State v. Phillips

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

v ) Cr. ID. No. 1210013272

)

)

JEFFREY PHILLIPS, )
)

Defendant. )

Submitted: February 13, 2019
Decided: March 11, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION

THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED

Andrew Vella, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.

Julianne E. Murray, Esquire, Law Offlces of Mur“ray, Phillips & Gay, Wilmington,
Delaware, counsel to Jeffrey Phillips.

MAYER, Commissioner

This l lth day of March, 2019, upon consideration of Defendant’s Motion for
Postconviction Relief, it appears to the Court that:

BACKGROUND, FACTS AND PROCEDURAL HISTORYl

On January 27, 2008, Christopher Palmer Was shot and killed inside an after-
hours nightclub. Herman Curry (“Curry”) Witnessed the murder. On July 8, 2012,
Curry and AleXander Karmara Were shot and killed during a soccer tournament at
Eden Park in Wilmington, DE. Law enforcement believed that the nightclub
shooting and the Eden Park incident Were related. There Were multiple eyewitnesses
at the Eden Park event that identified both Otis Phillips and Jeffrey Phillips
(“Defendant”) as the shooters. ln addition, one of the State’s primary Witnesses,
Kelmar Allen (“Allen”), testified that Defendant Was a member of the Sure Shots
gang, had access to a handgun, and Was a Willing participant in the shootout at the
park.

Defendant Was indicted, along With Otis Phillips and fourteen other co-
defendants, on numerous charges including two counts of Murder in the First
Degree, Attempted Murder in the First Degree and gang participation relating to
criminal activities of the Sure Shots street gang. A joint capital trial Was conducted

in ()ctober of 2014 resulting in Defendant’s conviction of Murder in the First

l The facts set forth below are predominantly taken from the DelaWare Supreme
Court’S decision affirming the underlying conviction. See Phillips v. State, 154
A.3d 1146 (Del. 2017).

Degree, Manslaughter (as a lesser included offense), Gang Participation, Conspiracy
in the First Degree, Possession of a Firearm During the Commission of a Felony
(four counts), Assault in the Second Degree, Reckless Endangering in the First
Degree, and Disorderly Conduct. Defendant was acquitted of Assault Third Degree
and Conspiracy in the Second Degree. Defendant was eventually sentenced to life
imprisonment and an additional 72 years at Level 5 incarceration, followed by
decreasing levels of supervision

Defendant appealed and the Supreme Court affirmed the judgment of
conviction on February 7, 2017. Defendant next filed a pro se Motion for
Postconviction Relief on April 10, 2017, and counsel was appointed Appointed
counsel filed an Amended Motion for Postconviction Relief (the “Motion”) with an
Opening Brief and Appendix in support. The record was enlarged, an Affidavit of
Kevin J. O’Connell (“Trial Counsel”) in Response to Allegations of lneffective
Assistance of Counsel was submitted, the State filed a Response to the Motion, and
Defendant filed a Reply.2 In the Reply, Defendant presented a new claim for the
Court’s consideration The Court ordered Trial Counsel to submit an addendum to

his affidavit,3 and the State filed a supplemental response4 addressing that one new

2 D.I. #s 193, 194.
3 D.I. # 196.

4 D.I. #s 197, 198.

issue. The record is now complete. After reviewing the briefs and record, l do not
believe an evidentiary hearing is required to resolve this matter and the Motion
should be denied.
LEGAL CONCLUSION

Before considering the merits of the claims, the Court must first determine
whether there are any procedural bars to the Motion.5 Defendant’s Motion was filed
within one year of the Supreme Court’s mandate after appeal and is not barred as
untimely.6 However, other procedural bars may apply. Any ground for relief that
was not asserted in the proceedings leading to the judgment of conviction is barred,
unless the movant can show cause for relief from the procedural default and
prejudice from a violation of the movant’s rights.7 ln addition, any claims that were
formerly adjudicated, whether in the proceedings leading to the judgment of
conviction, in an appeal, in a postconviction proceeding, or in a federal habeas

corpus proceeding, are thereafter barred.8 lneffective assistance of counsel claims

Ul

Younger v. State, 580 A.Zd 552, 554 (Del. 1990).

6 Super. Ct. Crim. R. 61(i)(1).

\1

Super. Ct. Crim. R. 61(i)(3).

