Com. v. Burbage, C.

J-S24043-20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
CLARENCE BURBAGE, :
:
Appellant : No. 2957 EDA 2019

Appeal from the PCRA Order Entered September 26, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001040-2012

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
CLARENCE BURBAGE, :
:
Appellant : No. 2958 EDA 2019

Appeal from the PCRA Order Entered September 26, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001045-2012

BEFORE: BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 06, 2020

Clarence Burbage (Appellant) appeals from the September 26, 2019

order, which dismissed his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1 Upon review, we affirm.

1Appellant purports to appeal from an October 1, 2019 order. However, the
docket indicates that the order dismissing Appellant’s PCRA petition was filed
September 26, 2019. We have corrected the caption accordingly.

*Retired Senior Judge assigned to the Superior Court.
J-S24043-20

Appellant’s underlying convictions stem from two shootings of Danny

Williams. First, on May 22, 2011, between 1:00 and 2:00 a.m.,

Appellant, Rakeem Divers, and co-defendant, Dyshan Aursby,
attacked Jerry Holloman, also known as “Mike.” Appellant,
Divers, and Aursby asked Holloman where Williams was and
Holloman told them that Williams was with his girlfriend, Delisha
Foy, at her house. Appellant, Aursby, and Divers told Holloman
to call Williams on the phone. When Holloman hesitated,
Appellant took Holloman’s phone and called Williams. The three
gentlemen held Holloman at gunpoint as they walked to Foy’s
house on South 66th Street to see Williams. When they arrived
at Foy’s home, Holloman was told to stand at the door while
Appellant, Aursby, and Divers hid. When Williams opened the
door, Holloman yelled “run.” Williams attempted to slam the
door shut but Appellant headed inside before the door closed.
Holloman ran down the alleyway across the street from Foy’s
home while Aursby and Divers followed Appellant into the home.
As Appellant, Aursby, and Divers went into the home, Williams
ran up the stairs to the second floor. Williams then jumped out
of a second floor window, hit the ground, and began limping
away. Aursby and Divers followed Williams [outside], Aursby
drew his gun, and fired it at Williams, striking Williams in his left
buttock. After Appellant, Aursby, and Divers left, Holloman found
Williams laying [sic] on the ground and stayed with him until the
police arrived[ and he] was taken to the [hospital]. That same
day, Williams was interviewed [] and told [detectives] that
Aursby, whom he referred to as “Sha,” and Appellant, whom
Williams referred to as “C Murder” shot him. Based on the
identifications made by Williams and Holloman, arrest warrants
were filed for Aursby and Appellant. At approximately 10:20
p.m. on May 22, 2011, [police] arrested Aursby.

At approximately [3:00] a.m. on May 27, 2011, Appellant and
Divers again attacked Holloman and demanded Holloman call
Williams to meet him. Holloman called Williams and told him to
meet him in the area of 65th Street & Greenway Avenue. When
Williams arrived, he began arguing with Appellant. [A scuffle
ensued, during which Williams reached under] his shirt, to
appear as if he had a gun[.] Divers gave Appellant a gun and
Appellant advanced towards Williams. Appellant then shot

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Williams at least eight (8) times across the chest, mid-section,
arms, and legs [as Williams attempted to run away].

Commonwealth v. Burbage, 131 A.3d 98 (Pa. Super. 2015) (unpublished

memorandum at 1-2) (citation omitted; party designations and capitalization

altered). Williams’s cause of death was multiple gunshot wounds.

Appellant was charged at separate docket numbers for the events

occurring on May 22, 2011, and May 27, 2011. Appellant proceeded to a

consolidated jury trial with co-defendant Aursby on May 21-31, 2013.

Appellant was found guilty of first-degree murder, aggravated assault,

robbery, conspiracy, and possession of an instrument of crime.2 On May 31,

2013, Appellant was sentenced to an aggregate term of life imprisonment

without the possibility of parole. This Court affirmed Appellant’s judgment of

sentence, and our Supreme Court denied Appellant’s petition for allowance

of appeal. Id., appeal denied, 136 A.3d 978 (Pa. 2016).

Appellant timely filed a pro se PCRA petition on November 8, 2016.

