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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMAR ALSTON :
:
Appellant : No. 1368 WDA 2017
Appeal from the PCRA Order August 24, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010059-2012
BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, P.J.: FILED JULY 31, 2019
Lamar Alston (“Appellant”) appeals from the order dismissing his
counseled first petition for relief pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. After a bench trial, the court convicted
Appellant of murder of the first degree and numerous related crimes. In this
appeal, he challenges the denial of his request for a new trial based on his
claim of after discovered evidence, and a purported Brady violation.1 We
affirm.
We derive the facts of the original case from the PCRA court’s opinion,
and our independent review of the record. See PCRA Court Opinion, 8/3/18,
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1 Brady v. Maryland, 373 U.S. 83 (1963).
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at 4-13. While there are disagreements about certain specifics, the basic
underlying facts of the case are not in dispute. For purposes of this appeal,
there is no dispute that Appellant shot and killed Mileek Grissom during a
melee between Appellant’s posse and Jonathan Tillar’s posse. The only factual
disputes relevant to this appeal center on whether Grissom was armed and
fired first.
At trial, the Commonwealth presented evidence that Appellant was
involved in an ongoing dispute with Jonathan Tillar.2 Appellant and his
associates suspected Tillar of informing against them to the police. In
particular, Appellant blamed Tillar for a police raid on the home of his younger
half-brother, Darrell Mar, nicknamed “Rico.”
On June 24, 2012, in two separate encounters, Tillar confronted Rico
over the claim that Tillar was a police informant. The dispute escalated into a
fistfight. Tillar struck Rico on his face with his handgun, causing a deep gash.
Rico called Hope Barfield (who referred to Rico as her cousin) to tell her that
he had been hurt. Barfield and Appellant went to the scene of the second
fight.
By the time they got there, the fistfight had ended. There was testimony
that Barfield encouraged Appellant to shoot at Tillar, and Tillar’s friend,
____________________________________________
2 Tillar died in December, 2016, of a drug overdose. See N.T. Hearing,
8/21/17, at 28.
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Grissom. Appellant shot at Tillar and Grissom. Tillar managed to duck and
avoid being shot, but Grissom was fatally wounded. He was pronounced dead
at the hospital.
Alerted by witnesses, police converged at the crime scene within
minutes after the shooting began. They apprehended Appellant as he was
trying to leave on foot. Appellant aimed his handgun at the oncoming police,
but the gun jammed and did not fire.
Appellant was tried jointly in a bench trial with his friend, 3 Barfield.
Testimony of the number of shots fired ranged from five to nine. Ballistic
evidence established that the shell casings recovered at the crime scene all
related to Appellant’s handgun. According to Pittsburgh homicide Detective
Robert Provident, the three casings found by the police, including the one
which struck Grissom, all matched the firearm used by Appellant, a Kel-Tec
9mm. The police found no evidence of any other firearm.
The trial court convicted Appellant of first-degree murder, one count of
criminal attempt (on Tillar), one count of aggravated assault, one count of
flight to avoid apprehension, one count of person not to possess a firearm,
three counts of recklessly endangering another person and one count of
____________________________________________
3 The PCRA court found that Barfield “was, and may still be, [Appellant’s]
girlfriend.” PCRA Court Opinion, 8/3/18, at 16.
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tampering with or fabricating evidence.4 His co-defendant, Hope Barfield, was
acquitted of all charges.
On January 16, 2014, the court sentenced Appellant to life imprisonment
without parole for first-degree murder, and a concurrent sentence of not less
than ten nor more than twenty years of incarceration for attempted first-
degree murder, with no further penalty on the remaining convictions. See
N.T. Sentencing, 1/16/14, at 75. On direct appeal, this Court affirmed the
judgment of sentence. See Commonwealth v. Alston, No. 266 WDA 2014,
2014 WL 10558589, at *4 (Pa. Super., filed November 25, 2014) (unpublished
memorandum). Our Supreme Court denied allowance of appeal. See
Commonwealth v. Alston, 114 A.3d 1038 (Pa. 2015).
On August 2, 2016, Appellant filed a timely pro se petition for PCRA
relief. The court appointed counsel, who, after extensions, filed an amended
petition on March 6, 2017. In the amended petition, Appellant alleged that he
is entitled to a new trial based on the newly discovered testimony of Barfield,
Appellant’s friend, Nate Watts, and Franchesca (nicknamed “Frankie”) Reyes,
____________________________________________
4 The court found Appellant not guilty of the attempted homicide of Collier
Township police officer Franz Zygmuntowiz and Pittsburgh police officer David
Sisak, not guilty of aggravated assault against the two police officers, not
guilty of robbery, and not guilty of criminal conspiracy. See N.T. Trial,
10/21/13, at 569-70.
