J-S38041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIF COPELAND, :
:
Appellant : No. 2892 EDA 2018
Appeal from the PCRA Order Entered September 21, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002593-2010
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED OCTOBER 24, 2019
Appellant, Sharif Copeland, appeals from the order of the Honorable
Glenn B. Bronson, entered September 21, 2018, dismissing his first petition
filed under the Post Conviction Relief Act (PCRA),1 after a hearing. We affirm.
On July 18, 2011, a jury convicted Appellant of murder of the third
degree, carrying a firearm without a license, and possessing an instrument of
crime (PIC).2 On September 30, 2011, the trial court imposed a sentence of
20 to 40 years’ of incarceration for third degree murder, with concurrent terms
of 2 to 4 years’ incarceration for carrying a firearm without a license, and 1 to
2 years’ incarceration for PIC.
____________________________________________
1 42 Pa.C.S. §§ 9541–9546.
2 18 P.A.C.S. §§ 2502(c), 6106(a)(1), and 907(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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At trial, the Commonwealth presented the testimony of Sean Griffith
(Griffith), the victim’s cousin and an eyewitness to the murder. Griffith gave
a statement to Detectives that he saw Appellant shoot the victim. Griffith
knew Appellant from school, as they both attended South Philly High School.
N.T. 7/12/11 at 239. However, at trial, Griffith recanted his statement and
testified that he didn’t remember where he was on the night of the shooting,
he did not know who shot and killed his cousin, and that Appellant did not
shoot his cousin. Id. at 243, 291, 292. Griffith testified that the Detectives
told him if he didn’t tell them something then he was going to be there for a
long time, so he just told them what they wanted to hear. Id. at 306. Griffith
testified that he didn’t remember Detectives Glenn and Pitts. Id. at 257. The
Commonwealth introduced Griffith’s statement, as substantive evidence. His
statement, in pertinent part, is as follows:
We [Sean Griffith and the victim Rashawn Woodson] stood on the
corner of Norwood and McKean Street for about ten minutes, and
Sharif walked up with his hood on and bumped into Rashawn. He
threw his shoulder into Rashawn. Then Rashawn turned around
and laughed at Sharif, then Sharif pulled out a gun from his
waistband. Then Rashawn said “oh shit” and started running
toward the middle of Norwood Street, and Sharif chased him and
shot two times. Then I saw Rashawn fall on the sidewalk in front
of 2012, and he was coughing up blood, and there was blood
coming from his nose. I saw Sharif running towards 21st Street,
and I called the cops on my cell phone. And then they came and
picked up Rashawn and took him to the hospital.
N.T. 7/13/11 at 119-120. The Commonwealth also presented the testimony
of Bijah Freeman. Ms. Freeman testified she was on her way to 2000 Norwood
Street (the corner of Norwood & McKean Streets) to visit her boyfriend. Id.
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at 70. She testified that Appellant began talking to her and walking with her
and they were walking together until 22nd and McKean Streets where she
continued walking on McKean Street to Norwood Street and Appellant
continued walking on 22nd Street. Id. at 72. Ms. Freeman testified that she
knew Appellant from the neighborhood. Id. at 73. Ms. Freeman testified that
she knocked on her boyfriend’s door, and immediately heard gunshots from a
couple houses down Norwood Street. Id. at 78. Ms. Freeman testified she
saw Appellant running toward a gold car. Id. at 80, 81.
The Commonwealth also presented Tiera Hinson, who had two children
with the victim, and gave a statement to Detectives implicating Appellant. At
trial, Ms. Hinson also recanted her statement; she testified she didn’t
remember anything. The Commonwealth introduced her statement to
Detectives as substantive evidence. In her statement, Ms. Hinson relayed
that she was present on Norwood Street and was talking to the victim
immediately before the shooting. Id. at 215. Ms. Hinson stated she knew
Appellant from school. Id. Ms. Hinson stated she saw Appellant running away
from the scene of the shooting immediately after hearing gunshots, he had
his one hand down by his side as he was running. Id.
The defense presented two character witnesses, Chandelle Jackson,
Appellant’s sister, and Yolanda Matthews, Appellant’s mother. Both testified
that Appellant had a good reputation in his community. Id. at 255, 257.
