Com. v. Stuckey, J.

J-S12041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERREN KEITH STUCKEY :
:
Appellant : No. 1416 MDA 2022

Appeal from the PCRA Order Entered September 22, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000306-2016

BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JULY 27, 2023

Appellant, Jerren Keith Stuckey, appeals from the order of the Court of

Common Pleas of Dauphin County (trial court) that dismissed his first petition

filed under the Post Conviction Relief Act (PCRA)1 without a hearing. For the

reasons set forth below, we vacate the dismissal of Appellant’s PCRA claim

that is the subject of this appeal and remand the case to the trial court for

further proceedings on that claim.

On October 20, 2016, Appellant was convicted by a jury of first-degree

murder for the shooting death of Rayon Braxton (Victim). Commonwealth

v. Stuckey, No. 851 MDA 2017, slip op. at 1, 5-6 (Pa. Super. June 26, 2018)

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546.
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(unreported memorandum). Victim was found shot to death on the evening

of November 27, 2015 in a warehouse that he was leasing and using to host

parties. Id. at 1-2, 4-5.

The evidence at trial showed that Appellant was at the warehouse at the

time of the shooting and left the warehouse shortly after gunshots were heard

in the area of the warehouse. N.T. Trial, 10/18/16, at 204-09, 281-82, 285-

94; N.T. Trial, 10/19/16, at 478, 488. Sean Edmonds, who worked as a disc

jockey at parties at the warehouse, testified that he heard gunshots as he was

arriving at the warehouse after 6:30 p.m. on November 27, 2015 for a party

that night. N.T. Trial, 10/18/16, at 278-84. Edmonds testified that when he

entered the warehouse 15 or 20 seconds after he heard the gunshots, he saw

Appellant coming down the stairs and that Appellant said “Oh, my God, watch

out, they’re up there shooting.” Id. at 281-82, 285-88, 292-94, 308. He

testified that he jumped back and let Appellant, who was wearing a hooded

sweatshirt go out, and that he saw Appellant get into a car and drive away in

reverse without turning on the headlights. Id. at 288-94, 308, 314. Edmonds

testified that he then left the warehouse and went to a nearby store for help.

Id. at 294-96. Edmonds testified that he and a person from the store headed

back to the warehouse, that two women walked into the building ahead of

them, and that when he went upstairs in the warehouse, he saw one of the

women step back in shock and then saw Victim’s body lying on the floor. Id.

at 296-98, 317-18. He testified that he did not see Appellant holding anything

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in his hands and did not see a gun on Appellant when Appellant was coming

down the stairs and leaving the warehouse. Id. at 301. In addition, Appellant

admitted to a police officer that he was at the warehouse. N.T. Trial,

10/19/16, at 478, 488.

Nathaniel Kump, who lived at a veterans’ home near the warehouse,

testified that he was sitting outside on the evening on November 27, 2015 in

view of the entrance to the warehouse and heard six or seven gunshots. N.T.

Trial, 10/18/16, at 200-06. Kump testified that after he heard the gunshots,

he looked in the direction where they were coming from and saw a man run

out of the warehouse and get into a gray car with a missing hubcap that he

had seen before at the warehouse and that he had seen Appellant drive. Id.

at 205-09. He testified that the gray car then drove away from the warehouse

in reverse at a high rate of speed and that before the car left, he saw another

man briefly near the warehouse door. Id. at 205, 210-13. Kump testified

that after the car left, he called 911 and walked toward the warehouse, saw a

man from a nearby grocery store accompanied by another man go into the

warehouse, and saw two women walk toward the warehouse. Id. at 213,

216-19. Kump further testified that after he heard the gunshots, he kept his

eyes trained on the warehouse door, except for a second when the car passed

him, and that no one else came out of the warehouse. Id. at 219-20.

Evidence was introduced that the warehouse had only one entrance.

N.T. Trial, 10/17/16, at 27-31; N.T. Trial, 10/18/16, at 379. The

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Commonwealth repeatedly stressed in both its opening statement and closing

argument that Appellant was the only person seen leaving the warehouse after

the gunshots were heard and that this demonstrated that Appellant was the

person who killed Victim. N.T. Opening Statements, 10/17/16, at 2, 8-9, 12,

16; N.T. Closing Arguments, 10/19/16, at 36-37, 39, 48, 54-55.

