J-S11024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ARMEL J. BAXTER
Appellant No. 1277 EDA 2015
Appeal from the PCRA Order March 4, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013121-2007
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 17, 2016
Armel J. Baxter appeals the order entered March 4, 2015, in the
Philadelphia County Court of Common Pleas, dismissing his first petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et
seq. Baxter seeks relief from the judgment of sentence of life imprisonment
imposed on February 5, 2009, after a jury found him guilty of first-degree
murder, criminal conspiracy, and possession of an instrument of crime
(“PIC”).1 On appeal, he raises multiple ineffective assistance of counsel
claims. For the reasons that follow, we affirm.
____________________________________________
1
18 Pa.C.S. §§ 2502(a), 903(a)(1), and 907(a), respectively.
J-S11024-16
The facts underlying Baxter’s convictions were recited, as follows, in
the decision by this Court affirming his judgment of sentence on direct
appeal:
On April 21, 2007, approximately twenty (20) to fifty (50)
people were in the Kenderton Elementary playground. Demond
Brown (decedent/victim, also identified on the record as
“Demond”) had recently finished a game of basketball and was
standing on the sideline. The decedent’s cousin, Anthony Harris
(also identified on the record as “Tony”), and best friend, Hassan
Durant, were standing on the basketball court.
[Baxter]1 and Jeffrey McBride2 were in the backseat of their
friend Rachel Marcelis’ car, driving to their friend Daryl Mack’s
(also identified on the record as “Mack”) aunt’s house. Either,
[Baxter] or McBride said they saw someone on the playground
and told Rachel Marcelis to go back so they could be sure.
Rachel Marcelis drove around the block, and [Baxter] and
McBride exited the car.
____________________
1
“[Baxter]” also identified on the record as “Snubbs” and
“Jay-Jay[.]”
2
“McBride”, also identified on the record as “Fraddo” and
“Fra[.]”
____________________
Anthony Harris and Hassan Durant saw [Baxter] and McBride
enter the playground with “hoodies”3 on. People on the
playground noticed [Baxter] and McBride because both men
were wearing hoodies on a very hot day. The decedent turned
around, noticed [Baxter] and McBride, and began to run.
[Baxter] and McBride began shooting, and continued to shoot as
they walked together side by side. The decedent ran in a
“zigzag” pattern toward the 15th Street exit. The decedent
stumbled out of the playground and fell in the middle of the
street.
____________________
3
A “hoodie” is a long sleeved sweatshirt with a hood.
____________________
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[Baxter] and McBride ran out of the playground, and headed
east on Ontario Street, then south on 15th Street. Rachel
Marcelis saw [Baxter] and McBride running in her direction, and
let them back in her car. While in the car, Rachel Marcelis heard
[Baxter] and McBride talking about how McBride’s gun did not
work and he could “not get any rounds off”. When they arrived
at Daryl Mack’s aunt’s house, Rachel Marcelis asked McBride “if
that was the person who shot De-Nyce.” McBride answered
“Yes”. After they left the house, Rachel Marcelis, [Baxter] and
McBride drove to Wilkes-Barre for the weekend, but only Rachel
Marcelis returned the following Monday.
An arrest warrant was issued for both [Baxter] and McBride
on May 4, 2007. McBride was arrested in Wilkes-Barre on May
7, 2007, after police were informed of his outstanding warrant.
[Baxter] was found at a motel in Wilkes-Barre on July 10, 2007,
after the police received a call regarding a domestic violence
issue. [Baxter] was initially arrested for false identification, after
he gave officers three false names. He was subsequently
arrested [i]n this case after further investigation by law
enforcement.
Commonwealth v. Baxter, 996 A.2d 535 [437 EDA 2009] (Pa. Super.
2010) (unpublished memorandum at 1-2) (footnote omitted), quoting Trial
Court Opinion, 7/8/2009, at 2-3 (citations omitted).
Baxter’s case proceeded to a jury trial on January 29, 2009.2 As noted
above, on February 5, 2009, the jury convicted him of first-degree murder,
criminal conspiracy, and PIC. On that same day, the court sentenced Baxter
to life imprisonment, without the possibility of parole, for the murder
conviction, with concurrent sentences of ten to 20 years’ imprisonment for
the conspiracy charge and one to two years’ incarceration for the PIC crime.
____________________________________________
2
Baxter and McBride were tried together.
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On March 3, 2010, we affirmed his judgment of sentence, and the
Pennsylvania Supreme Court denied his petition for allowance of appeal on
February 23, 2011. See id., appeal denied, 17 A.3d 1250 (Pa. 2011).3
On September 23, 2011, Baxter filed a pro se PCRA petition.4
On November 2, 2012, Gary Server, Esquire[,] was appointed to
represent [Baxter]. On September 24, 2013, Mr. Server filed an
amended petition, raising various issues [Baxter] identified in his
pro se filings. On November 13, 2013, [Baxter] filed a motion to
proceed pro se. On June 9, 2014, after [Baxter] declined to
participate in a video conference, he was transported from SCI
Coal Township for a Grazier[5] hearing. At the conclusion of the
hearing, this Court held that [Baxter]’s waiver of counsel was
knowing, intelligent, and voluntary, permitted [Baxter] to
represent himself, and appointed an investigator to assist him.
On October 27, 2014, Craig Cooley, Esquire[,] entered his
appearance as counsel for [Baxter].
PCRA Court Opinion, 3/4/5015, at 1-2.
An evidentiary hearing was held on January 20, 2015. The PCRA court
limited the hearing to the following issues:
- Trial counsel’s ineffectiveness for failure to cross-examine a
witness as to her immunity petition; and
- Trial counsel’s ineffectiveness for failure to examine Gregory
Blackmon, Stefon Studivent, Kyle Carter, Darryl Mack, and
Deborah McBride.
____________________________________________
3
Mark Greenberg, Esquire, represented Baxter at trial and on direct appeal.
We note McBride also filed a direct appeal, which was docketed at 440 EDA
2009.
4
Baxter also filed supplemental petitions on March 8, 2012, September 8,
2014, and September 16, 2014.
