Com. v. Freeman, C.

J-S27044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES FREEMAN :
:
Appellant : No. 3571 EDA 2017

Appeal from the PCRA Order October 5, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004824-2013

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 19, 2018

Appellant, Charles Freeman, appeals from the October 5, 2017 Order,

entered in the Montgomery County Court of Common Pleas, dismissing his

first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9545. After careful review, we affirm.

We summarize the facts and procedural history as follows. On May 5,

2013, Appellant, Rasheed Teel, Ander Collier, and Omar Miller, devised a plan

to rob Kareem Borowy (the “Victim”). Appellant drove the group to the

Victim’s house in Pottstown and waited in the car. Teel and the other men,

armed with a .45 caliber Glock pistol, entered the residence and demanded

the Victim turn over a large quantity of marijuana and $3,000 in cash. The

Victim told the robbers that he kept his money in a “stash house” at a different

location. The men took the Victim outside and forced him into the getaway

car driven by Appellant. Appellant drove away from the Victim’s house,
J-S27044-18

presumably intending to travel to the Victim’s stash house. When Appellant

slowed the car down on a rural roadway, the Victim escaped. Collier chased

after the Victim and shot him twice. When he returned to the vehicle, Collier

told the others that he saw the Victim fall to the ground, and instructed

Appellant to drive away. The Victim died from his gunshot wound.

In response to an anonymous tip, Montgomery County detectives

interviewed Teel on May 9, 2013. Teel ultimately admitted that he was

present during the crimes, and he identified Collier as the gunman and

Appellant as the driver of the getaway car. Teel pleaded guilty to third-degree

murder, and agreed to testify for the Commonwealth against his co-

conspirators.

Police arrested Appellant on May 20, 2013, and charged him with

Homicide, Kidnapping, Robbery, Persons Not to Possess a Firearm, Receiving

Stolen Property, False Imprisonment, and Conspiracy to commit each of those

offenses.1

Appellant, Collier, and Miller proceeded to a joint trial on April 15, 2014.

The Commonwealth presented the testimony of numerous witnesses,

including Teel.

On April 21, 2014, following a five-day trial, the jury convicted Appellant

of Second-Degree Murder, Robbery, Kidnapping, Conspiracy to commit

____________________________________________

118 Pa.C.S. §§ 2502, 2901(a)(3), 3701(a)(1)(i), 6105, 3925, 2903, and
903(b), respectively.

-2-
J-S27044-18

Kidnapping, and Conspiracy to commit Robbery. On June 24, 2014, the trial

court sentenced Appellant to life imprisonment.

Appellant timely appealed and this Court affirmed his Judgment of

Sentence on December 2, 2015. Commonwealth v. Freeman, 128 A.3d

1231 (Pa. Super. 2015). He did not seek review with the Pennsylvania

Supreme Court

On July 7, 2016, Appellant filed a timely pro se PCRA Petition raising

seven issues challenging trial and appellate counsels’ stewardship. He also

raised an issue alleging that the Commonwealth violated Brady v. Maryland,

373 U.S. 83 (1963), by not notifying him that Teel had sustained a serious

brain injury before Appellant’s trial which rendered Teel incompetent to testify.

On July 28, 2016, the PCRA court appointed Gregory P. DiPippo, Esquire, to

represent Appellant.

On October 12, 2016, Attorney DiPippo sent Appellant a “no merit” letter

pursuant to Commonwealth v. Turner, 544 A.2d 213 (Pa. 1988),

Commonwealth v. Finley, 550 A.2d 213 (Pa Super. 1988) (en banc), and

their progeny. Appellant filed a Response to counsel’s “no merit” letter on

November 3, 2016.

On January 11, 2017, Attorney DiPippo filed a Petition to Withdraw as

Counsel.

On January 20, 2017, after reviewing the eight issues Appellant raised

in his pro se PCRA Petition, the court granted Attorney DiPippo’s Petition to

Withdraw as Counsel. The court concluded that, although Appellant’s first six

-3-
J-S27044-18

issues had no merit, Appellant was entitled to a court-appointed attorney to

investigate the factual questions raised in his seventh and eighth issues.2

Accordingly, the PCRA court appointed Patrick J. McMenamin, Esquire, to

represent Appellant.

On July 18, 2017, counsel filed an Amended PCRA Petition re-raising

Appellant’s seventh and eighth issues only. The Commonwealth filed an

Answer to the Amended Petition on August 17, 2017.

On August 29, 2017, the PCRA court issued a Notice of Intent to Dismiss

Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P. 907.

Appellant did not file a Response to the PCRA court’s Rule 907 Notice.

On October 5, 2017, the PCRA court dismissed Appellant’s Petition.

Appellant filed a timely appeal. Both Appellant and the PCRA court complied

with Pa.R.A.P. 1925.

Appellant raises the following three issues on appeal:

1. Did the lower court err in its determination, without a hearing,
that trial counsel provided to Appellant at the time of trial
effective assistance of counsel despite trial counsel’s alleged
failure to investigate and establish that prosecution witness
Rasheed Teel had, prior to his testimony, suffered a gunshot
wound to the head and that the prior injury rendered the
witness unable to accurately recall and testify with respect to
the offense at trial?