The seven bullets that were found in Victim’s body and at the murder

scene, the seven spent cartridge casings found at the scene, and the live

cartridges found at the scene that had sufficient markings were all discharged

or ejected from the same gun, but the gun was not found. N.T. Trial,

10/18/16, at 387-88, 391-93. 395-98, 427-30, 434-36. The car that was

seen leaving the warehouse was found parked outside Appellant’s girlfriend’s

apartment and one of the two identifiable fingerprints from the car was

Appellant’s. N.T. Trial, 10/18/16, at 331-36, 339-41, 402. A hooded

sweatshirt found in the car had gunshot residue on the left sleeve and front,

but the right sleeve of the sweatshirt had only particles that could also have

come from non-gunshot sources, and DNA testing of blood stains on the

sweatshirt did not produce any interpretable results. Id. at 402-05; N.T. Trial,

10/19/16, at 450-52, 463-67.

One of Victim’s friends testified that Appellant told her that Victim owed

Appellant money and that if Victim did not repay the money, Appellant “was

going to do what a man had to do and that he was going to kill [Victim].” N.T.

Trial, 10/17/16, at 154-56, 158-60. Other Commonwealth witnesses,

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however, testified that Appellant’s financial dispute with Victim appeared to

have been resolved in the summer of 2015. Id. at 76-77, 113-21. When

Victim was found, he had over $362 in cash in his pockets. N.T. Trial,

10/18/16, at 414. Appellant did not testify at trial. N.T. Trial, 10/19/16, at

556-57.

On October 20, 2016, following the jury’s verdict, the trial court

sentenced Appellant to life imprisonment without parole. N.T. Trial, 10/20/16,

at 592-98. Appellant filed a timely direct appeal and this Court, on June 26,

2018, affirmed Appellant’s judgment of sentence. Commonwealth v.

Stuckey, 193 A.3d 1113 (Pa. Super. 2018) (table). Appellant did not file a

petition for allowance of appeal to the Pennsylvania Supreme Court.

On April 25, 2019, Appellant filed a timely counseled first PCRA petition

in which he asserted multiple claims of ineffectiveness of counsel, including a

claim that his trial counsel was ineffective for failing to interview and call

Gregory S. Jackson as a witness. Appellant asserted in his PCRA petition and

witness certification that Jackson would have testified that he was near the

warehouse at the time of the shooting, that he saw another man fleeing the

warehouse after Appellant’s vehicle backed away, and that he did not see

Kump at the location where Kump had testified that he was when he saw

people entering and leaving the warehouse. PCRA Petition ¶21(d);

Amendment to PCRA Petition, Witness Certification for Gregory S. Jackson.

The Commonwealth in its opposition to Appellant’s PCRA argued that this claim

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should be dismissed without a hearing because Jackson’s criminal history

made him incredible and asserted that Appellant had not shown that Jackson

was available and willing to testify at trial, that trial counsel knew of or should

have known of Jackson's existence, or that the testimony would have been

helpful to Appellant, given the evidence against him. Amended Response to

PCRA Petition at 11-12.

On July 13, 2020, the trial court issued a notice pursuant to Pa.R.Crim.P.

907 of its intent to dismiss all of Appellant’s PCRA claims without a hearing.

In this notice, the trial court stated that no hearing was necessary on

Appellant’s claim concerning failure to call Jackson as a witness on the grounds

that it was “unclear” whether Jackson would have been available to testify,

that Jackson could not have been a credible witness because he had crimen

falsi convictions and may have been in prison at the time of the murder, and

that some of the testimony that Appellant contended that Jackson would give

would be merely cumulative of the evidence at trial concerning Kump’s

observations and ability to observe. Trial Court Memorandum Opinion and

Order, 7/13/20, at 19-20. Appellant filed a response to the trial court’s Rule

907 notice, in which he argued with respect to Jackson that crimen falsi

convictions do not preclude a witness from being found credible or render

testimony inadmissible and that Jackson’s testimony would have supported

Appellant’s defense by showing that there was another person present when

the shooting occurred. Objections to Rule 907 Notice at 5.

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On September 22, 2020, the trial court entered an order dismissing

Appellant’s PCRA petition in its entirety without a hearing. Trial Court Order,

9/22/20. Appellant’s PCRA counsel did not file an appeal from this order within

thirty days, but new PCRA counsel filed a petition for collateral relief seeking

reinstatement of Appellant’s appeal rights nunc pro tunc. On September 27,

2022, the trial court entered an order reinstating nunc pro tunc Appellant’s

right to appeal the September 22, 2020 order dismissing his PCRA petition.