5
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Order, 11/21/2014. On March 4, 2015, the PCRA court entered an order
and opinion, dismissing Baxter’s petition. This appeal followed.6
Baxter raises the following issues on appeal:
1. The PCRA court erred because the record contained sufficient
evidence to find Mark Greenb[e]rg made several objectively
unreasonable decisions that individually and collectively
undermine confidence in Armel Baxter’s convictions
warranting a new trial. U.S. Const. amends. V, VI, VIII, XIV;
Pa. Const. art. §§ 8, 9, 23.[7]
a. Mark Greenb[e]rg’s decision not [to] exercise Armel
Baxter’s compulsory process right, by not requesting
bench warrants for two subpoenaed witnesses – Kyle
Carter and Gregory Blackmon – was objectively
unreasonable and prejudiced Baxter because Carter and
Blackmon were both fact witnesses whose testimony
would have undermined Anthony Harris’s and Hassan
Durant’s identifications.
b. Mark Greenb[e]rg’s decision not to subpoena Stephon
Studivant and present him at trial was objectively
unreasonable and prejudiced Armel Baxter because
Studivant was a fact witness whose testimony
significantly undermined Anthony Harris’s and Hassan
Durant’s identifications.
c. Mark Greenb[e]rg’s decisions not to present Darryl
Mack and to cross-examine Rachel Marcelis with her
Cordell Young trial testimony and immunity agreements
with the Commonwealth were objectively unreasonable
____________________________________________
6
The court did not order Baxter to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b).
7
With respect to the first issue, we note Baxter focuses on the legal
standard regarding ineffectiveness of counsel and certain duties of counsel,
rather than specific incidences of counsel’s ineffectiveness. See Baxter’s
Brief at 35-37. Therefore, our analysis will begin with the first sub-issue.
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and prejudiced Armel Baxter because they would have
individually and cumulatively undermined Marcelis’s
testimony. The absence of Mack’s testimony, Marcelis’s
testimony at Cordell Young’s trial, and her immunity
agreements with the Commonwealth undermines
confidence in Baxter’s convictions warranting a new
trial.
d. Mark Greenb[e]rg’s cumulative errors undermine
confidence in Armel Baxter’s conviction warranting a
new trial where Baxter can introduce the exculpatory
and impeachment evidence not presented by
Greenb[e]rg.
2. Mark Greenb[e]rg violated Armel Baxter’s right to counsel by
being “totally absent” when the trial court addressed the jury
and answered its three questions and by sending an
inexperienced attorney who had no criminal defense
experience and knew nothing about the case or Baxter’s
defense. The court should presume prejudice under these
circumstances and grant a new trial. U.S. Const. amends. V,
VI, VIII, XIV; Pa. Const. art. §§ 8, 9, 23.
Baxter’s Brief at 35, 37, 50, 54, 63, and 64 (some capitalization removed).
Our standard and scope of review for the denial of a PCRA petition is
well-settled:
[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free
from legal error. The scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.
Commonwealth v. Charleston, 94 A.3d 1012, 1018-1019 (Pa. Super.
2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).
To be eligible for PCRA relief, [the a]ppellant must prove by a
preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated circumstances
found at 42 Pa.C.S. § 9543(a)(2) (listing, inter alia, the
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ineffective assistance of counsel and the unavailability at the
time of trial of exculpatory evidence, which would have changed
the outcome of the trial had it been introduced).
Commonwealth v. Koehler, 36 A.3d 121, 131-132 (Pa. 2012).
In Baxter’s first sub-issue, he contends counsel was ineffective for
failing to exercise Baxter’s compulsory process right pursuant to the 6 th
Amendment of the United States Constitution and Article 1, Section 9 of the
Pennsylvania Constitution by not requesting that bench warrants be issued
for two subpoenaed witnesses, Carter and Blackmon, who did not appear at
trial. Baxter’s Brief at 37. Baxter argues, “If subpoenaed witnesses fail to
appear for whatever the reason, e.g., bad weather, trial counsel must
exercise his client’s compulsory process rights and request the trial court’s
assistance by asking it to issue bench warrants to compel and produce these
favorable witnesses.” Id. at 37.8 Baxter states Greenberg’s actions were
____________________________________________
8
He further explains:
Michael Wallace[, co-defendant’s counsel,] subpoenaed Carter
and Blackmon, and Greenb[e]rg piggybacked off Wallace’s
subpoena. Carter spoke with Greenb[e]rg the first day he went
to court, while Blackmon signed a written statement saying the
gunmen were 6’2” or taller. Thus, by subpoenaing both and
speaking with Carter at trial, Greenb[e]rg knew or should have
known the substance and significance of their testimony and how
it undermined Harris’s and Durant’s identifications. Carter and
Blackmon were both at court multiple days waiting to testify on
Baxter’s behalf. Unfortunately, due to bad weather on February
4, 2009, they incorrectly assumed the courthouse was closed.
(Footnote Continued Next Page)
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unreasonable based on the following: (1) counsel never made a proffer to
the court explaining the substance and significance of Carter’s and
Blackmon’s testimony, which would have undermined the identifications
made by Harris and Durant as well as Marcelis’ testimony; (2) if counsel had
made an on-the-record request and objection after the court denied the
request, he would have preserved the issue for appellate review, but by not
doing so, he waived the issue; and (3) Baxter suffered great harm because
counsel made certain the jury would not hear the relevant and exculpatory
testimony of Carter and Blackmon. Id. at 39-40. Furthermore, he states:
To be clear, because Baxter is arguing Greenb[e]rg erred
by not raising and preserving this issue for direct appeal, the
Court’s prejudice analysis must focus on how this Court would
have adjudicated this issue on direct appeal – not post-
conviction. The distinction is significant in terms of prejudice.
Had Greenb[e]rg properly preserved this issue for direct appeal,
all Baxter would have had to demonstrate is that Carter’s and
_______________________
(Footnote Continued)
Wallace requested a continuance to contact Carter and
Blackmon, but he [n]ever made a proffer to the trial court
explaining the significance of their proposed testimony and how
it undermined the Commonwealth’s identification evidence, so
the trial court denied his request. Greenb[e]rg, on the other
hand, as this Court pointed out on direct appeal, never
requested a continuance. More importantly, Greenb[e]rg never
exercised Baxter’s compulsory process rights by requesting the
trial court to issue bench warrants for Carter and Blackm[o]n.
At the PCRA hearing, Greenb[e]rg and Wallace both said they
never requested bench warrants because, if the trial court
denied Wallace’s continuance request, they assumed it would
have denied bench warrant requests.
Id. at 39.
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Blackmon’s proposed testimony was both relevant and favorable
to his defense.
Id. at 41 (italics in original).
Lastly, with respect to this claim, Baxter asserts the PCRA court made
the following errors: (1) it erroneously stated Baxter presented this claim
on direct appeal and a panel of this Court determined it was “meritless;” (2)
by finding the panel previously adjudicated this claim, the PCRA court
misconstrued the substance of his claim and incorrectly analyzed it as a
failure to call a witness claim instead of a compulsory process issue; and (3)
the court improperly found the testimony of Harris and Durant was credible
merely because both men knew Baxter and “the jury ‘credited’ their
testimony.” Id. at 42.
We begin with the following:
In evaluating claims of ineffective assistance of counsel, we
presume that counsel is effective. Commonwealth v. Rollins,
558 Pa. 532, 738 A.2d 435, 441 (Pa. 1999). To overcome this
presumption, Appellant must establish three factors. First, that
the underlying claim has arguable merit. See Commonwealth
v. Travaglia, 541 Pa. 108, 661 A.2d 352, 356 (Pa. 1995).