Attorney James A. Lammendola was appointed and filed a no-merit letter

and petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d

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

1988) (en banc). On October 5, 2017, the PCRA court filed notice of its

intent to dismiss Appellant’s PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907, but did not grant Attorney Lammendola’s petition to

2 The jury found Aursby guilty of attempted murder, aggravated assault,
robbery, and conspiracy.

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withdraw at that time. On October 23, 2017, privately-retained counsel

Lauren A. Wimmer, Esquire, sent a letter to the PCRA court, which was

entitled Response to 907 Notice, requesting, inter alia, permission to amend

Appellant’s PCRA petition within 45 days. On November 9, 2017, the PCRA

court dismissed Appellant’s PCRA petition and granted Attorney

Lammendola’s petition to withdraw.

Appellant, through Attorney Wimmer, filed a notice of appeal. On

appeal, he claimed, inter alia, that the PCRA court abused its discretion by

failing to permit Attorney Wimmer to file an amended PCRA petition. This

Court found the record inconclusive as to whether the PCRA court considered

Appellant’s motion for leave to amend. Accordingly, we remanded for the

PCRA court to rule on the motion. Commonwealth v. Burbage, 216 A.3d

347 (Pa. Super. 2019) (unpublished memorandum).

Following remand, the PCRA court held a hearing,3 at the conclusion of

which the PCRA court granted Appellant 30 days to file an amended PCRA

petition. N.T., 5/2/2019, at 18-19. Appellant filed a supplemental amended

3 At the hearing, the PCRA court expressed concern as to this Court’s
remand directive because upon receiving Attorney Wimmer’s October 23,
2017 letter, which was not a formally filed motion, the PCRA court informally
granted Attorney Wimmer until November 9, 2017, to file an amended
petition. When nothing was filed, the PCRA court denied Appellant’s petition.
N.T., 5/2/2019, at 4-8. See also PCRA Court Opinion, 9/26/2019, at 2 n.3
(“At the time of the dismissal, [newly-retained Attorney Wimmer] had failed
to formally file her 907 response or request to amend the pro se petition. On
October 17, 2018, the docket was amended, without th[e PCRA] court’s
knowledge, to reflect that counsel sent her 907 response to th[e PCRA] court
on October 23, 2017.”) (unnecessary capitalization omitted).

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PCRA petition, raising four claims: (1) after-discovered evidence of Detective

James Pitts’ habitually coercive conduct towards witnesses in custodial

interrogations; (2) ineffective assistance of trial counsel for failing to request

a justification jury instruction; (3) ineffective assistance of appellate counsel

for failing to argue on direct appeal that the trial court erred in admitting

Holloman’s statement that “Murder killed Danny[;]” and (4) ineffective

assistance of trial counsel for failing to request a jury instruction that prior

consistent statements could not be used as substantive evidence.

Supplemental Amended PCRA Petition, 5/31/2019, at 2, 6, 9, 11. The

Commonwealth filed a motion to dismiss. Once again, the PCRA court issued

notice of its intent to dismiss Appellant’s PCRA petition. Notice of Intent to

Dismiss, 8/22/2019. Appellant filed a response, and on September 26, 2019,

the PCRA court dismissed Appellant’s PCRA petition.

This timely filed notice of appeal followed.4 On appeal, Appellant

presents the following issues for our review.

1. Whether the PCRA court erred in denying Appellant’s after-
discovered evidence claim of Detective [] Pitts’ misconduct
during the investigation of the instant matter.

2. Whether trial counsel was ineffective for failing to request a
justification charge.

3. Whether appellate counsel was ineffective for failing to argue
on direct appeal that the trial court erred in admitting, over

4 Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement, and none
was filed. The PCRA court submitted its September 26, 2019 opinion and
order dismissing Appellant’s PCRA petition in compliance with Rule 1925(a).

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trial counsel’s objection, [] Holloman’s statement to [] Foy
that “Murder killed Danny.”

Appellant’s Brief at 3 (numbering system altered; PCRA court answers

omitted).

We begin with our standard of review.

This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting

Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).

It is well settled that 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)

(citations, original brackets, and quotations marks omitted).

Appellant first argues that the PCRA court erred in dismissing his after-

discovered evidence claim regarding Detective Pitts’ allegedly habitual use of

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aggressive interrogation techniques to coerce false witness statements in

homicide trials. Appellant’s Brief at 11. To warrant relief on a claim of after-

discovered evidence, a petitioner must prove four distinct elements.

[T]his four-part test requires the petitioner to 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. The
test applies with full force to claims arising under [subs]ection
9543(a)(2)(vi) of the PCRA. In addition, we have held the
proposed new evidence must be producible and admissible.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations

omitted).

