Com. v. Real, F. ( 2022 )

J-S28023-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FERNANDO REAL :
:
Appellant : No. 3430 EDA 2019
Appeal from the PCRA Order Entered November 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008511-2008,
CP-51-CR-0008526-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FERNANDO REAL :
:
Appellant : No. 3431 EDA 2019
Appeal from the PCRA Order Entered November 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008511-2008,
CP-51-CR-0008526-2008
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 1, 2022
Appellant, Fernando Real, appeals from the November 8, 2019 Order of
the Court of Common Pleas of Philadelphia County, which dismissed without
a hearing Appellant’s first petition filed pursuant to the Post Conviction Relief
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S28023-21
Act, 42 Pa.C.S. §§ 9541-46. Appellant’s PCRA counsel, John M. Belli, Esquire,
has filed a Turner/Finley1 “no merit” letter and Application to Withdraw as
Counsel. After careful review, we affirm the court’s denial of PCRA relief and
grant counsel’s Application to Withdraw.
In the early morning hours of September 9, 2002, Appellant used a nine-
millimeter pistol to shoot and kill Byron Story and Marcus Herbert.2 Story and
Herbert had been sitting on the front porch of a home occupied by Herbert’s
stepfather, Karl May. Hearing the gunshots, May went to a window and
witnessed the shooter fleeing the scene. May told police immediately after the
shooting that he witnessed a black male fleeing but, as discussed below, May
testified at trial that the shooter was a Hispanic male matching Appellant’s
description.
At the time of the shooting, Appellant’s companion, Terrell Boyd, was
acting as lookout around the corner. The pair returned to their car where
Appellant informed Boyd that he had shot two men.
Two days later, on September 11, 2002, Appellant shot and killed Levon
Wilson.3 Brian Heard and Ronald Milburn witnessed the shooting. Police Officer
Christine Hilbert immediately responded to the shooting and saw Appellant
____________________________________________
1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2Story died at the scene, and Herbert died from his injuries approximately a
year later.
3 A jury convicted Appellant of Wilson’s murder in a separate proceeding on
June 28, 2005. Wilson’s murder is not at issue in this appeal.
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fleeing from the scene. Police recovered the murder weapon—a nine-
millimeter pistol—and determined it was the same pistol used to shoot Story
and Herbert two days earlier.
Appellant’s consolidated jury trial for Story and Herbert’s murders began
on February 18, 2014.4 The Commonwealth presented testimony from 24
witnesses. Karl May, victim Herbert’s stepfather, testified to witnessing a
Hispanic male fleeing the scene of the shooting and Appellant’s counsel cross-
examined May using his prior inconsistent statement to police. Officer Hilbert
testified to her identification of Appellant running away from the Wilson
murder and investigation involving the firearm used in the three murders.
In addition, the court permitted Heard and Milburn,5 the witnesses to
the unrelated Wilson shooting, to testify generally that they saw Appellant fire
the pistol on September 11, 2002. The court, however, did not permit them
to testify that Appellant shot and killed Wilson. The trial court also allowed
Milburn to testify that he saw Appellant fire the same gun into the air a week
before the Story and Herbert murders. When charging the jury, the court gave
a specific limiting instruction that the jury could consider Heard’s and Milburn’s
____________________________________________
4 It is not clear from the record why Appellant’s trial occurred over 10 years
after his arrest. The timeliness of Appellant’s trial is not at issue in this appeal.
5 At some point between Appellant’s preliminary hearing and trial, Milburn
suffered a severe brain injury in an automobile accident. As a result, the court
found Milburn unavailable to testify at Appellant’s trial and allowed the
Commonwealth to introduce his preliminary hearing testimony into evidence
pursuant to Pa.R.E. 804.
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testimony only for purposes of establishing Appellant’s access to the murder
weapon.
On February 25, 2014, a jury convicted Appellant of, inter alia, two
counts of First-Degree Murder for killing Story and Herbert. On May 1, 2014,
the court imposed two consecutive life sentences. This Court affirmed
Appellant’s Judgment of Sentence and, on May 10, 2016, our Supreme Court
denied allowance of appeal. Commonwealth v. Real, 134 A.3d 499 (Pa.
Super. 2015) (unpublished memorandum), appeal denied 138 A.3d 4 (Pa.
2016).
On July 15, 2016, Appellant pro se filed the instant, timely PCRA
Petition, his first.6 Appellant thereafter pro se filed several amended petitions,
which the court accepted.
On November 18, 2019, after issuing a notice pursuant to Pa.R.Crim.P.
907, the court dismissed Appellant’s petition without a hearing. On the same
day, the court appointed counsel to represent Appellant on appeal.
Appellant timely filed a Notice of Appeal.7 Through the course of a
complex procedural history not relevant here, Appellant’s counsel, on January
27, 2021, filed a Statement of Intent to file a no-merit letter pursuant to
____________________________________________
6After a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998), the PCRA court permitted Appellant to proceed pro se.
7The Commonwealth charged Appellant separately at docket numbers 8511-
2008 and 8526-2008 for Story and Herbert’s murders. Appellant filed separate
Notices of Appeal at both dockets, each listing both docket numbers in
compliance with Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super.
2020) (en banc).
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Pa.R.A.P. 1925(c)(4), indicating that Appellant wished to raise numerous
issues of ineffective assistance of counsel (“IAC”), Brady8 violations, after-
discovered evidence, and PCRA court error. The PCRA court filed a responsive
Rule 1925(a) Opinion comprehensively addressing each of Appellant’s issues.
In this Court, counsel has filed a Turner/Finley letter addressing the
following issues:
[1.] The PCRA court committed an abuse of discretion by denying
Appellant’s discovery request.