00

super. Ct. Crim. R. 6i(i)(4).

cannot be raised at any earlier stage in the proceedings and are properly presented
by way of a motion for postconviction relief.9

In order to prevail on an ineffective assistance of counsel claim, a defendant
must show that his counsel’s representation fell below an objective standard of
reasonableness and the deficiencies in counsel’s representation caused the defendant
actual prejudice.10 The court must be persuaded that the alleged errors were so
serious that his counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.ll Further, in order to prevail on an ineffective
assistance of counsel claim, a defendant must show that but for the errors, there is a
reasonable probability that the outcome of the proceedings would have been
different.12 The test is not whether the Defendant can demonstrate that the error had
some “conceivable effect” on the outcome but rather whether the error undermined

the reliability of the result of the proceeding13 Defendant must overcome a strong

9 Whmle v. Szare, 2016 wL 2585904, at *3 (Dei. Apr. 28, 2016); State v. Evan-
Mayes, 2016 wL 4502303, ar *2 (Dei. super. Aug. 25, 2016).

m Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State,
757 A.Zd 1278 (D€l. 2000).

ll State v. Fi'nn, 2012 WL 1980566, at *4 (Del. Super., May 23, 2012).

12 Szrickland, 466 U.s. at 687-88, 694; Hi¢chens v. sza¢e, 757`A.2d 1278 (Dei.
2000)

'3 Strickland, 466 U.S. at 693.

presumption that counsel’s conduct was reasonably professional under the
circumstances 14

Although Defendant couches his claims as ineffective assistance of counsel,
as set forth below, his claims have already been substantively addressed by the Trial
Court and the Supreme Court on appeal and should be barred as formerly
adjudicated.'5 However, for purposes of completeness, l will address the allegations
that Defendant’s counsel provided ineffective assistance
I. Defendant’s First Claim for Relief

Defendant first argues that his constitutional rights were violated by Trial
Counsel’s failure to substantively communicate with him prior to trial. Although
styled as an ineffective assistance of counsel claim, the argument is more accurately
an attack on the timing by which the State provided Trial Counsel with information
that was otherwise the subject of a protective order. Recognizing Trial Counsel
“pushed hard for relief from the protective order” Defendant goes on to argue that

the receipt of 1100 pages of transcribed witness statements, 10 days before trial,

'4 State v. Wright, 653 A.2d 288, 293-94 (citations omitted).

15 Defendant does not argue that the court lacked jurisdiction, the existence of new
evidence demonstrating he is actually innocent of the acts giving rise to the
conviction, nor does he argue that a new rule of constitutional law applies to render
his conviction invalid. As such, Defendant has not plead any of the exceptions to
the procedural bar. See Super. Ct. Crim. R. 61(i)(5) and (d)(2)(i), (ii).

6

made it impossible for Trial Counsel to effectively work through this information
with his client.

When Defendant argued on appeal that the Trial Court denied him the right to
effectively prepare for trial by granting the State’s protective orders, the Supreme
Court disagreed Rather, it recognized that “[p]rior to any witness testifying, Jeffrey
and his counsel possessed, and had the opportunity to discuss, every witness
statement.”16 The Supreme Court also held that the witness statements were
disclosed “well in advance of trial, [and] their identities were revealed in advance of
trial...”17 lt then concluded that the Trial Judge struck a proper balance between
witness safety and Defendant’s ability to prepare his defense.18 Despite both the
Trial Court and the Supreme Court having ruled on the matter, Defendant now
argues he is not “attempting to take a bite at the same apple by bringing up the
protective order again, Jeffrey argues that it is not the same apple.” l disagree.

Regardless of the attempt to re-couch the argument, Defendant is attacking
the existence of the protective order, the Trial Court’s denial of his request for relief

from the protective order, and the Supreme Court’s affirmation of that ruling. The

16 Phillips, 154 A.3d ar 1155.
‘7' Id. 611156.

18 Ia’.

fact that Defendant is now attempting to re-litigate the issue under the “guise of
ineffective assistance of counsel” does not justify avoidance of the bar against
reconsideration of matters that have been formerly adjudicated.19

Even if the Court were to now consider this as a claim of ineffective assistance
of counsel, the argument fails.20 Replete throughout the Motion is references to what
Trial Counsel did do (rather than failed to do) to gain relief from the constraints
imposed.21 Effective representation by trial counsel requires “adequate investigation
and pre-trial preparation.”22 Here, Trial Counsel first articulated his concerns to the
Court during a pre-trial office conference. When relief was denied, Trial Counsel
was faced with a daunting task, but his actions were objectively reasonable.