By way of background, Detective Pitts was assigned to investigate the

shooting death of Williams. On June 13, 2011, homicide detectives

interviewed Divers at the homicide office. Although Detective Pitts did not

participate in the interview, Divers testified at trial that Detective Pitts

assaulted and coerced him into giving a statement that implicated Appellant.

N.T., 5/23/2013, at 48-56; N.T., 5/24/2013, at 27-30. At trial, the

Commonwealth confronted Divers with the contents of that statement, which

he claimed were lies, and subsequently admitted the statement into

evidence without objection. N.T., 5/23/2013, at 54-97; N.T., 5/24/2013, at

150-51. Detective Pitts testified that he spoke briefly with Divers on June 13,

2011, but denied assaulting or threatening him. N.T., 5/24/2013, at 32-35.

Thereafter, on November 4, 2013, The Philadelphia Inquirer published an

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article on their website, “philly.com,” about the aggressive interrogation

techniques employed by Detective Pitts in three other homicide trials. See

id. at 4. According to Appellant,

Divers’ trial testimony bears striking resemblance to the
accounts of [the witnesses in the three homicide trials
referenced by the articles, as well as others who have come
forward since, who] were likewise subjected to Detective Pitts’
coercive interrogation tactics. Genuine issues of material fact
exist with respect to the circumstances of Divers’ interrogation
and, based on his trial testimony, his statement was not given
under sufficiently reliable circumstances to justify its admission
as substantive evidence.

Id. at 5-6 (citation omitted). One of the cases Appellant relied on was that

of Dwayne Thorpe, who was convicted of first-degree murder in 2009, based

in part upon a witness statement allegedly obtained via coercion by

Detective Pitts. Following a PCRA hearing where Thorpe presented witnesses

about Detective Pitts’ interrogation techniques, he was granted a new trial.

See id. at 5.

Appellant sought an evidentiary hearing on his after-discovered

evidence claim, during which he intended to produce testimony regarding

Detective Pitts’ pattern of coercive interrogation techniques, “unless the

Commonwealth [wa]s willing to stipulate to the testimony from [Thorpe’s]

evidentiary hearing[.]” Id. at 6. Appellant also intended to call Detective

Valerie Miller about a Philadelphia Police Internal Affairs Division (IAD)

investigation into Appellant’s case based on Detective Pitts’ involvement. Id.

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The PCRA court dismissed this claim as being without merit. It found

the news articles to be double hearsay and insufficient on their own to

warrant a new trial. PCRA Court Opinion, 9/26/2019, at 5.

In addition, [Appellant] references cases involving three
defendants, Nafis Pickney, Amin Speakes, and [] Thorpe, where
Pitt[s’] alleged coercion of Commonwealth witnesses resulted in
acquittals for Pickney and Speakes and a new trial for Thorpe.
The information referenced in these matters, [Appellant] alleges,
bears a striking resemblance to Pitts’ conduct during the
investigation as described by [] Divers, who testified that Pitts
punched him multiple times, denied him food, water, and the
use of a restroom, and threatened to investigate him as a
suspect for the murder unless he signed a statement implicating
[Appellant].

The evidence provided in the Pickney, Speakes, and
Thorpe cases make no reference to the instant matter, and Pitts’
conduct, as explored in those cases, does not automatically
warrant a finding that Pitts engaged in similar behavior in this
matter. Further, Pitts’ conduct over the course of Divers’
testimony was explored during the instant trial, as Divers[]
testified that his statement was coerced through Pitts’ verbal and
physical abuse. The jury heard and considered such evidence,
and ultimately convicted [Appellant] thereafter.

***
[Appellant] further attempts to buttress his claim by arguing that
Detective Pitts is currently subject to a[n IAD] investigation
concerning the instant matter and a complaint made by [another
individual regarding improper behavior to coerce a statement].
This argument is, at best, premature as [Appellant] fails to
present any findings made as a result of that investigation, or
demonstrate how those findings impact the outcome of this
matter. The evidence with respect to each of [Appellant’s] claims
concerning Detective Pitts [is] insufficient to warrant a new trial.

Id. at 5-7 (footnote and citation omitted). Finally, the PCRA court found that

even if Divers’ testimony and statement were stricken from the record at a

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new trial, the verdict would remain the same because Holloman’s testimony

was sufficient to support Appellant’s convictions. Id. at 6 (citations omitted).

