregoing reasons, we conclude that the PCRA court erred in

dismissing Appellant’s amended PCRA petition without a hearing. We vacate

the PCRA court’s order and remand this matter for an evidentiary hearing on

the following two claims: (1) whether counsel was ineffective in failing to

secure the testimony of Byron Walker and Kieyanna Joyner and (2) whether

the testimony of Orrin Jones constitutes after-discovered evidence that

would entitle Appellant to a new trial.

Order vacated. Case remanded for an evidentiary hearing as directed

in this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/28/2017

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