[2.] Did the PCRA court commit an abuse of discretion by failing
to grant relief or an evidentiary hearing relating to [newly]-
discovered evidence provided by witness Brian Heard?
[3.] Did the PCRA court commit an abuse of discretion by failing
to grant relief or an evidentiary hearing on his Brady claim
relating to the Commonwealth’s failure to disclose exculpatory
evidence, namely, the recantation of witness Brian Heard,
identification information concerning an alleged eyewitness
named Lisa, statements allegedly made by Herbert regarding
what he allegedly told his mother, and contact information
concerning Milburn’s mother?
[4.] Did the PCRA court commit an abuse of discretion by failing
to grant relief or an evidentiary hearing on the following claims
asserting that trial counsel provided Appellant with ineffective
assistance of counsel for the following reasons:
[A.] Trial counsel did not investigate appellant's alibi
defense. []
[B.] Trial counsel did not properly prepare for trial because
he did not investigate or interview witnesses named “Lisa,”
an alleged eyewitness, three friends of co-defendant Terrell
Boyd who would have stated that appellant and Boyd were
not friends or a[c]quaintances, and Karl May who told police
that he knew a female witness.
____________________________________________
8 Brady v. Maryland, 373 U.S. 83 (1963).
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[C.] Trial counsel failed to retain a DNA expert to test the
hat collected by police, the gun, and any and all physical
evidence.
[D.] Trial counsel failed to attack the completeness and
reliability of the investigation conducted by police by
presenting evidence that the police did not: (a) interview
“Lisa” despite having her description; (b) interview a second
female witness identified by Karl May; (c) compare Boyd’s
DNA to that found on the hat; and (d) consider Boyd as the
shooter and primary suspect despite word on the street that
he was the shooter; and (e) show Appellant’s photograph to
“Lisa,[”] Lane, and Herbert.
[E.] Trial counsel failed to object when the Commonwealth
called Karl May as a witness because May broke
sequestration.
[F.] Trial counsel failed to object to the identification of
Appellant made by police officer Christine Hilbert because it
was deemed unconstitutional by another judge during the
litigation of a PCRA petition involving Appellant’s other
unrelated murder conviction.
[G.] Trial counsel failed first to move to prohibit the
Commonwealth from introducing evidence of an unrelated
crime indicating that Appellant fired a gun in the air a week
prior to the incident in the instant matter and second, for
not objecting to closing comments made by the prosecutor
during closing argument.
[H.] Trial counsel failed to make a Batson objection to the
use of peremptory challenges by the Commonwealth to
strike all potential Hispanic voir dire persons.
Turner/Finley Ltr. at 7-9 (capitalization omitted, reordered for ease of
analysis). Counsel has also filed an Application to Withdraw as Counsel.
On July 6, 2021, Appellant filed a response to counsel’s Turner/Finley
Letter in which he raised, verbatim, the following two issues:
[1.] Cumulative material weight of the suppressed evidence;
[2.] Cumulative effect of errors denied Appellant a fair trial.
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Response to Turner/Finley Ltr. at 18, 26.
Counsel’s Application to Withdraw
Before we consider Appellant’s issues, we must review counsel’s request
to withdraw. Counsel is required to review the record and submit a “no merit”
letter (1) detailing the nature and extent of his or her review; (2) listing each
issue the petitioner wishes to have raised on review; and (3) explaining why
the petitioner’s issues are meritless. Commonwealth v. Pitts, 981 A.2d 875,
876 n.1 (Pa. 2009). Counsel must also send to the petitioner: “(1) a copy of
the ‘no merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and
(3) a statement advising petitioner of the right to proceed pro se or by new
counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(citation omitted).
Counsel has complied with each of the above requirements. Counsel has
presented a comprehensive review of the issues Appellant seeks to raise on
appeal, the appropriate standard of review, and addressed the PCRA court’s
analysis where appropriate. Turner/Finley Ltr. at 10-11, 16-41. Counsel
concludes that Appellant’s claims are without merit. Id. at 43-44. In addition,
counsel sent Appellant copies of the Turner/Finley letter and his Application
to Withdraw, and he advised Appellant of his rights in lieu of representation.
See Application to Withdraw as Counsel, 4/15/21, Exh. 1.
Once we determine that counsel has complied with the Turner/Finley
requirements, this Court must conduct an independent review of the record
to determine the merits of Appellant’s claims. Wrecks, 931 A.2d at 721. As
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discussed below, our independent review confirms that Appellant’s issues are
without merit.
Standard/scope of review
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super.
2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)). “This
Court grants great deference to the findings of the PCRA court if the record
contains any support for those findings.” Commonwealth v. Anderson, 995
A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted).
Discovery request
Appellant’s first issue involves the PCRA court’s denial of Appellant’s
discovery request. Pa.R.Crim.P. 902(E)(1) prohibits discovery in PCRA
proceedings “except upon leave of court after a showing of exceptional
circumstances.” What constitutes an exceptional circumstance is within the
trial court’s discretion to determine, and we will not disturb that determination
unless the court has abused its discretion. Commonwealth v. Frey, 41 A.3d
605, 611 (Pa. Super. 2012).
After a thorough review of the certified record, briefs of the parties,
applicable law, and PCRA court’s opinion, we conclude that there is no merit
to Appellant’s claim. The Honorable Glenn B. Bronson has authored a
comprehensive and well-reasoned analysis addressing this claim with
reference to the record and relevant legal authority. Accordingly, we adopt
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the PCRA court’s opinion in part as our own and affirm the court’s denial of
relief on these claims. See PCRA Ct. Op., 3/12/21, at 29 (explaining that
Appellant’s discovery request was inadequate to establish exceptional
circumstances, as it was “comprised entirely of conjecture”).