2. Did the lower court err in its determination, without a hearing,
that the Commonwealth did not commit a Brady violation with
respect to the issue of Rasheed Teel’s gunshot wound to the
head, on the basis that the knowledge of Teel’s prior injury was
____________________________________________

2 Appellant’s seventh issue challenged trial counsel’s failure to investigate
Teel’s competence to testify, and his eight issue asserted his Brady claim.

-4-
J-S27044-18

equally available to the defense, thus rendering the claim
meritless?

3. Did the lower court err in denying Appellant an evidentiary
hearing pursuant to the [PCRA] inasmuch as Appellant had
issues meritorious of review that could only be properly
considered following an evidentiary hearing?

Appellant’s Brief at v (reordered for ease of disposition).

Standard/Scope of Review

We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if the record

supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.

2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2): a

constitutional violation; ineffective assistance of counsel; an unlawfully

induced plea; improper obstruction by governmental officials; or in a case

where exculpatory evidence has been discovered; an illegal sentence has been

imposed; or the tribunal conducting the proceeding lacked jurisdiction. See

42 Pa.C.S. § 9543(a)(2)(i)-(vii). Appellant must also establish that the issues

raised in the PCRA petition have not been previously litigated or waived. 42

Pa.C.S. § 9543(a)(3).

-5-
J-S27044-18

An allegation of error “is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b). See, e.g.,

Commonwealth v. Roney, 79 A.3d 595, 609 (Pa. 2013) (concluding that,

where a petitioner failed to raise Brady claims at trial and/or on direct appeal,

they are waived).

Ineffective Assistance of Counsel

In his first issue, Appellant claims his trial counsel was ineffective for

failing to investigate whether Rasheed Teel’s head injury rendered him

incompetent to testify at trial. Appellant’s Brief at 16. In particular, Appellant

argues that there is a reasonable probability that the outcome of his trial would

have been different had counsel discovered that Teel had suffered a gunshot

wound resulting in a brain injury. Id. at 18. We disagree.

The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in

-6-
J-S27044-18

rejection of the appellant’s ineffective assistance of counsel claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

The Honorable Wendy Demchick-Alloy, who presided over all of the

proceedings in this case, has authored a comprehensive, thorough, and well-

reasoned opinion, citing to the record and relevant case law in addressing

Appellant’s challenge to his counsel’s representation. After a careful review

of the parties’ arguments and the record, we adopt the PCRA court’s opinion

as our own and conclude that this issue warrants no relief. See PCRA Court

Opinion, dated 12/17/17, at 16-22 (concluding that Appellant’s ineffectiveness

claim failed because, due to the overwhelming evidence against him, he could

not prove the prejudice prong of the ineffectiveness test).

Brady Violation

In his second issue, Appellant claims that the Commonwealth violated

Brady v. Maryland, 373 U.S. 83 (1963), when it did not disclose to the

defense the allegedly material fact that Teel had previously sustained a

gunshot wound to the head. Appellant’s Brief at 21. Appellant acknowledges

that he had heard “a rumor” that Teel had been shot, but argues that this did

not obviate the Commonwealth’s responsibility to disclose it to his counsel.

Id. at 21-23.

Brady provides that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” 373 U.S. at 87. See also Pa.R.Crim.P.

-7-
J-S27044-18

573(B)(1)(a) (pertaining to the mandatory disclosure of evidence favorable to

the accused which is material to guilt or to punishment of the accused, and

which is within the possession or control of the prosecutor).

Notably, where a defendant could have raised a Brady claim at trial or

on direct appeal, but fails to do so, he waives this claim. See, e.g., Roney,

79 A.3d at 609.

Appellant has acknowledged in his Brief to this Court that he was, at a

minimum, aware of a rumor that Teel had sustained a gunshot wound to the

head. He also averred in his Amended PCRA Petition that, prior to trial, he

and his counsel discussed Teel’s gunshot wound. See Amended PCRA Petition,

7/19/17, at ¶¶ 17, 21. However, Appellant raised this Brady claim for the

first time in his PCRA Petition. Pro Se PCRA Petition, 7/7/16, at 5. We, thus,

conclude that Appellant has waived this issue by failing to raise it “before trial,

at trial, during unitary review, on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S. § 9544(b).3

Dismissal Without an Evidentiary Hearing

In his final issue, Appellant claims that the PCRA court erred in

dismissing his Amended Petition without a hearing. Appellant’s Brief at 12-

15. We disagree.

____________________________________________

3 Even if Appellant had not waived his issue, it would fail. See
Commonwealth v. Simpson, 66 A.3d 253, 265 (Pa. 2013) (concluding that
the petitioner’s Brady claim pertaining to the victim’s criminal history lacked
merit because, inter alia, the petitioner was aware of it).

-8-
J-S27044-18

There is no absolute right to an evidentiary hearing, and a PCRA court

has discretion to deny a PCRA Petition without a hearing “if the PCRA court

determines that the petitioner’s claim is patently frivolous and is without a

trace of support in either the record or from other evidence.”

Commonwealth v. Hart, 911 A.2d 939, 941 (Pa Super. 2006) (citation

omitted). When the PCRA court denies a petition without an evidentiary

hearing, we “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. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004) (citing

Commonwealth v. Hardcastle, 701 A.2d 541, 542-43 (Pa. 1997)).