This timely appeal followed.2

The lone issue before the Court in this appeal is whether the trial court

erred in dismissing Appellant’s PCRA claim concerning trial counsel’s failure to

call Jackson as a witness without holding an evidentiary hearing. Appellant’s

Brief at 4. A PCRA petitioner does not have an absolute right to a hearing on

his claims for relief. Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa.

Super. 2019); Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012);

Commonwealth v. Barbosa, 819 A.2d 81, 85 (Pa. Super. 2003). A PCRA

court may properly dismiss a PCRA claim without a hearing if there is no

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2 Appellant’s notice of appeal stated that he was appealing both the September

22, 2020 order dismissing the PCRA petition and the September 27, 2022
order reinstating his appellate rights. The appeal is only from the September
22, 2020 order and the September 27, 2022 order was referenced in the notice
of appeal only to make clear that the appeal was timely. Appellant’s Response
to Rule to Show Cause. The erroneous statement that the appeal was also
from the September 27, 2022 order may be excused and does not invalidate
the appeal. See Commonwealth v. Fretts, 271 A.3d 383, 387 n.2 (Pa.
Super. 2021) (error concerning date of order appealed does not invalidate
appeal where it is clear what order was appealed); Pa.R.A.P. 105(a).

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genuine dispute with respect to the facts on which the claim is based and

those facts preclude relief or if it is clear from the record that the claim is

patently without merit. Pa.R.Crim.P. 907; Commonwealth v. Epps, 240

A.3d 640, 645 (Pa. Super. 2020); Wah, 42 A.3d at 338.

The PCRA court, however, must hold a hearing on a PCRA claim where

material facts are disputed and those disputed factual issues have not been

addressed at a prior evidentiary hearing in the case. Pa.R.Crim.P. 908(A)(2);

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004); Grayson, 212

A.3d at 1054-55. “‘Generally, ‘if there are factual issues to be resolved,’ the

PCRA court should hold an evidentiary hearing.” Grayson, 212 A.3d at 1054-

55 (quoting Commonwealth v. Morris, 684 A.2d 1037 (Pa. 1996)). A court

may not summarily dismiss a PCRA claim where disputed facts alleged in the

petition, if proven, would entitle the defendant to relief. Grayson, 212 A.3d

at 1055; Barbosa, 819 A.2d at 85-86. It is this Court’s responsibility on

appeal to determine whether the PCRA court erred in its determination that

there were no genuine issues of material fact in controversy and in denying

relief without conducting an evidentiary hearing. Grayson, 212 A.3d at 1054;

Wah, 42 A.3d at 338.

The PCRA claim at issue here asserted ineffective assistance of

Appellant’s trial counsel for failure to call a witness at trial. To be entitled to

relief on a claim of ineffective assistance of counsel, the defendant must

prove: (1) that the underlying claim is of arguable merit; (2) that counsel’s

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action or inaction had no reasonable basis designed to effectuate his client’s

interest; and (3) that he suffered prejudice as a result of counsel’s action or

inaction. Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015);

Commonwealth v. Selenski, 228 A.3d 8, 15 (Pa. Super. 2020); Wah, 42

A.3d at 338. Failure to call a witness can constitute ineffective assistance of

counsel only where the defendant shows that the witness existed, was

available, and was willing to testify on the defendant’s behalf; that trial

counsel knew or should have known of witness’s existence; and that the

absence of the witness’s testimony prejudiced the defendant.

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009);

Commonwealth v. Orner, 251 A.3d 819, 825 (Pa. Super. 2021) (en banc);

Selenski, 228 A.3d at 16.

Here, Appellant alleged that his trial counsel would have known of

Jackson as a possible witness if he had conducted a proper investigation of

the issues that Appellant raised with him prior to and during trial and that

Jackson would have testified. PCRA Petition ¶¶20, 21(d), 22; Amendment to

PCRA Petition, Witness Certification for Bernard Wojciechowski; Objections to

Rule 907 Notice at 5. Neither the trial court nor the Commonwealth point to

anything in the record that would make it impossible for Appellant to prove

these allegations. The only fact that either the trial court or the

Commonwealth contend negated Appellant’s ability to prove that trial counsel

should have known of Jackson and that Jackson was available and willing to

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testify was that Jackson was imprisoned at the time of Appellant’s trial, and

the trial court concluded only that this made it “unclear to [the court] whether

Gregory Jackson would have been available to testify.” Trial Court

Memorandum Opinion and Order, 7/13/20, at 19. Appellant argues that

Jackson’s imprisonment would not have prevented him from testifying

because he could have obtained Jackson’s testimony at trial by a transport

order or writ of habeas corpus ad testificandum. Neither the trial court nor

the Commonwealth has disputed that an incarcerated witness’s testimony

may be obtained by these means. We therefore cannot conclude that it was

undisputed that Appellant could not prove that Jackson was available and was

willing to testify on his behalf and that trial counsel should have known of

Jackson’s existence.