Newly discovered evidence
In his second issue, Appellant asserts that a recantation by Heard in the
unrelated Wilson murder is newly discovered exculpatory evidence for which
the PCRA court should have held a hearing in the instant case. See Petition,
7/15/16, at 2-3; Turner/Finley Ltr. at 19-21.
To obtain relief based on newly discovered evidence, the petitioner must
prove, inter alia, that the new evidence would likely change the verdict at a
new trial. Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018). In
addition, to prevail on a claim that the PCRA court should have held a hearing,
the petitioner must prove the existence of an issue of fact that would entitle
him to relief. Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
After a thorough review of the certified record, briefs of the parties,
applicable law, and PCRA court’s opinion, we conclude that there is no merit
to Appellant’s claim. The Honorable Glenn B. Bronson has authored a
comprehensive and well-reasoned analysis addressing this claim with
reference to the record and relevant legal authority. Accordingly, we adopt
the PCRA court’s opinion in part as our own and affirm the court’s denial of
relief on these claims. See PCRA Ct. Op. at 8 (explaining that Heard’s
recantation of his eyewitness testimony in the unrelated trial would not have
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changed the verdict in the instant case because, among other things, it did
not exculpate Appellant of the instant murders and Heard’s testimony in the
instant case only proved Appellant’s access to the murder weapon).
Brady claims
In his third issue, Appellant asserts that the Commonwealth committed
multiple Brady violations by withholding four pieces of allegedly exculpatory
evidence. “To establish a Brady violation, [the] appellant must demonstrate
[that]: the evidence at issue was favorable to him, because it was either
exculpatory or could have been used for impeachment; the prosecution either
willfully or inadvertently suppressed the evidence; and prejudice ensued.”
Commonwealth v. Walker, 36 A.3d 1, 9 (Pa. 2011) (citation omitted). To
satisfy the prejudice prong, the evidence must have been material to the
appellant’s guilt or punishment. Commonwealth v. Cam Ly, 980 A.2d 61,
76 (Pa. 2009). Evidence is material if there is a reasonable probability that,
had the Commonwealth disclosed it to the defense, the result of the
proceeding would have been different. Id.Finally, in the PCRA context, an appellant “must establish that the
alleged Brady violation ‘so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.’”
Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012) (quoting
42 Pa.C.S. § 9543(a)(2)(i)).
After a thorough review of the certified record, briefs of the parties,
applicable law, and PCRA court’s opinion, we conclude that there is no merit
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to Appellant’s Brady claims. The Honorable Glenn B. Bronson has authored a
comprehensive and well-reasoned analysis addressing each of these claims
with reference to the record and relevant legal authority. Accordingly, we
adopt the PCRA court’s opinion in part as our own and affirm the court’s denial
of relief on these claims. See PCRA Ct. Op. at 8-14 (explaining that Appellant
failed to prove that he suffered prejudice from the Commonwealth’s alleged
suppression of evidence that was either not exculpatory (Heard’s recantation
of unrelated murder testimony), non-existent (“Lisa” or any statement by
Herbert), or “that the Commonwealth had knowledge of any contact
information for Milburn’s mother that was not available to the defense.”).9
Ineffective assistance of counsel
In his fourth issue, Appellant asserts eight IAC allegations. The law
presumes counsel has rendered effective assistance. Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he burden of
demonstrating ineffectiveness rests on [the] appellant.” Id. To satisfy this
burden, the appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and (3) but for counsel’s ineffectiveness,
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9 Appellant asserts that he suffered prejudice from the cumulative effect of
these Brady claims. See Response to Turner/Finley Ltr. at 18. “The
cumulative impact of meritless Brady claims cannot be grounds for relief.”
Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005). As discussed
above, each of Appellant’s Brady claims is meritless and, thus, this claim fails.
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there is a reasonable probability that the outcome of the challenged
proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d
567, 572 (Pa. 2003) (citation omitted). Failure to satisfy any prong of the test
will result in rejection of the appellant’s claim. Id.Several of Appellant’s IAC claims relate to counsel’s decision not to
investigate certain issues or interview and call certain witnesses to testify at
trial. Where a petitioner alleges ineffectiveness for failure to call a witness,
the petitioner must prove that (1) the witness existed and was available and
willing to testify; (2) counsel knew or should have known of the witness; and
(3) there is a reasonable probability that the witness’s testimony would have
led to a different outcome at trial. See Commonwealth v. Dennis, 17 A.3d
297, 302 (Pa. 2011); Commonwealth v. Pander, 100 A.3d 626, 639 (Pa.
Super. 2014).
After a thorough review of the certified record, briefs of the parties,
applicable law, and PCRA court’s opinion, we conclude that there is no merit
to Appellant’s IAC claims. The Honorable Glenn B. Bronson has authored a
comprehensive and well-reasoned analysis addressing each of Appellant’s first
six claims with reference to the record and relevant legal authority.
Accordingly, we adopt the PCRA court’s opinion in part as our own and affirm
the court’s denial of relief on these six claims. See PCRA Ct. Op. at 16
(concluding that Appellant provided mere conjecture that he was at work at
the time of the murders and, therefore, failed to prove the arguable merit of
his underlying alibi defense); 16-18 (Appellant failed to prove that “Lisa,” a
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different “female witness” allegedly known to May, or Boyd’s friends were
available and willing to testify and that their individual testimonies would have
changed the outcome of trial); 19-23, 28-29 (Appellant failed to prove that
trial counsel’s decisions (1) not to retain a DNA expert to conduct testing when
the Commonwealth’s expert did not incriminate Appellant; (2) to attack the
adequacy of certain elements of the police investigation, (3) to cross-examine
May using May’s prior, inconsistent statement rather than seeking to strike
May’s testimony, and (4) not to lodge a meritless objection to Officer Hilbert’s
trial testimony, were unreasonable and caused Appellant to suffer prejudice).