Second, that counsel had no reasonable basis for his action or
inaction. Id. In determining whether counsel’s action was
reasonable, we do not question whether there were other more
logical courses of action which counsel could have pursued;
rather, we must examine whether counsel’s decisions had any
reasonable basis. See Rollins, 738 A.2d at 441;
Commonwealth v. (Charles) Pierce, 515 Pa. 153, 527 A.2d
973, 975 (Pa. 1987). Finally, “Appellant must establish that he
has been prejudiced by counsel’s ineffectiveness; in order to
meet this burden, he must show that ‘but for the act or omission
in question, the outcome of the proceedings would have been
different.’” See Rollins, 738 A.2d at 441 (quoting Travaglia,
661 A.2d at 357). A claim of ineffectiveness may be denied by a
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showing that the petitioner’s evidence fails to meet any of these
prongs. Commonwealth v. (Michael) Pierce, 567 Pa. 186,
786 A.2d 203, 221-22 (Pa. 2001); Commonwealth v.
Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (Pa. 2000);
Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701
(Pa. 1998) (“If it is clear that Appellant has not demonstrated
that counsel’s act or omission adversely affected the outcome of
the proceedings, the claim may be dismissed on that basis alone
and the court need not first determine whether the first and
second prongs have been met.”). In the context of a PCRA
proceeding, Appellant must establish that the ineffective
assistance of counsel was of the type “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.” 42 Pa.C.S. § 9543(a)(2)(ii).
See also (Michael) Pierce, 786 A.2d at 221-22;
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333
(Pa. 1999).
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).
The Sixth Amendment of the United States Constitution provides, “In
all criminal prosecutions, the accused shall enjoy the right ... to have the
assistance of counsel for his defence.” U.S.Const. amend. VI. Likewise,
Article 1, Section 9 of the Pennsylvania Constitution states, “In all criminal
prosecutions the accused hath a right to be heard by himself and his counsel
....” Pa.Const. art. I, § 9.
“It is clear that under both our state and federal constitutions, a
criminal defendant has a right of compulsory process to obtain
witnesses in his favor.” Commonwealth v. Lahoud, 339
Pa.Super. 59, 64, 488 A.2d 307, 310 (1985) (allocatur denied),
quoting Commonwealth v. Allen, 501 Pa. 525, 531, 462 A.2d
624, 627 (1983). “The right to compulsory process encompasses
the right to meet the prosecution’s case with the aid of
witnesses, and the right to elicit the aid of the Commonwealth in
securing those witnesses at trial, both of which are fundamental
to a fair trial.” Commonwealth v. Jackson, 457 Pa. 237, 243,
324 A.2d 350, 354-355 (1974); Commonwealth v. Lahoud,
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supra. “Just as an accused has the right to confront the
prosecution’s witnesses for the purpose of challenging their
testimony, he has the right to present his own witnesses to
establish a defense. This right is a fundamental element of due
process of law.” Washington v. Texas, 388 U.S. 14, 19, 87
S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967). “[The]
constitutional right, though fundamental, is not, however,
absolute.” Commonwealth v. Jackson, supra 457 Pa. at 243,
324 A.2d at 355. In order to compel the attendance of a witness
at trial, it must be shown that the information possessed by the
witness is material, i.e., capable of affecting the outcome of the
trial, and that it is favorable to the defense. United States v.
Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d
1193 (1982).
Commonwealth v. McKenzie, 581 A.2d 655, 657 (Pa. Super. 1990).
Even though case law is very limited on this subject, in
Commonwealth v. Twiggs, 331 A.2d 440 (Pa. 1975), the Pennsylvania
Supreme Court considered a substantially similar issue:
In determining whether counsel’s failure to secure the
attendance of the witness or to have the notes of his previous
testimony read to the jury constituted constitutionally ineffective
assistance of counsel, we are guided by the standards
established in Commonwealth ex rel. Washington v.
Maroney, 427 Pa. 599, 235 A.2d 349 (1967). There we held
that
“counsel’s assistance is deemed constitutionally effective
once we are able to conclude that the particular course
chosen by counsel had some reasonable basis designed to
effectuate his client’s interests. The test is not whether
other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding
of effective assistance as soon as it is determined that trial
counsel’s decision had any reasonable basis.”
Id. at 604, 235 A.2d at 352.
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If counsel’s decision not to secure [the witness]’s appearance or
to have the notes of [the witness]’s previous testimony read to
the jury was based on a reassessment of its worth and a
conclusion that it was of little or no value in the posture of this
case, then that decision clearly had some reasonable basis
designed to effectuate [the appellant]’s interests. In such
circumstances, counsel’s conduct would not constitute
ineffectiveness. See Commonwealth ex rel. Washington v.
Maroney, supra. Had counsel reached this decision on a basis
designed to advance his client’s interest, this case would be
analogous to those situations in which, as a matter of trial
strategy, counsel decides not to call a witness at all. See
Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975);
Commonwealth v. Owens, 454 Pa. 268, 275, 312 A.2d 378,
382 (1973); Commonwealth v. Karchella, 449 Pa. 270, 296
A.2d 732 (1972); Commonwealth v. Ellis, 445 Pa. 307, 284
A.2d 735 (1971); Commonwealth v. Hawkins, 445 Pa. 282,
284 A.2d 730 (1971).
If, however, counsel’s failure to seek compulsory process to
obtain [the witness]’s testimony or to have his prior testimony
read to the jury was the result of sloth or lack of awareness of
the available alternatives, then his assistance was ineffective. In
a case where virtually the only issue is the credibility of the
Commonwealth’s witness versus that of the defendant, failure to
explore all alternatives available to assure that the jury heard
the testimony of a known witness who might be capable of
casting a shadow upon the Commonwealth’s witness’s
truthfulness is ineffective assistance of counsel.
Twiggs, 331 A.2d at 442-443.
A review of the record reveals the following. Counsel for McBride,
Michael Wallace, Esquire, subpoenaed both Carter and Blackmon to testify at
both defendants’ trial. On February 4, 2009, during the defense’s case-in-
chief, Wallace asked for a brief continuance to determine which witnesses
were there. When he learned Carter and Blackmon were not in the
courthouse, he then called them to determine their whereabouts. Wallace
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stated Carter and Blackmon had been at the trial, and assured him they
would be there. He told the trial court that he assumed their absence was
based on the weather conditions. He attempted to ask for a continuance,
but the court interrupted him, stating there was no problem with public
transportation and there was no line outside the courthouse. Wallace then
asked for time to make additional phone calls, which the trial court granted.
See N.T., 1/20/2015, at 198-204.