Upon review, we agree with the PCRA court that Appellant has not

established that the introduction of evidence from Thorpe’s PCRA hearing

would likely result in a different verdict in Appellant’s case if a new trial were

granted. Even if Divers’ statement and testimony were barred at a retrial

based upon the statement being coerced, there was still ample testimony

supporting Appellant’s conviction. See Burbage, 131 A.3d 98 (unpublished

memorandum at 10) (“Clearly, Holloman’s testimony that [A]ppellant shot

the victim repeatedly at close range was sufficient to support the verdict.”).

Accordingly, we conclude that the PCRA court did not err in dismissing this

claim.

Appellant’s next two issues involve claims of ineffective assistance of

trial and appellate counsel. We review these issues mindful of the following.

The law presumes counsel has rendered effective assistance. In
general, to prevail on a claim of ineffective assistance of counsel,
a petitioner must show, by a preponderance of the evidence,
ineffective assistance of counsel which, in the circumstances of
the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place. The petitioner must demonstrate: (1) the
underlying claim has arguable merit; (2) counsel lacked a
reasonable strategic basis for his action or inaction; and (3) but
for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been
different. The petitioner bears the burden of proving all three
prongs of the test.

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Commonwealth v. Postie, 200 A.3d 1015, 1022-23 (Pa. Super. 2018) (en

banc) (citations, footnote, and quotation marks omitted). “A failure to satisfy

any prong of the ineffectiveness test requires rejection of the claim of

ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009).

First, Appellant claims trial counsel rendered ineffective assistance for

failing to request a justification jury instruction. Appellant’s Brief at 27. We

review this claim mindful of the following.

Defendants are generally entitled to instructions that they have
requested and that are supported by the evidence. We have
explained that the reason for this rule is that instructing the jury
on legal principles that cannot rationally be applied to the facts
presented at trial may confuse them and place obstacles in the
path of a just verdict. A criminal defendant must, therefore,
establish that the trial evidence would reasonably support a
verdict based on the desired charge and may not claim
entitlement to an instruction that has no basis in the evidence
presented during trial.

Commonwealth v. Charleston, 94 A.3d 1012, 1026 (Pa. Super. 2014)

(citations and quotation marks omitted).

To prevail on a justification defense, there must be evidence that
the defendant (a) ... reasonably believed that he was in
imminent danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent such
harm; (b) that the defendant was free from fault in provoking
the difficulty which culminated in the slaying; and (c) that the
[defendant] did not violate any duty to retreat.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (quotation

marks and citation omitted).

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[T]he fact that a defense is theoretically available for a given
crime does not mean that the Commonwealth must disprove
justification in every case. Because justification is an affirmative
defense, the defendant has the burden of asserting an
appropriate offer of proof in order to be entitled to a jury
instruction on justification.

Commonwealth v. Manera, 827 A.2d 482, 485 n.7 (Pa. Super. 2003).

According to Appellant, because the evidence presented at trial

indicated that Williams pretended to have a firearm during the scuffle with

Appellant on May 27, 2011, counsel was ineffective for failing to request a

justification instruction. Supplemental Amended PCRA Petition, 5/61/2019,

at 8. Specifically, Appellant argued there was (1) a genuine issue of material

fact presented at trial as to whether Appellant shot Williams in self-defense;

(2) no reasonable strategic basis for not requesting a justification instruction

where Appellant did not deny being present at the shooting; and (3) a

reasonable probability that the outcome of the trial would have been

different if a justification instruction had been provided “because it would

have negated the requisite mens rea for first[-]degree murder.” Id. at 8-9.

The PCRA court dismissed this claim, explaining as follows.

Based on the evidence presented at trial, it is clear that
Appellant’s conduct meets none of the elements that would
warrant a justification instruction. Appellant could not reasonably
believe that he was in imminent danger of death or serious
bodily injury, justifying the use of deadly force, as the evidence
demonstrates that Williams was unarmed at the time of the
shooting. Moreover, both the testimony and Appellant’s own
averments indicate that after Williams reached under his shirt,
Appellant had time to retrieve a firearm from Divers, which
[Appellant] used to shoot Williams as [Williams] was running

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away. Appellant was not free from fault in provoking the incident
that lead to the instant homicide, as he instigated it himself by
accosting Holloman, coercing him into bringing Williams to the
location of the shooting, and engaging in a fistfight with
Williams. Finally, even if Appellant did reasonably believe that
Williams was about to use deadly force against him, he still
violated his duty to retreat upon gaining illegal possession of
Divers’ firearm. Trial counsel had no legal or rational basis to
request such an instruction, and the claim consequently fails.

PCRA Court Opinion, 9/26/2019, at 8-9 (party designations altered).

