J-S51025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SEAN SULLIVAN :
:
Appellant : No. 2973 EDA 2017
Appeal from the PCRA Order August 15, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014636-2011
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 25, 2018
Pro se Appellant Sean Sullivan appeals from the order denying his first
Post Conviction Relief Act (PCRA)1 petition. He raises several claims of PCRA
court error and ineffective assistance of PCRA counsel. We affirm.
We state the facts as set forth by this Court on direct appeal:
On June 21, 2011, while incarcerated for murder at the Curran-
Fromhold Correctional Facility, [Appellant] got into a dispute with
the inmates in Cell 15, Aaron Young and Richard Gyton.
[Appellant] threatened to settle the dispute later that night.
[Appellant] began to recruit co-conspirators, including co-
defendant Donte Jones, to assist him. Later that day, [Appellant],
Jones and two other inmates went to Cell 15. [Appellant] had an
improvised knife sticking out of his pants. Prison guards ultimately
dispersed the group.
Over the next hour, [Appellant] and his friends huddled together
in the prison yard, while the Cell 15 inmates played basketball and
then returned to their cell. A few minutes later, a fight broke out
____________________________________________
1 42 Pa.C.S. §§ 9541-9456.
J-S51025-18
among inmates waiting to use the phone. Taking advantage of
the confusion, [Appellant] and two of his cohorts ran to Cell 15
and stabbed Gyton and Young multiple times with the improvised
knives. A friend of Gyton and Young heard the screams and ran
towards their cell, where one of [Appellant’s] friends attacked him.
[Appellant] and company ran towards the day room, where they
ambushed another prisoner, Earl Bostic, stabbing him nine times
and killing him. Authorities later recovered [Appellant’s] DNA on
one of the weapons used to kill Bostic.
Following a bench trial, the trial court convicted [Appellant] of
murder in the third degree, conspiracy to commit homicide,
possession of an instrument of crime, possession of a prohibited
offensive weapon, and aggravated assault. The trial court
acquitted [Appellant] of various charges stemming from the
assaults on the other inmates. On May 10, 2013, based upon
[Appellant’s] prior murder conviction, the trial court sentenced
him to a second mandatory life sentence for murder in the third
degree, with concurrent sentences on the remaining charges.
Commonwealth v. Sullivan, 1905 EDA 2013, 1-2 (Pa. Super. Apr. 17, 2015)
(unpublished mem.). The Court affirmed the judgment of sentence, and the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on December 8, 2015. Commonwealth v. Sullivan, 129 A.3d 1243
(Pa. 2015).
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On October 3, 2016, Appellant filed his first pro se PCRA petition.2 The
PCRA court appointed counsel, who filed a Turner/Finley3 letter.
The court issued a Pa.R.Crim.P. 907 notice, and Appellant filed a pro se
response in opposition, challenging PCRA counsel’s failure to advocate the
claims in Appellant’s petition. Appellant’s Resp. to Rule 907 Notice, 6/27/17.
On August 15, 2017, the PCRA court granted counsel’s petition to withdraw
and dismissed Appellant’s PCRA petition. Appellant timely appealed.
Appellant raises the following issues:
1. Did the post-conviction court err in [its] factual findings and
conclusion[s] of law when such court denied Appellant an
evidentiary hearing based on ineffective assistance of counsel
when counsel failed to properly present the issue of “bolstering
the testimony of a Commonwealth witness” which had a better
chance of success on direct appeal as such a claim, when proven,
is inadmissible in the courts of the Commonwealth of Pennsylvania
and is cause for [reversible] error?
2. Did the post-conviction court (PCRA) err in [its] factual findings
and conclusion[s] of law when it adopted the conclusion of
appointed counsel[’s] findings that read more like an amicus curie
brief rather than an adversarial brief which rendered such
appointed constructive denial of assistance of counsel thereby
violating Appellant’s Sixth Amendment right to effective
assistance of counsel during a collateral attack in violation of
Appellant’s due process?
____________________________________________
2 See Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa. Super. 2006)
(recognizing that under the “prisoner mailbox rule” a document is deemed
filed when placed in the hands of prison authorities for mailing). As discussed
below, Appellant’s petition did not raise the claim that trial counsel was
ineffective by not introducing character or prior bad acts evidence regarding
the victim.
3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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J-S51025-18
3. Did the post-conviction court (PCRA) abuse [its] discretion in
violation of Appellant’s due process of law rendering the trial
unfair when it allowed hearsay testimony that was not given not
for the truth of the matter but for the purpose of prejudicing
Appellant when it allowed the testimony of other crimes to
permeate the trial and for which Appellant was never charged?
4. Did the post-conviction court (PCRA) err [and] abuse [its]
discretion in [its] factual findings and conclusions of law when said
court failed to hold an evidentiary hearing based on ineffective
assistance of counsel when counsel failed to present character
evidence of the victim that would have shown the victim had a
history of assaultive behavior and bullying which would have
justified his being assaulted by others as they feared him and not
by Appellant as [another person’s] DNA was present on the
weapon used against victim and not Appelant’s DNA?
Appellant’s Brief at iii.
In support of Appellant’s first issue, he argues that trial counsel was
ineffective by not objecting when a police officer purportedly bolstered the
testimony of Gyton. By way of background, this Court addressed the
underlying issue on direct appeal:
[Appellant] first contends that the trial court erred when it
permitted the Commonwealth to improperly bolster the credibility
of inmate Richard Gyton, who was stabbed by [Appellant] in the
prison melee. Prior to trial, Gyton gave a statement to police from
his hospital bed, in which he implicated [Appellant] in the stabbing
of Bostic. At trial, Gyton testified, contrary to his prior statement,
that he did not see who stabbed Bostic. Although Guyton claimed
that he was under the influence of medication at the time the prior
statement was made, Detective Burke testified on cross-
examination that “[Gyton] spoke clearly. He understood what I
was asking him. He was very forthcoming.” N.T., Trial, 2/28/13
at 69.
Preliminarily, we note that our review of the trial transcript reveals
defense counsel did not raise a contemporaneous objection to
-4-
J-S51025-18
Detective Burke’s allegedly improper testimony. On this basis, we
find [Appellant’s] claim waived. . . .
Nonetheless, even if we were to examine this claim, we would not
grant relief. . . .
We would find that it was properly within the trial court’s sound
discretion to admit testimony that Gyton was clear and
forthcoming as falling within the realm of common knowledge,
experience and understanding. Clearly, Detective Burke’s
testimony as to Gyton’s demeanor during questioning was based
upon his personal observation. More importantly, we do not find
Detective Burke’s characterization impermissibly intruded upon
the duty of the jury to determine credibility of witnesses, but
rather provided relevant context to Gyton’s state of mind and
demeanor at the time he gave his prior statement. Therefore,
[Appellant’s] allegation of error would merit no relief.
Sullivan, 1905 EDA 2013, at 3-5.