As discussed supra, the PCRA court properly concluded that Appellant’s

ineffective assistance of counsel claim lacked merit and we conclude that

Appellant has waived his Brady claim. Therefore, since Appellant’s claims

were “patently frivolous and [ ] without a trace of support in either the record

or from other evidence[,]” we further conclude that the PCRA court did not err

in denying relief without conducting an evidentiary hearing.

Order affirmed. Jurisdiction relinquished.

-9-
J-S27044-18

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/18

- 10 -
 Circulated 09/18/2018 11:20 AM

k, r i••: !"if
,,,t.,..-..i,, . ..; C QUR'i':5
nn-11�F
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUN'f1,td'tf1�N�t}Y��l�T'·
0) PEUNA.
CRIMINAL DIVISION
20 !1 OEC \ 3 PM 2: t..3
COMMONWEALTH OF PENNSYLVANIA Nos. CP-46-CR-0004824-2013

v.
CHARLES FREEMAN

OPINION
DEMCHICK-ALLOY, J. DECEMBER 12, 2017

Appellant, Charles Freeman (hereinafter, "petitioner") appeals from the

final order denying his first, timely, counseled petition for post-conviction

collateral relief.

I. Claims Raised on Appeal

Appellant, through court-appointed counsel, filed a statement raising

three claims on appeal: 1

1. The undersigned erred in denying Appellant an evidentiary hearing;

2. The undersigned erred by denying petitioner's claim for relief based on

his allegation that the prosecutors violated his right to pretrial discovery

of Rasheed Teel's history of brain injury from a gunshot wound to his

head, which wound allegedly rendered him incompetent to testify at trial

3. The undersigned erred by denying petitioner's claim for relief based on

his allegation that trial counsel rendered ineffective assistance because

he failed to establish that eyewitness Rasheed Teel was incompetent to

l The order of the second and third claims has been reversed for ease of discussion.
 testify at trial

II. Facts

Appellant and two co-defendants, Andre Collier and Omar Miller, were

tried before a jury and found guilty of robbery and conspiracy to commit

robbery, kidnapping, and the murder of Kareem Borowy. A third co-defendant,

� Rasheed Teel, pled guilty and testified against appellant, Collier and Miller.

Teel began his testimony by identifying appellant in court. N.T. 4-16-2014, p.

110. He stated that during the week preceding the weekend of Saturday, May

41 2013 and Sunday, May 51 2015, appellant drove him and co-defendant

Collier to the Pottstown area in a gray Buick LeSabre. Id. at 112-13. On the

weekend of May 4th and Sth, 2013, he and co-defendant Collier went to an

apartment on King Street in the borough of Pottstown. Id. at 112-2014. Teel

saw Collier in possession of a black handgun, a trash bag and "thick tape." Id.

at 115-17. On the afternoon of Sunday, May 5, 2013, appellant drove co-

defendant Omar Miller to the apartment in the gray LeSabre. Id. at 117-18. At

that time, Collier and appellant raised the idea of committing a robbery of

marijuana and money from Kareem Borowy, and Collier, appellant, Teel and

Miller made a plan to carry out the robbery at Borowy's home. Id. at 118-20.

Collier was "to go in there and get the weed and moneyj.]" appellant was to

drive the group to and from the crime; Miller was to bind Borowy with the tape;

and Teel was to serve as the "lookout." Id. at 120.

2
 According to Teel, appellant drove the four men in his gray LeSabre to
co
Borowy's home to commit the robbery. Id. at 121, 123. Appellant stopped the
N
"\... car near the house and Teel, Miller and Collier went inside. Id. at 123-24. The

jury heard evidence from which they could infer that the co-defendants arrived

at the Borowy home between 1 :00 p.m. and I: 17 p, m. Borowy had arranged to

meet for lunch that day with his friend, Richard Iacovino, at whose home

Borowy kept marijuana and money derived from its sale. N.T. 4-17-2014, pp.

82-83. Borowy never showed up, despite sending Iacovino a text message to

say he would arrive soon. Id. at 85-86. Iacovino testified that he sent a text

message asking where Borowy was, but he did not reply. Id. at 87.

Montgomery County Detective Mark Minzola reviewed records of transmissions

from Iacovino's cell phone and determined that Iacovino sent that text message

at 1: 17 p.m. N.T. 4-18-2014, pp. 117-18. Detective Minzola reviewed records

of transmissions between the cell phones of appellant and Collier and found a

call from Collier to appellant at 1:07 p.rn., lasting nineteen seconds; a call from

appellant to Collier at 1:07:26 p.m., lasting ten seconds; and a call from

appellant to Collier at 1 :07:44 p.m., lasting fifty-two seconds. Id. That

testimony supported an inference that the co-defendants entered the home at

or before 1 :07 p.m.

When Collier entered the Borowy home, he was armed with his handgun.

N.T. 4-16-2014, pp. 121-24. The three men found Borowy in the kitchen,

3
 washing dishes. Id. at 124-25. Collier demanded marijuana and money, and

when Borowy replied that he had only a small amount of each in the house,
.....
N
-, Collier took him upstairs to get it while Teel and Miller rounded up two

w houseguests and took them to the kitchen, where Miller bound them with
-,
N
e Collier's tape. Id. at 125-30. Teel testified that Collier brought Borowy back

downstairs to the kitchen, at which time Borowy told Collier that he had more

marijuana and money at another house. Id. at 130-31.