At the January 20, 2015, PCRA evidentiary hearing, Wallace testified
he did not obtain a bench warrant for the two men based on the following:
“[B]ecause the judge immediately said no, we’re moving forward, so it would
have been a waste of time, because if [the judge] wasn’t going to give me
an opportunity to go back and try and get them, she wasn’t going to give me
an opportunity to sit around and wait two days for a bench warrant.” Id. at
209. Wallace indicated he did object “to the fact that [the judge] told me to
go right on. I think the words are in the record, you’re taking my client’s
defense away from me, my defense, whatever I said.” Id.
Greenberg also testified at the PCRA evidentiary hearing. He indicated
he worked jointly with Wallace “to get the witnesses in court” and
“coordinated subpoenaing these witnesses.” Id. at 213, 241-242.
Greenberg stated, “The judge allowed me to follow Mr. Wallace’s lead when
it came to subpoena so we did not have to duplicate the process.” Id. at
213. Greenberg further testified the defense at trial was mistaken
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identification and hypothesized potential concerns with presenting Carter
and Blackmon as defense witnesses. Id. at 244-245. He noted they were
good friends of Baxter’s and based on his experience with juries, “if the
witness is a good friend, he or she has more of a bias than a total stranger.”
Id. at 245. Additionally, he stated that a witness could be impeached by his
or her criminal record but he could not remember if Carter or Blackmon had
criminal records. Id. Third, Greenberg testified, “[P]eople see different
things from different perspectives. Whether or not a hoody would have
covered the face of a witness from one perspective doesn’t mean it would
have covered the face of a witness from a different vantage point.” Id.
Lastly, Carter and Blackmon both testified at the PCRA hearing. The
court summarized their testimony as follows:
Blackmon testified that he was at the basketball game
where the shooting occurred, and that prior to the shooting he
saw two tall, slender men in hooded sweatshirts approach the
game. He said that he could not see their faces because the
hoods obscured them. Blackmon asserted that he would have
testified to these facts and that he appeared at trial. However,
when asked why he did not testify, he initially explained that one
of the attorneys said that he did not need Blackmon to testify.
Later, Blackmon contradicted this testimony by stating that he
did not appear for court because of the weather.
Carter testified that he, too, was at the basketball game on
the day of the shooting, and saw the hooded shooters but did
not witness the actual shooting. Carter described the shooters
as taller than himself but stated that he could not see their faces
because of their hoods. Carter was inconsistent within his
testimony regarding where he was located when the shooting
began. During his testimony he stated he was in three different
locations: just off the basketball court, sitting on a car, and
running to get under a car. He was impeached with his affidavit
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from October 14, 2013, in which he said he was running at the
time of the shooting, which he admitted was wrong. Carter was
also inconsistent regarding the reason he did not testify at trial.
Carter said that he was present at the trial but did not testify
because “[m]y services weren’t needed.” Carter did not mention
anything regarding a snow storm or courts being closed until
prompted by the District Attorney, after which he indicated he
believed that court was cancelled.
PCRA Court Opinion, 3/4/2015, at 5 (record citations omitted).
With respect to this claim, the PCRA court noted the following:
2
Carter and Blackmon were subpoenaed by McBride’s
attorney, Michael Wallace, Esquire. However, it is clear
from the record at trial that there was communication and
cooperation between Mr. Greenberg and Mr. Wallace with
regards to locating witnesses.
3
This Court notes that [Baxter]’s argument that trial
counsel should have made a proffer to the trial court as to
the testimony of Blackmon and Carter and pursued bench
warrants was found to be meritless by [the] Superior
Court. On appeal, [Baxter] argued that the court erred
and abused its discretion in denying a continuance to the
defense on February 4, 2009 for these witnesses.
Although the Superior Court found that the claim was
waived, it also found it to be meritless based on the fact
that there were no guarantees that the witnesses would
have shown up, should the trial have been continued.
Id. at 6, 7.
In dismissing the claim, the PCRA court found Baxter had “failed to
establish that the witnesses were willing and able to cooperate on behalf of
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[Baxter] and that proposed testimony was necessary to avoid prejudice.”
Id. at 5.9 Specifically, the court determined:
[Baxter] has also failed to establish that the proposed
testimony of Carter, Blackmon, and Studivant was necessary to
avoid prejudice as the testimony does not discredit the
persuasive testimony provided at trial by Anthony Harris and
Hassan Durant. On the day of the shooting, Durant was at the
park when he noticed [Baxter] and McBride. Durant immediately
paid attention to [Baxter] and McBride when they arrived at the
park because it was a hot day and Durant thought it was odd
that they were wearing hoodies. Durant was about twenty feet
from the shooters when they shot Brown and “[he] seen [sic] it
perfect.” Durant identified [Baxter] and McBride at trial and
indicated that [he] had seen [Baxter] around the neighborhood
for about a year before the shooting. Durant explained that
although the shooters had hoods on, he could see their faces.
Harris was also present in the park for the shooting.
Harris saw [Baxter] and McBride before they entered the park
and they put their hoods up. Harris saw [Baxter] pull out a gun
and shoot Brown. Harris identified [Baxter] as the shooter and
explained that Harris had known [Baxter] for over twenty years
as he lived three doors down from him. Harris explained that
even when [Baxter] and McBride had their hoods up, Harris
could see their faces.
Harris and Durant’s testimony was credited by the jury,
and is not rendered vulnerable by the after-the-fact testimony of
Carter, Blackmon, and Studivant. Carter, Blackmon, and
Studivant stated that they could not see the shooters’ faces
because of their hoods, a claim that was implausible. The
shooting took place during the daytime in front of a crowd; in
those conditions, it is not plausible that a hood would completely
obscure a person’s face. Further, neither Carter, Blackmon, nor
Studivant knew [Baxter] prior to the shooting whereas both
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9
We note the PCRA court also discusses another witness’s, Studivant,
testimony in conjunction with its analysis of Carter and Blackmon. Baxter’s
second argument concerns Studivant. Therefore, for ease of discussion, we
have included the court’s findings regarding Studivant as well.
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Harris and Durant were well acquainted with [Baxter]. Carter,
Blackmon, and Studivant’s incredible and vague assertion that …
the shooters were taller than [Baxter], a man they did not know,
would not have swayed the jury to discredit Harris and Durant’s
testimony that Durant saw his neighborhood acquaintance and
Harris saw his neighbor of over twenty years shoot Brown in
broad daylight. [Baxter]’s claim that trial counsel was ineffective
for failing to present testimony from Carter, Blackmon, and
Studivant is meritless.
Id. at 7-8 (record citations omitted).
Although we agree with the court’s ultimate determination, we do so
pursuant to alternative basis.10 In applying the ineffective assistance of
counsel standard, we find there was arguable merit to Baxter’s claim. See
Washington, supra. Counsel should have requested a bench warrant, as
opposed to a continuance, because Carter and Blackmon were subpoenaed.
