Commonwealth v. Hammond

HUDOCK, J.:

¶ 1 The PCRA court concluded that counsel was ineffective in failing to investigate and call an available witness. The PCRA court also found that after-discovered evidence, in the form of recantation testimony by a Commonwealth witness, and some additional testimony by that -witness favorable to Appellee, justified the granting of a new trial. The Majority rejects the PCRA court’s reasoned assessment concluding that counsel had a reasonable strategic basis for failing to call the witness in question and that Appellee did not establish prejudice with respect to the after-discovered testimonial evidence. I find myself in disagreement with the Majority’s position, thus, I respectfully dissent.

¶ 2 At issue in the ineffectiveness claim relating to counsel’s failure to investigate and call an available witness was the proposed testimony of Achille Walker. Mr. Walker was a friend of the decedent’s and actually lived with the decedent for a period of time. As fortune would have it, Mr. Walker received a call from the decedent after the incident at the Live Wire and while the decedent was driving in his car en route to his fateful meeting with Appel-lee. According to his testimony at the PCRA hearing, in the course of their conversation, the decedent stated to Mr. Walker that he had beaten up Appellee and that he was not finished and was “going to go get him again.” N.T. PCRA Hearing, 2/22/07, at 84. Mr. Walker then told the decedent to “leave it alone,” warning him that Appellee had a license to carry a gun. Id. According to Mr. Walker, in response to this statement, the decedent reportedly indicated that he had gotten his own gun back. Mr. Walker paraphrased the decedent as saying, “I don’t care. I *564got my own back.”12 Id.

¶3 The PCRA court concluded that counsel was ineffective in failing to interview and call Mr. Walker, who indicated that he had related the above to the private investigator retained to assist in Ap-pellee’s defense. Despite Mr. Walker relating the details of his conversation with the decedent to the investigator, Appellee’s trial counsel did not conduct a personal interview of Mr. Walker and did not call him as a witness. The PCRA court further concluded that Mr. Walker’s testimony would have been relevant and helpful to the defense to establish that the decedent possessed a gun in the critical moments leading up to the shooting. This evidence also would have been relevant and helpful to refute the numerous witnesses who testified that they had never seen the decedent carrying a gun, as the statement “I got my own back” implies that he had had a gun previously.

¶4 Trial counsel provided two reasons for not interviewing Mr. Walker or calling him to testify. Trial counsel postulated that, as Mr. Walker was not present at the scene of the shooting, he could not “place a gun” in the decedent’s hands. Trial counsel further opined that, as Mr. Walker had pending charges for drug trafficking, this fact would have weighed against his credibility. As the PCRA court concluded that the testimony would have been relevant to establish the decedent’s possession of a gun shortly before the shooting, it rejected counsel’s first basis. While Mr. Walker’s testimony would not necessarily place a gun in the decedent’s hands at the time of the shooting, it certainly would have acted to bolster Appellee’s claim that the decedent was, in fact, armed. As for the credibility claim, the court found that counsel’s concern was unfounded because numerous Commonwealth witnesses also had pending drug charges, and the natural bias for one having pending charges is toward the Commonwealth. The bias toward the Commonwealth arises due either to the fact the Commonwealth is in a position to ask for favorable treatment should the witness provide helpful cooperation, or due to the fact that few would want to antagonize the Commonwealth by testifying against their position while one is himself awaiting disposition of criminal charges.

¶5 The Majority concludes the PCRA court erred with respect to Mr. Walker, as counsel had a strategic basis for not calling the witness. The Majority also implies *565that Appellee failed to establish prejudice from the failure to call Mr. Walker. As outlined above, the PCRA court addressed the strategic basis argument and found it lacking. I join in this assessment. While a reasonable trial strategy will not be second guessed by the PCRA court, I see no reasonable basis for failing to interview and call Mr. Walker. First, it should be noted that neither trial counsel nor the Majority established a negative effort from calling Mr. Walker. Nor does trial counsel or the Majority establish an alternative strategy counsel pursued that precluded the calling of Mr. Walker. Mr. Walker’s testimony, in fact, was consistent with the defense theory that Appellee acted in self-defense, as the decedent was armed and appeared to be reaching for his gun when Appellee shot him. Thus, calling Mr. Walker was not mutually exclusive to another tact taken by counsel designed to advance Appellee’s defense. As the trial court correctly assesses, “[a]t worst, the jury would simply not have believed him.” Trial Court Opinion, 6/28/07, at 86.

¶ 6 I have further reason to conclude that counsel’s decision to not call Mr. Walker was not the product of a reasoned trial strategy. Trial counsel’s testimony at the PCRA hearing seemingly reflects a retrospective rationalization of his decision rather than divulging his thinking at the time of trial. Counsel states:

I don’t believe, based upon what I had, he actually places a gun in the hands of [the decedent.] There was some talk about being able to get a gun prior to this date from, I believe Smack, but I don’t believe based upon his interview that he physically put a gun in his hand and considering I think he was incarcerated at the time facing charges. You know, there certainly could be the express bias towards the District Attorney’s Office. So I believe that was the tactical reason for not calling him.