Preliminarily, we note that Appellant’s argument in his amended PCRA

petition that he did not deny being at the scene of the shootings is

disingenuous. Although Appellant did not present his own evidence placing

him elsewhere during the shootings, counsel argued during closing argument

that Appellant was in Foy’s house during the May 22nd shooting and “wasn’t

there” during the May 27th shooting. N.T., 5/28/2013, at 57. In fact, his

defense strategy was not one of self-defense, but that he did not commit the

crimes charged. See N.T., 5/21/2013, at 47 (opening statement that

Appellant did not kill Williams); N.T., 5/28/2013, at 29 (closing argument

that Appellant “didn’t do this”). This strategy makes sense, given our review,

because a justification defense was unavailable based upon the evidence

presented at trial. Appellant instigated the encounter with Williams by

attempting to lure him to the area and, when Williams appeared on the

street corner, trying “to strongarm him[ and j]ust [running] up on him.”

N.T., 5/21/2013 (afternoon session), at 50. A scuffle ensued between

Williams and Appellant. When Williams pretended to have a firearm to scare

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away Appellant, Appellant ran two to three feet to Divers to retrieve a

firearm, and then “proceeded to charge [Williams]. … He ran towards

[Williams], directly towards him with the gun out.” Id. at 51-52. Williams

attempted to run away, but was unable to do so effectively given the

gunshot wound from five days prior, “and that’s when [Appellant] just

started shooting him and just continued to shoot him[] – six, seven, eight

times.” Id. at 52. Because Appellant did not and could not avail himself of a

justification defense, counsel cannot be deemed ineffective for failing to

request a justification instruction. Accordingly, the PCRA court did not err in

dismissing this claim.

Finally, Appellant argues that appellate counsel rendered ineffective

assistance for failing to argue on direct appeal that the trial court erred in

admitting Holloman’s statement to Foy that “Murder killed Danny.”

Appellant’s Brief at 30. We review this issue mindful of the following.

c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence
of a witness’s prior consistent statement is admissible to
rehabilitate the witness’s credibility if the opposing party is given
an opportunity to cross-examine the witness about
the statement and the statement is offered to rebut an express
or implied charge of:

(1) fabrication, bias, improper influence or motive, or
faulty memory and the statement was made before that
which has been charged existed or arose; or

(2) having made a prior inconsistent statement, which the
witness has denied or explained, and the consistent
statement supports the witness's denial or explanation.

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Pa.R.E. 613(c).

Prior consistent statements may be admitted to
corroborate or rehabilitate the testimony of a witness
who has been impeached, expressly or impliedly, as
having a faulty memory, or as having been induced
to fabricate the testimony by improper motive or
influence. Admission of prior consistent statements
on such grounds is a matter left to the sound
discretion of the trial court, to be decided in light of
the character and degree of impeachment. It is not
necessary that the impeachment be direct; it may be
implied, inferred, or insinuated either by cross-
examination, presentation of conflicting evidence, or
a combination of the two.

To be admissible to rebut a charge of improper motive, []
the prior consistent statement must have been made before the
motive to lie existed. A prior consistent statement, if admissible
at all, is admissible only as rebuttal or rehabilitation but [not as]
substantive evidence.

Commonwealth v. Bond, 190 A.3d 664, 667-68 (Pa. Super. 2018)

(citations, quotation marks, and original brackets omitted).

By way of background, over Appellant’s objection, the trial court

allowed Foy to testify that Holloman and another individual, Kyree Ball, had

independently told Foy that “Murder killed Danny.” N.T., 5/22/2013

(afternoon session), at 42. Holloman’s statement was admitted as a prior

consistent statement to rehabilitate Holloman after the credibility attack on

him earlier that day, and Ball’s statement was admitted preemptively as

rehabilitation, based on an assumption that Appellant and Aursby would

attempt to discredit Ball during his scheduled testimony the following day.

However, the next day Ball refused to testify and was held in contempt of

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court, thereby denying Appellant the opportunity to cross-examine Ball

regarding the statement. Trial counsel moved for a mistrial, which the trial

court denied. N.T., 5/23/2013, at 9-13, 36-37. On direct appeal, appellate

counsel argued that the trial court erred in denying the motion for a mistrial

based upon the admission of Ball’s statement. Burbage, 131 A.3d 98

(unpublished memorandum at 8). This Court agreed that based on these

circumstances, Ball’s statement should not have been admitted. Id.