Defendant fails to identify anything Trial Counsel could, or should, have done

19 Sh€lfOl’l v. Stat€, 744 A.2d 465, 485 (Del. 2000).
20 See, Lacombe v. State, 2017 WL 2180545, at *3 (Del. May 17, 2017).

21 This case is easily distinguishable from Crom'c because Trial Counsel did not
“entirely fail[] to subject the prosecution’s case to meaningful adversarial testing.”
Florida v. Nz`xon, 543 U.S. 175, 190 citing Um`ted States v. Cronic, 466 U.S. 648
(1984); Mooa'y v. State, No. 570, 2017 (Del. Sept. 24, 2018) (distinguishing Cronz'c
when allegations are limited to counsel’s failure to file a motion).

22 Gattis v. State, 697 A.2d 1174, 1184 (Del. 1997), citing Rl`ley v. State, 545 A.2d
719, 727 (Del. 1990) (quoting Crisp v. Duckworth, 743 F.2d 580, 583 (7th Cir.
1984)).

differently, other than a vague reference that he could have requested more time.23
Trial Counsel admits he could have sought more time, but also recognizes the
justification for the protective order to ensure safety of the witnesses and fairness in
the process. Trial Counsel also attests that the request for more time would have
likely been denied. Great weight and deference are given to tactical decisions by the
trial attorney and counsel cannot be deemed ineffective for failing to pursue motions
that lack merit.24 Defendant has not met his burden of demonstrating error by Trial
Counsel.

In addition, neither Trial Counsel, nor Defendant explain how the outcome of
the trial would have been different if Trial Counsel had succeeded in obtaining
additional time. In order to prevail on a claim of ineffective assistance of counsel,
Defendant must establish actual prejudice by showing that had counsel not erred,
there was a reasonable probability that the outcome or the result of the proceeding

would have been different.25 A defendant must make and substantiate concrete

23 Of note, Trial Counsel obtained the transcribed statements in August of 2014.
See D.I. #s 50, 54, 58, 60. Although he was not permitted to share them with his
client until October, he had the statements for several months and was able to prepare
during that time. Trial Counsel then had approximately 11 days before trial began
to consult freely with his client regarding the statements See Phillips, 154 A.3d at
115 5.

24 State v. Miller, 2013 WL 871320, at ’1‘4 (Del. Super., Feb. 26, 2013).

25 Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996), quoting Flamer v. State,
585 A.2d 736, 753 (Del. 1990).

allegations of actual prejudice.26 Claims that are conclusory and unsubstantiated
will not be addressed by the court.27

Defendant’s claim of ineffective assistance of counsel fails because he cannot
demonstrate that lack of preparation by Trial Counsel “caused the jury to reach a
verdict it would not otherwise have reached.”28 Therefore, Defendant’s first claim
for relief is barred as formerly adjudicated, and to the extent it is phrased as a claim
of ineffective assistance of counsel, Defendant has failed to establish either prong of
the Strz'cklana’ standard to justify relief.
II. Defendant’s Second Claim for Relief

Next, Defendant argues Trial Counsel was ineffective in failing to file a
motion to sever based on (i) the likelihood that co-defendants would have
antagonistic defenses; and (ii) prejudice due to the unrelated co-defendants sharing
a last name.

A. The antagonistic defenses

Again, Defendant recognizes he had not one, but two, “bites at the apple”

26 Dawson, 673 A.2d at 1196, citing Wright v. State, 671 A.2d 1353, 1356 (Del.
1996)

27 State v. WindsOr, 2015 WL 1455602, at *5 (Del. Super. Mar. 25, 2015), quoting
State v. Owens, 2002 WL 234739, at *1 (Del. Super. Jan. 11, 2002)

28 Gattis v. State, 697 A.2d 1174, 1186 (Del. 1997).

10

because (1) Trial Counsel submitted a Motion to Sever Based on Prejudicial Joinder;
and (2) Trial Counsel moved for severance again after a witness testified because
the co-defendants now intended to engage in different cross-examination strategies.
Defendant argues that Trial Counsel was ineffective for acting “too late.”