Here, Appellant argues PCRA counsel was ineffective by not raising trial
counsel’s alleged ineffectiveness for failing to object to Detective Burke’s
testimony. Appellant’s Brief at 6. In Appellant’s view, Detective Burke
“usurped the truth-determining function of the factfinder,” by testifying to the
“truthfulness” of Gyton’s inculpatory statement. Id. at 5-6.
Our standard of review is well-settled:
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
unless they have no support in the record. However, we afford no
such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
-5-
J-S51025-18
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
To warrant relief based on an ineffectiveness claim, a petitioner must
show that such ineffectiveness “in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Jones, 912
A.2d 268, 278 (Pa. 2006); accord 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is
presumed to have rendered effective assistance. Commonwealth v. Weiss,
81 A.3d 767, 783 (Pa. 2013).
To overcome the presumption, the defendant has to satisfy the
performance and prejudice test set forth in Strickland v. Washington, 466
U.S. 668 (1984). The Pennsylvania Supreme Court has applied the
Strickland test by examining three elements; specifically, whether (1) the
underlying claim has arguable merit; (2) no reasonable basis existed for
counsel’s action or failure to act; and (3) the petitioner has shown that he
suffered prejudice as a result of counsel’s lapse, i.e., that there is a reasonable
probability that the result of the proceeding would have been different.
Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 2012). If a claim
fails under any necessary element of the Strickland test, the court may
proceed to that element first. Id. Counsel will not be deemed ineffective for
failing to raise a meritless claim. Jones, 912 A.2d at 278.
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For example, in Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005),
the defendant raised a claim that trial counsel was ineffective for failing to
raise a particular Pennsylvania due process claim, the details of which are
unnecessary to restate here. Id. at 574. On PCRA appeal, the defendant
reframed the due process claim as a violation of the federal constitution. Id.
The Court, in resolving the issue, stated “the factors that we considered on
direct appeal are the same as the factors [the defendant] now asks us to
consider on collateral review.” Id. at 575. After evaluating an additional
federal factor that provided no relief to the defendant, the Court held that “for
the reasons discussed on direct appeal, [the defendant] cannot establish that
this claim has arguable merit, and this claim of ineffectiveness fails.” Id.
Here, Appellant raised the underlying claim on direct appeal, which the
prior Court addressed on the merits, assuming no waiver of the failure to
object. Sullivan, 1905 EDA 2013, at 3-5. We are bound by that alternative
holding. See Commonwealth v. Reed, 971 A.2d 1216, 1220 (Pa. 2009)
(holding that Superior Court’s prior holding of waiver and alternative holding
on the merits was law of the case). Because Appellant cannot establish that
his underlying claim has arguable merit, he cannot succeed on his
ineffectiveness claim. See Jones, 912 A.2d at 278; Collins, 888 A.2d at 575;
see also Bennett, 57 A.3d at 1195-96.
Second, Appellant challenges PCRA counsel’s advocacy. Specifically,
Appellant contends that PCRA counsel’s Turner/Finley brief was insufficiently
-7-
J-S51025-18
adversarial, such that his Sixth Amendment right to counsel was violated.
Appellant’s Brief at 6-7.
Initially, Appellant’s right to PCRA counsel is rule-based. See
Pa.R.Crim.P. 904. “[T]here is no Sixth Amendment right or due process right
to counsel during collateral review.” Commonwealth v. Figueroa, 29 A.3d
1177, 1180 n.6 (Pa. Super. 2011) (citations omitted). Further, counsel, in a
Turner/Finley brief, must argue against the client’s interests and articulate
“why the client’s claims have no merit.” Commonwealth v. Wrecks, 931
A.2d 717, 722 (Pa. Super. 2007). Thus, Appellant is not entitled to relief
because PCRA counsel, when filing a Turner/Finley brief, was obligated to
argue against Appellant. See Wrecks, 931 A.2d at 722.
For his third claim, Appellant contends that the trial court erred in two
separate occasions by permitting testimony. First, Appellant argues the trial
court erred by overruling his counsel’s objection to the Commonwealth’s
question to a witness “about how drugs were brought in the jail.” Appellant’s
Brief at 9. He faults the court for hearing the testimony and then purportedly
instructing itself—it was a bench trial—to disregard the testimony. Id.
Second, Appellant contends the court erred by overruling his counsel’s
objection to a question that elicited hearsay testimony from a police officer.
Id. at 10. We note Appellant did not explain why he could not have raised
these issues on direct appeal.
-8-
J-S51025-18
In Commonwealth v. Wholaver, 177 A.3d 136 (Pa. 2018), the
defendant raised a claim “that the trial court erred by overruling trial counsel’s
objection” to certain evidence. Id. at 179. The Pennsylvania Supreme Court
held that the defendant’s claim was “waived for purposes of the PCRA because
he could have raised the issue on direct appeal. 42 Pa.C.S. § 9544(b).” Id.
Here, the Wholaver Court’s reasoning applies equally here: Appellant’s third
claim is waived because he could have raised it on direct appeal. See id.
In support of his last issue, Appellant argues that trial counsel was
ineffective by not presenting character evidence of the victim, including the
victim’s prior convictions for assault to corroborate the victim’s purportedly
violent character. Appellant’s Brief at 12.
The PCRA court resolved the issue as follows:
This court’s review of the record belied [Appellant’s] claim that
trial counsel failed to elicit evidence relating to prison conditions
and the victim’s violent proclivities and physical size. [Appellant’s
counsel and counsel for his co-defendants] established that [the
prison in question] is a violent place where stabbings frequently
occur, that the victim as very big and tough and likely sold drugs,
guards were ineffectual in stopping and preventing violence,
inmates had to fend for themselves, and . . . that the victim used
violence against [Appellant] before [Appellant and others]
attacked the victim.
PCRA Ct. Op., 9/20/17, at 8 (citations to trial record omitted).
We agree with the PCRA court’s ruling. Moreover, to the extent
Appellant is specifically arguing about the victim’s prior convictions for assault,
he never raised that argument before the PCRA court and has therefore
waived it. See Pa.R.A.P. 302 (“Issues not raised in the lower court are waived
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J-S51025-18
and cannot be raised for the first time on appeal.”). Accordingly, having
discerned no error, we affirm. See Ford, 44 A.3d at 1194.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/18
____________________________________________
4 Appellant also filed a supplemental appellate brief, raising, for the first time,
that trial counsel was ineffective for failing to call Alvin Lloyd as a witness.
That claim is waived because Appellant did not raise it in his PCRA petition.
See Pa.R.A.P. 302(a).
- 10 -
0055_Opinion
Circulated 08/31/2018 09:53 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO. CP-51-CR-0014636-2011
vs. CP-51-CR-0014636-2011 Comm.