“However, we determine[d] that the trial court properly denied Appellant’s

motion for mistrial where [] Holloman made the identical statement[.]

Appellant does not contest that Holloman’s statement was admissible under

Rule 613(c).” Id. (unpublished memorandum at 8-9) (capitalization altered;

citation omitted). “Although [Appellant] raised an objection at trial, Appellant

does not argue on appeal that admission of Holloman’s statement was error.

Therefore, Ball’s statement was merely cumulative and any error was

harmless.” Id. (unpublished memorandum at 9) (capitalization altered).

In his amended PCRA petition, Appellant argued that appellate counsel

should have argued on direct appeal that the admission of Holloman’s

statement through Foy was hearsay and inadmissible as a prior consistent

statement. Supplemental Amended PCRA Petition, 5/31/2019, at 10.

Appellant argued that because Foy should not have been permitted to testify

regarding Holloman or Ball’s identical statements, the trial court’s denial of

Appellant’s motion for a mistrial could not have been harmless error, and

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Appellant suffered “actual prejudice from the admission of both Holloman

and Ball’s hearsay statements through Foy.” Id. at 11.

The PCRA court dismissed this claim, explaining as follows.

Appellate counsel cannot be deemed ineffective for failing
to challenge Foy’s testimony because, as the trial court
discussed with trial counsel at the time of her objection, Foy’s
statement was hearsay falling into the exception of prior
consistent statements. On cross-examination, trial counsel and
counsel for co-defendant Aurbsy relentlessly attacked Holloman’s
credibility, accusing him of fabricating his statement through
prior crimen falsi convictions, his participation in the Witness
Protection Program, his use of narcotics that could affect his
recollection of events, and vacillation on whether Divers[]
handed Appellant the murder weapon prior to the shooting. Trial
counsel engaged in this line of questioning, in part, to implicate
Divers as the shooter and implant reasonable doubt in the minds
of the jurors, even going as far as to specifically ask whether
Divers was the shooter.

In light of this, it is clear that Foy’s testimony concerning
Holloman’s prior consistent statement that Appellant shot
Williams is admissible under the hearsay exception. Appellant
elicited testimony that implied that Divers was the shooter, and
that Holloman somehow fabricated or misremembered the
sequence of events. Holloman’s statement that “Murder killed
Danny,” as elicited through Foy’s testimony, clearly shows that
Holloman implicated Appellant as the shooter well before this
matter went to trial. Accordingly, the trial court properly
admitted this evidence, and appellate counsel had no reasonable
basis to challenge its admission on direct appeal. Appellant’s
claim has no merit.

PCRA Court Opinion, 9/26/2019, at 10-11 (citation omitted; party

designations altered).

On appeal, Appellant argues that Holloman testified in accordance with

his statement to homicide detectives that Appellant shot and killed Williams,

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and that the “only discrepancies in his testimony relevant to the murder (as

opposed to the prior incident [on May 22, 2011]) concerned whether

Appellant retrieved the gun from Divers.”5 Appellant’s Brief at 32-33

(footnote and citation omitted). Appellant ignores the vigorous attacks on

Holloman’s credibility during cross-examination by Appellant’s trial counsel

regarding the May 27, 2011, shooting. Moreover, this argument glosses over

counsel’s focus at trial on the discrepancy about whether or not Appellant

retrieved the firearm from Divers. As noted by the PCRA court, trial counsel

utilized this discrepancy to argue that Divers was the shooter and Holloman

was falsely accusing Appellant to cover Holloman’s involvement. See N.T.,

5/22/2013 (morning session), at 117-18; N.T., 5/28/2013 (morning

session), at 33-38 (closing argument). Therefore, Holloman’s prior

statement to Foy that Appellant killed Williams was admissible as a prior

consistent statement “to corroborate or rehabilitate the testimony of a

witness who has been impeached… as having been induced to fabricate the

testimony by improper motive or influence.” Bond, 190 A.3d at 668

(citations omitted). Finally, the admission of Holloman’s statement is entirely

distinguishable from Ball’s because Holloman was subject to cross-

examination, whereas Ball was not. Accordingly, we conclude appellate

5 Appellant’s trial counsel confronted Holloman with his preliminary hearing
testimony, wherein he had testified that on May 27, 2011, Appellant did not
retrieve a firearm from Divers, but already possessed the firearm on his
person. See N.T., 5/22/2013 (morning session), at 113-15.

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J-S24043-20

counsel was not ineffective for failing to raise this claim on appeal, and the

PCRA court did not err in dismissing this claim.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/20

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