Failure to object to testimony by Milburn
In his seventh IAC claim, Appellant alleges that his trial counsel was
ineffective for failing to object to Milburn’s testimony that he saw Appellant
firing the murder weapon into the air outside of a bar a week before the Story
and Herbert murders. See Petition, 4/26/18, at 12-14; Turner/Finley Ltr. at
42-46. See also N.T. Trial, 2/24/14, at 130-31, 137-40.
At trial, Milburn testified that, in addition to seeing Appellant with the
murder weapon a week before the Story and Herbert’s murders, he also
witnessed Appellant shoot the same pistol at a craps game on September 11,
2002, after the murders.10 N.T. Trial, 2/24/14, at 131-37, 140-41. Milburn’s
testimony, therefore, proved that Appellant possessed the firearm used to kill
____________________________________________
10 We affirmed the admissibility of Milburn’s testimony regarding the
September 11, 2002 shooting on direct appeal. See Real, 2015 WL 7354731at *2, *9-10. At issue presently is Milburn’s testimony that he saw Appellant
with the gun a week before the Story and Herbert murders.
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Story and Herbert both before and after their murders and, thus,
demonstrated that Appellant had access to the murder weapon.11 See PCRA
Ct. Op. at 26.
At the close of trial, the court instructed the jury to consider Milburn’s
testimony “only for [the] limited purpose” of demonstrating access to the
murder weapon and not that Appellant was a person of bad character:
[You may consider Milburn’s testimony only] for the purpose of
showing defendant’s alleged access to the weapon that was
allegedly used to kill the decedents in this case. This evidence
must not be considered by you in any other way other than for
the purpose I just stated. You must not regard this evidence as
showing that the defendant is a person of bad character or
criminal tendencies from which you might be inclined to infer guilt.
N.T. Trial, 2/25/14, at 27-28.
Appellant alleges that counsel’s failure to object to Milburn’s testimony
that he had fired the murder weapon in the air the week before using it to kill
Story and Herbert invited the jury to consider Appellant’s past deeds as
evidence of his bad character, causing Appellant to suffer prejudice. Petition,
4/26/18, at 12-13.
We disagree. A cautionary jury instruction may ameliorate the
prejudicial effect of evidence of a defendant’s relevant prior conduct.
____________________________________________
11 Pa.R.E. 404(b)(1) precludes evidence of a crime, wrong, or other act to
prove that a person acted in accordance with a particular character trait. This
evidence may be admissible for another purpose, however, such as proving
identity. Id. at 404(b)(2). Appellant does not challenge the relevance of
Milburn’s testimony to establish Appellant’s identity as Story and Herbert’s
killer.
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Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014). This is because
“[j]urors are presumed to follow the trial court’s instructions.” Id.The trial court’s cautionary instruction in this case ameliorated any
chance that Milburn’s testimony caused Appellant to suffer prejudice because
the court specifically instructed the jury not to consider Milburn’s testimony
as evidence of Appellant’s bad character and we presume that jurors follow
court instructions. As a result, we conclude that Appellant has failed to prove
that counsel’s inaction caused him to suffer prejudice and this claim fails. 12
Failure to make second Batson objection
In his final IAC claim, Appellant alleges that his trial counsel was
ineffective for not objecting to the Commonwealth’s use of a preemptory
challenge to strike a Hispanic juror. See Petition, 4/26/18, at 11-12;
Turner/Finley Ltr. at 38-42.
In total, the Commonwealth used four preemptory challenges to remove
several prospective jurors who were Hispanic from the jury panel.
Turner/Finley Ltr. at 38-39; PCRA Ct. Op. at 25. After the Commonwealth
____________________________________________
12Appellant also alleges that his counsel was ineffective for failing to object to
the Commonwealth’s statement during closing that Milburn’s testimony
proved Appellant’s access to the murder weapon. Turner/Finley Ltr. at 44-
45. See N.T. Trial, 2/24/14, at 249-50, 275-76. Since Appellant has failed to
prove that Milburn’s testimony was inadmissible, however, Appellant has not
established that the Commonwealth’s commentary on Milburn’s testimony was
improper. Appellant has, therefore, failed to prove the underlying merit of this
IAC claim and, as a result, it fails.
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struck the third Hispanic juror, Appellant lodged a Batson13 objection, arguing
that the Commonwealth struck the jurors based on race. PCRA Ct. Op. at 25.
The court overruled Appellant’s objection, finding that the Commonwealth
provided race-neutral reasons for each preemptory challenge. Id. (citing N.T.
trial, 2/11/14, at 224-36). The Commonwealth later exercised an additional
preemptory challenge to strike a fourth Hispanic juror. Id. Appellant’s trial
counsel did not assert a second Batson objection.
Appellant is critical that his counsel did not lodge a second Batson
objection when the Commonwealth struck a fourth Hispanic juror because it
resulted in a fully non-Hispanic jury. See Petition, 4/26/18, at 12;
Turner/Finley Ltr. at 40.
Where, as here, a petitioner alleges ineffective assistance of counsel for
failure to make a Batson challenge, the petitioner “must prove actual,
purposeful discrimination by a preponderance of the evidence[.]”