Opinion
v. Sullivan, Sean
SEAN SULLIVAN
11111111111 11111111111111 FILED
7143071581
APR 2 5 2014
OPINION
· Criminal Appea,s Unit
First Judicial District of PA
PROCEDURAL HISTORY
Defendant, Sean Sullivan, was charged as of the above Bill and Term No. with, inter cilia,
one count of Murder, generally, one count of Conspiracy to Commit Murder, four counts of
Attempted Murder, four counts of Aggravated Assault, one count of Possession of an Instrument
of Crime and one count of Possession of an Offensive Weapon. These charges arose from an
incident that occurred at Curran Fromhold Correctional Facility (CFCF) during which defendant,
an inmate, along with four co-conspirators Rashawn Edwards, Haleem Poole, Jalik Peay and
Donte Jones, engaged in an attack on five other inmates. During the incident, George Moore, an
inmate at CFCF, was fatally injured.
Defendant was tried in February and March of 2013, before this Court, sitting without a
jury. At the conclusion of the trial, this Court found defendant guilty of Third-Degree Murder,
Possession of an Instrument of Crime, Possession of an Offensive Weapon, Conspiracy to
Commit Murder and one count of Aggravated Assault. This Court found defendant not guilty of
four counts of Attempted Murder and three counts of Aggravated Assault.
On May 10 2013, defendant was sentenced to life without parole on the Third-Degree
Murder charge, ten to twenty years on the Conspiracy to Commit Murder charge, ten to twenty
years on the Aggravated Assault charge, and two to six years on the Possession of an Offensive
Weapon charge.' All of the sentences involving terms of years were ordered to run concurrent
with the sentence of life without parole. However, the sentence of life without parole was
ordered to run consecutive to the sentence of life without parole that defendant was already
serving as a result of a previous murder conviction.
FACTS
On July 7, 2011, at approximately 9 p.m., George Moore, an inmate at CFCF who was
housed in section C-2 Pod 2, was using a telephone in the phone bank in the phone bank area of
the Pod when he was attacked by one of defendant's co-conspirators. In the commotion that
ensued, defendant and his co-conspirators proceeded to attack Jokir Slade, Aaron Young,
Richard Gyton and Earl Bostic with sharp weapons. Mr. Moore suffered bruises from his attack.
Mr. Slade, Mr. Young, Mr. Gyton and Mr. Bostic all suffered stab wounds. Mr. Bostic died
from the stab wounds he suffered during the incident. Defendant's DNA was found on the sharp
weapon which was used in the killing of Mr. Bostic.
DISCUSSION
In his l 925(b) statement defendant first asserts that this Court erred in permitting the
Commonwealth to use police detectives as witnesses to bolster the credibility of prison inmate
witnesses. It is suggested that this claim of error be considered waived due to defendant's failure
to point to the location in the record where the improper bolstering appears. When ordered to do
so by a trial court, an appellant must file a concise statement of matters complained of on appeal
I
Because defendant had a prior murder conviction, the provisions of 42 Pa.C.S. § 9715 applied and required the
imposition of a life sentence.
pursuant to Pennsylvania Rule of Appellate Procedure l 925(b) that sets forth with particularity
the issues an appellant intends to raise on appeal. Commonwealth v. Castillo, 888 A.2d 775, 780
(Pa. 2005); Pa.R.A.P. 1925(b). The complete absence of a 1925(b) statement, the omission of a
certain issue from that statement, and/or the failure to identify specific errors with respect to a
listed issue all result in waiver of some or all issues on appeal. Castillo, 888 A.2d at 780;
Commonwealth v. McCree, 857 A.2d 188, 192 (Pa.Super.2004).
Instantly, defendant simply mentions the term 'bolster' in his 1925(b) statement without
identifying a specific witness or pointing to a page in the notes of testimony where the alleged
error appears. This has made it impossible for this Court to ascertain the location in the record
and, more importantly the nature and gist, of defendant's assertions. Accordingly, it is
suggested that no relief is due on this claim because defendant failed to specify where in the
record the errors he alludes to appear thereby making it impossible for this Court to address the
- merits of the claim. See Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011) (holding that
failure to articulate where the error appears in the record and to specify what the claim entails
resulted in waiver of claim).
Even if defendant had referenced where in the record the errors he adverts to in his first
claim appear, no relief would be due on the claim because this, Court, sitting as fact-finder,
carefully listened to all of the evidence and when necessary, did not consider prejudicial or
otherwise irrelevant testimony when deliberating upon the verdict. "It is presumed that a trial
court, sitting as fact[- ]finder, can and will disregard prejudicial evidence." Commonwealth v.
Miller, 987 A.2d 638, 670 (Pa. 2009) (citations omitted). In addition, given that the evidence of
defendant's guilt was overwhelming, any error committed by this Court was harmless beyond a
reasonable doubt.
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Defendant next claims the verdict was against the weight of the evidence for myriad
reasons. He asserts that the evidence failed to prove that he acted with malice because of the
lack of credible evidence, Commonwealth witnesses had motives to fabricate their testimony and
were biased against defendant in favor of the Commonwealth, and the existence of defense
evidence indicating that defendant did not participate in the fatal encounter. A claim that a
verdict was against the weight of the evidence asserts that the verdict shocks one's sense of
justice. Commonwealth v. Vandivner, 962 A. 2d 1170 (Pa. 2009). "A motion for a new trial on
the grounds that the verdict is contrary to the weight of the evidence concedes that there is
sufficient evidence to sustain the verdict; thus the trial court is under no obligation to view the
evidence in the light most favorable to the verdict winner." Commonwealth v. Widmer, 744 A.
2d 745, 751 (Pa. 2000). "An allegation that the verdict is against the.weight of the evidence is
addressed to the sole discretion of the trial court." Id. at 751-752. Finally, it is exclusively for
the finder of fact to determine the credibility of witnesses, and he may believe all, part, or none
of the evidence presented. Commonwealth v. Dreibelbis, 426 A. 2d 1111, 1113 (Pa. 1981).
Instantly, the verdict does not shock the conscience. Defendant's prior hostility towards
Mr. Bostic was well established through the testimony of other inmates. Defendant's role in the
fatal stabbing of Mr. Bostic was also established through eye witness testimony. Furthermore,
defendant's DNA was found on the murder weapon. Accordingly, it is suggested that no relief is
due on this claim.
Defendant lastly asserts that the evidence was insufficient to sustain his conviction of
Third-Degree Murder because the Commonwealth failed to prove that the killing was committed
with malice. He contends that the evidence shows that defendant retreated to avoid violence
and that the victim was larger than defendant and was himself engaging in violence.
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·
In assessing the sufficiency of evidence, the court must view the evidence in the light
most favorable to the verdict winner - in this case, the Commonwealth. Commonwealth v. ·
Boczkowski, 846 A.2d 75, 80 (Pa. 2004). Both direct and circumstantial evidence, along with all
reasonable inferences arising therefrom from which the finder of fact could properly have based
its verdict, must be accepted as true and sufficient to support the challenged conviction.
Commonwealth v. Perez, 931 A.2d 703, 706-7 (Pa. Super. 2007); Commonwealth v. Johnson,
719 A.2d 788 (Pa. Super. 1998), appeal denied. The finder of fact may believe all, part, or none
of the evidence regarding the question of whether reasonable doubt existed, and the facts and
circumstances need not be incompatible with the defendant's innocence. Commonwealth v.