Moreover, because the witnesses’ testimony would have directly contradicted
the testimony of the two primary Commonwealth witnesses, there was a
factual issue regarding identification that would have been for the jury to
resolve.
____________________________________________
10
“This Court is not bound by the rationale of the trial court, and we may
affirm the trial court on any basis.” Commonwealth v. Williams, 73 A.3d
609, 617 n.4 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d
320 (Pa. 2014).
Here, the PCRA court largely dismissed the claim based on credibility
determinations concerning the trial witnesses. In accordance with Twiggs,
this type of determination would not overcome the ineffectiveness hurdle.
Twiggs, 331 A.2d at 443. The court incorrectly assumes the jury would find
Carter and Blackmon’s testimony incredible.
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Nevertheless, we are compelled to conclude trial counsel pursued a
reasonable trial strategy with respect Carter and Blackmon based on the
circumstances of the case. We note Greenberg worked jointly with Wallace
and therefore, Wallace’s actions with respect to procuring the witnesses
should be applied to Greenberg. Wallace subpoenaed Carter and Blackmon.
Both men stated they were at trial on the days leading up to the date they
were supposed to testify. Therefore, both Greenberg and Wallace would
have no reason to believe that the two witnesses would not show up on the
designated day. Furthermore, Wallace did ask for time to call the missing
witnesses and ascertain their whereabouts. When he attempted to ask for a
continuance after failing to find them, the court denied his request.
Therefore, both counsels were correct to infer that the court would not grant
them even more additional time to procure a bench warrant and that such
an attempt would be futile.11
Counsel’s strategy is further supported by the fact that on direct
appeal, a panel of this Court determined the trial court did not abuse its
____________________________________________
11
It merits mention that Wallace even objected to the court’s denial of his
request for a continuance, asserting the court denied Baxter’s co-defendant
a defense. Furthermore, the PCRA court noted: “The bench warrant is not
meaningless. The bench warrant could have been issued and each of the
potential witnesses could have been held in contempt, but it would not have
helped the defense in this case when the [trial] judge said she’s not granting
a continuance for the witnesses to be located and brought in.” N.T.,
1/20/2015, at 256.
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discretion in denying the attempted request for a continuance.12 Baxter,
996 A.2d 535 [437 EDA 2009] (Pa. Super. 2010) (unpublished memorandum
at 13). Specifically, the panel opined:
After a review of the record, it is clear that the trial court did not
abuse its discretion in refusing to grant a continuance. Although
the weather conditions were poor, court was in session, the
weather did not prevent the jury or the other witnesses from
appearing, and public transportation was still operational. N.T.,
2/4/09, at 24. Also, the potential witnesses did not
communicate with [Baxter] or his counsel as to their absence.
Id. [Baxter] hired a private detective to locate one of the
witnesses and was unable to locate him. Id. at 18-19. No
information was presented to the trial court that the witnesses
would appear if a continuance was granted. As the court had no
basis to believe that any further delay would have produced
these witnesses, the trial court did not abuse its discretion in
refusing to grant a continuance.
Id. at 14-15.
Because the trial court was so decisive in its decision to move the case
forward and the panel determined the trial court did not abuse its discretion
with regard to this action, we cannot conclude Baxter’s counsel was
ineffective for failing to also pursue a bench warrant as it would have been
considered a non-meritorious or frivolous claim. See Commonwealth v.
____________________________________________
12
We acknowledge the panel primarily found Baxter waived the issue
because he, himself, did not request a continuance or object to the court’s
decision not to grant a continuance. Baxter, 996 A.2d 535 [437 EDA 2009]
(Pa. Super. 2010) (unpublished memorandum at 13), citing
Commonwealth v. Cannady, 590 A.2d 356, 362 (Pa. Super. 1991)
(holding where the defendant did not object, and he did not join in his co-
defendant’s objection, the issue was waived as to the defendant for
purposes of appeal, even if the objection was identical to claim raised on
appeal), appeal denied, 600 A.2d 950 (Pa. 1991).
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Fears, 86 A.3d 795, 803 (Pa. 2014) (holding counsel cannot be deemed
ineffective for failing to raise a meritless claim). Furthermore, we cannot
find Baxter’s counsel failure to seek compulsory process with respect to
Carter and Blackmon was “the result of sloth or lack of awareness of the
available alternatives[.]” Twiggs, 331 A.2d at 443. Accordingly, Baxter
failed to satisfy the reasonable trial strategy prong of the ineffective
assistance of counsel test. See Washington, 927 A.2d at 594. Therefore,
we reject Baxter’s first sub-claim of PCRA court error.
Next, Baxter argues counsel was ineffective for not subpoenaing
Studivant and presenting him at trial. Baxter’s Brief at 50. Baxter states:
Greenb[e]rg knew about Studivant because he wrote him before
trial and Studivant spoke with Greenb[e]rg’s investigator before
trial. Even if Studivant did not speak with Greenb[e]rg’s
investigator, the record, as the PCRA Court found, “is clear” that
Greenb[e]rg knew of [or] should have known about Studivant’s
testimony because, as the PCRA Court found, “there was
communication and cooperation between Mr. Greenb[e]rg and
Mr. Wallace with regards to locating witnesses.” Thus, despite
knowing about Studivant’s testimony, as the PCRA Court found,
Greenb[e]rg never subpoenaed him.
At the PCRA hearing, Studivant’s testimony was consistent
with Carter’s and Blackmon’s regarding the shooting: (1) he
could not identify the gunmen because their hoodies were pulled
tightly over their heads; (2) the gunmen were approximately
6’1” to 6’2”; and (3) when people returned to the basketball
courts several minutes after the shooting to assess the situation,
he saw and heard Anthony Harris accuse Malik Ware of being
one of the gunmen. These facts, as mentioned, would have
been tremendously favorable to Baxter’s defense.
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Id. at 50-51. Baxter again argues the PCRA court misinterpreted his claim
by analyzing it as a failure to call a witness argument as opposed to a
compulsory process issue. Id. at 51.
Here, the PCRA court stated the following: “Studivant was not
subpoenaed, however, according to a letter from Mark Shaffer dated
December 2008, it is clear that trial counsel made multiple unsuccessful
attempts to locate Studivant. Additionally, Studivant testified that he was
aware of [Baxter]’s trial and the need for his testimony.” PCRA Court
Opinion, 3/4/2015, at 6 (citations omitted). The court also found that
Studivant did not give credible testimony at the PCRA hearing with regard to
why he did not appear at trial. Id.