Jeffrey Boyer was one the houseguests. Id. at 305, 309-10. Boyer

overheard the robbers demanding to know where Borowy kept his money and

marijuana, and overheard Borowy reply that he kept them at a friend's house

nearby. Id. at 313·2014, 315·16. Boyer heard Borowy claiming he was

sending text messages to his friend who kept the money and drugs. Id. at 314,

317. Boyer heard Borowy and the robbers talking about leaving to go to the

friend's home. id. at 317-18. Lewis Scott, the other houseguest, id. at 71,

heard the robbers ask Borowy the best way to leave his home, and heard

Borowy advise them to exit through the back door, but to take the tape from

around his mouth so the neighbors would not see that he was gagged, id. at

80.

The jury heard evidence from which they could infer that the co-

defendants took Borowy from his home before 2:01 p.m. Bruce Levengood, a

neighbor, testified that two young men came to his house, shaking with fear,

4
(ll.
0
ll>
;:s and told them that they had been tied up, and that Borowy had been abducted.
00
Id. at 333-336. Detective Minzola testified that Levengood called 911 at 2:01

p.m. N .T. 4-18-2014, p. 118. That testimony supported an inference that the

w co-defendants left the Borowy home at or before 2:01 p.m.
"\.
N
'2> Teel testified that Collier, Miller and he took Borowy from his home, N.T .
.....
-...J
4-16-2014 at 131, and put him in appellant's car, id. at 133, with the intention

of having Borowy take the men to the other house, id. at I 34. Teel and Miller

knew that they were to leave the house when Collier said, "the ride outside."

Id. at 132-33. When they marched Borowy outside, appellant was waiting in

his gray LeSabre. Id. at 133-34.

Teel testified as to the events immediately before Collier killed Borowy.

The four conspirators and Borowy drove about for a short time, but when

Borowy pointed out a house, appellant drove past it. Id. at 134. Appellant

eventually slowed the car as he nodded to Collier. Id. at 135-36. At that point,

Borowy somehow freed his hands and bolted from the car, but Collier stepped

out of the car, fired two shots from his gun and got back into the car, telling

the other three co-conspirators that he had seen Borowy fall to the ground. Id.

at 136.

Borowy was found shot to death on Sanatoga Station Road. Id. at 101-

06. Linda Morgan, the last person who saw him alive, lying in the weeds by the

roadside crying for help, id. at 339-40, described Sanatoga Station Road as a

5
ti},
0
n>
::, "back road," the location of a gun club and several businesses that were closed

on that Sunday. Id. at 339-41. She called 911 at approximately 2:26 p.m.,

and Lower Pottsgrove Township Detective Daniel Kienle arrived at the scene at

2:29 p.m. Id. at 101. Detective Kienle found no pulse. Id. at 104.

Walter Hofman, M.D., an expert witness in forensic pathology, testified at

trial that Borowy died that afternoon by the roadside, having bled to death from

a gunshot wound that entered his back and struck his liver and a kidney. Id.

at 45-52. Dr. Hofman described it as "a life-threatening gunshot wound" to a

vital part of Borowy's body. Id. at 51. Dr. Hofman estimated that Borowy lived

for five to ten minutes after having sustained the gunshot wound, although

that time frame could have been slightly more than ten minutes or fewer than

five. Id. at 51-52, 64-65.

A. Teel's cross examination suggests his prior inconsistent statements
indicate consciousness of guilt, not an inability to remember or
testify accurately

By means of skillful cross-examination, Collier's lawyer led Teel to admit

that he had repeatedly lied to investigating police detectives about his

involvement in the robbery, kidnapping and murder of Borowy, and about the

number of other men involved and their identities. When the detectives

arrested Teel on May 9, 2013, they took three statements from him, and they

took yet another on May 17, 2013. Copier's lawyer was able to get Teel to

admit before the jury that in each of the first three statements his story

6
 included at least one material falsehood. In the first interview, he denied all

...
N
involvement in the crimes. Id. at 148; see also trial exhibit DM-1 (transcribed

, statements of Teel taken May 9, 2013). In the second statement, he admitted
.....
w lying about not being involved, id. at 152-531 and told the detectives that he
'
-
N
e carried out the crimes with Freeman and appellant, but no one else, id. at 153.

In the third statement of May 9th, Teel again admitted he had lied in the

previous interview, and for the first time told the detectives that a fourth man

had been involved. Id. at 153-55. He did not state that Miller was that man,

and to the contrary, he intentionally and falsely identified another person as

the fourth man. Id. at 155-56. That testimony was consistent with other

inconsistencies elicited by trial counsel for co-defendant Miller, who

established that Teel's prior statements to police were inconsistent with his

trial testimony in regard to how long he had known Miller prior to the robbery,

kidnapping and murder, id. at 142-43, and in regard to Miller's role in taking

Borowy from his home to Freeman's car, id. at 145-46. Teel also testified that

he did not carry a gun during the home invasion, id. at 160, which was

inconsistent with the testimony of Lewis Scott, who told the jury that Teel and

appellant both brandished handguns when they confronted him in the Borowy

home, id. at 72-74.