Derr, 841 A.2d. 558, 559 (Pa. Super. 2004). An appellate court may only award a new trial if the
evidence was so unreliable and contradictory that it would be incapable of supporting a guilty
verdict. Commonwealth v. Karkaria, 625 A.2d 1167, 1167 (Pa. 1993 ).
Third degree murder 'occurs when a person commits a killing which is neither intentional
nor committed during the perpetration of a felony, but contains the requisite malice.
Commonwealth v. Truong, 36 A.3d 592 (2012). To establish the offense of third degree murder,
the. Commonwealth need only prove beyond a reasonable doubt that the defendant killed an
individual, with legal malice,. i.e., wickedness of disposition, hardness of heart, wantonness,
cruelty, recklessness of consequences, or a mind lacking regard for social duty. Commonwealth
v. Devine, 26 A.3d 1139 (2011).
Instantly, the evidence was more than sufficient to prove defendant acted with malice in
the killing of Mr. Bostic The evidence showed that defendant repeatedly stabbed Mr. Bostic in
the mid-section with a sharp object. Malice may be inferred from the use of a deadly weapon on
a vital part of a victim's body. Commonwealth v. Ventura, 975 A.2d 1128, 1144 (Pa. Super.
2009).
To the extent that defendant is claiming that the killing was justified or committed in self-
defense, the use of deadly force comprises three specific elements:
(1) The defendant was free from fault in provoking or continuing the difficulty
which resulted in the killing; (2) the defendant must have reasonably believed
that he was in imminent danger of death or great bodily harm, and that there
was a necessity to use such force to save himself therefrom; and (3) the
defendant did not violate any duty to retreat or avoid the danger.
See generally, Commonwealth v. Mayfield, 585 A.2d 1069 (1991) (en bane). If a defendant
introduces evidence of self-defense, the Commonwealth bears the burden of disproving the self-
defense claim beyond a reasonable doubt. Commonwealth v. Houser, 18 A.3d 1128, 1135
(2011). In order to disprove self-defense, the Commonwealth must prove beyond a reasonable
doubt one of the following elements:
(1) That the defendant did not reasonably believe it was necessary to kill in order
to protect himself against death or serious bodily harm, or that the defendant used
more force than was necessary to save himself from death, great bodily harm, or
the commission of a felony; (2) that the defendant provoked the use of force; or
(3) that the defendant had a duty to retreat and that retreat was possible with
complete safety.
Commonwealth v. Burns, 765 A.2d 1144, 1148-49 (Pa. Super. 2000).
Here, the facts are such that it is clear that the defendant was not acting in self-defense
when he stabbed the victim. Defendant, the evidence showed, had been having trouble with the
victim on the day of the incident. In addition, despite defendant's assertions to the contrary, the
evidence showed that he did not retreat and was the person who repeatedly stabbed the victim
while the victim was incapable of protecting himself. Mr. Moore testified that he saw defendant
and his co-conspirators repeatedly stab Mr. Bostic while he was on the ground. (NIT 2/26/14 p.
138). As such, the evidence was more than sufficient to establish that the killing was not
committed in self-defense.
Accordingly, it is suggested that no relief is due on this claim.
CONCLUSION
For the foregoing reasons, defendant's assertions of error should be dismissed for lack of
merit and the judgment of sentence should be affirmed.
By the Court,
0070_Opinion
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO. CP-51-CR-0014636-2011
CP-51-CR-0014636-2011 Comm v Sullivan Sean
vs. Opinion •
SEAN SULLIVAN 111111111 II 11111111 II 1111 FILED
8005144421
·sEP 2 0 2017
OPINION
Office of Judicial Records
Appeals/Post Trial
PROCEDURAL HISTORY
Defendant, Sean Sullivan, was charged as of the above Bill and Term No. with, inter alia,
one count of Murder, generally, one count of Conspiracy to Commit Murder, four counts of
Attempted Murder, four counts of Aggravated Assault, one count of Possession of an Instrument
of Crime and one count of Possession of an Offensive Weapon. These charges arose from an
incident that occurred at Curran Fromhold Correctional Facility (CFCF) during which defendant,
an inmate at the facility, along with four co-conspirators Rashawn Edwards, Haleem Poole, Jalik
Peay and Donte Jones, engaged in an attack on five other inmates. During the incident, Earl
Bostic, an inmate at CFCF, was fatally injured.
Defendant was tried in February and March of 2013, before this Court, sitting without a
Jury. At the conclusion of the trial, this Court found defendant guilty of Third-Degree Murder,
Possession of an Instrument of Crime, Possession of an Offensive Weapon, Conspiracy to
Commit Murder and one count of Aggravated Assault. This Court found defendant not guilty of
four counts of Attempted Murder and three counts of Aggravated Assault.
On May 10 2013, defendant was sentenced to life without parole on the Third-Degree
Murder charge, ten to twenty years on the Conspiracy to Commit Murder charge, ten to twenty
years on the Aggravated Assault charge, and two to six years on the Possession of an Offensive
Weapon charge.1 All of the sentences involving terms of years were ordered to run concurrently
with the sentence of life without parole. However, the sentence of life without parole was
ordered to run consecutive to the sentence of life without parole that defendant was already
serving as a result of a previous murder conviction.
On June 28, 2013, defendant filed a Notice of Appeal and on April 17, 2015, the Superior
Court affirmed the judgment of sentence. (1905 EDA 2013). Defendant then filed a petition for
allowance of appeal in the Pennsylvania Supreme Court, which denied the petition on December
8, 2015. (277 EAL 2015).
On October 3, 2016, defendant filed a timely prose timely petition pursuant tothe Post-
Conviction Relief Act. 42 Pa.C.S. §§ 9541 et seq. (hereinafter PCRA). Counsel was appointed
to represent him and on June I, 2017, counsel filed a no-merit letter pursuant to Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988), and Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and a Motion to Withdraw as Counsel. After careful!� reviewing all of the filings and the
entire record, this Court determined that defendant's claims lacked merit and on June 14, 2017,
this Court sent defendant a Pa.R.Crim.P. 907 Notice of Intent to Dismiss. Defendant filed a
response to the 907 Notice. Upon reviewing defendant's response and the entire record again,
this Court, issued an order on August 15, 2107, denying defendant PCRA relief. Defendant
timely filed a notice of appeal from the order denying him PCRA relief.
I Because defendant had a
prior murder conviction, the provisions of 42 Pa.C.S. § 9715 applied and required the
imposition of a life sentence.
FACTS
On July 7, 2011, at approximately 9 p.m., George Moore, an inmate at CFCF who was
housed in section C-2 Pod 2, was using a telephone in the phone bank in the phone bank area of
the Pod when he was attacked by one of defendant's co-conspirators. In the commotion that
ensued, defendant and his co-conspirators proceeded to attack Jokir Slade, Aaron Young,
Richard Gyton and Earl Bostic with sharp weapons. Mr. Moore suffered bruises from his attack.