N.T. PCRA Hearing, at 25. It appears to me that the above passage demonstrates counsel’s presumption that Mr. Walker would not testify favorably to Appellee, thus giving counsel a reason to forego even interviewing Mr. Walker. I cannot accept this as a basis for failing to personally interview Mr. Walker to determine that to which he was actually willing to testify.

¶ 7 Further, the usage of the phrase, “I believe that was the tactical reason,” also seemingly reflects counsel’s thinking after the fact why he might not have called Mr. Walker, not- a reasoned decision that occurred at the time of pre-trial strategizing. In short, I agree with the PCRA court that counsel possessed no reasonable trial strategy for foregoing the potentially useful testimony of Mr. Walker. Further, like the PCRA court, I believe Mr. Walker’s testimony satisfies the relevancy standard. “Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.” Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110, 117-118 (2001). Here, by establishing that the decedent was in possession of a gun immediately prior to the confrontation with Appellee, particularly with the additional evidence that the decedent was seeking to track Appellee down, a reasonable inference is created that the decedent was armed at the time in question. Certainly, Appellee’s theory of the case is bolstered by this evidence.

¶ 8 While the matter was not addressed at the time of the PCRA hearing, in a motion for reconsideration the Commonwealth objected to the proposed testimony on hearsay grounds. In denying reconsideration, the PCRA court found the statement of the decedent “I got my own back” would be admissible pursuant to one or *566more hearsay exceptions: excited utterance, present sense impression or state of mind exception. I have doubts that any of these three exceptions would apply to the statement in question,13 but at issue presently is the PCRA court’s initial order granting relief, an order decided without any hearsay argument/objection expressed by the Commonwealth at the time of the hearing. Since the Commonwealth did not argue that the passage would have been inadmissible due to hearsay, it is difficult to conclude that the court erred in granting relief upon this basis. Additionally, there are other portions of Mr. Walker’s putative testimony, which I believe would be admissible at trial, that are equally beneficial to Appellee even if the statement that the decedent had regained possession of his weapon was to be precluded.

¶ 9 According to Mr. Walker, after administering a beating to Appellee, the decedent expressed his intent to pursue Ap-pellee further. The decedent reportedly stated, “I’m going to go get him again.” This demonstrates the decedent’s state of mind, specifically his great anger and animosity toward the Appellee, and, in my opinion, would be admissible under the state of mind exception to the hearsay rule.14 This testimony by Mr. Walker would bolster Appellee’s claim that the decedent was the aggressor in the inei-dent. Mr. Walker also related a discussion with the decedent a few days prior to the shooting in which he similarly indicated that when he saw Appellee, “it’s going to be problems.” N.T., PCRA Hearing, at 83. Thus, even assuming that the portion of the decedent’s statement admitting to getting his gun back might be precluded from admission at retrial, the testimony of Kelvin Robertson (to be discussed infra), would have the same or similar effect as Mr. Walker’s testimony. However, what would be gained from the other admissible statements is independent evidence from an admitted friend of the decedent that the decedent expressed his intent to go “get Appellee again,” which further dovetailed with threats made a few days earlier. The Commonwealth’s theory of the case — and the manner in which Appellee was portrayed — was that of an individual walking through the parking lot of the housing complex looking for individuals to shoot. In short, the Commonwealth portrayed Appellee as a man possessed with revenge hunting down the decedent. The above-discussed evidence would have had great relevance to Appellee’s defense, which contended it was, in fact, the decedent doing the “hunting” of Appellee, and not the other way around.

¶ 10 The testimony/recantation testimony of Kelvin Robertson was the second *567basis for the PCRA court granting Appel-lee a new trial. At the PCRA hearing, Mr. Robertson, a/k/a/ “Smack,” who, like Ac-hille Walker, was a friend of the decedent’s, testified that his trial testimony had been false to the extent he had indicated that Appellee made threatening hand gestures (imitating the shape of a hand gun) toward the decedent at the Live Wire nightclub prior to the altercation. More importantly, Mr. Robertson testified that, after the fight occurred at the Live Wire, he handed a firearm to the decedent and also that the decedent frequently carried a gun. This testimony corresponds with and supports the testimony of Mr. Walker discussed above. Certainly, the combination of the two accounts substantially bolsters Appellee’s claim that the decedent was armed at the scene.

¶ 11 The Majority finds error on the part of the PCRA court because it concludes that the evidence regarding hand gestures was cumulative of other evidence and that the testimony would not establish that the decedent actually possessed the handgun at the scene. While the testimony of Mr. Robertson would not place the gun in decedent’s hands at the scene, it certainly makes the proposition much more likely and counters the Commonwealth’s testimony that not only was the decedent not seen with a gun, but that he was not known to carry a gun. As such, this evidence satisfies the test of relevancy set forth above. In reality, both sides here are relying upon inference. The fact that other witnesses at the scene did not see the decedent with a handgun does not prove conclusively that the decedent was unarmed, nor does the Commonwealth’s evidence to the effect that the decedent was not known to carry a handgun establish that the decedent was not carrying one at the time of the shooting. Rather, the Commonwealth relies upon the above to create an inference that the decedent was, in fact, unarmed.