The record supports the court’s finding. Multiple attempts were made
to contact Studivant. First, on September 3, 2008, Greenberg sent a letter
to Studivant, stating: “Mr. Baxter insists that he is innocent and advises that
you may have some relevant information about the case. Please contact me
at your earliest convenience so that we can talk about the case in greater
detail.” Baxter’s Post-Hearing Brief, 2/5/2015, at Exhibit 3. Approximately
three months later, Mark H. Shaffer, the hired private investigator, sent a
letter to Greenberg regarding the witnesses he was hired to locate. With
regard to Studivant, Shaffer stated: “There was no answer at the time of
our arrival. We left a sealed envelope requesting that he telephone us. He
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has not telephoned.” Id. at Exhibit 5. Subsequently, on January 20, 2009,
Shaffer wrote a second letter to Greenberg, in which he averred:
No record was found for [Studivant] in our databases. The
provided residence address of 3433 N 16th Street, Philadelphia,
PA 19140 is deeded to Deborah Willis as of 1999. No criminal
record surfaced.
We traveled to the provided residence address but on this
occasion residents directed us to go across the street to 3444 N
16th Street where the door was answered by a black female
identifying herself only under the first name of Josephine and as
the grandmother of Stefon [Studivant].
She states that Stefon [Studivant] is away at college, does
not live at home and has a cell phone. She refused to give us
his cell number or the house number. She refused to provide us
with his college address but did advise he is presently a student
at Lincoln University, Oxford, PA.
We gave Josephine the letter we had prepared in advance
and related the urgency of Stefon [Studivant] telephoning us.
She stated that she would only promise to pass the letter onto
Stefon [Studivant]’s mother.
We have not received a call.
Id. at Exhibit 6, pg. 2.
At the January 20, 2015, hearing, Studivant testified Greenberg and
Shaffer never contacted him directly or subpoenaed him. N.T., 1/20/2015,
at 82. He also stated he came to the courthouse for one day of Baxter’s trial
but could not remember which day it was. Id. at 86.
Again, Baxter has failed to establish Greenberg’s failure to seek
compulsory process with regard to Studivant was “the result of sloth or lack
of awareness of the available alternatives[.] Twiggs, 331 A.2d at 443.
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Multiple attempts were made to ascertain Studivant’s whereabouts but none
were successful. Studivant even admitted he was at the trial but did not
indicate he went up to Baxter or Greenberg to indicate his willingness to
testify. The evidence surrounding Studivant demonstrated he was not
prepared to cooperate with Baxter’s defense. As such, we agree with the
PCRA court that Studivant’s testimony as a willing witness was incredible.
See Commonwealth v. Pate, 617 A.2d 754, 760 (Pa. Super. 1992) (noting
credibility of witnesses in PCRA proceedings is exclusively within the
province of the trial court). Accordingly, Baxter’s second ineffectiveness
sub-claim fails.
Baxter’s third sub-issue involves counsel’s failure to effectively
undermine the testimony of Rachel Marcelis. By way of background,
Marcelis testified she was driving the two co-defendants to Daryl Mack’s
aunt’s house when they made her stop at the schoolyard/playground and
drop them off. She said she subsequently saw them running in her
direction, and let them back in the car. She heard the two men discuss how
McBride’s gun did not work and he could not fire any rounds. She asked
McBride “if that was the person[, the victim,] who shot De-Nyce” and he
answered in the affirmative. Baxter, 996 A.2d 535 [437 EDA 2009] (Pa.
Super. 2010) (unpublished memorandum at 2). Marcelis testified she drove
the two men to Mack’s aunt’s house and then to Wilkes-Barre, Pennsylvania.
Baxter states counsel was ineffective for not cross-examining Marcelis
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regarding her trial testimony from an unrelated case (the Cordell Young
trial13), and her immunity agreements with the Commonwealth. See
Baxter’s Brief at 54. He also contends counsel failed to present Mack as an
impeachment witness with respect to Marcelis. Id. Mack would have
purportedly testified that he was at a party with Marcelis on the night before
the shooting took place, and observed her consuming numerous amounts
drugs and alcohol. N.T., 1/20/2015, at 19-20. He stated he did not see
Baxter at this party. The following morning, he saw Marcelis driving her
vehicle with no passengers. Id. at 22. He asked her for a ride and she told
him that he could drive her car because he had a license. Id. at 24. He
then drove to a paramour’s house and visited for approximately two hours
while Marcelis fell asleep in the vehicle. Id. at 25-26. Afterwards, he was
driving back to his neighborhood when he received a phone call about the
shooting. Id. at 27-28. Mack was not interviewed by investigators but did
speak with Wallace at the courthouse. Id. at 28-32. Consequently, Baxter
complains Greenberg failed to “present readily available witness testimony
and evidence capable of undermining Marcelis’s credibility.” Baxter’s Brief at
54.
____________________________________________
13
Baxter alleges detectives “coaxed Marcelis to falsely implicate” Young in
connection with the murder of a woman named Fatima Whitfield to protect
her own interests. Baxter’s Brief at 56. Baxter does not provide any
background information regarding this non-related case. He does not recite
the statement or point to any part of it, which he claims is false.
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First, Baxter states Greenberg never specifically spoke with Mack, but
rather relied on Wallace’s conversation with Mack to make the decision not
to call him. Id. at 55. Second, he asserts Greenberg did not adequately
interview Marcelis to obtain and review her allegedly fabricated May 3, 2007,
statement in the Cordell Young trial.14 Baxter also claims Mack’s purported
testimony contradicts Marcelis’s narrative of the events unfolding in relation
to the present case. He argues:
A competent trial attorney could have persuasively argued
detectives chose not to interview Mack because they coerced
Marcelis’s May 3, 2007 statement and did not want to interview
a witness who could expose their coercion.
…
Competent trial counsel could have also persuasively argued
detectives chose not to interview Mack because they knew the
eyewitness statements did not corroborate Marcelis’s narrative
that, after the shooting, Baxter and McBride supposedly ran
toward her SUV with a group of scared onlookers from the
basketball courts. To hammer this point home, competent trial
counsel would have highlighted the fact the Commonwealth did
not present one witness who said they saw a white SUV near the
basketball courts immediately before or after the shooting or
who saw the gunmen jump into a white SUV immediately after
the shooting.
____________________________________________
14
A cursory review of the record reveals that this 2007 statement was not
included in the certified record. We note that it was mentioned in Baxter’s
post-hearing brief as Exhibit 2, but was not attached to the corresponding
brief. See Baxter’s Post-Hearing Brief at 4 n. 2. “It is the responsibility of
an appellant to ensure that the record certified on appeal is complete in the
sense that it contains all of the materials necessary for the reviewing court
to perform its duty.” Commonwealth v. Bongiorno, 905 A.2d 998, 1000
(Pa. Super. 2006) (en banc), appeal denied, 917 A.2d 844 (Pa. 2007).