Mr. Slade, Mr. Young, Mr. Gyton and Mr. Bostic all suffered stab wounds. Mr. Bostic died
from the stab wounds he suffered during the incident. Defendant's DNA was found on the sharp
weapon which was used in the killing of Mr. Bostic.
DISCUSSION
In his PCRA petition, defendant raised the following claims:
I.) THE LIFE SENTENCE IMPOSED FOR THIRD-DEGREE
MURDER IS ILLEGAL BECAUSE PETITIONER WAS NOT
CONVICTED OF THIRD DEGREE MURDER BUT RATHER
CONSPIRACY TO COMMIT THIRD DEGREE MURDER AND
PRIOR COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
THIS CLAIM;
2.) TRlAL COUNSEL WAS INEFFECTIVE FOR NOT
SENTING EVIDENCE CONCERNING PRISON CONDITIONS
AND THE SIZE OF THE VICTIM;
3.) TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL BY NOT OBJECTING TO TESTIMONY THAT
BOLSTERED THE TESTIMONY OF RICHARD GYTON;
4.) TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY NOT
NOT CHALLENGING THE CREDIBILITY OF THE
COMMONWEALTH'S COOPERATING WITNESSES AND
FOR FAILING TO MOVE TO EXCLUDE THEIR
TESTIMONY;
5.) TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY NOT ARGUING THAT
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE
CONSPIRACY CHARGE;
6.) A NEW TRIAL SHOULD BE GRANTED BECAUSE
RICHARD GYTON AUTHORED A LETTER WHEREIN
HE STA TES THAT THE POLICE AND THE
PROSECUTION FORCED HIM TO IMPLICATE
DEFENDANT IN THE CRIME; AND
7.) DEFENDANT DID NOT RECEIVE AFAIR TRIAL BECAUSE
THE TRIAL COURT ALLOWED THE PROSECUTOR TO
ADMIT PREJUDICIAL HEARSAY TESTIMONY AND
EVIDENCE OF UNRELATED CRIMINAL CONDUCT.
Before discussing the reasons why this Court determined that none of these issues
entitled defendant to PCRA relief, the Court will set forth the legal standards applicable to PCRA
petitions and claims alleging ineffective assistance of counsel. In reviewing the propriety of a
PCRA court's dismissal of a petition without a hearing, the reviewing court is limited to
determining whether the court's findings are supported by the record and whether the order in
question is free of legal error. Commonwealth v. Holmes, 905 A.2d 707, 509 (Pa. Super. 2006)
citing Commonwealth v. Halley, 870 A.2d 795, 799 (Pa. 2005). The PCRA court's findings will
not be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). A PCRA court may decline to
hold a hearing on the petition if the petitioner's claims are patently frivolous and is without a
trace of support either in the record or from other evidence. Commonwealth v. Jordan, 772 A.2d
1011, 1014 (Pa. Super. 2001). The reviewing court on appeal must examine each of the issues
raised in the PCRA petition in light of the record in order to determine whether the PCRA court
erred in concluding that there were no genuine issues of material fact and denying relief without
an evidentiary hearing. Id. See also Commonwealth v. Hardcastle, 701 A.2d 541, 542 (Pa.
1997).
Pennsylvania law presumes counsel is effective and therefore, the burden is placed upon
the defendant to prove otherwise. Commonwealth v. Brown, 767 A.2d 576, 581 (Pa. Super.
2001), citing Commonwealth v. Carpenter, 725 A.2d 154, 161 (Pa 1999), citing Commonwealth
v. Marshall, 633 A.2d 1100 (Pa. 1993); see also Commonwealth v. Baker, 614 A.2d 663, 673
(Pa. 1992). Trial counsel has broad discretion in matters of trial strategy and the determination of
what tactics to employ during litigation. Commonwealth v. Choi Chun Lam. 684 A.2d 153, 160
(Pa. Super. 1996). Furthermore, "[i]t is well established that failed trial tactics of defense
counsel are not grounds for a new trial." Commonwealth v. Hall 565 A.2d 144, 148 (Pa. 1989).
Trial counsel will not be held ineffective if there was a reasonable strategic basis for his or her
trial tactics. Commonwealth v. Pursell 724 A.2d 293, 311 (Pa. 1999).
In order to establish that trial counsel's representation was deficient, defendant must
establish all of the following three elements, as set forth in Commonwealth v. Pierce, 527, A.2d
973, 975-76 (Pa. 1987): (1) the underlying legal claim has arguable merit; (2) counsel had no
reasonable basis for bis or her action or inaction; and (3) the petitioner suffered prejudice
because of counsel's ineffectiveness. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011),
citing Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa. 2008).
The threshold question in reviewing an ineffectiveness claim is whether the issue,
argument, or tactic which trial counsel failed to use at trial and which is the basis of the
ineffectiveness claim is of arguable merit. Commonwealth v. Balodis. 747 A.2d 341, 343 (Pa.
2000). If defendant can prove that the argument or tactic which trial counsel failed to use at trial
is of arguable merit, then the ''reasonable basis" test is applied to determine if the course of
action chosen by trial counsel was designed to effectuate his or her client's interest. Id With
regard to the second element, defendant must prove that "an alternative [action or inaction] not
chosen offered a potential for success substantially greater than the course actually pursued."
Chmiel, filillrn, citing Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (alteration
added). To establish prejudice, defendant must demonstrate that there is a reasonable probability
that, but for counsel's error, the outcome of the proceeding would have been different. Chmiel,
supr� at 1127-28, citing Dennis, supr� at 954.
Further, "[i]f it is clear that if a defendant has not demonstrated that counsel's act or
omission adversely affected the outcome of the proceedings, the claim may be dismissed on that
basis alone and the court need not first determine whether the first and second prongs have been
met." Commonwealth v. Rios, 920 A.2d 790, 799 (Pa. 2007), citing Commonwealth v.
Albrecht, 720 A.2d 693, 701 (Pa. 1998). A PCRA proceeding requires a defendant to establish
that counsel's ineffectiveness "so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." Rios, filillrn, citing Pierce. supr� at
221-22� Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).
An application of the foregoing to defendant's claims clearly establishes that this Court
did not commit an abuse of discretion by denying defendant PCRA relief.
1.) THE LIFE SENTENCE IMPOSED FOR THIRD-DEGREE
MURDER IS ILLEGAL BECAUSE PETITIONER WAS NOT
CONV1CTED OF THIRD DEGREE MURDER BUT RATHER
CONSPIRACY TO COMMIT THIRD DEGREE MURDER AND
PRIOR COUNSEL WAS INEFFECTIVE FOR FAILING TO
RAISE THIS CLA1M.
In his first claim, defendant argues that the sentence of life imprisonment imposed upon
him on the third-degree murder conviction pursuant to 42 Pa. C.S. § 9715 is illegal because he
was not previously convicted of third-degree murder or voluntary manslaughter as required by
the statute. In support of this claim, he asserts that he was previously convicted of conspiracy to
commit third-degree, which under the plain language of the statute cannot serve as an offense
triggering the application of the statute. He also accuses prior counsel of ineffective assistance
because counsel did not raise an objection to the imposition of the life sentence. Defendant's Pro
Se PCRA Petition, p.4.