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Appellant filed a timely direct appeal and this Court affirmed his
judgment of sentence on November 20, 2012. Appellant filed a petition for
allowance of appeal with the Pennsylvania Supreme Court, which was denied
on May 15, 2013.
On December 17, 2013, Appellant filed his first, pro se, PCRA petition.
On May 20, 2014, Barnaby Wittels, Esq. was appointed to represent Appellant.
On October 17, 2017, October 31, 2017, and May 24, 2018, Attorney Wittels
filed amended PCRA petitions. In his PCRA petition, Appellant raised the
following issues, claiming trial counsel was ineffective:
(a) Trial counsel failed to investigate the case and failed to
consult with his client with regard to witnesses. As a result, an
alibi defense, which was available, was not presented. Had trial
counsel done his job he would have called Jamal Graves, a barber,
who would have testified that Petitioner was in his barber shop,
getting a haircut, at the time of the murder. Mr. Graves’ affidavit
is attached hereto as Exhibit A. He also would have called Sean
Griffin [sic]who was on the scene at the time and would have
testified that he tried to tell the detectives who interviewed him
that Petitioner was not the one who shot the victim and that he
was not even present. He would further have testified and will
testify at an evidentiary hearing that he was coerced into
identifying Petitioner and that he identified Petitioner only after
being repeatedly threatened with being charged with the murder
itself.
(b) Trial counsel failed to challenge the coerced testimony of the
juvenile witness, Bijah Freeman.3
____________________________________________
3 We note that Appellant abandoned his issue pertaining to Bijah Freeman at
the evidentiary hearing.
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Appellant’s Second Amended PCRA Petition, 5/24/18, at 3 (unpaginated)
(emphasis added). On September 21, 2018, the PCRA court held an
evidentiary hearing on the issue of trial counsel’s failure to call an alibi witness
at trial. The PCRA court dismissed Appellant’s claim regarding Sean Griffith
without an evidentiary hearing. Following that hearing, on September 21,
2018, the PCRA court dismissed Appellant’s PCRA petition. Upon an oral
request from Attorney Wittles to withdraw from representing Appellant, the
PCRA court permitted Attorney Wittles to withdraw and appointed James
Berardinelli, Esq. to represent Appellant for this appeal.
On September 28, 2018, Appellant filed this timely appeal.4 Appellant
presents the following issue(s) for our review:
I. Did the lower court err in denying defendant’s claims in his
amended PCRA Petition relating to Sean Griffin [sic]without
an evidentiary hearing where the coercion described by
Griffin [sic] had not been testified to at trial and the
Commonwealth conceded that an active investigation
regarding the illicit behavior of Detective James Pitts had
come to light since defendant’s trial?
II. Did the lower court err in denying defendant’s claims in his
amended PCRA petition relating to the alibi testimony of
Jamal Graves where Graves testimony was not available to
the defense at time of trial and the testimony may clearly
have affected the outcome?
____________________________________________
4PCRA court entered an order pursuant to Pa.R.A.P. 1925(b) and counsel filed
a timely Pa.R.A.P. 1925(b) statement of matters complained of on appeal. On
December 20, 2018, the PCRA court filed its Pa.R.A.P. 1925(a) opinion.
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Appellant’s Brief at 3 (answers omitted). “Our standard of review of a PCRA
court’s dismissal of a PCRA petition is limited to examining whether the PCRA
court’s determination is supported by the record evidence and free of legal
error.” Commonwealth v. Root, 179 A.3d 511, 515-16 (Pa. Super. 2018)
(internal quotation marks omitted). “It is an appellant’s burden to persuade
us that the PCRA court erred and that relief is due.” Commonwealth v.
Miner, 44 A.3d 684, 688 (Pa. Super. 2012).
Appellant’s claims on appeal concern after-discovered evidence and
ineffective assistance of counsel. To prevail on an after-discovered evidence
claim Appellant must demonstrate the new evidence:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).
All four of these requirements must be proved; if the defendant fails to
establish any one of these, the after-discovered evidence claim fails. Id.