¶ 12 Conversely, Appellee, through evidence that the decedent claimed he got his gun back, through statements that he was looking to go get Appellee again, and the fact that he was handed a gun outside the Live Wire, seeks to imply that the decedent was, in fact, armed at the time of the incident. To the extent the Commonwealth is entitled to create the favorable inference in this manner, Appellee is equally entitled to rebut that inference. The crux of the matter is highlighted in the Majority’s statement, “during the course of six days of testimony, with the exception of Appellee’s self-serving testimony, not a single eyewitness testified that the victim had a gun at the time of the shooting....” Majority Opinion, at 563. This is precisely the point; Appellee’s testimony naturally would be viewed as self-serving, which is why it is essential to his case to have some corroborating evidence from less interested or wholly disinterested parties. Evidence that tended to make Appellee’s testimony far more credible in this regard did exist, which the jury did not hear. Moreover, this testimonial evidence came from friends of the decedent who, one would think, would have no interest in helping Appellee. This is the basis for the PCRA court’s decision to grant relief, and I concur with that rationale.

¶ 13 The Majority argues, in part, that prejudice is lacking to Appellee because the jury could have concluded that the Commonwealth had met its burden of proving that Appellee’s shooting of the victim was not justifiable self-defense. Majority Opinion, at 563. The fact that the jury could have found that the Commonwealth sufficiently disproved Appel-lee’s self-defense theory misdirects the inquiry. The question is not whether the jury could have so found, but whether they *568could have found the shooting justifiable and whether the additional evidence helps support that theory. Earlier in its Opinion, the Majority, alluding to the requirement of self-defense that one has a duty to retreat, if retreat was possible with complete safety, suggests that Appellee could not establish self-defense because he did not jump into his car and leave the scene. The Majority’s position ignores Appellee’s testimony that everything “moved so fast.” N.T. Trial, 3/17-24/05, at 993. This position further ignores the fact that Appellee would not have realized that the decedent was about to use deadly force until he began to reach for his handgun. At that point, it would have been too late to retreat with safety.

¶ 14 Moreover, if Appellee is believed, he neither provoked nor continued the use of force. While Appellee and the decedent were in a fight earlier, that fight was broken up and both parties left each other’s company. Only later did the two meet up again and, if Appellee’s evidence is believed, this encounter resulted when the decedent pursued Appellee with malicious intent. In short, if the jury credited Ap-pellee’s evidence and believed the expected testimony which was not presented, Appel-lee would have established that the killing was a justifiable homicide. Thus, the lack of the above-discussed evidence was indeed prejudicial to Appellee, as the evidence was crucial enough that its absence so undermined the truth-determining process that no rehable adjudication of Appel-lee’s guilt or innocence could have taken place at trial. For the above reasons, I believe that the PCRA court correctly determined that Appellee satisfied the requirements for obtaining relief under the PCRA and is entitled to a new trial. Thus, I dissent.

. The whole of Mr. Walker’s testimony casts doubt upon the idea that he was attempting to quote the decedent verbatim. The following passage demonstrates this point:

A. Well, it was about like during the time me and your client was going through a little personal something and me and [the decedent] being friends, like I said, we had a conversation inside the mall. We were in the mall and we were talking about, you know, him and Dez going through it. They’re arguing about the girl, Leeann. They were arguing over her. So she — he tells me, he’s like, look, I’m going to do such and such. You know, he keeps running his mouth about me.
Q. When you go back, you got to be clear for the court. When he said such — what is such and such? Do you remember?
A. Well, he said when he sees Dez it’s going to be problems.

N.T. PCRA Hearing, at 82-83. The passage referencing the decedent’s reacquisition of a gun has a similar feel to it:

A. Well, he says — he says to me, look, I don't care. I got my own back. I was like well, just leave it alone.
Q. Lets’ stop there. He tells you he got his gun back?
A. Yeah.

Id. at 84. Although Mr. Walker did not use the word gun, when asked about the decedent getting his gun back he responded affirmatively. This leaves open the question whether the decedent actually used the term "gun” or whether Mr. Walker simply construed what the decedent stated to mean that he had gotten the gun back

. I express no opinion as to whether the testimony might be admissible under another exception to the hearsay rule not propounded and litigated.

. This hearsay exception provides:

Rule 803. Hearsay exceptions; availability of declarant immaterial
The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then existing mental, emotional, or physical condition. A statement of the de-clarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health. A statement of memory or belief offered to prove the fact remembered or believed is included in this exception only if it relates to the execution, revocation, identification, or terms of de-clarant's will.