42 Pa. C.S. § 9715 states, in pertinent part, the following:
§ 9715. Life imprisonment for homicide
(a) Mandatory life imprisonment.v-Notwithstanding the
provisions of section 9712 (relating to sentences for offenses
committed with firearms), 9713 (relating to sentences for offenses
committed on public transportation) or 9714 (relating to sentences
for second and subsequent offenses), any person convicted of
murder of the third degree in this Commonwealth who has
previously been convicted at any time of murder or voluntary
manslaughter in this Commonwealth or of the same or substantially
equivalent crime in any other jurisdiction shall be sentenced to life
imprisonment, notwithstanding any other provision of this title or
other statute to the contrary.
This Court properly determined that this claim lacks merit because a review of
defendant's criminal extract revealed that he previously had been convicted of third-degree
murder. It indicates that on January 11, 2012, defendant appeared before the Honorable Carolyn
Engel Temin and entered a guilty plea to the charge of third-degree murder as of CP-51-CR-
0012969-2010. Based on the foregoing, this Court suggests that relief be denied with respect to
this claim because it is clear that the claim lacked merit and that prior counsel was not ineffective
for not raising this claim previously.
2.) TRIAL COUNSEL WAS lNEFFECTIVE FOR NOT
PRESENTING EVIDENCE CONCERNING PRISON
CONDITIONS AND TIIE SIZE OF THE VICTIM.
In this claim, defendant asserted that trial counsel was ineffective because he failed to
introduce evidence concerning prison conditions, the fact that the victim was a bully who used
his size and heft to manipulate and control other inmates through physical intimidation and
actual physical assault. He further argues that trial counsel should have introduced evidence
indicating that the victim was the first person who introduced a weapon into the affray. See
Petitioner's Pro Se PCRA Petition, 10/3/16, pp. 5, 6; Defendant's Pro Se Memorandum, 1/24/17,
p. 8.
This Court's review of the record belied defendant's claim that trial counsel failed to
elicit evidence relating to prison conditions and the victim's violent proclivities and physical
size. Counsel for defendant, along with counsel for his co-defendants, established that the CFCF
is a violent place where stabbings frequently occur, that the victim was very big and tough and
likely sold drugs, guards were ineffectual in stopping and preventing violence, inmates had to
fend for themselves, and prison, and that the victim used violence against petitioner before
petitioner and the others attacked the victim. (N.T. 2/26/13, 179, 180; 2/27/13, 99, 112, 113,
118; 2/28/13, 4). Therefore, because the evidence defendant complains was not introduced was
presented to the Court, it is clear that this claim lacks merit.
The claim was also deemed lacking in merit because defendant failed to establish that the
outcome of the trial would have been different had prior counsel presented additional evidence
about the victim and prison conditions. This Court was well aware of the conditions existing in
the CFCF at the time of the incident and that the victim used his size to intimidate other inmates.
It would not have rendered a different verdict had it heard additional evidence relating to the
points raised by defendant. Accordingly, it is suggested that this claim, if raised on appeal be
deemed lacking in merit.
3.) TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OFCOUNSEL BY NOT OBJECTING TO
TESTIMONY THAT BOLSTERED THE TESTIMONY OF
RICHARD GYTON.
Petitioner contended in this claim that trial counsel provided him with ineffective
assistance of counsel because he did not object when a police detective gave testimony
bolstering the credibility of Richard Gyton. Defendant submits that the claim possesses merit
because the law prohibits a witness from testifying about the reliability of another witness's
testimony. See Defendant's Pro Se Memorandum, 1/24/17, pp. 5-6.
This Court correctly determined that this claim lacked merit because defendant raised a
claim on direct appeal that mirrors the claim underlying his current ineffectiveness claim.
Although the Superior Court ruled that the issue had been waived because a contemporaneous
objection to the testimony had not been proffered at trial, the Superior Court went on and
addressed the merits of the claim, which resulted in a finding that had the issue been preserved,
the claim would have been found lacking in merit. See Superior Court Memorandum, 1905
EDA 2013, at pp. 2-4. This Court adopted the rationale supplied by the Superior Court in
finding that defendant's ineffectiveness claim concerning this issue lacked merit. It is suggested
if defendant raises this claim on appeal, that the claim be dismissed form the same reasons
expressed in the Superior Court's memorandum.
4.) TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY NOT
NOT CHALLENGING THE CREDIBILITY OF THE
COMMONWEALTH'S COOPERATING WITNESSES AND
FOR FAILING TO MOVE TO EXCLUDE THEIR
TESTIMONY.
Petitioner also contended that he was entitled to PCRA relief because trial counsel failed
to attack the credibility of the Commonwealth's cooperating witnesses who were themselves
prison inmates and for not moving to exclude their testimony because it was irreparably
unreliable because of the deals the witnesses allegedly received in agreeing to testify for the
Commonwealth and because some of the witnesses had been threatened into cooperating by the
authorities. See Defendant's Pro Se Memorandum, 1/24/17, pp. 9-10.
It is submitted that this Court did not err by denying relief with respect to this claim. The
record clearly demonstrates that those witnesses who were themselves inmates and those who
received consideration in exchange for their testimony were examined by counsel concerning the
nature and substance of the consideration they may have received in exchange for their agreeing
to testify for the Commonwealth as well as about how the police treated them when they were
interviewed. While testifying, Richard Gyton was asked to testify about the medication he was
taking and about whether the medication was still affecting him when he provided police with a
statement. (N.T. 2/27/13, 178-179). Moreover, Gyton's medical records were introduced by
way of stipulation and through those records this Court was well aware that Gyton had drugs in
his system when he gave his statement. (N.T. 2/28/13, 26). Trial counsel cross-examined Gyton
concerning the deal he made with the Commonwealth and elicited the nature of the benefits he
received for cooperating with the Commonwealth. (N.T. 2/27/13, 180-181). Accordingly,
counsel avers that he cannot raise a claim with respect to this issue. Therefore, because this Court
was well aware through the actions of trial counsel that the testimony of the cooperating
witnesses may have been compromised by their drug use and the deals they made it is clear that
this claim was properly deemed to lack merit. It is further noted that had additional evidence
related thereto been introduced, this Court would not have rendered a different verdict.
Accordingly, if defendant should raise this claim on appeal, it is suggested that the Court find
that this Court did not commit an abuse of discretion by ruling that it lacked merit.
5.) TRIAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY NOT ARGUING THAT
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN TIIB
CONSPIRACY CHARGE.
Defendant also accused prior counsel of providing ineffective assistance of counsel
because counsel failed to raise a claim on appeal challenging the sufficiency of the evidence with
regard to the charge of criminal conspiracy. The claim was rejected by this Court because
defendant failed to establish that if had arguable merit.
