Com. v. Rogers, R.

J-S29026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

RONALD ROGERS

Appellant No. 2799 EDA 2016

Appeal from the PCRA Order dated August 9, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011563-2009

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

MEMORANDUM BY SOLANO, J.: FILED AUGUST 16, 2017

Appellant Ronald Rogers appeals pro se from the order denying his

first petition for relief filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. After careful review, we vacate and remand for

further proceedings.

On August 23, 2006, Appellant and Demetrius Hayes were involved in

a shootout in which an unrelated bystander, William Green, was struck by an

errant bullet and killed. On February 8-11, 2011, Appellant was tried by a

jury. Tyrone Singleton, an eyewitness, testified for the Commonwealth.

During the direct appeal of this case, we summarized his testimony as

follows:

____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Tyrone Singleton testified that he met with his friend,
Demetrius Hayes, at the corner of 10th and Master Streets on
August 23, 2006. He got into the passenger seat of Mr. Hayes’
black Mercedez–Benz. Mr. Hayes was seated in the driver’s seat.
Mr. Hayes drove down 10th Street towards Thompson Street.
Mr. Hayes pulled his vehicle over toward the curb to where
Appellant was standing. While the vehicle was stopped, Mr.
Singleton saw two (2) friends of Appellant’s, Andre Holliday and
Ronald Fenwick, walking on Thompson Street toward Mr. Hayes’
vehicle. He saw another male he knew to be a friend of
Appellant's across the street standing on the corner.

Mr. Singleton heard Appellant say to Mr. Hayes that “he
needs $6,000.00 or it's on.” Appellant then pulled a weapon
from his waist and began firing. Mr. Singleton leaned over and
heard bullets hitting the car. Mr. Hayes then pulled a gun that he
had next to him on his seat and returned fire two (2) or three
(3) times and then took off at a high rate of speed. Mr. Singleton
continued to hear gun shots coming from outside the car as they
pulled away.

Mr. Singleton had first testified at trial that Mr. Hayes fired
first but then testified the next day that he said that because he
was afraid of two (2) men who had been in the courtroom the
day before and who were no longer present.

Mr. Singleton's statement to the detectives, testimony at the
preliminary hearing and testimony at the trial of Demetrius
Hayes were all consistent with his final trial testimony that
[Appellant] pulled his weapon first and fired the first shot.

Mr. Singleton further testified that he and Mr. Hayes
inspected the vehicle when they got to 10th and Popular Streets
and saw that one of the tires was flat; there were three (3)
bullet holes in the passenger side door; and, two (2) bullet holes
in the passenger side air bag. Mr. Singleton went to retrieve his
own vehicle and picked up Mr. Hayes. Later that day, they heard
that a person known as “Ill Will” had been killed.

Mr. Singleton testified that prior to August 23, [2006], he had
witnessed an incident where [Appellant] shot at Mr. Hayes'
vehicle.

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Commonwealth v. Rogers, No. 2834 EDA 2011, 2013 WL 11262994, *1-

*2 (Pa. Super. June 19, 2013) (unpublished memorandum) (original

brackets omitted), appeal denied, 83 A.3d 415 (Pa. 2014).

As noted above, Singleton had previously testified for the defense at

the trial of Hayes and at Appellant’s preliminary hearing on September 9,

2009. He had also given a statement to police detectives in relation to this

case. In each instance, Singleton testified, consistently with the above, that

Appellant fired the first shots. As a result of Singleton’s testimony at Hayes’

trial, Hayes was acquitted of all charges, including murder. See CP-51-CR-

0006086-2009.

However, when Singleton first began his testimony at Appellant’s trial,

he stated that it was Hayes, and not Singleton, who shot first. N.T., 2/8/11,

at 183-84. The trial court stopped the testimony, excused the jury for the

day, and said the following on the record to Singleton:

Now that we are all here, let me express this to you, Mr.
Singleton, in no uncertain terms: I don't know what your street
mind thinks, but I am going to explain it to you.

You maybe made a mistake today. I am not sure. You may
have heard incorrectly. You just took the stand in this case, this
week, and said that [Hayes] shot first, but last week, you said,
under oath, and on this same record, with the same
stenographer, and the same Judge, that [Appellant] shot first.

You have now just placed yourself -- the District Attorney
was getting ready to see if that was a mistake. I stopped it
there, before you said one more thing.

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Be very careful what you do, because that's Perjury, and it
is Perjury on the record, and it is Perjury in front of the same
Judge.