Although the inconsistencies in Teel's narrative were relevant to his

credibility generally, they did not directly exculpate appellant, as they

7
 pertained to the question whether Miller was involved. Teel consistently told
00
investigators and the jury that appellant participated in the robbery,
N
, kidnapping and murder. That fact supports the conclusion that Teel

accurately remembered the offenses and gave accurate testimony in court. In

particular, it supports the conclusion that Teel accurately recalled the facts

regarding appellant's participation. Moreover, the inconsistencies in Teel's

prior statements support the conclusion that he was competent to tesitify

because he realized that the facts, as he accurately recalled them, incriminated

him.

B. Copious evidence indicated appellant planned and participated in
the robbery, kidnapping and murder

The Commonwealth produced evidence that corroborated Teel's

testimony and further supported the guilty verdicts: ( 1) testimony of unbiased

witnesses who implicated appellant; (2) circumstantial evidence of appellant's

consciousness of guilt; and (3) cellular telephone evidence supporting an

inference that appellant was in communication with the co-conspirators who

were inside the Borowy home at the time of the robbery, and that appellant and

his co-conspirators were in the general areas of the robbery and the murder at

the approximate time each took place. Appellant produced evidence that

supported an inference that he was not at the scene of the murder at the time

it took place, but that evidence did not exclude the possibility that he was

present.
8
 1. Unbiased witnesses implicated appellant in the robbery

-
N
Three witnesses testified that appellant, Teel, Freeman and Miller

planned the robbery while at the King Street apartment, before leaving to carry
" out their plot. See N.T. 4-16-2014 at 236-42 (testimony of Arnaris Acevedo,

friend of sister of Reese's girlfriend}; id. at 268-69 {testimony of Shaqeata

Simmons, sister of Reese's girlfriend); id. at 190-94 (testimony of Reese).

Garrison Brown testified that on the night before the murder, appellant said he

was broke and asked him for money. N .T. 4-17-2014, pp. 23-24. Brown

refused his request. Id. at 24. Only hours after the murder, appellant took

Janae Nixon (his paramour, and the mother of his child) to dinner and paid

cash. Id. at 115-17. Although appellant did not use credit cards and always

paid cash, id. at 121-22, the jury was free to view his possession of the cash as

circumstantial evidence that he received a share of the money taken from

Borowy in return for his role in the robbery. Ms. Nixon also testified she owned

a gray Buick LeSabre, and that appellant was driving it on the day of the

murder. Id. at 114-15.

2. Circumstantial evidence indicated appellant's consciousness
of guilt

Evidence of flight or concealment may constitute circumstantial evidence

of consciousness of guilt. Commonwealth v. Housman, 986 A.2d 822, 831 (Pa.

2009). Ms. Nixon testified that on May 10, 2013, appellant was at her house in

Pottstown when detectives arrived to question appellant. N.T. 4-17-2014, pp.
9
105-110. The next day, appellant asked Garrison Brown, who owned an auto

repair shop in Philadelphia, to clean the inside of the Buick LeSabre, but not

the outside. Id. at 14-18. Although the jury heard Ms. Nixon testify that she

and appellant bought and sold cars to earn income, and that they bought the

LeSabre for that purpose} 'id. at 120, one could still infer that appellant had the

interior of the car cleaned in order to destroy evidence of the kidnapping and

murder, and the jury was free to make that inference.

Ms. Nixon testified that appellant owned two cellular telephones at the

time of the murder. Id. at 106. When detectives arrived to question appellant

on May 10th, the phones lay in the living room, but when the police asked her

to help locate them, she dialed their numbers and discovered them ringing in

the trash can in her kitchen. Id. at 113-14; see also N.T. 4-18-2014, pp. 22-23

(testimony of Montgomery County Detective Todd Richard). When interviewed

by Montgomery County Detective Mark Minzola on May l Oth, appellant told

him that his cell phone was "on the couch or the table or even upstairs in the

bathroom." N.T. 4-18-2014, p. 143.

Appellant also told Detective Minzola that he was with a friend named

Carley Kulp on the afternoon of May 5, 2013, id. at 142-43. Ms. Kulp appeared

as a trial witness and testified that she knew appellant, but as of May 5, 2013,

their relationship was limited to one thing: she bought narcotic pills from him.

Id. at 142. She asked him to deliver some to her that day, but he never

10
 arrived, N.T. 4-17-2014, pp. 134-36.
co
Appellant argued that he may have wanted to hide his telephones from
....
N
-, the police because they contained evidence that he was selling drugs, but one

w
-, must then ask why he would attempt to use Ms. Kulp as an alibi for his
N
ca whereabouts specifically on the afternoon of the robbery, kidnapping and
.....
.....,
murder, because their relationship was limited to the buying and selling of

drugs. One might instead infer that he put his cell phones in the trash and

lied to the police about their whereabouts for the same reason he lied to the

police about being with Ms. Kulp: to conceal his role in the robbery,

kidnapping and murder. The jury was free to make that inference.

Appellant also told Detective Minzola that he knew co-defendant Collier,

but not well. N.T. 4-18-2014, p. 147. Detective Minzola testified that a cell

phone belonging to appellant stored a "contact" consisting of co-defendant

Collier's nickname ("Dre"). N.T. 4-18-2014, pp. 106-07. Janae Nix.on testified

that she saw appellant and Collier "[hjanging out every now and then." N.T. 4-

17-2014, p. 107. The jury was able to infer from that evidence that appellant

tried to conceal his relationship with Collier because he knew that the truth

would implicate him in the robbery, kidnapping and murder.