Commonwealth v. Sepulveda, 55 A.3d 1108, 1132 (Pa. 2012) (citation
omitted). Critically, “mere disparity of number in the racial make-up of the
jury, though relevant, is inadequate to establish a [Batson claim].”
Commonwealth v. Wilson, 649 A.2d 435, 443 (Pa. 1994) (citation omitted).
Appellant makes no effort to prove actual, purposeful discrimination.
Instead, he simply alleges that because “every juror was white or black[,]”
then the Commonwealth must have violated Batson and his trial counsel
____________________________________________
13Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting the use of race-
based preemptory challenges).
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should have objected. Petition, 4/26/18, at 12 (unnecessary capitalization
omitted). Since racial disparity is inadequate to establish a Batson violation,
Appellant has not proved the underlying merit of this IAC claim. As a result,
this claim fails.
Cumulative prejudice
In his pro se reply to counsel’s Turner/Finley Letter, Appellant argues
generally that he suffered prejudice from the cumulative effect of the alleged
ineffectiveness of his trial counsel. See Petition, 4/26/18, at 15-16; Response
to Turner/Finley Ltr. at 26.
Beyond citing to case law recognizing that a claimant may potentially
suffer cumulative prejudice, Appellant has failed to set forth any factually and
legally supported argument for his claim. An appellant must develop claims
with citation to the record and relevant case law, and a failure to do so will
result in waiver. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009).
See Pa.R.A.P. 2111 and 2119 (listing argument requirements for appellate
briefs), 2101 (explaining that substantial briefing defects may result in
dismissal of appeal). Appellant’s failure to develop this issue renders it waived.
Conclusion
Based on the foregoing, we affirm the PCRA court’s denial of relief. The
parties are instructed to annex the PCRA Court’s March 12, 2021 Opinion to
any future filings.
Application to Withdraw as Counsel granted. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/2022
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02:02 PM
Circulated 01/07/2022 02.02
IN THE COURT OF COMMON PLEAS
FIRST
FIRST JUDICIAL
JUDICIAL DISTRICT OF PENNSYLVANIA
PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF
COMMONWEALTH OF CP-5I -CR-0008511-2008
CP-51-CR-0008511-2008
PENNSYLVANIA CP-51-CR-0 008 526-20 08
CP-51-CR-0008526-2008
V.
Received
MAR 12 702
12 202-i
FERNAND
FERNANDOO REAL
REAL
0ice0ct
01 Judlclal Raa0*
Adi0la Records
et irial
AWSIOPOBITM
Appal
OPINION
OPINION
BRONSON, J.
BRONSON, I March 12, 2021
On February
On February 25, 2014, following
25, 2014, following a capital murder
a capital jury trial
murder jury trial before
before this
this Court, defendant
Court, defendant
Fernando Real
Fernando was convicted
Real was convicted of
of two
two counts
counts of
of first
first degree
degree murder (18 Pa.C.S.
murder (18 Pa.CS, $§2502),
2502), two
1wo
counts of robbery
counts of robbery (18 Pa. C.S. §
(18 Pa.CS, 3701), one
$ 3701), one count of conspiracy
count of conspiracy to
to commit robbery (18
commit robbery (18 Pa.CS.
Pa. C.S. $§
903),
903), and one count
and one count of
of carrying
carrying aafirearm without a
firearm without license (18
a licnse (18 Pa.C.S.
Pa.CS. $§6106).
6106). On
On February
February 28,
28,
2014, the
2014, the jury
jury returned
returned aaverdict of life
verdict of life in
in prison on both
prison on counts of
both counts of first
first degree
degree murder.
murder. The
The
Court deferred the
Court deferred the imposition of sentence
imposition of and ordered
sentence and ordered a
a presentence report and
presentcnce report and mental health
mental health
I
evaluation. On
evaluation, On May 1, 2414,
May I, before the
2014, before the commencement
commencement of sentencing, defendant
of sentencing, defendant asked
asked to
to
represent himself at
represent himself at sentencing
sentencing; and
and on
on appeal.
appeal. After
After a
a hearing, the Court
hearing, the Court granted
granted defendant's
defendant's
I
! request
request to proceedliro
proceed pro .re.
se. The Court thereafter imposed aggregate sentence of two
imposed an aggregate
I
I
consecutive life
consecutive sentences plus
life sentences 21 to
plus 21 to 67
67 years
years incarceration in state
incarceration in state prison.
prison. Defendant
Defendant filed
filed post-
sentence motions, which
sentence motions, which the Court denied
the Court on August
denied on August 15,
15, 2014.
2014,
On November
On November 20, 2015, the
20, 2015, the Superior Court affirmed
Superior Court defendant's judgment
affirmed defendant's judgment of scntcirce.
of sentence.
On May
On 10, 2016,
May 10, 2016, the
the Supreme Court denied
Supreme Court denied defendant's
defendant's petition
petition for
for allowance of appeal.
allowance of appeal. On
On
July
July 15,
15, 2016,
2016, defendant filed a
defendant filed a pro se petition
petition under the Post
under the Post Conviction
Conviction Relief Act (PCRA")
Relief Act ("PCRA").
David
David S.
S. Rudcrrstein, Esquire was
Rudenstein, Esquire appointed to
was appointed to represent defendant on
represent defendant July 12,
on July 12, 2017.
2017. On
On
January 18,
January 2018, ME.
18, 2018, Mr. Rudenstein
Rudenstein filed an amended PCRA petition.
petition. Defendant f led a
filed amotion to
waive counsel and
waive counsel and proceed
proceed pro
pro se on April
se on 26, 2018. That
April 26,2018. That same
same day, defendant filed
day, defendant filed aapro
pro se
se
amended PCRA petition
amended PCRA ("Amended
petition ( Amended Petition").