Trial Counsel admits that he did not anticipate the antagonistic defenses that
came to light as the trial wore on. Here, the different defenses revolve around
Defendant’s desire to explore a witness’s (Allen) protection agreement, and his co-
defendant’s inclination not to. Trial Counsel learned of the existence of the
agreement on the second day of trial and was later given a copy of the agreement
and an opportunity to cross-examine the witness both outside the presence of the
jury and on the record.29 After Allen began his testimony, Trial Counsel twice
moved for a mistrial.30 Although the requests were denied, a curative and limiting
instruction were given to the jury. Immediately upon realizing the defendants held
differing trial strategies with respect to cross-examination, both defendants moved
for severance.31 In denying the severance request, the Trial Court held that:

neither of the Defendants’ positions present separate

defenses as to a State’s witness’s participation in witness
protection, or otherwise, that the jury could only

29 Phillips, 154 A.3d at 1152, 1153.
30 Id. at 1153.

31 Ia’.

11

reasonably accept the core of it if it rejects the core of the

defense offered by his co-defendant. Moreover, neither of

the Defendants testified or presented evidence that directly

implicated the other in their own defense.32
The Supreme Court agreed When the issue of severance was presented on appeal,
the Supreme Court held that Defendant failed to demonstrate sufficient unfair
prejudice to mandate separate trials and the Trial Court did not abuse its discretion
when it denied the request to sever the cases.33

Like the former argument, this claim is barred by Super. Ct. Crim. R. 61(1)(4)

as formerly adjudicated Assuming Defendant were able to evade this bar, he must
demonstrate that Trial Counsel’s actions were not objectively reasonable and that he
was prejudiced as a result. l find that Trial Counsel acted as swiftly as possible after
learning of the agreements, moved several times for a mistrial and severance, cross-
examined the witness, and obtained curative and limiting instructions lt is difficult
to identify what more, if anything, Trial Counsel could have done under the

circumstances presented.34 Therefore, Trial Counsel’s actions were objectively

reasonable.

32 Phillips, 154 A.3d at 1156-1157.

33 la' at 1157.

3‘1 The concurring opinion states that it is likely that defendants’ counsel knew before
trial - or at least by the time Allen said he was in witness protection - that the co-
defendants would present incompatible defenses. Trial Counsel’s Affidavit though
lacked this confirmation and as indicated above, once he did learn of the issue, Trial

12

Further, although each defendants’ counsel made some closing remarks
implicating the other party, the existence of antagonistic defenses is not prejudicial
per se, but rather, the trial court will consider the defenses as a factor when
determining if severance is appropriate.35 This was not a “close case” and there was
overwhelming evidence that included several witnesses that tied Defendant to the
homicides and gang activity.36 Although hostility emerged as the trial proceeded,
differing trial strategies does not justify severance, The Trial Judge’s instruction to
the jury that they should weigh the evidence and apply the evidence individually was
sufficient.37 In fact, the Supreme Court held that the comments made at closing were

the “incidental type of prejudice that is expected with joint defendants and not the

Counsel immediately moved for severance and a mistrial. When reviewing such a
claim, the Court must analyze counsel’s conduct based upon all of the facts of the
case and avoid peering through the lens of hindsight State v. Wrz`ght, 653 A.2d 288,
295 (Del. Super. 1994). “A defense attorney may not be faulted for a reasonable
miscalculation or lack of foresight or for failing to prepare for what appear to be
remote possibilities.” State v. Fz`nn, 2012 WL 1980566, at *4 (Del. Super., May 23,
2012) (holding defense counsel provided active and capable advocacy when
evidence against Defendant was overwhelming) (citing Harrz`ngton v. Richrer, 131
S.Ct. 770, 787-792 (2011)).

33 Nocks v. State, 1993 WL 66564, at *l (Del. Mar. 2, 1993), citing Zafiro v.
Um`ted States, 113 S. Ct. 933, 938 (1993).

36 Phillips 154 A.3d at 1154, 1161, 1163-1164.

37 See Phillips, 154 A.3d at 1157.

13

substantial injustice required to find severance, . .”38 And in light of the instructions
to the jury, Defendant “failed to demonstrate a ‘reasonable probability that
substantial prejudice may result from a joint trial.”39 As such, Defendant has again
failed to meet the dual prongs of Strickland.