3. Cellular telephone evidence inculpated appellant

Records kept by the wireless service providers showed that appellant

made and received numerous calls to and from co-defendants Collier and Miller

11
during and in the hours immediately following the robbery, kidnapping and

murder. N .T. 4-18-2014, pp. 117-24. The jury also heard the testimony of

Corporal Joseph Coffman, a police officer serving the Falls Township Police

Department of Bucks County. Corporal Coffman was qualified to give expert

testimony on the subject of cellular telephone networks and cellular telephone

technology. N.T. 4-17-2014, p. 236. Corporal Coffman testified that

appellant's cell phone was in close proximity to the Borowy home during the

time of the robbery and in close proximity to the place Kareem Borowy was

murdered around the time the murder occurred . .Id. at 259-60. He also gave

testimony, accompanied by a computer-generated, animated map, that

appellant's cell phone transmitted and received signals to cell-phone towers

near the scenes of the crimes during and after the robbery, kidnapping and

murder, and then transmitted and received signals from a series of towers

located ever-closer to Philadelphia. Id. at 248-56. Corporal Coffman's

testimony supplied circumstantial evidence that appellant participated in the

crimes and then fled to Philadelphia and temporarily concealed the gray

LeSabre there, which was consistent with Garrison Brown's testimony that

appellant dropped the gray LeSabre off at his automotive shop in Philadelphia

on the afternoon of Sunday, May 5, 2013, the day of the robbery, kidnapping

and murder. N.T. 4-17-2014, pp. 7-11.

12
 4. Defendant's evidence did not exclude the possibility that he
was present at the scenes of the crimes

-
N
-,
.....
At 2:26 on the afternoon of May 5, 2013, Linda Morgan called 911

to report a man-Kareem Borowy-lying on the roadside. By 2:29 Borowy was
w

'
N
m
dead, and the forensic medical testimony indicated he lived for five to ten

..... minutes, possibly longer or shorter, after having been shot. It is possible, but
.....,
not likely, that the shooting occurred as late as 2:26, assuming the shooter

drove off only a moment before Ms. Morgan passed by the scene and Borowy

lived for less than three minutes afterward. Assuming he died the instant after

Linda Morgan called 911, he could have been shot as early as 2: 16, and there

is a chance he may have been shot slightly earlier if he survived for more than

ten minutes after having been shot.

At 2:28, a security camera at a Wawa convenience store at 1520 High

Street in Pottstown recorded appellant driving the LeSabre into the parking lot.

Id. at 190-91. Appellant produced the testimony of a private investigator,

Richard L. Peffall, who testified that he drove from Sanatoga Station Road to

the apartment at 553 King Street on a Sunday afternoon, and determined that

the distance was approximately two miles, the route included eight traffic

lights, and the transit time was seven minutes. Id. at 62-63. On the same

afternoon he drove from the apartment to the convenience store and

determined that the distance was 0. 7 miles, the route included two traffic

lights, and the transit time was three minutes. Based on Detective Peffall's
13
 testimony, appellant could have driven from Sanatoga Station Road to the

-
(X)
apartment on King Street, and then to the convenience store, in as little as ten
N
"- minutes.
w III. Discussion
'
N
e A. The undersigned properly denied Appellant an evidentiary hearing

A judge must promptly review a petition for post-conviction collateral

relief, and if there are no genuine issues concerning any material fact, and if

the petitioner is not entitled to relief, then the judge may deny the petition

without a hearing after giving the petitioner notice and an opportunity to

respond. Pa.R.Crim.P. 907(1). "A PCRA hearing is not a matter of right, and

the PCRA court may decline to hold a hearing if there is no genuine issue

concerning any material fact and the defendant is not entitled to relief as a

matter of law." Commonwealth v. Morrison, 878 A.2d 102, 109 (Pa. Super. Ct.

2005).

The discussion below will show that appellant was not entitled to a

hearing on either of his two grounds for relief. In regard to the discovery claim,

the amended petition averred a fact that negated appellant's right to relief.

Therefore, petitioner was not entitled to a hearing on the discovery claim. In

regard to the ineffective assistance of counsel claim, the undersigned assumed>

for the sake of evaluating the claim, that the underlying claim is of arguable

merit and counsel had no reasonable strategic basis for his or her action or

14
inaction. Therefore the only material fact to be determined was whether

petitioner sustained prejudice as a consequence of his lawyer's alleged failure

to suppress Teel's testimony. The trial record was sufficient to support the

conclusion that he sustained no prejudice. Therefore, petitioner was not

entitled to a hearing on the ineffective assistance of counsel claim.

B. The undersigned properly denied petitioner's claim for relief based
on his allegation that the prosecutors violated bis right to pretrial
discovery of Rasheed Teel's history of brain injury from a gunshot
wound to his head, which wound allegedly rendered him
incompetent to testify at trial

In regard to the discovery claim, petitioner "must show that: (1) the

prosecution concealed evidence; {2) which was either exculpatory evidence or

impeachment evidence favorable to him; and (3) he was prejudiced by the

concealment." Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013). A

petitioner cannot prove the first element if the evidence in question was equally

available to him, for the prosecution cannot conceal that which is available to

the petitioner. "Brady evidence ... cannot have been equally available to the

defense .... " Id. (citing Commonwealth v. Spatz; 756 A.2d 1139, 1154 (Pa.