Petition"), The
The Court
Court held
held aaGrazier hearing [on Tuly
Grazier hearing' July 20,
20,
2018, and
2018, defendant's motion to proceed
and defendant's proceed prase
pro se was granted. Thereafter,
Thereafter, defendant filed several
supplemental PCRA petitions
supplemental petitions as well as replies
replies to two motions
motions to dismiss filed
filed by the
the
Commonwealth. On
Commonwealth. On September
September 23,
23, 2019, reviewing all
2019, after reviewing all of the pleadings, this Court ruled
ruled
that the
that the claims
claims set
set forth
forth in defendant's petition
in defendant's petition were without merit,
merit. That day,
day, pursuant
pursuant to
to
Pa. R.Critn.P. 907,
Pa.R.Crim.P, 907, the Court issued notice of its intent to dismiss defendant's PCRA petition
without
without a
a hearing ("907 Notice"),
hearing (907 Notice"). On
On October
October 7,
7, 2019,
2019, defendant
defendant filed
filed aaresponse to the
response to the 907
907
Notice ("907 Response").
Notice (907 On November
Response"). On 8, 2019,
November 8, 2019, the
the Court
Court entered
entered an
an order
order dismissing
dismissing
defendant's PCRA
defendant's PCRA petition.
petition. Because
Because defendant
defendant had
had informed
informed the Court that
that he
he wished to
to have
counsel
counsel for
for an appeal if his
an appeal his petition
petition was
was dismissed,
dismissed, the
the Court appointed Douglas
Court appointed Douglas L. Dolfman,
L. Dolfman,
Esquire, to represent
Esquire, represent defendant on appeal
appeal.
On November 18,
On November 18, 2019, defendant filed
2019, defendant filed aapro
pro se
se Notice
Notice of
of Appeal
Appeal from
from the Court's
the Court's
dismissal of his PCRA Petition. On December 6, 2019, the Court issued an order pursuant to
dismissal
Pa.R.A.P.
Pa.R.A.P, 1925(b) ("l 925(b) order")
1925() (1925(b) order") directing
directing defense counsel to file aaConcise Statement of
Errors
Errors Complained of on
Complained of on Appeal ("Statement of
Appeal ("Statement of Errors")
Errors") by
by December
December 27,
27, 2019,
2019, Mr.
ME. Dolfinan
Dolfian
failed to
to file
file aaStatement
Statement of Errors,
Errors, leading
loading this Court to Eind
find that all issues had
had been
been waived
waived in
opinion filed
an opinion iled on
on January
January 27,
27, 2020.
2020.
AAGrazier
Grazier hearing
hearing isis aahearing
hcuring to determine whether aadefendant has properly waived his right to counxel
counsel and may
lawfully proceed
lawfully pro se.
proceed pro se. See
See Commonwealth
Cornrnontis°ealth v. Crazier,713
• Grater, 713 A.2d
A.2d 81
8I (Pa.
(Pa. 1998).
1998)
2
2
On September
On September 28, 2020, The Superior
28, 2020, Superior Court removed Mr. Dolfinan
Dolfman as counsel after
repeated failures
repeated failures to
to file
file a
a brief
brief. On December 22,
On December 2420, after
22, 2020, remand from
after remand from the Superior Court,
the Superior Court,
the
the trial court appointed
trial court appointed John Belli, Esquire
Esquire to represent defendant on appeal,
appeal. 2
On January
On 27, 2021, Mr.
January 21,2021, Mr. Belli filed
filed a
a statement of intent to Ule
file aano-merit
no-merit letter on
appeal pursuant
appeal pursuant to
to Rule
Rule 1925(c) of the
1925() of Pennsylvania Rules
the Pennsylvania Rules of Appellate Procedure,
of Appellate Procedure, on
on the
the
ground that
ground that the
the clainns raised by
claims raised by defendant
defendant were "wholly frivolous
were "wholly and the
frivolous and the record
record contains
contains no
no
other meritorious
other meritorious issues."
issues." Matters
Matters Complained
Complained of
of on Appeal ("Statement Matters"). In his
(Statement of Matters"). his
Statement of
Statement of Matters,
Matters, Mr.
Mr Belli sets forth the following
following issues that defendant wishes to raise on
appeal: A)
appeal: A) the PCRA Court erred by failing to grant
by failing grant relief or an evidentiary hearing on
defendant's after-discovered evidence claim relating
defendant's relating to witness Brian Heard; B)
I) the PCRA Court
erred by
erred by failing
failing to grant
grant relief or an evidentiary
evidentiary hearing
hearing on defendant's claims relating to the
Commonwealth's failure
Commonwealth's failure to
to disclose exculpatory
exculpatory evidence
evidence in
in violation of Brady u.
v. Maryland, 373
U.S.