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then the girlfriend of Watts.5 Appellant also included a claim based on an
alleged Brady violation.
Appellant argues that the proposed newly discovered testimony would
establish that Grissom was also carrying a firearm, and Grissom shot first at
Appellant. Therefore, he maintains, based on this after discovered evidence,
the jury would have concluded that Appellant’s shooting of Grissom was in
self-defense, or at least “imperfect self-defense,” constituting third-degree
murder instead of murder of the first-degree.
The PCRA court held a hearing on August 21, 2017. After the hearing,
the PCRA court denied the petition by order of court dated August 24, 2017.
This timely appeal followed. Both Appellant and the PCRA Court complied with
Rule 1925. See Pa.R.A.P. 1925.
Appellant raises four questions on appeal.
I. Did the trial court err when it denied the request for a new
trial in Appellant’s [a]mended PCRA petition based on after–
discovered evidence by Hope Barfield?
II. Did the trial court err when it denied the request for a
new trial in Appellant’s [a]mended PCRA petition based on after-
discovered evidence by Franchesca Reyes?
III. Did the trial court err when it denied the request for a
new trial in Appellant’s [a]mended PCRA petition based on after-
discovered evidence by Darrell Mar?
____________________________________________
5It turned out that Watts was unwilling to cooperate and Appellant essentially
abandoned the argument based on his alleged evidence. Notably, none of the
proposed certifications is signed by the respective proponents.
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IV. Did the trial court err when it denied the request for a
new trial in Appellant’s [a]mended PCRA petition based on Brady
violations?
Appellant’s Brief, at 5.
Our standard and scope of review for the denial of PCRA relief are well-
settled.
To the extent review of the PCRA court’s determinations is
implicated, an appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations omitted).
“The PCRA court’s factual determinations are entitled to deference, but
its legal determinations are subject to our plenary review.” Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citations omitted). “A PCRA court
passes on witness credibility at PCRA hearings, and its credibility
determinations should be provided great deference by reviewing courts.” Id.
at 539 (citations omitted).
To be eligible for PCRA relief, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
(2) That the conviction or sentence resulted from one or more of
the following:
* * *
(vi) The unavailability at the time of trial of
exculpatory evidence that has subsequently become
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available and would have changed the outcome of the
trial if it had been introduced.
42 Pa.C.S.A. § 9543(a)(2)(vi) (emphasis added).
In order to succeed on such a claim, the petitioner must establish
that: (1) the evidence has been discovered after the trial and it
could not have been obtained at or prior to trial through
reasonable diligence; (2) such evidence is not cumulative; (3) it
is not being used solely to impeach credibility; and (4) such
evidence would likely compel a different verdict.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa. 1998) (citations
omitted).
In this appeal, Appellant first argues that Barfield’s PCRA hearing
testimony established that Grissom had a firearm, and he shot first at
Appellant. See Appellant’s brief, at 19-25. Appellant maintains that the
Commonwealth withheld Barfield’s statements to police during discovery.
Appellant notes, and the PCRA court found, that Barfield was unavailable
during his trial because she exercised her constitutional right not to testify.
However, Appellant fails to explain why, after Barfield was acquitted, it took
him almost four more years to discover her potential testimony and present it
in a PCRA petition.
Further, the PCRA court concluded that Barfield’s testimony was not
credible. See PCRA Court Opinion, 8/3/18, at 16. We give great deference to
the credibility findings of the PCRA court which are supported by the record.
See Johnson, 966 A.2d at 532. Here, the record confirms that Barfield lied
about having car trouble in an effort to avoid speaking to the police. See N.T.
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Trial, 10/18/13, at 446-47. She testified inconsistently about not seeing
anything. See id. at 451. She claimed police corruption in withholding the
statement she gave to them, but Appellant has failed to present any
independent evidence of police corruption or prosecutorial misconduct.
Moreover, the PCRA court determined that the evidence at trial
“overwhelmingly supports” Barfield’s original statement to the police that
Appellant was “the one firing the gun,” and that she did not see what was in
Grissom’s hand. PCRA Court Opinion 8/3/18, at 17. The record supports
these findings. See N.T. Trial, 10/18/13, at 451. Appellant’s first claim fails to
merit relief.
In his second claim, Appellant posits that the PCRA hearing testimony
of Reyes, much like that of Barfield, establishes that Grissom had a gun and
shot first. See Appellant’s Brief, at 26-29. However, Appellant’s argument
again fails to establish that the PCRA court erred in finding that he did not act
with reasonable diligence in discovering Reyes’s testimony.