- 25 -
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Id. at 56-57. Third, Baxter maintains Greenberg should have impeached
Marcelis by introducing her immunity agreements with the Commonwealth in
the present matter and in the Cordell Young case. Id. at 57. Further, he
states:
Despite having the opportunity to tell the whole truth, without
fearing prosecution, Marcelis’s testimony at both trials cannot
possibly be true. Her testimony at Cordell Young’s trial differed
from her testimony at Baxter’s trial because, at Young’s trial, she
said she fabricated her May 3, 2007 statement, but at Baxter’s
trial she said her statement was true.
Id. Baxter suggests that “all Greenb[e]rg did was cross-examine Marcelis
and get her to admit she occasionally heard voices when she did drugs” and
this testimony “did little, if anything, to the Commonwealth’s overall
narrative.” Id. at 58. Baxter also claims Marcelis’s marred testimony and
credibility would have called into question Harris’s and Durant’s
identifications. Id. at 59.
To the extent Baxter argues counsel was ineffective for not cross-
examining Marcelis regarding her testimony at the Cordell Young trial, or her
allegedly contradictory statements at both trials, and for failing to put Mack
on the stand to demonstrate that detectives chose not to interview him
because they coerced Marcelis’s May 3, 2007 statement, we find these
arguments waived for failure to properly preserve the issue. A review of the
record reveals these claims were not contained in Baxter’s amended PCRA
petition or addressed at the January 2015 PCRA hearing. It merits mention
again that the PCRA court limited the hearing to two claims, neither of which
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touched upon these arguments. Further, at the end of the hearing, the
court provided the parties with two weeks to file submissions. Counsel for
Baxter stated, “I know [Baxter] has done a tremendous amount of pleadings
already. I think you know the case very well. I’ll just highlight what’s here
and the case law.” N.T., 1/20/2015, at 295. Nevertheless, Baxter did raise
these new assertions in his post-hearing brief. See Baxter’s Post-Hearing
Brief, 2/5/2015. However, because they were not included in the petition or
raised at the PCRA hearing, these arguments were not properly before the
PCRA court.15 See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”). Accordingly,
we conclude these contentions are waived. See Commonwealth v.
Wharton, 811 A.2d 978, 986 (Pa. 2002) (waiving claim where appellant
failed to raise it in PCRA petition).
We now turn to the remainder of Baxter’s argument that was properly
preserved for appeal. With respect to his claim that counsel was ineffective
for failing to call Mack as a witness, we are guided by the following:
When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the [Strickland v. Washington, 466
U.S. 668 (1984)] test by establishing that: (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
____________________________________________
15
This is evidenced by the fact that the PCRA court did not address these
claims in its Rule 1925(a) opinion.
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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. Johnson, 600 Pa. 329, 966 A.2d 523, 536
(Pa. 2009); Commonwealth v. Clark, 599 Pa. 204, 961 A.2d
80, 90 (Pa. 2008). To demonstrate Strickland prejudice, a
petitioner “must show how the uncalled witnesses’ testimony
would have been beneficial under the circumstances of the
case.” Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d
1110, 1134 (Pa. 2008). Thus, counsel will not be found
ineffective for failing to call a witness unless the petitioner can
show that the witness’s testimony would have been helpful to
the defense. Commonwealth v. Auker, 545 Pa. 521, 681 A.2d
1305, 1319 (Pa. 1996). “A failure to call a witness is not per se
ineffective assistance of counsel for such decision usually
involves matters of trial strategy.” Id.
Commonwealth v. Sneed, 45 A.3d 1096, 1108-1109 (Pa. 2012).
Moreover,
“[t]he inquiry of whether trial counsel failed to investigate and
present mitigating evidence turns upon various factors, including
the reasonableness of counsel’s investigation, the mitigation
evidence that was actually presented, and the mitigation
evidence that could have been presented.” Commonwealth v.
Simpson, 620 Pa. 60, 66 A.3d 253, 277 (Pa. 2013) (citation
omitted). The reasonable basis prong of an ineffectiveness claim
does “‘not question whether there were other more logical
courses of action which counsel could have pursued; rather, we
must examine whether counsel’s decisions had any reasonable
basis.’” [Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.
2011)] (citation omitted).
Commonwealth v. Treiber, 121 A.3d 435, 471 (Pa. 2015).
Here, the PCRA court found the following:
[Baxter] argues that trial counsel was ineffective for failing to
present testimony from Darryl Mack. Mack testified that on the
night before the shooting, he attended a party at the home of a
man named Antoine. At that party, he saw Rachel Marcelis
consume large amounts of alcohol, smoke PCP and marijuana,
and take pills. He left the party, but saw Marcelis again the next
morning; to him, she appeared to be inebriated. He asked for a
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ride, and she suggested that he drive her white truck while she
rode along. He drove to the Frankford section of Philadelphia, in
order to visit a woman he was seeing. He visited this woman for
approximately two hours and fifteen minutes, and when he
returned to Marcelis’s truck, she was sleeping where he had left
her in the passenger seat. Mack also testified that he showed up
to testify at [Baxter]’s trial, but was told by co-defendant’s
counsel that he should leave because his testimony would be
unhelpful.
At trial, Mr. Wallace, indicated that he decided not to call
Mack as a witness as his testimony was not helpful. This Court
cannot help but conclude that both Mr. Wallace and trial counsel
exercised good judgment in refraining from offering Mack’s
testimony, which failed to contradict Marcelis’s testimony and
was redundant.4 Marcelis freely acknowledged at trial that she
used Xanax, wet, marijuana, and alcohol on the night before the
shooting, that she did so to an extreme degree, and that the
substances were still affecting her on the day of the shooting.
Mack’s testimony regarding Marcelis’s drug use was cumulative.
Also, Mack’s testimony did not undermine Marcelis’s testimony
that she was with [Baxter] and McBride during the shooting.
Mack merely testified that he drove Marcelis’s car to his
girlfriend’s house, left Marcelis in the car, and two hours later
when he returned, she was in the car. Mack was driving Marcelis
and her car back to Broad Street and Allegheny Avenue when a
friend called Mack and informed him of Brown’s murder. Nothing
in Mack’s testimony precludes the possibility that Marcelis drove
[Baxter] and McBride to the shooting. Additionally, to the extent
that Mack denies being present in the car with Marcelis, McBride,
and [Baxter] at the time of the shooting, this Court finds this
testimony incredible. Trial counsel was not ineffective for failing
to present testimony from Mack.
____________________
4
Again, this Court notes that there was communication
and cooperation between Mr. Greenberg and Mr. Wallace.
Although the record states that Mr. Wallace told Mack to
leave, Mr. Wallace stated this fact in front of Mr.
Greenberg and [Baxter]. It is clear that Mr. Greenberg
was aware of the fact that Mack had been told to leave and
agreed with this decision.