2000)).

In this case, there is no issue as to whether the prosecutors concealed

the evidence of Teel's gunshot wound to the head, or that evidence was equally

available to petitioner and Mr. Ennis. Petitioner has averred in his amended

PCRA petition that he told Mr. Ennis about Teel's injury prior to trial. See

15
 amended PCRA petition, i, l 7(a), (b). Therefore, it cannot be true that the

prosecutors concealed that fact from petitioner or his trial lawyer. It must be
N
'\. true that the evidence was equally available to both sides. Consequently,

petitioner cannot plead a prima fade Brady claim. See Simpson at 265

(concluding the petitioner failed to plead Brady claim pertaining to victim's

criminal history because, inter alia, the petitioner was aware of it).

C. The undersigned properly denied petitioner's claim for relief based
on his allegation that trial counsel rendered ineffective assistance
because he failed to establish that eyewitness Rasheed Teel was
incompetent to testify at trial

Claims of ineffective assistance of counsel ordinarily require a petitioner

to prove that: (1) the underlying claim is of arguable merit; (2) counsel had no

reasonable strategic basis for his or her action or inaction; and (3) the

ineffectiveness of counsel caused him prejudice, i.e., if not for counsel's

ineffectiveness, there is a reasonable probability that the outcome of the trial

would have been different. Commonwealth v. Millward, 830 A.2d 9911 994 (Pa.

Super. Ct. 2003). Counsel is presumed to have been effective, and defendants

bear the burden of proving otherwise. Id. If the underlying claim lacks

arguable merit, then appellant cannot prove the second and third elements,

hence the claim of ineffective assistance fails. "Counsel will not be deemed

ineffective for failing to raise a rneritless claim." Commonwealth v. Jones, 912

A.2d 268, 278 (Pa. 2006). Whatever might be the merits of the first two

elements, petitioner cannot prove the third, prejudice. Assuming, arguendo,
16
that Teel had never testified because he had been determined to be

incompetent before the trial began, the undersigned concludes that the other

evidence of record was both sufficient and persuasive enough that there is no

reasonable probability the outcome of the trial would have been different.
- .
Since the conclusion of the preliminary hearing, the undersigned has

presided over all of the proceedings in this case, including the trial and direct

appeal. As was noted in the trial court opinion on direct appeal, in response to

petitioner's claim that the verdict was against the weight of evidence, the

prosecutors produced evidence that established, independent of Teel's

testimony, facts that supported the guilty verdicts. Tr.Op. pp. 14�19. That

evidence included: ( 1) testimony of witnesses who saw appellant planning the

robbery on Sunday, May 5, 2013, or who supplied circumstantial evidence that

he obtained cash as a result of his participation in the robbery; (2)

circumstantial evidence of appellant's consciousness of guilt; and (3) cellular

telephone evidence supporting an inference that appellant was in

communication with the co-conspirators who were inside the Borowy home at

the time of the burglary on Sunday, May 5, 2013, and that appellant and his

co-conspirators were in the general areas of the burglary and the murder at the

approximate time each took place. Id. at 14-18.

Appellants planned to rob Kareem Borowy by burglarizing his home, but

during the course of committing those offenses they. also kidnapped him and

17
 shot him to death when he tried to flee. Three witnesses, Arnaris Acevedo,

Shaqeata Simmons and James Reese, testified that appellant and co-
.....
"1
'\, conspirators Teel, Freeman and Miller planned the burglary and carried out

w their plot. Garrison Brown testified that on the night before the murder,
-,
N
e appellant said he was broke and asked him for money, but Brown refused his
....
'1
request. Only hours after the murder, appellant took Janae Nixon (petitioner's

paramour, and the mother of his child) to dinner and paid cash. Although

appellant did not use credit cards and always paid cash, the jury was free to

view his possession of the cash as circumstantial evidence that he received a

share of money stolen from Borowy in return for his role in the robbery.

Evidence of flight or concealment may constitute circumstantial evidence

of consciousness of guilt. Commonwealth v. Housman, 986 A.2d 822, 831 (Pa.

2009). Ms. Nixon testified that on May 10, 2013) appellant was at her house in

Pottstown when detectives arrived to question appellant. Ms. Nixon testified

that appellant owned two cellular telephones at the time of the murder. When

the detectives arrived, Ms. Nixon had last seen the phones in the living room,

but when the police asked her to help locate them, they were no longer there;

so she dialed their numbers and discovered them ringing in the trash can in

her kitchen. When interviewed by Montgomery County Detective Mark Minzola

on May l Oth, appellant told him that his cell phone was on the couch, or the

table, or the bathroom. Appellant also told Detective Minzola that he knew co-

18
 defendant Collier, but not well. Detective Minzola testified that a cell phone
00
belonging to appellant stored a contact consisting of co-defendant Collier's
""""
N
-.. . ._ nickname ("Dre"). Janae Nixon testified that she saw appellant and Collier

"[hlanging out every now and then." The jury was able to infer from that

evidence that appellant tried to conceal his relationship with Collier because he
.....
knew that the truth would implicate him in the robbery, burglary, kidnapping

and murder.