If you are playing some little game here, guess what is
going to happen? You are going to get charged with Perjury.
Now, this is a Homicide case, so I will make sure that you
receive a maximum consecutive sentence.

Think about who you are helping out here, because it isn't
yourself.

Now, we are going to take a break for today. Do some long
hard thinking tonight. You get on this stand, and you tell the
truth. You have been warned. So, you can tell whatever story
you want, but I am telling you now: If you say that again, it is
Perjury, because it is on the record. If it is the truth, and you
perjured yourself before, then live with it, but if it is not the
truth, and you think that you are doing some favor, or you are
afraid, guess who is getting the sentence here? You, and it will
be the maximum, consecutive.

Take him back.

N.T., 2/8/11, at 196-98. Appellant’s attorney made no objection to the

court’s remarks.

The next day, Singleton resumed his testimony, recanted his

testimony from the previous day, and testified that Appellant fired first. N.T.,

2/9/11, at 3-4. Singleton explained that the preceding day he “made a

mistake” and “said the wrong thing,” because he was nervous. Id. at 4.

At the conclusion of the trial, Appellant was found guilty of third-

degree murder, aggravated assault, violating the Uniform Firearms Act, and

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possession of an instrument of crime.1 He was sentenced on May 5, 2011, to

sixteen to thirty-two years’ incarceration.2 Appellant’s judgment of sentence

was affirmed by this Court on June 19, 2013, and the Pennsylvania Supreme

Court denied Appellant’s request for further direct review on January 16,

2014. See PCRA Ct. Op., 10/27/16, at 1.

Appellant filed a timely PCRA petition, pro se, on August 5, 2014, and

thereafter filed a separate motion to proceed pro se. Counsel was appointed

to represent Appellant on March 24, 2015; on July 9, 2015, counsel filed a

no-merit letter3 and petition to withdraw. The PCRA court conducted

Grazier4 hearings on October 19, 2015, and December 21, 2015, after

which the court allowed counsel to withdraw and allowed Appellant to

proceed pro se and file an amended petition.5

Appellant filed an amended petition on February 22, 2016.6 On June

23, 2016, the PCRA court issued notice of its intention to dismiss Appellant’s

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1
18 Pa.C.S. §§ 2502(c), 2702, 6106, and 907, respectively.
2
Appellant received a sentence of sixteen to thirty-two years’ incarceration
for the murder charge, and lesser concurrent sentences on his other
charges.
3
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
4
See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
5
Appellant was present at the Grazier hearings via video-conferencing.
6
The Commonwealth moved to dismiss Appellant’s PCRA petition on May 24,
2016. In its motion, the Commonwealth argued that the trial court’s
(Footnote Continued Next Page)

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claims without a hearing pursuant to Pa.R.Crim.P. 907. The court announced

its reasons for dismissing the petition in open court that day; a

representative of the Commonwealth was present in court, but Appellant

was not. Appellant did not respond to the Rule 907 notice, and on August 9,

2016, the PCRA court dismissed his petition. See PCRA Ct. Op. at 2.

Appellant thereafter filed this timely appeal, raising the following

issues:

I. Did the PCRA court abus[e its] discretion in dismissal of
Appellant’s PCRA . . . wherein Appellant argued . . . counsel was
ineffective for failing . . . to object to and preserve for appellate
review . . . the court’s improper pressuring of the
Commonwealth’s key witness[?]

II. Was the PCRA court’s dismissal . . . improper . . . wherein
Appellant argued . . . counsel was ineffective for failing to bring
forth evidence of the violent history between [Appellant] and
Demetrius Hayes and request a McCusker[7] charge after
revealing that provocation was established prior to the exchange
between them[?]

Appellant’s Brief at vii (formatting altered).

_______________________
(Footnote Continued)
comments to Singleton were within that court’s discretion and that the
firearms evidence at trial, which established that eight fired cartridges cases
matching Appellant’s gun were found at the scene of the shooting, versus
only three from Hayes’ gun, supported Singleton’s account that Appellant
fired first and continued to fire as Hayes escaped. See Commonwealth’s Mot.
to Dismiss, 5/24/16, at 7-9. The Commonwealth also argued that no
evidentiary hearing was warranted in this case because Appellant did not
provide a signed certification regarding each witness he intended to call at
the hearing. See id. at 9 n.2.
7
Commonwealth v. McCusker, 292 A.2d 286 (Pa. 1972).

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In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

the PCRA court and whether the ruling is free of legal error.”

Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017)

(citation omitted).