The PCRA court found that Appellant was aware of Watts and that Reyes
was Watt’s girlfriend. The court also found that Appellant was aware that
Watts was present when Grissom was shot. “At minimum, [Appellant] knew
or should have known of Ms. Reyes[’s] existence as a potential witness at the
time of trial.” PCRA Court Opinion, 8/3/18, at 18. These findings are
supported by Reyes’s testimony that she drove Appellant’s half-brother,
Darrell Mar, to and from the scene of the shooting. See N.T., PCRA Hearing,
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8/21/17, at 42. Appellant provides no explanation why he did not follow up
earlier with Reyes, who testified that she was present at the shooting, and
who was the girlfriend of his friend, Watts.
[A] defendant who fails to question or investigate an obvious,
available source of information, cannot later claim evidence from
that source constitutes newly discovered evidence. The concept of
reasonable diligence is particularly relevant where the defendant
fails to investigate or question a potential witness with whom he
has a close, amicable relationship.
Commonwealth v. Padillas, 997 A.2d 356, 363-64 (Pa. Super. 2010).
(citations omitted).
Appellant also fails to establish how Reyes’s testimony would compel a
different outcome, where the ballistics evidence at trial established that there
was only one firearm at the crime scene. See N.T., Bench Trial, 10/16-21,
2013, at 377. Appellant’s second issue does not merit relief.
In his third issue, Appellant challenges the rejection of testimony by
Darrell Mar that also supported the “Grissom-shot−first” scenario. See
Appellant’s Brief, at 29-32. However, the PCRA court concluded that Mar’s
testimony failed to meet the due diligence test and was not believable. See
PCRA Court Opinion, 8/3/18, at 20.
At the PCRA hearing, Mar testified that, immediately before the
shooting, Appellant and Barfield walked up to him and asked him if he was
okay. N.T., PCRA Hearing, 8/21/17, at 53. Appellant was clearly aware that
his half-brother was a witness to the shooting, and he fails to explain why he
could not have presented Mar’s testimony earlier. We defer to the PCRA court
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on determinations of credibility. Furthermore, Appellant fails to establish how
Mar’s testimony would have compelled a different outcome, particularly in
view of the ballistics evidence that there was only one firearm on the scene.
Appellant’s third issue does not merit relief.
Finally, in his fourth issue, Appellant claims a Brady violation. He
asserts that the police withheld the statements of Barfield and Reyes to
detectives that Grissom pulled out a firearm and shot first. See Appellant’s
Brief, at 34. Appellant asserts he was prejudiced.
With respect to whether Brady applies to a particular factual scenario,
the standard of review is de novo, because it is a question of law.
Under Brady, the prosecution’s failure to divulge exculpatory
evidence is a violation of a defendant’s Fourteenth Amendment
due process rights. To establish a Brady violation, a defendant is
required to demonstrate that exculpatory or impeaching evidence,
favorable to the defense, was suppressed by the prosecution, to
the prejudice of the defendant.
The burden of proof is on the defendant to demonstrate that
the Commonwealth withheld or suppressed evidence. The United
States Supreme Court has held, [T]he prosecutor is not required
to deliver his entire file to defense counsel, but only to disclose
evidence favorable to the accused that, if suppressed, would
deprive the defendant of a fair trial. Similarly, [our Supreme]
Court has limited the prosecution’s disclosure duty such that it
does not provide a general right of discovery to defendants.
Moreover, [our Supreme Court has] held that the prosecution is
not obligated to reveal evidence relating to fruitless leads followed
by investigators.
To satisfy the prejudice inquiry, the evidence suppressed
must have been material to guilt or punishment. . . . Moreover,
[our Supreme Court has] held that the protection of Brady
extends to the defendant’s ability to investigate alternate defense
theories and to formulate trial strategy.
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As to Brady claims advanced under the PCRA, a defendant
must demonstrate that the alleged Brady violation “so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” See
Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242,
259 (1998). The . . . United States Supreme Court has held that
the mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome of
the trial, does not establish materiality in the constitutional sense.
Com. v. Cam Ly, 980 A.2d 61, 75–76 (Pa. 2009) (most citations, brackets,
footnote and internal quotation marks omitted).
Here, Barfield stated she told detectives at her initial interview that
Grissom pulled a firearm and shot first. See N.T., PCRA Hearing, 8/21/17, at
13. Reyes stated she approached detectives at the preliminary hearing and
told them that she had information regarding the shooting. See id., at 38.
She testified the police never followed up with her. See id.
The PCRA court found that the Commonwealth provided the defense
with the supplemental report generated as a result of Barfield’s interview with
the police through the pre-trial discovery process. Further, the PCRA court
found that Appellant had not established the existence of any report regarding
an interview with Reyes. Finally, the PCRA court found that Appellant failed to
meet his burden to prove that any additional reports exist. The court’s findings
are supported by the record. As a result, the PCRA court’s conclusion that
Appellant failed to establish a Brady violation is not in error. Appellant’s final
issue on appeal merits no relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2019
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