The Pennsylvania Supreme Court has provided the following standard of review for
sufficiency of the evidence claims:
(T]he critical inquiry on review of the sufficiency of the evidence
to support a criminal conviction... does not require a court to 'ask
itself whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt. Instead, it must determine simply
whether the evidence believed by the fact-finder was sufficient to
support the verdict... (A]ll of the evidence and any inferences
drawn therefrom must be viewed in the light most favorable to the
Commonwealth as the verdict winner.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-1236 (Pa. 2007) (emphasis in original).
The Commonwealth need not establish guilt to a mathematical certainty, and it may
sustain its burden by means of wholly circumstantial evidence. Commonwealth v. Duncan, 932
A.2d 226, 231 (Pa. Super. 2007) (citation omitted). A reviewing court may not substitute its
judgment for that of the fact finder, and where the record contains support for the convictions,
they may not be disturbed. Id. Lastly, the finder of fact is free to believe some, all, or none of the
evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa Super. 2006).
With regard to the crime of Criminal Conspiracy a person is guilty of criminal conspiracy
if he forms an agreement with another to commit a crime with shared criminal intent and one of
the co-conspirators commits an overt act in furtherance of the conspiracy. 18 Pa. C.S. § 903;
Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000). Proof of a formal or explicit
agreement, which is rarely available, is unnecessary. Commonwealth v. Grekis. 601 A.2d 1275,
1283 (Pa. Super. 1991 ). Rather, the existence of a common agreement and shared intent is almost
always inferred from circumstantial evidence. Hennigan, 753 A.2d at 253. Thus, a conspiracy
may be proven inferentially by relevant circumstances, including the following: "(l) an
association between alleged conspirators; (2) knowledge of the commission of the crime; (3)
presence at the scene of the crime; and (4) in some situations, participation in the object of the
conspiracy." Commonwealth v. McKeever, 689 A.2d 272, 274 (Pa. Super. 1997). These factors
may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor
alone might fail. Commonwealth v. Garcil!, 847 A.2d 67, 71 (Pa. Super. 2004); Commonwealth
v. French. 578 A.2d 1292, 1294 (Pa Super. 1990). Finally, it is hombook law that a member of
a conspiracy is responsible for all of the criminal acts of his co-conspirators that are committed
in furtherance of the conspiracy. Commonwealth v. Roux, 350 A.2d 867, 871 (Pa. 1976).
Here, the evidence was more than sufficient to demonstrate that defendant formed a
corrupt confederation with the others who participated in the murder of the victim. The evidence
shows that prior to the incident defendant and the others came together in what can be described
as a huddle and upon separating they attacked the victims and began stabbing them in unison.
N.T. 2/27/13. 64-81. Such evidence was sufficient to make out the crime of criminal conspiracy
and thus, this Court did not err by denying defendant relief with respect to this claim. See
Commonwealth v. Poland, 26 A.3d 633, 518, 523 (Pa. Super. 2011) (''the actors' relationships
and their conduct before, during and after the criminal episode established a unity of criminal
purpose sufficient for the jury to find conspiracy beyond a reasonable doubt."). Accordingly, if
defendant raises this claim on appeal, it is suggested that relief be denied thereto for the reasons
stated herein.
6.) A NEW TRIAL SHOULD BE GRANTED BECAUSE
RICHARD GYTON AUTHORED A LETTER WHEREIN HE
STATES THAT THE POLICE AND THE PROSECUTION
FORCED HIM TO IMPLICATE DEFENDANT IN THE
CRIME.
Defendant contended in this claim that he was entitled to PCRA relief based on a
letter authored by Gyton wherein he alleges that he had been forced by authorities to
implicate defendant in the crime. Relief was denied on this claim because defendant
failed to establish that Gyton's testimony would have changed the outcome of the trial
given that Gyton denied having seen defendant or the other perpetrators attack the victim,
thereby refuting what was contained in his statement to police. Defendant's co-defendant
raised this after-discovered evidence claim on appeal. The Superior Court found the
claim lacked merit for the following reasons:
In the instant case, Appellant's after-discovered evidence
claim is merely cumulative of the testimony Gyton and Rivers
gave at trial. As astutely noted by the trial court, Gyton and
Rivers had already effectively recanted their prior statements, so
that their purportedly newly discovered testimony does not
conflict with the testimony the witnesses offered at trial. Although
both witnesses initially indicated to detectives that they observed
Appellant stab Bostic, they refused to cooperate at trial and
identify Appellant as the attacker. See N.T., 2/27/130 at 144;
N.T., 2/28/13 at 41. Thus, as Gyton and Rivers never implicated
Appellant in the prison attack at trial, the supposed recantation
affidavits do not satisfy the requirement that the evidence would
likely result in a different verdict if a new trial were granted.
Accordingly, Appellant's after-discovered evidence claim fails.
Commonwealth v. Donte Jones, 1879 EDA 2013 (Super. Ct. 4/6/15).
In view of the foregoing, the denial of relief with respect to this claim was proper.
Therefore, it is suggested that if defendant raises this issue on appeal, that the claim be deemed
lacking in merit.
7.) DEFENDANT DID NOT RECEIVE A FAIR TRIAL BECAUSE
THE TRIAL COURT ALLOWED THE PROSECUTOR TO
ADMIT PREJUDICIAL HEARSAY TESTIMONY AND
EVIDENCE OF UNRELATED CRIMINAL CONDUCT.
Finally, defendant alleged that he was entitled to a new trial because this Court allowed
the Commonwealth to present inadmissible hearsay testimony, inadmissible unrelated criminal
conduct evidence, and evidence alleging intimidation of witnesses. According to defendant, this
Court permitted Corrections Officer Eric Patterson to present hearsay when he testified that
"Sarge" told him that victims were taken from three different cells. (N.T. 2/26/13, 27).2 He also
contends that Omar Fulton also provided hearsay testimony three times and that George Moore
did as well with the blessing of this Court. (N.T. 2/27/13, 45, 144; 2/28/13, 63, 66, 67).3•4
Finally he claims that hearsay testimony was presented by a Detective Burke.
In addition thereto, defendant argues that this Court permitted the Commonwealth to
introduce evidence of unrelated criminal conduct that involved drug smuggling and drug dealing
in the prison, 5 evidence of threats made in a letter to Omar Fulton, 6 and testimony from George
Moore that defendant had been in a fight. 7
This Court denied relief with respect to these claims because they had been waived. Each
of these claims could have been raised at trial and/or on direct appeal. According to the PCRA
claims are deemed waived if they could have been raised previously. 42 PaC.S. §§ 9544 (b).
2 See Petitioner's Pro Se Memorandum, 1/24/17, p. 8.
3 See Petitioner's Memorandum, 1/24/17, p. 8.
4 See Petitioner's Pro Se PCRA Petition, l 0/3/16, p. 5.
s See Petitioner's Pro Se PCRA Petition, 10/3/16, pp. 5, 6; Petitioner's Memorandum, 1/24/17, p. 8.
6 See Petitioner's Pro Se PCRA Petition, 10/3/16, p. 6.
7 See Petitioner's Pro Se PCRA Petition, I 0/3/16, p. 5.
Moreover, had defendant accused prior counsel of providing ineffective assistance of
counsel for not raising/preserving these claims his ineffectiveness claims would have been
rejected because no error occurred in allowing the admission of the complained of evidence
and/or defendant could not establish that the admission of the evidence prejudiced him.