U.S. 83, 87 (1963
83,87 (1963); 3 C)
C) the PCRA Court
Count erred by
by failing to grant relief or an evidentiary hearing
on defendant's claims that
on defendant's that trial
trial counsel was ineffective for: 1) failing
for: I) failing to
to investigate
investigate defendant's
alibi defense, 2)
alibi defense, failing to properly
2) failing properly prepare for trial due
prepare for due to
to his
his failure to interview
failure to and investigate
interview and investigate
potential
potential witnesses, 3) failing
witnesses, 3) failing to
to retain aaDNA expert, 4)
DNA expert, 4) failing
failing to attack the
the completeness
completeness and
reliability
reliability of the police investigation, 5)
police investigation, 5) failing
failing to object
object to the Commonwealth calling Karl May
as
as aawitness
witness after
after he violated sequestration, 6) failing to raise a
sequestration, 6) aBatson abjection,
objection, 7) failing to
move to prohibit
move to prohibit the
the Commonwealth
Commonwealth from
from introducing evidence of
introducing evidence of an
an unrelated
unrelated crime and failing
crime and failing
to object to
to object to comments
comments shade
made in the Commonwealth's
in the Commonwealth's closing argument relating
closing argument relating to
to that unrelated
that unrelated
crime, and 8)
crime, and 8) failing
failing to object
object to the identification of defendant made by Police Officer Christine
' Before Mr. Belli
Before Belli was appointed,
appointed, the Court had
the Court had appointed Jaynes F.
appointed Janes Berardinelli, Esquire,
E. Berardinelli, to replace
Esquire, to replace Mr.
Mr. Dolfinan.
Dolfinan
However, prior
However, prior to the remand,
to the remand, the
the Superior Court
Court permitted Mr.
Mr. Brrardinclli
Berardinelli to
to ivithdraw as counsel
withdraw as counsel.
3 Defendant's first
Defendant's and second
first and claims have
second claims have been reordered for
been reordered for ease
ease of analysis.
analysis.
3
l
Hilbert;
Hilbert;¢ and
and D) the PCRA
D) the PCRA Court erred by
by denying
denying defendant's discovery request.
request. Statement of o
Matters at
Matters ¶1 A-D. For
atA-D. the reasons
For the reasons set
set forth below, defendant's
forth below, defendant's claims
claims are without merit,
are without and the
merit, and thc
Court's order dismissing
Court's order defendant's PCRA
dismissing defendant's PCRA petition should
should be
be affirmed.
affirmed
I1. FACTUAL ACK
BACKGROUND
GROUND
The facts
The facts of
of this case were
this case werc set forth in
set forth this Court's
in this Court's Rule
Rule 1925(a)
1925(a) Opinion
0pinion filed in defendant's
filed in defendant's
direct
direct appeal as follows:
appeal as follows
At trial,
At trial, the
the Commonwealth
Commonwealth presented
presented the
the testimony
testimony ofof Philadelphia
Philadelphia Deputy
Deputy Sheriff
Sheriff Bilin
Bilin
Cabrera, Philadelphia.
Cabrera, Philadelphia Police
Police Detective
Detective James
James Burke,
Burke, Philadelphia.
Philadelphia Police
Police Officers
Officers James
James
Putro, Willian] Whitehouse,
Putro, William Christine Hilbert,
Whitehouse, Christine Craig Perry,
Hilbert, Craig Perry, John
John Cannon,
Cannon, William
William Lackman,
Lackman,
Lamont
Lamont Fox, and Theresa
Fox, and Theresa Paris,
Paris, North
North Hampton
Hampton Township
Township Police Officer Ryan
Police Officer Share,
Ryan Share,
Federal
Federal Bureau
Bureau of Tnvestigation Agent
of Investigation Edward Frimel,
Agent Edward Frimel, New
New Jersey State Police
Jersey State Detective
Police Detective
Louis
Louis Kinkle (Ret.), New
Kinkle (Ret.), New Jersey
Jersey State
State Police Lieutenant Mark
Police Lieutenant Mark Rowe, [Maple Shade],
Rowe, [Maple Shade], New
New
Jersey Police officer
Jersey Police Officer James
James Gillespie,
Gillespie, Medical
Medical Examiners
Examiners Dr.
Dr. Marlon
Marlon Osbourn
Osbourne and
and Dr.
Dr. Ian
Ian
Hood, Lissette Vega,
Hood, Lissette Brian Heard,
Vega, Brian Heard, Terrell Boyd, Willie
Terrell Boyd, Willie Hines,
Hines, Karl May,
May, and
and Gabriel
Gabriel
Piorko. Defendant presented
Piorko. Defendant presented by stipulation
stipulation the
the testimony
testimony of
of James
James Lane
Lane and
and Philadelphia
Philadelphia
Police Officer Alebert Revel.
Police Officer Revel. Viewed in the light
light most favorable to the Commonwealth as
the
the verdict
verdict winner,
winner, the
the evidence
evidence established
established the
the following.
following
1n the
In the early morning hours
early morning of September
hours of September 9, 9, 2002,
2002, defendant
defendant and Terrell
Terrell Boyd,
Boyd, who had
who had
known each other
known each other since
since childhood,
childhood, were
were driving
driving around
around the
the Frankford
Frankford section
section of
of Philadelphia
Philadelphia
looking
looking for
for someone to robs
rob.' N.T.
N,T, 2/19114
2/19/14 at 19-21.
19-21. While driving in defendant's white
Ford Taurus,
Ford Taurus, defendant
defendant showed
showed Boyd
Boyd a
a nine
nine millimeter
millimeter firearm.
firearm. N.T. 2119/14 at
N.T, 2/19/14 at 21-22;
21-22,
2124114
2/24/14 atat 93-94.
93-94. AtAt approximately
approximately 4:30 a.m., after
4:30 a.m., one failed
after one failed robbery
robbery attempt, defendant
attempt, defendant
and
and Boyd
Boyd drove
drove to Hawthorne Street. N.T.
N,T. 2118114
2/18/14 at 150; 2119114
2/19/14 at 23-24.
23-24. Upon arriving
at
at Hawthorne Street, Boyd
Hawthorne Street, Boyd agreed
agreed to stand
stand watch for for defendant at the corner of Hawthorne
the corer Hawthorne
and
and Bridge
Bridge Street.
Street. N.T.