When reviewing a claim that a PCRA court erred by denying an appellant
PCRA relief based upon ineffective assistance of counsel, we consider the
following legal precepts:
We review the denial of PCRA relief to decide whether the PCRA
court’s factual determinations are supported by the record and are
free of legal error. . . .
Counsel is presumed to be effective.
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To overcome this presumption, a PCRA petitioner must plead and
prove that: (1) the underlying legal claim is of arguable merit;
(2) counsel’s action or inaction lacked any objectively reasonable
basis designed to effectuate his client’s interest; and
(3) prejudice, to the effect that there was a reasonable probability
of a different outcome if not for counsel’s error.
A failure to satisfy any of the three prongs of this test requires
rejection of a claim of ineffective assistance.
Commonwealth v. Medina, 209 A.3d 992, 996, 1000 (Pa. Super. 2019)
(internal brackets, citations, and quotation marks omitted) (some additional
formatting), reargument denied (July 17, 2019). We consider the record “in
the light most favorable to the prevailing party at the PCRA level.”
Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (quoting
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc)).
In the context of a post-conviction challenge to counsel's
stewardship, prejudice is established where the truth-determining
process was so undermined that no reliable adjudication of guilt
or innocence could have taken place, i.e., there is a reasonable
probability that, but for counsel's error, the outcome of the trial
would have been different. This does not mean a different
outcome would have been more likely than not; a reasonable
probability is a probability sufficient to undermine confidence in
the outcome of the proceeding. Still, a speculative or attenuated
possibility of a different outcome is insufficient to undermine
confidence in the outcome.
Commonwealth v. Jones, 210 A.3d 1014, 1018–19 (Pa. 2019) (internal
citations and quotation marks omitted). See Harrington v. Richter, 562
U.S. 86, 112 (“The likelihood of a different result must be substantial, not just
conceivable.” (citation omitted)).
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Appellant argues that counsel was ineffective for failing to elicit
testimony from Sean Griffith that Detective Pitts coerced him into giving his
statement by threatening to charge him with the murder. Appellant’s brief at
9. Appellant claims that this omission was particularly egregious because the
PCRA court conceded that one of the detectives who questioned Griffith,
Detective Pitts, had been found to have engaged in a pattern of coercive
behavior. Id. Appellant states that claims of after-discovered evidence may
be considered in regard to claims of ineffective assistance of counsel relating
to the adequacy of trial counsel’s preparation. Id. at 8.
The PCRA court determined that any claim relating to Detective Pitts
was not presented in Appellant’s PCRA petition, nor was permission to amend
his PCRA petition requested, therefore, the claim was waived. TCO at 6. “It
is it is well-settled that claims raised outside of a court-authorized PCRA
petition are subject to waiver regardless of whether the Commonwealth raises
a timely and specific objection to them at the time they are raised.”
Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (internal citation
omitted). As Appellant failed to include in his PCRA petition a claim of after-
discovered evidence or ineffective assistance of counsel with regard to
Detective Pitts, we agree with the PCRA court and find the claim waived.
Furthermore, even if Appellant had preserved a claim of after-
discovered evidence in regard to Sean Griffith’s affidavit, it would have no
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merit. Appellant attached an affidavit to his PCRA petition from Sean Griffith
stating, in relevant part:
[O]ne of the detective’s [sic] threaten [sic] me by saying “if you
don’t tell me who shot Woodson you will be charged with his
death.” [The detectives told me] “either you shot Woodson or
your friend Copland did, either way we got you.” After an hour or
more with repeated threats of me being charged with Murder I
gave in and just started agreeing with what ever [sic] the
Detective’s [sic] were saying, just so I would not be charged with
Murder.
Affidavit Sean Griffith, ¶ 12-14. The affidavit does not mention Detective Pitts.