The critical issue is therefore whether the trial court could determine

without a hearing that the failure to call Jackson as a witness could not have

prejudiced Appellant. The trial court concluded that Jackson could not have

been a credible witness and his testimony therefore could not have benefitted

Appellant because it appeared from Jackson’s criminal record that Jackson was

incarcerated at the time of the murder and because his numerous crimen falsi

convictions “would render his testimony non-credible.” Trial Court

Memorandum Opinion and Order, 7/13/20, at 20. We do not agree. While it

may well be established at a hearing that Jackson’s testimony could not have

been sufficiently credible to be beneficial to Appellant, the record does not

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show that Jackson could not have witnessed what he claims to have seen and

his credibility in light of his crimen falsi convictions cannot be determined

without a hearing.

The trial court based its conclusion that Jackson was incarcerated when

the shooting occurred and therefore could not have been present in the area

of the warehouse on docket entries in the following six 1996, 1998, and 2016

criminal cases: CP-36-CR-0002030-1996; CP-36-CR-0001491-1998; CP-36-

CR-0001574-1998; CP-36-CR-0001575-1998; CP-22-CR-0005507-2016; CP-

22-CR-0006063-2016. Trial Court Memorandum Opinion and Order, 7/13/20,

at 20 & n.4. The 1996 and 1998 docket entries show that on April 9, 1999,

Jackson received sentences of incarceration of 1 year, 1 month, and 3 days to

3 years, 5 to 10 years, 10 to 20 years, and 1 year and 23 days to 2 years,

with no information on whether the sentences ran consecutively or

concurrently. CP-36-CR-0002030-1996 Docket Entries at 2; CP-36-CR-

0001491-1998 Docket Entries at 2; CP-36-CR-0001574-1998 Docket Entries

at 2; CP-36-CR-0001575-1998 Docket Entries at 2. Absent further

information that is not in the record, it cannot be determined that Jackson was

incarcerated on any of those sentences in November 2015, which was more

than 16 years after the sentences were imposed. The two remaining dockets,

from 2016, indicate that Jackson was not incarcerated in early 2016, as early

as two months after the crime at issue here, and do not set forth any dates

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that Jackson was in prison prior to 2016. CP-22-CR-0005507-2016 at 2; CP-

22-CR-0006063-2016 at 1-2.

The trial court’s conclusion that Jackson had multiple crimen falsi

convictions, is supported by the record and is undisputed. The docket entries

cited by the trial court show a burglary conviction and several robbery and

theft convictions. CP-36-CR-0002030-1996 Docket Entries at 2; CP-36-CR-

0001491-1998 Docket Entries at 2; CP-36-CR-0001574-1998 Docket Entries

at 2; CP-36-CR-0001575-1998 Docket Entries at 2; CP-22-CR-0005507-2016

at 2. The fact that a witness has crimen falsi convictions, however, does not

require that the witness’s testimony be found incredible. Commonwealth v.

Murphy, 134 A.3d 1034, 1039-40 (Pa. 2016) (rejecting challenge to weight

of the evidence despite Commonwealth witness’s crimen falsi convictions);

Commonwealth v. Dunkins, 229 A.3d 622, 634 (Pa. Super. 2020), aff’d,

263 A.3d 247 (Pa. 2021) (rejecting claim that prosecution witness’s crimen

falsi conviction made verdict against weight of the evidence because it was

exclusively within jury's province to assess that witness’s credibility). Even

where credibility is highly suspect, a PCRA court cannot dismiss a PCRA claim

on the ground that the witness is incredible without holding a hearing at which

it can assess the witness’s credibility or making an assessment of actual

testimony or statements by the witness. Commonwealth v. D'Amato, 856

A.2d 806, 825-26 (Pa. 2004); Commonwealth v. Williams, 732 A.2d 1167,

1180-81 (Pa. 1999); Commonwealth v. Smith, 436 EDA 2020, at 10-15

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(Pa. Super. July 30, 2021) (unpublished memorandum). Because the trial

court held no hearing on Appellant’s PCRA petition and never heard Jackson

testify, it could not dismiss Appellant’s claim on the ground that Jackson could

not have been a credible witness.