Ms. Nixon also testified she owned a gray Buick LeSabre, and that

appellant was driving it on the day of the murder. On May 11, 2013, the day

after detectives arrived at her home to question petitioner about his possible

involvement in the murder, appellant asked Garrison Brown, who owned an

auto repair shop in Philadelphia, to clean the inside of the Buick LeSabre, but

not the outside. Although the jury heard Ms. Nixon testify that she and

appellant bought and sold cars to earn income, and that they bought the

LeSabre for that purpose, one could still infer that appellant had the interior of

the car cleaned in order to destroy evidence of the kidnapping and murder, and

the jury was free to make that inference.

Appellant told Detective Mark Minzola that he was with Carley Kulp on

the afternoon of the murder, May 5, 2013. Ms. Kulp appeared as a trial

witness and testified that she knew appellant. She asked him to meet her on

the day of the murder to complete a drug deal, but he never arrived.

19
 Records kept by the wireless service providers showed that appellant

made and received numerous calls to and from co-defendants Collier and Miller
�
N
, during and in the hours immediately following the burglary, kidnapping and

murder. The jury also heard the expert opinion testimony of Corporal Joseph

Coffman, on the subject of cellular telephone networks and cellular telephone

technology. Corporal Coffman testified that appellant's cell phone was in close

proximity to the Borowy home during the time of the burglary and in close

proximity to the place Kareem Borowy was murdered around the time of the

murder. He also gave testimony, augmented by a computer-generated,

animated map, that appellant's cell phone transmitted and received signals to

cell-phone towers near the scenes of the crimes during and after the robbery,

kidnapping and murder, and then transmitted and received signals from a

series of towers located ever-closer to Philadelphia. Corporal Coffman's

testimony supplied circumstantial evidence that appellant participated in the

crimes and then fled to Philadelphia and temporarily concealed the gray

LeSabre there, which corroborated Garrison Brown's testimony that appellant

dropped the gray LeSabre off at his automotive shop in Philadelphia on the

afternoon of Sunday, May 5, 2013, the day of the robbery, kidnapping and

murder.

Appellant produced evidence that supported an inference he was not at

the scene of the murder at the time it took place, but that evidence did not

20
 exclude the opposite possibility. The trial evidence suggested that Borowy may

have been shot on Sana toga Station Road as early as 2: 16 p.m. on Sunday,
N
"- May 5, 2012, possibly even a few minutes earlier. Appellant's evidence allowed

the possibility that he had been at Sanatoga Station Road as late as 2:18 p.m.,

m thus giving the jurors evidence to conclude that petitioner did not leave the

murder scene until after the fatal gunshot.

The jurors heard the testimony of Linda Morgan, the last person who saw

Borowy alive, while he was lying in the weeds by side of Sanatoga Station Road

crying for help. She reported the circumstance to the police immediately, at

approximately 2:26 p.m. Lower Pottsgrove Township Detective Daniel Kienle

testified that he was dispatched and arrived at the scene at 2:29 p.m.

Detective Kienle found no pulse. Walter Hofman, M.D., an expert witness in

forensic pathology, testified that Borowy died by the roadside, having bled to

death from a gunshot wound that entered his back and struck his liver and a

kidney. Dr. Hofman estimated that Borowy lived for five to ten minutes after

having sustained the gunshot wound, although that time frame could have

been slightly longer or shorter. It is possible Borowy died almost immediately

after Ms. Morgan saw him at 2:26, after bleeding for ten minutes, thus

establishing 2: 16 as approximately the earliest possible time of the shooting.

At 2:28 p.m., a security camera at a Wawa convenience store at 1520

High Street in Pottstown recorded appellant driving the LeSabre into the

21
parking lot. Appellant produced the testimony of a private investigator,

Richard L. Peffall, who testified that he drove from Sanatoga Station Road to

the apartment at 553 King Street on a Sunday afternoon, and determined that

the transit time was seven minutes. On the same afternoon he drove from the

apartment to the convenience store and determined that the transit time was

three minutes. Based on Detective Peffall's testimony, appellant could have

driven from Sanatoga Station Road to the apartment on King Street) and then

to the convenience store, in as little as ten minutes, meaning that he could

have been present at the scene of the murder as late as 2: 18.

In petitioner's trial, the undersigned became familiar with the reactions

of the jurors from the time of jury voir dire through the reception of evidence to

their return of the verdict. Based upon this personal knowledge as to this

specific trial and these specific jurors, and with the experience of having tried

numerous other murder trials as a judge and prosecutor, the undersigned

concludes that there is no reasonable probability that the outcome of the trial

would have been different if Teel had not testified.

22
 CONCLUSION

Upon consideration of the foregoing discussion, the undersigned

respectfully submits that the order denying appellant's counseled, amended

petition for post-conviction collateral relief should be affirmed.

BY THE COURT,

Wendy Dernchick-Alloy, Judge

Copy of above sent on I.:;/;5
Patrick J. McMenamin, Esquire;
fl to:
McMenamin & Margiotti; 2307 N. Broad
Street; P.O. Box 180; Lansdale, PA 19446; by first-class mail
Robert M. Falin, Deputy District Attorney, Appellate Division, by inter-office
mail

23