At trial Griffith testified that “I did tell them [the detectives] what they wanted
to hear so they can let me go home,” and “[h]e told me if I don’t tell them
something, then I was going to be there for a long time, and I wasn’t trying
to be there, so I just told them.” N.T. 7/12/11, 305-306. Additionally, on
recross-examination by Appellant’s trial counsel, Griffith testified that the
detectives told him what they thought happened and based on that, he started
telling them the story. N.T. 7/12/11, 308. We agree with the PCRA court,
even if the jury heard Griffith testify that Detective Pitts threatened to charge
him with the murder, the outcome of the trial would not likely be different as
Griffith had already testified at Appellant’s trial that he was coerced into giving
the statement. Therefore, Appellant’s after-discovered evidence claim would
fail with regard to Sean Griffith’s affidavit. See Small, 189 A.3d at 972.
With respect to Appellant’s argument that trial counsel was ineffective
for failing to elicit testimony from Sean Griffith that Detective Pitts coerced
him into giving his statement implicating Appellant, we likewise find that the
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claim would fail, as Appellant cannot prove prejudice. The jury heard Griffith’s
trial testimony recanting his statement. The degree of detail Griffith gave to
the jury for his purported lies in the original statement is irrelevant. The jury
chose to credit his original statement, which they are freely permitted to do.
A prior inconsistent statement is admissible as substantive evidence even
when the witness repudiates the prior statement during his testimony at trial.
See Commonwealth v. Brown, 52 A.3d 1139, 1169-71 (Pa. 2012). As long
as the Commonwealth proves that the statement was signed by the witness
and adopted at some time prior to trial, it is covered by a hearsay exception.
Id.; See also Commonwealth v. Brown, 134 A.3d 1097, 1104 (Pa. Super.
2016) (although witnesses recanted at trial, the jury was free to credit the
witnesses’ prior inconsistent statements over their recantations.). Given that
the jury already heard Griffith’s testimony that his statement was false
because he was coerced by the Detectives, additional testimony that his
statement was false because he was coerced by Detective Pitts by threatening
to charge him with the murder would not lead to a “reasonable probability
that, but for counsel’s error, the outcome of the trial would have been
different.” See Jones, 210 A.3d at 1018-19. Accordingly, Appellant cannot
show prejudice and his ineffective assistance of counsel claim fails. Id.; See
Medina, 209 A.3d at 996, 1000 (A failure to satisfy any of the three prongs
of [the ineffective assistance of counsel] test requires rejection of a claim of
ineffective assistance.).
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Lastly, even if Appellant had preserved the claim that he is entitled to a
new trial because trial counsel was ineffective for failing to uncover evidence
concerning Detective Pitts’ misconduct, this claim would fail because Appellant
cannot show he was prejudiced. Any pattern of coercion that Detective Pitts
engaged in at the time of the murder in 2009 and Appellant’s trial in 2011 is
purely speculative. See Brown, 134 A.3d at 1108 (in unsuccessful after-
discovered evidence claim under the PCRA, appellant attempted to use a
November 6, 2013 Philadelphia Daily News article that discussed three
criminal cases where defendants claimed that Detective Pitts employed
aggressive interrogation tactics to coerce them into giving false statements).
Appellant cannot show that the likelihood of a different result at a new trial
would be substantial based on counsel discovering a completely speculative
pattern of coercion. See Richter, 562 U.S. at 112 (“The likelihood of a
different result must be substantial, not just conceivable.” (citation omitted)).
We find that the PCRA committed no error in denying Appellant’s claim
without an evidentiary hearing.
There is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that
no genuine issues of material fact exist, then a hearing is not
necessary. To obtain reversal of a PCRA court's decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (internal
quotations omitted). An evidentiary hearing “is not meant to function as a
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fishing expedition for any possible evidence that may support some
speculative claim of ineffectiveness.” Commonwealth v. Roney, 79 A.3d
595, 605 (Pa. 2013) (citation omitted). There were no genuine issues of fact
with respect to Appellant’s claim of after-discovered evidence or ineffective
assistance of counsel with regard to Detective Pitts because a claim was not
preserved. Furthermore, the trial record established that the coercion issue
was fully presented to the jury. The PCRA court did not err in denying this
claim without an evidentiary hearing. See Maddrey, 205 A.3d at 328.
In Appellant’s next issue presented to this Court, he argues that the
PCRA court erred in dismissing his claim that trial counsel was ineffective for
failing to call Jamal Graves as an alibi witness.