For example, with regard to the complaint that Officer Patterson was permitted to testify
to hearsay, the alleged hearsay was elicited by Donte Jones' attorney to impeach his credibility.
Counsel was merely attempting to show that Patterson did not see what he testified to in order to
undermine his credibility. A review of the record shows that the hearsay testimony petitioner
complains of was elicited by Donte Jones' attorney during his cross-examination of the
corrections officer in relation to a statement Patterson gave after the incident:
"They took Bostic out. And then we did a search and found
three other victims. Two victims were in No. 15, and the other
in 20, or 21. They were taken to medical right away."
(N.T. 2/26/13, 27). Following this testimony counsel elicited from Patterson that he had not
actually observed what he told police, thereby undermining his credibility. As such because the
testimony was not introduced for the truth of the matter but to impeach Patterson's credibility,
the testimony was not hearsay.
In addition, not only could defendant not establish that the claim had merit, he also is
unable to establish that Patterson's testimony, even if it were inadmissible hearsay, prejudiced
him such that its introduction deprived him of a fair trial. This is so because other witnesses
testified about where the victims were found and also because this Court did not consider the
testimony for the truth of the matter asserted but rather for its impeachment value.
With regard to Omar Fulton defendant cites to three instances where he claims Fulton
was permitted to present hearsay testimony. (N.T. 2/27/13, 45, 143-144; 2/28/13, 63, 66, 67).8 A
review of the record belied defendant's claim that Fulton was permitted to present hearsay
testimony and a claim that trial counsel was ineffective for failing to object
First, a review of the testimony found at N.T. 2/27/13, 45, indicates that Fulton was
testifying about what defendant had said. It was not hearsay because it was a statement of a
party opponent and thus counsel cannot be found ineffective with respect thereto. Defendant's
next reference to the record, N.T. 2/27/13, 143-144, concerned a question asked of Gyton and not
Fuller, inquiring about how Gyton learned that the victim had died and how it made him feel.
Although Gyton testified that a sergeant had told him, defendant did not suffer prejudice because
other properly admitted evidence was presented indicating that the victim was dead and the
testimony did not implicate defendant in the incident herein.
With regard to Detective Burke defendant complained that this Court permitted the
detective to testify that Gyton indicated that he and the defendants were housed together in the
CFCF. (N.T. 2/28/13, 63, 66, 67). This Court determined that the claim lacked merit because
the testimony was not admitted for the truth of the matter asserted but rather to show why Gyton
recanted and did not testify in conformity with what he stated to police when he was interviewed.
As such, defendant's hearsay claim failed as would any ineffectiveness claim. Moreover,
defendant cannot establish prejudice because this Court did not consider the testimony for the
truth of the matter asserted. Therefore, bad defendant accused counsel of ineffective assistance
for not lodging an objection, the claim would have been rejected.
With respect to George Moore and the claim that counsel ineffectively permitted him to
present inadmissible testimony, the record indicates that defendant is mistaken that Moore's
8
See Petitioner's Memorandum, 1/24/17, p. 8.
testimony was hearsay. Rather, the complained of testimony concerned Moore's opinion
regarding whether he and the defendants were at odds with one another. (N.T. 2/26/13, 96).
Therefore, defendant cannot not prove that the claim possessed arguable merit.
In addition, defendant also cannot not prove that the admission of the testimony, even if
hearsay, prejudiced him. The evidence of defendant's guilt was overwhelming and a successful
objection would not have resulted in a different verdict.
Regarding the introduction of the evidence indicating there was drug smuggling dealing
taking place in the prison9 and that relating to the receipt of threatening letters by Omar Fulton,
counsel was not ineffective for failing to object. The evidence related to drugs was admissible to
establish a motive for the killing in that it showed that the victim controlled jobs and thus, was
able to facilitate the smuggling of drugs into the prison. (N.T. 2/26/13, 105-107). Evidence of
motive is clearly admissible. See PaR.E. 404(b)(2).
It is further noted that counsel's failure to object to the drug evidence did not prejudice
defendant. No evidence was admitted connecting defendant to the drug dealing and this Court
did not attribute any of those allegations to defendant.
A complaint concerning counsel's failure to object to the threatening letters also would
not have been found to possess arguable merit because objections thereto were sustained. (N.T.
2/27/13, 87-89). Thus, defendant was not provided with ineffective assistance of counsel.
Finally, if defendant had alleged that trial counsel was ineffective for failing to object to
Moore's testimony that defendant had a fight with a friend of Moore's relief would have been
denied him given that trial counsel did object and the objection was overruled. (N.T. 2/26/13,
96).
9
See Petitioner's Pro Se PCRA Petition, 10/3/16, pp. 5, 6; Petitioner's Memorandum, 1/24/17, p. 8.
Relatedly, had defendant asserted that appellate counsel was ineffective for not raising on
appeal a claim that this Court abused its discretion by overruling the objection, defendant would
have been denied relief with respect to that claim as well. The claim would have been deemed
to lack merit because this Court did not err by overruling the objection. The evidence was
relevant to flesh out and explain the nature of the relationship Moore had with the defendants.
This Court considered it solely for that purpose and not as evidence indicating that defendant
was a violent person. Consequently, defendant would not have been granted relief on this claim
as a result of ineffective assistance of counsel.
CONCLUSION
For the foregoing reasons, the order denying defendant PCRA relief should be affirmed.
By the Court,
Date:�17
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IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA NO. CP-51-CR-0014636-2011
CP-51-CR-0014636-2011 Comm. v. Sullivan, Sean ·
Opinion
VS.
SEAN SULLIVAN 1111111111111111111111111 FILED
8005144421
:SEP 2 0 2017
OPINION
Office of Judicial Records
Appeals/Post Trial
PROCEDURAL HISTORY
Defendant, Sean Sullivan, was charged as of the above Bill and Term No. with, inter alia,
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one count of Murder, generally, one count of Conspiracy to Commit Murder, four counts of
Attempted Murder, four counts of Aggravated Assault, one count of Possession of an Instrument
of Crime and one count of Possession of an Offensive Weapon. These charges arose from an
incident that occurred at Curran Fromhold Correctional Facility (CFCF) during which defendant,
an inmate at the facility, along with four co-conspirators Rashawn Edwards, Haleem Poole, Jalik
Peay and Donte Jones, engaged in an attack on five other inmates. During the incident, Earl
Bostic, an inmate at CFCF, was fatally injured.
Defendant was tried in February and March of 2013, before this Court, sitting without a
Jury. At the conclusion of the trial, this Court found defendant guilty of Third-Degree Murder,
Possession of an Instrument -of Crime, Possession of an Offensive Weapon, Conspiracy to
Commit Murder and one count of Aggravated Assault. This Court found defendant not guilty of
four counts of Attempted Murder and three counts of Aggravated Assault.