Trial Court’s Admonition of Tyrone Singleton

Appellant first complains that his trial counsel was ineffective for failing

to object or move for a mistrial following the statements made by the court

during the break in Singleton’s testimony. Appellant argues that the trial

court threatened the witness with perjury and advocated for the

Commonwealth, causing the witness to change his testimony and to say,

untruthfully, that Appellant was the first shooter during the confrontation.

Appellant asserts:

the trial court[,] whether intentionally or not, coerced Singleton
into altering his account, a function through cross-examination
that the assigned prosecutor had a duty to effectuate, and of
which said prosecutor was deprived by the contravention of the
trial court. Appellant was stripped of due process, as Singleton
was clearly intimidated into retracting his testimony in order to
restructure said testimony in conformity to his testimony at
Hayes’ trial.

Appellant’s Brief at 5. Appellant claims that, “[t]he Court should have

allowed the inconsistent testimony to unfold and allow the Commonwealth to

examine the witness’ reasoning[;] a proper cross-examination would expose

the witness’ reason for retracting truthful testimony.” PCRA Pet., 8/5/14, at

7-8. Appellant contends that his trial counsel was ineffective for failing to

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object to the court’s intervention and preserve this issue for appellate

review. Id. at 7.8 Appellant cites Commonwealth v. Laws, 378 A.2d 812,

816 (Pa. 1977) (holding trial court’s questioning of witness and warning of

perjury charges constituted reversible error), Commonwealth v. Myma,

123 A. 486, 487 (Pa. 1924) (“Witnesses should be interrogated by the judge

only when he conceives the interest of justice so requires”), and

Commonwealth v. Toombs, 409 A.2d 876, 878 (Pa. Super. 1979) (trial

judge’s questioning of witness indicated he sided with the prosecution and

was reversible error).

In the PCRA court’s Rule 1925(a) opinion, it cites the notes of

testimony from June 23, 2016, when it announced its decision to dismiss

Appellant’s petition without a hearing. On that day, the PCRA court recited

the aforementioned circumstances surrounding Singleton’s testimony and

what it said to Singleton. But the court did not further explain its reasoning,

either on the record or in its opinion, or discuss any legal authority. N.T.,

6/23/16, at 5-7.

With regard to PCRA claims alleging ineffective assistance of counsel,

this Court has held:

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8
Appellant also argues that his temporarily-appointed PCRA counsel was
ineffective; however, as Appellant was ultimately permitted to represent
himself before the PCRA court, the actions of PCRA counsel had no bearing
on Appellant’s case and are not properly before this Court.

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Counsel is presumed to have been effective. To overcome this
presumption, a PCRA petitioner must plead and prove that: (1)
the underlying legal claim is of arguable merit; (2) counsel's
action or inaction lacked any objectively reasonable basis
designed to effectuate his client's interest; and (3) prejudice, to
the effect that there was a reasonable probability of a different
outcome if not for counsel's error.

Andrews, 158 A.3d at 1263 (quotation marks and citation omitted). “In

determining whether counsel’s action was reasonable, we do not question

whether there were other more logical courses of action which counsel could

have pursued; rather, we must examine whether counsel's decisions had

any reasonable basis.” Commonwealth v. Washington, 927 A.2d 586,

594 (Pa. 2007). “[G]enerally, the court should not glean from the record

whether counsel had a reasonable basis for his action or inaction absent an

evidentiary hearing, and . . . it is only in the most clear-cut cases that the

reasons for counsel’s conduct are apparent from the record.”

Commonwealth v. Hanible, 30 A.3d 426, 442 (Pa. 2011), cert. denied,

133 S. Ct. 835 (2013).

The facts of the instant case bear strong resemblance to those of

Commonwealth v. Fornicoia, 650 A.2d 891 (Pa. Super. 1994). In that

case, the Commonwealth’s witness had, at some point prior to trial,

identified the defendant as present at a residence at which marijuana was

purchased. Id. at 892. However, when called as a witness at trial, the

witness could not identify the defendant. Id. at 893. The trial judge recessed

the jury, and stated the following to the witness:

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Now, without saying anything, all right, testifying under oath and
lying is called perjury. That happens to be a felony offense in the
Commonwealth of Pennsylvania. When a witness goes south—
that’s what we call it when they tell the DA one thing and then
they come in and they testify different. The judge has an
obligation to the tell the witness, if you continue this, you may
subject yourself to the charge of perjury which is punishable by
ten years imprisonment. The last time someone committed
perjury in my courtroom I gave them five to ten. . . . I have no
idea whether you’re lying under oath, but the DA is telling me
you told her something different. . . . However, if you realize the
error of your ways and you think you’re lying under oath, you
can recant. If you recant you cannot be charged.