____________________
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…
Finally, [Baxter] argues that trial counsel was ineffective
for failing to cross-examine Marcelis on the basis that she had
entered into an immunity agreement with the Commonwealth in
exchange for her testimony. At this Court’s hearing in this
matter, Mr. Greenberg testified that he chose not to cross-
examine Marcelis as to the immunity agreement because he felt
that it might actually bolster her credibility with the jury, both by
further establishing the likelihood that she had been the getaway
driver in this shooting, and by allowing the Commonwealth to
point out that the immunity agreement required that she tell the
truth at trial, and exposed her to criminal liability if she failed to
do so. Because he had already gotten Marcelis to acknowledge
her significant drug use during the time period in question, he
felt that he had already called her reliability as a witness into
question, and thus using the agreement would not offer much
and might, in fact, backfire.
Mr. Greenberg expressed a reasonable trial strategy, with
a sound basis designed to effectuate the petitioner’s interests at
trial. “Generally, where matters of strategy and tactics are
concerned, counsel’s assistance is deemed constitutionally
effective if he chose a particular course that had some
reasonable basis designed to effectuate his client’s interests.”
Commonwealth v. Puksar, 597 Pa. 240, 256-57, 951 A.2d 267,
277 (2008)(quoting Commonwealth v. Miller, 572 Pa. 623, 819
A.2d 504, 517 (2002)). “A chosen strategy will not be found to
have lacked a reasonable basis unless it is proven ‘that an
alternative not chosen offered a potential for success
substantially greater than the course actually pursued.’”
Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064
(2006)(quoting Commonwealth v. Howard, 553 Pa. 266, 719
A.2d 233, 237 (1998)). This Court agrees that cross-examining
Marcelis as to the immunity agreement would have had, at best,
greatly diminished returns given what had already been
accomplished, and may have had the effect of bolstering her
credibility to [Baxter]’s detriment. Further, this Court notes that
the jury was aware that Marcelis was never charged with crimes
resulting from the murder. Because trial counsel pursued a
reasonable trial strategy, this claim must fail.
PCRA Court Opinion, 3/4/2015, 8-9, 11-12 (record citations omitted).
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Based on our review, we agree with the PCRA court’s well-reasoned
analysis that no relief is due on this claim. First, we note the PCRA court
explicitly found Mack’s testimony incredible. “[S]uch credibility findings, if
supported by the record, are binding on this Court.” Treiber, 121 A.3d at
471 (citations omitted). Second, with respect to Mack, Baxter would like us
to reweigh the evidence in his favor, which we may not do. Furthermore,
Mack could not account for two hours of Marcelis’s time as well as the
whereabouts of Baxter and McBride during the shooting. Therefore, the
absence of his testimony was not so prejudicial as to have denied Baxter a
fair trial. See Treiber, supra. Lastly, with respect to Baxter’s contention
regarding evidence of Marcelis’s immunity agreement, we emphasize that
the question is not whether there were more logical courses of action but
whether counsel’s decision had any reasonable basis. See id.
Indeed, the following exchange occurred between Greenberg and Baxter’s
PCRA counsel regarding the issue:
[PCRA Counsel]: So you saw harm, you say you saw harm in
bringing up the immunity agreement?
[Greenberg]: Yes. Well, I didn’t see a whole lot of good, but I
think it could hurt him. The DA, for example, in redirect can
emphasize the fact that the immunity agreement obligates her to
tell the truth and I’ve been in cases – I’ve been in a million cases
where DAs use plea agreements and immunity agreements to
emphasize that the witness is obligated to tell the truth,
otherwise the witness is going to be prosecuted for perjury, and
I don’t want that to corroborate the witness’ testimony or
credibility.
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[PCRA Counsel]: You think it’s impactful to the jury that
somebody has to be instructed to tell the truth? That wouldn’t
have any impact on the jury’s assessment of her credibility? The
Commonwealth is giving the document informing you you must
tell the truth, why? Aren’t you going to tell the truth anyway?
[Greenberg]: Because there are consequences to not telling the
truth and I have found that plea agreements and immunity
agreements that are used that require the witness to tell the
truth adds to the seriousness of the witness’ demeanor and state
of mind when he or she testifies. So the answer is yes, it can
come back to hurt the defendant
…
[Marcelis’s] lawyer was smart enough to protect his client
from any murder prosecution by getting a broad immunity
agreement. That’s the reason why she got the agreement, that
was to protect her. But when I’m representing Mr. Baxter and I
have a choice of whether or not to use that agreement, I have to
evaluate what the purpose of the agreement is, where it is in the
context of the facts of the case, and what can be done by the
prosecutor on redirect examination to hammer home to the jury
that this witness was obligated to tell the truth and that as a
result she’s going to be that much more careful in recollecting
things correctly and truthfully.
[PCRA Counsel]: Or could a trier of fact say, well, she’s locked
into this set of facts, if she goes outside of this set of facts that
the prosecution wants her to testify to, she will get charged with
perjury, therefore she’s simply following marching orders? Could
a trier of fact reasonably make the inference that, you know
what, she’s just following marching orders?
[Greenberg]. Of course.
[PCRA Counsel]: And would that benefit Mr. Baxter?
…
[Greenberg]: The answer is yes, but understand here that
usually in that context the prosecutor brings that up on direct
examination and then the defendant goes to town about the
significance of the immunity agreement and locking a witness in.
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In our case the prosecutor did not, so if I had brought it up
on cross-examination or Mike Wallace had brought it up on
cross-examination, that would have given the prosecutor the last
word on redirect to elicit facts about that plea agreement that
were basically favorable to him and would have hurt Mr. Baxter.
N.T., 1/20/2015, at 231-232, 234-235. The PCRA court found, and we
agree, that Greenberg had acted reasonably by not introducing evidence
regarding Marcelis’s immunity agreement. See PCRA Court Opinion,
3/4/2015, at 11-12. Accordingly, Baxter’s third sub-claim fails.
With regard to Baxter’s remaining two claims, we will address them
together. In his fourth sub-issue, Baxter asserts Greenberg’s cumulative
errors warranted a new trial so that Baxter could introduce exculpatory and
impeachment evidence not presented by Greenberg. Baxter’s Brief at 63.
In Baxter’s final claim, he alleges Greenberg violated his right to counsel by
being “totally absent” when the trial court addressed the jury and answered
its three questions and by sending in his place an inexperienced attorney
who had no criminal defense experience and knew nothing about the case or
Baxter’s defense. Id. at 64.
We find both claims were not properly preserved with the PCRA court.
See Pa.R.A.P. 302(a); see also Wharton, supra. Baxter did not raise
either issue in his PCRA petition or at the PCRA evidentiary hearing. Rather,
he raised the fourth sub-issue in his post-hearing brief and the last
argument for the first time on appeal. Accordingly, both claims are waived
and we need not address them further.
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J-S11024-16
Based on our disposition, we affirm the order of the PCRA court
denying Baxter relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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