In establishing whether defense counsel was ineffective for failing
to call witnesses, appellant must prove (1) the witness existed;
(2) the witness was available to testify for the defense; (3)
counsel knew of, or should have known of, the existence of the
witness; (4) the witness was willing to testify for the defense; and
(5) the absence of the testimony of the witness was so prejudicial
as to have denied the defendant a fair trial.
Commonwealth v. Treiber, 121 A.3d 435, 463-64 (Pa. 2015) (citations
omitted) (some formatting). However, the failure to call a witness “is not per
se ineffective assistance of counsel, for such decision implicates matters of
trial strategy. It is [the petitioner’s] burden to demonstrate that trial counsel
had no reasonable basis for declining to call [a particular person] as a
witness.” Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa. Super.
2008) (internal quotations omitted).
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The PCRA court held an evidentiary hearing and trial counsel, Mr. Robert
Gamburg, Esq., (Attorney Gamburg) testified. Attorney Gamburg testified
that he did not recall Appellant providing him with any witnesses to call or
investigate. N.T. 9/21/18 at 17, 19. Attorney Gamburg testified that if
Appellant provided him with the name of an alibi witness, his common practice
would be to send his investigator to go talk to them. Id. at 17, 19, 20. Upon
reviewing the affidavit of Jamal Graves, Attorney Gamburg testified that if he
received the information contained in the affidavit, he would have sent his
investigator to speak to Graves. Id. at 22. Appellant also testified at the
evidentiary hearing. Appellant testified that told Attorney Gamburg that he
had an alibi witness, and that he was at the barbershop at the time of the
murder. Id. at 71. The purported alibi witness, Jamal Graves, also testified.
Mr. Graves testified that he is a barber and Appellant was in his barbershop
on the date of the murder, October 1, 2009, from 5:30 p.m. until between
7:30 or 8:00 p.m. Id. at 33, 38, 49. Mr. Graves testified that his barbershop
is approximately a ten minute walk from the location of the murder. Id. at
68. Mr. Graves testified that he told Appellant’s family that Appellant was in
his barbershop at the time of the murder, but nobody ever came to talk to
him about it. Id. at 34-36. Mr. Graves testified that he found out that
Appellant was charged with the murder the next day, October 2, 2009, at
between 12:00 p.m. and 3:00 p.m. Id. at 59-60. Mr. Graves testified that
he typically closes his shop at 6:00 p.m. Id. at 59.
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The PCRA court found that Mr. Gamburg testified credibly that he was
never told about the existence of this alibi witness. The PCRA court found the
alibi witness and Appellant to be incredible. We will not disturb credibility
findings of the PCRA court. “The PCRA court's credibility determinations, when
supported by the record, are binding on this Court.” Commonwealth v. Hill,
202 A.3d 792, 797 (Pa. Super. 2019). As Appellant failed to prove that
counsel knew of, or should have known of the existence of the alibi witness,
this claim fails.
Additionally, the PCRA court determined that Mr. Graves’s testimony did
not actually establish an alibi for Appellant. The PCRA court determined that
the record showed that the radio call for the murder came at approximately
7:59 p.m. on October 1, 2009. TCO at 9; N.T. 7/12/11, at 310. Appellant
was arrested and charged with the murder on October 2, 2009 at 8:12 p.m.
TCO at 9; N.T. 9/21/18 at 65-66. The record shows that Mr. Graves
barbershop was as little as a ten minute walk from the scene of the murder,
and from Mr. Graves’ testimony Appellant could have left the barbershop as
early as 7:30 p.m. TCO at 9, N.T. at 68, 33. We find that the PCRA court’s
determinations are supported by the record and it committed no error of law
in dismissing Appellant’s claim of ineffective assistance of trial counsel for
failure to call Mr. Graves as an alibi witness.
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For the foregoing reasons, the PCRA court therefore did not err in
limiting its hearing on the PCRA petition to Appellant’s claim concerning an
alibi witness and dismissing both claims in Appellant’s first PCRA petition.
Order affirmed.
Judge Ott joins the Memorandum.
Judge Dubow Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/19
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