Id. When the witness resumed testimony, he identified the defendant. Id.

The defendant was convicted largely on the basis of that identification

testimony. Id.

On appeal, we held that the trial court erred. We stated that while a

trial court “has the power to question a witness and warn the witness of the

ramifications of perjury, . . . this power should be used with caution,” so that

the court does not “question a witness such that the witness feels pressured

to testify in a particular way.” Fornicoia, 650 A.2d at 893 (citing

Commonwealth v. Laws, 378 A.2d 812, 815 (Pa. 1977)). Not only had the

trial court’s conduct led the witness to change his testimony, but the jury

was without the benefit of viewing the impeachment of the witness by the

prosecutor and therefore lacked the opportunity to judge the witness’

credibility properly. Id. at 894. We determined that the error was not

harmless, and remanded the case for a new trial. Id. at 894-95.

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Similarly, in Commonwealth v. Laws, the witness had identified the

defendant at the preliminary hearing as the person who had stabbed the

victim; at trial, the witness stated that the perpetrator was not present in

the courtroom. Laws, 378 A.2d at 813-14. The trial court excused the jury,

confronted the witness with his inconsistent preliminary hearing testimony,

and warned the witness of the consequences of perjury. Id. at 814-15.9 The

questioning resumed, and after the prosecutor impeached the witness with

the transcript of the preliminary hearing, the witness recounted his initial

trial testimony and identified the defendant as the assailant. Id. at 815. The

Supreme Court held that the pressuring of the witness by the trial court,

which left the witness “little doubt as to which testimony the court believed,”

constituted reversible error. Id. at 816-18.

Here, as in Fornicoia and Laws, the court identified an inconsistency

in Singleton’s testimony, excused the jury, and confronted Singleton. It gave

Singleton the evening to consider his options, and stated that unless he told

the truth on the stand and recanted his initial trial testimony, “I will make

sure that you receive a maximum consecutive sentence.” As in Fornicoia,

Singleton thereafter recanted his testimony, obviating the need for the
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9
The court asked the witness at least five times during the recess whether
he was telling the truth, and said, “And I want [the defendant] to
understand . . . a person who lies under oath is subjecting himself to perjury
prosecution, which carries a substantially severe penalty, including prison
. . . and/or fines, if a person does lie under oath.” Laws, 378 A.2d at 815
n.8.

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prosecutor to impeach him. See Laws, 378 A.2d at 815-18; Fornicoia, 650

A.2d at 893-95.

Given the prevailing caselaw on this issue, Appellant’s claim that his

trial counsel was ineffective for failing to object to the trial court’s

intervention regarding Singleton’s testimony has arguable merit, and the

PCRA court erred when it held otherwise. Andrews, 158 A.3d at 1263.10 But

because the PCRA court failed to hold an evidentiary hearing, or assess the

other two prongs of an ineffectiveness query, we are unable to fully review

Appellant’s claim. See Pa.R.Crim.P. 908; Hanible, 30 A.3d at 442.11 We

therefore remand for an evidentiary hearing. Thereafter, should either side

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10
The PCRA court’s Rule 1925(a) opinion did not give any reason why
Appellant’s claim lacked arguable merit under the current state of the law.
11
The Commonwealth, rather than submitting argument in its brief, refers
this Court to the motion to dismiss it filed with the PCRA court. In that
motion, the Commonwealth argued that no evidentiary hearing was
warranted because Appellant did not provide a signed certification regarding
each witness he intended to call at the hearing. See Commonwealth’s Mot.
to Dismiss, 5/24/16, at 9 n.2 (citing 42 Pa.C.S. § 9545; Commonwealth v.
Brown, 767 A.2d 576, 583 (Pa. Super. 2001)). However, the PCRA court did
not dismiss Appellant’s petition based on that alleged defect; if it had, it
would have been first obligated to notify Appellant of the defect so that it
might be corrected. See Pa.R.Crim.P. 905(B); Commonwealth v.
Robinson, 947 A.2d 710, 711 (Pa. 2008) (per curiam order). Instead, the
PCRA court’s Rule 907 notice of its intent to dismiss Appellant’s petition
without a hearing stated only that “The issues stated in your PCRA petition
are without arguable merit,” and thus did not apprise Appellant of the
absence of a signed certification.

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appeal the PCRA court’s disposition of Appellant’s petition, the PCRA court

shall issue a written decision thoroughly explaining its reasoning.12

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/16/2017

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12
In light of our granting relief on Appellant’s first issue, we decline to
address Appellant’s second issue.

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