B. Unrelated co-defendants With the same last name

Defendant’s related argument, citing the concurring opinion, is that Trial
Counsel erred in failing to move to sever because of the likelihood that the jury would
be “confused” by the unrelated co-defendants sharing the same last name, especially
where other members of the Sure Shots had that last name as well. Defendant argues
that in a gang case, having the same last name, links the parties to the crimes Trial
Counsel believes Defendant could have been prejudiced if the jury believed they were
related Although Trial Counsel appears to concede this issue, Defendant must still
establish that an actual error or omission occurred and resulting prejudice.40

All parties concede that the jury was informed twice that the co-defendants
were unrelated The State also explained that the Philips brothers came from Guyana

and Defendant was from Jamaica. Defendant does not argue that the State suggested

38 Id.

39 Id.

40 State v. Hamil¢on, 1997 wL 1048191, at *4 (Dei. super. Dec. 18, 1997), citing
Wrzgh¢ v. Sm¢e, 513 A.2d 1310, 1315 (Dei. 1986).

14

that Defendant was involved in crimes committed separately by his co-defendant.
Nor was there anything identified in the record where the State implied that they
were related The jury was instructed to weigh the evidence and apply the law
individually to render separate verdicts as to each defendant Defendant’s
hypothetical arguments do not overwhelm the strong presumption that the jury
followed the court’s instructions.41 When a jury is told to consider the evidence
admitted against each defendant separately, and that it should not allow evidence
against one defendant to be used in determining the guilt of the other defendant, the
instructions are sufficient to eliminate the “potential ‘spillover’ effect from the joint
trial.”42 And “[j]uries are presumed to follow the trial judge’s instructions.””43 In
this case, both the majority and the concurring opinion cite the jury’s verdict as
demonstrating that they adhered to the court’s instructions and as supporting the
fairness of the trial, because the jury was able to distinguish between the evidence
presented for the various charges and apply the law correctly.44 In fact, Defendant

was acquitted of certain charges, and on the question of whether the aggravating

41 Revel v. State, 956 A.2d 23, 27 (Del. 2008).
42 Skl'nner v. State, 575 A.2d at 1120.
43 Phillips 154 A.3d at 1154, quoting Revel.

44 See Phillips 154 A.3d at 1159, 1164.

15

circumstances outweighed the mitigating circumstances the jury found two in the
affirmative and 10 in the negative for Defendant. In contrast, the jury unanimously
found that the aggravating factors outweighed the mitigating factors for Otis Phillips.
After reviewing the record before the Court, Defendant has not established
that but for Trial Counsel’s alleged error, the result of the proceedings would have
been different Although Defendant has cited possibilities, he has not prevailed in
sufficiently undermining confidence in the outcome of the proceedings.45

III. Defendant’S Third Claim for Relief

Finally, Defendant argues that Carl Rone tainted Defendant’s case because
the trial was dependent upon his expert testimony but he was later charged with

certain criminal offenses.46
In May 2018, Carl Rone, the State’s ballistic expert, was arrested and charged

with providing false time sheets for work that was not performed during 2016 and

45 See Lacombe v. State, 2017 WL 2180545, at *3 (Del. May 17, 2017) (internal
citations omitted).

46 Although not directly cited, presumably Defendant is requesting consideration
of this issue either as an additional claim of ineffective assistance of counsel and/or
pursuant to Rule 61(i)(3)(A)&(B). The “new evidence” exception does not apply
because Defendant has not demonstrated that Rone’s prosecution creates a strong
inference that Defendant is actually innocent in fact of the underlying charges for
which he was convicted

16

2017.47 The Motion argues these are new material facts that bear on the integrity
and reliability of the conviction and should be examined to determine whether a new
trial is warranted Defendant urges the Court to explore Rone’s conduct to determine
whether, had the jury known of Rone’s conduct, it would have assessed his
testimony differently affecting the verdict.

The difficulty with Defendant’s argument is that his trial took place in 2014
and Rone’s alleged misconduct was suspected to have occurred in 2016 and 2017.
Therefore, at the time of Defendant’s trial, there was no evidence of wrongdoing by
Rone from 2012-2014 (nor is there now) that would have lead Trial Counsel to take
a different approach with cross-examination.48 As such, Defendant’s argument is
more akin to saying, now that this new evidence has surfaced, Defendant should be
given a new trial to investigate whether Rone committed any bad acts dating back to
2012 that would give Defendant a basis to discredit his testimony. But the purpose
of a motion for postconviction relief is not to conduct a fishing expedition into the

possible conduct of a witness This Court cannot use Defendant’s Motion to put

47 Rone pled guilty to Theft by False Pretense and Falsifying Business Records in
2018. State’s Reply at p. 2.

48 See also, State v. Pz`erce, 2018 WL 4771787, at *4 (Del. Super. Oct. 1, 2018)
(finding significant differences between the issues involving Rone’s payroll records
and allegations of false evidence and expert testing).