The trial court also characterized Jackson’s proffered testimony as

cumulative, and the Commonwealth contends that its absence could not have

prejudiced Appellant in light of the other evidence of Appellant’s guilt. Trial

Court Memorandum Opinion and Order, 7/13/20, at 20; Appellee’s Brief at 9.

Neither of these contentions can sustain the dismissal of Appellant’s PCRA

claim without a hearing.

The testimony that Appellant contends that Jackson would have given

was different from any of the other testimony at trial. Appellant asserted that

Jackson would have testified that he saw another person run from the

warehouse after Appellant’s car drove away. PCRA Petition ¶21(d);

Amendment to PCRA Petition, Witness Certification for Gregory S. Jackson.

No other such testimony was introduced at trial. To the contrary, the

testimony at trial was that Appellant was the only person seen leaving the

warehouse after the shooting. N.T. Trial, 10/18/16, at 204-20, 281-95.

To prove prejudice, the defendant must show that there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would

have been different. Commonwealth v. Jones, 210 A.3d 1014, 1018-19

(Pa. 2019); Mason, 130 A.3d at 618; Commonwealth v. Stewart, 84 A.3d

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701, 707 (Pa. Super. 2013) (en banc). This does not require proof that the

defendant would more likely than not have been acquitted or convicted of a

lesser offense. Jones, 210 A.3d at 1019; Johnson, 966 A.2d at 541;

Stewart, 84 A.3d at 714-15 & n.5. Rather, a reasonable probability of a

different result sufficient to show prejudice is a probability sufficient to

undermine confidence in the outcome. Jones, 210 A.3d at 1019;

Commonwealth v. Postie, 200 A.3d 1015, 1023 (Pa. Super. 2018) (en

banc); Stewart, 84 A.3d at 707, 714-15 & n.5. In analyzing whether there

is a reasonable probability that the result of the proceeding would have been

different if a witness had testified, this Court must consider the case as it was

tried, not whether the Commonwealth could have presented a different theory

on which the defendant could have been convicted in response to the witness’s

testimony. Johnson, 966 A.2d at 542-43.

Here, the evidence showed that Appellant was at the warehouse at the

time of the shooting and fled after the shooting, looking worried or scared and

telling Edmonds, who had arrived at the warehouse just after the gunshots,

that there was someone upstairs in the warehouse shooting. N.T. Trial,

10/18/16, at 204-09, 281-82, 285-94, 308. There was, however, no

conclusive evidence that Appellant was the shooter. Edmonds testified that

he did not see a gun on Appellant when Appellant was coming down from an

upper story of the warehouse and leaving the building. Id. at 301. There was

also no evidence connecting Appellant to the gun that was used to kill Victim;

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that gun was not left at the scene and was never found. Id. at 385-401, 429-

30, 435. Rather, the Commonwealth argued at trial that Appellant had to be

the person who shot Victim because Appellant was the only person seen

fleeing the warehouse after the shooting. N.T. Opening Statements,

10/17/16, at 2, 8-9, 12, 16; N.T. Closing Arguments, 10/19/16, at 36-37, 39,

48, 54-55. Testimony that another person fled the warehouse after Appellant

left, if a jury could find that witness credible, would negate the

Commonwealth’s basis for contending that Appellant was the shooter, rather

than a person who was merely with Victim when another person opened fire,

and could affect the jury’s verdict. The absence of such testimony therefore

cannot be held non-prejudicial absent a determination, after a hearing, that

there is no reasonable probability that the jury would find the witness credible.

Johnson, 966 A.2d at 542-43.

For the foregoing reasons, the trial court erred in concluding that there

were no genuine issues of material fact in controversy with respect to

Appellant’s claim that trial counsel was ineffective for failure to call Jackson as

witness and in determining without conducting an evidentiary hearing that

Jackson could not be found credible. We therefore vacate the trial court’s

order insofar as it dismissed Appellant’s claim that trial counsel was ineffective

for failure to call Jackson as witness and remand this case with instructions

that the trial court hold a hearing on that PCRA claim.

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Order vacated in part. Case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/27/2023

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