17

Rone on trial in this case simply to allow Defendant to explore activities the State of
Delaware is already investigating
Defendant concedes that with the information available at the time of trial,
“Rone’s credibility was vigorously challenged, based on the dubious scientific
validity of his methodology and his lack of current credentials.” Delaware has
consistently cautioned that the courts should not second-guess counsel’s conduct
through the distorting effects of hindsight.49 To the extent Defendant believes Trial
Counsel should have done something differently, he is incorrect. Viewing the case
from Trial Counsel’s perspective at the time, he could not have predicted the issues
with Rone’s later prosecution and his conduct at the time fell within the wide range
of reasonable professional assistance
Defendant also relies heavily on Fowler v. State, 194 A.3d 16 (Del. 2018), to
convince the Court to award a new trial. In Fowler, the State failed to provide the
defense with the prior recorded statements of four (4) key witnesses In its initial
argument, the State believed Rone’s ballistics evidence overcame any prejudice
resulting from this failure. Later, when the investigation into Rone came to light,

the State changed its position and argued the testimony of the four witnesses, tainted

49 See State v. Hamilton, 1997 WL 1048191, at *4 (Del. Super. Dec. 18, 1997),
citing Strz`ckland, 466 U.S. at 689.

18

by the Jencks30 violation, was sufficient for a conviction The statements called into
question one of the State’s key pieces of evidence, i.e. the eyewitness testimony that
Fowler was the shooter. The second key piece was the ballistics evidence that linked
the same weapon to the two shootings that made evidence of Fowler’s guilt in each
incident “mutually reinforcing.”31 ln other words, by accepting Rone’s testimony,
the jury had a basis, other than eyewitness testimony, to conclude that Fowler was
the shooter. On appeal, the Supreme Court held that both the Jencks violations and
Rone’s credibility must be considered in relation to each other and ultimately
decided that the relationship of the compromised ballistics evidence to the
eyewitness testimony affected by the Jencks violations was too much to disregard
the issues as harmless52 ln Fowler, the statements were considered material to the
defense and the Supreme Court granted the request for a new trial because both of
the State’s strands of evidence were materially compromised and one could not
overcome the weaknesses of the other.

Defendant’s case does not suffer from the same misstep as Fowler’s. Here,

Defendant has not demonstrated that any error occurred in addition to the possible

50 See Jencks v. Um`tea’ States, 353 U.S. 657 (1957), Hooks v. State, 416 A.2d 189,
200 (Del. 1980), Super. Ct. Crim. R. 26.2.

31 Fowler, 194 A.3d at 22.

32 Ia’. at 23.

19

attack on the credibility of Rone. To accept Defendant’s view of Fowler would be
to say that every case in which Rone testified now requires a new trial. Fowler does
not take the matter to that extreme. Rather, State v. Romeo, 2019 WL 918578 (Del.
Super. Feb. 21, 2019) provides guidance here. In Romeo, this Court held that
Romeo’s conviction did not turn on Rone’s testimony, the shooting was witnessed
by several people who provided statements and testified at trial, and the jury had
sufficient uncontroverted evidence to support the conviction33 Similarly, Defendant
faced multiple eyewitnesses who testified at trial. At least two witnesses identified
Defendant as one of the shooters and involved in the melee, and Defendant was soon
apprehended nearby and taken into custody. Rone’s ballistics evidence was not used
to establish identity of the shooters, rather the eyewitnesses provided that critical
evidence, and Defendant has not presented any credibility issues of these witnesses
The Supreme Court commented no less than six (6) times that this was not a “close
case” and the evidence against Defendant was “overwhelming.”34 Defendant having
not sufficiently established a basis to discredit the remaining evidence presented at

trial, he has likewise not met his burden to justify the requested relief.

33 Ia’. at 29.

34 Phillips, 154 A.3dat1154,1161,1163,1164,1166.
20

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be DENIED.
IT IS SO RECOMMENDED.

//Z?\@

CUme§iEn’Miarine L. Mayer

oc: Prothonotary
Andrew Vella, Esquire
Julianne E. Murray, Esquire

21