N.T, 2/19/14
2/19/14 at
at 25,
25, 44,
44, 153,
153, 235. Boyd
Boyd did
did not
not wish
wish to
to be
be seen
seen on the
on the
block,
block, as
as his children's
children's mother
mother lived
lived in that location
in that location at the time
at the time and
and Hoyd
Boyd feared that he
feared that
could be
could be recognized.
recognized. N.T.
NT. 2/19114
2/19/14 at
at 24-25.
24-25
Leaving
Leaving Boyd
Boyd at the corner,
at the comer, defendant
defendant approached
approached Marcus
Marcus Herbert
Herbert and Byron Story,
and Byron Story, who
who
were sitting
were sitting on
on the
the porch
porch outside
outside of
of Herbert's
Ilerbert's home.
home. N.T.
N,T 2119/14
2/19/14 at
at 153,
153, 232.
232. Defendant
Defendant
initiated
initiated aaconversation
conversation with Story
Story and
and Herbert,
Herbert, asking
asking if they
they had
had any marijuana to
any marijuana to sell.
sell
N.T. 2119/14 at
NT. 2/19/14 at 153.
153. Defendant then shot
Defendant then shot Story once ;at
Story once, at close
close range,
range, in the head.
in the head. N.T.
N.T.
2119/14
2/19/14 a1at 153;
153; 2/20/14 ata 75-77. Once Story
75.77. One Story had been shot, Hcrbert
Herbert attempted to run,
whereupon
whereupon defendant
defendant shut
shot Herbert
Herbert twice
twice in the
the back.
back. N.T.
NT, 2/19114
2/19/14 at 153;
at 2124114 at
153; 2/24/14 at 112,
112,
114-116.
114-116
Aofficer Christine
Offieer Christie Hilbert was
was previously
previously named
named Christine Vincent. Defendant's
Christine Vincent. Defendant's Statement of Matters
Statement of Matters refers
refers to her
to her
as Christine Vicent,
as Christine Vincent, Statement
Statement of
of Matters
Matters at 1C(8),
at4€(8)
'Defendant was
'Defendant also known as
was also as "T".
T, NTN.T. 2119/14
2/19/14 at 19. Boyd was also known as Joey
.1oey Black.
Blacic. NT
N:1'. 2/19114
2/19/14 at 2U.
20.
4
4
Upon
Upon hearing
hearing the three
three gunshots, Boyd ran back to defendant's parked car and
gunshots, Boyd and awaited
defendant's
defendant's return.
retum. N.T.
N.T, 2/19114
2/19/14 at 27-28,
27-28, 154. Shortly thereafter, defendant returned toto the
thc
car.
car, N.T.
NT. 2119/14
2/19/14 at 28-29, 233-234. Boyd
at 28-29,233-234. told defendant
Boyd told defendant notnot to slam the
to slam the car door shut,
car door shut,
fearing
fearing that
that someone
someone would look in
in the
the direction of the noise and
and see defendant's
defendant's vehicle.
vehicle
N.T. 2/19/14
N.T, 2/19/14 at
at 28-29.
28-29. Defendant
Defendant and and Boyd
Boyd then
then left the area.
left the NX. 2/19/14
area. N,T, 2119114 at
at 29.
29. While
While
driving away
driving from Iawthorne
away from Street, defendant
Llawthome Street, defendant told
told Boyd that he
Boyd that he bad
had shot one person
shot one person inin the
the
head
head and
and one
one person
person twice
twice in
in the
the back
back as
as the
the person
person tried
tried to
to run.
run. N.T.
N.T 2/19/14
2/19/14 at
at 29-30.
29-30
]Defendant further
Defendant further stated
stated that
that he had taken a a small amount of money and acid some marijuana
from the people shat. N.T.
people he had shot. 2/19114 at
NT 2/19/14 at 30.
30.
Shortly after
Shortly after the
the shooting,
shooting, police responded to the
police responded the scene observed Story lying on the
scene and observed the
porch, bleeding from the head. N.T. 2118/14 at 151; 2/19/14 at 234. Police
porch, bleeding from the head. N,T. 2/18/14 at 151; 2/19/14 at 234. Police also encountered also encountered
Herbert lying on the
Herbert lying the ground
ground in front of the house,house, bleeding
bleeding; from back. N.T.
from his hack. N,T. 2118114
2/18/14 at
151. Herbert
5L. Herbert informed
informed police
police that
that he had been shot by a
a Hispanic male with short cropped
hair,
hair, wearing
wearing aawhite
white shirt
shirt and blue jeans,
and blue and carrying
jeans, and carrying a black handgun.
a black handgun. NI.T.
N.T. 2/18114
2/18/14 at at
1.52.
152. flerbert
Herbert was
was transported
transported to Hahnemwin
Hahnemamnn University Hospital
Hospital for treatment,
treatment, while Story
Story
was pronounced
was pronounced dead at
at the scene. N.T. 2118/14
scene. N.T 2/18/14 at 152-153. Police recovered two fired fired9
millimeter cartridge cases
millimeter cartridge cases at at the
the scene
scene of the shooting.
of the shooting. N.T. 2/18114 at
N,T, 2/18/14 at 172.-173,
172-173, 185.
185
Herbert
Herbert died on on October 2, 2003, more
2, 2003, more than
than one
one year after the
year after the shooting, due to multiple
shooting, due
recurring
recurring infections
infections as a
a result of the gunshot
gunshot wounds he had
had received.
received. N.T.
N.T 212.4/14 at
2/24/14 at 11.7-
117-
118.
1I8
On September
On September 11, 2002, in
11, 2002, the Whitehall
in the Whitchall Projects the Frankford
Projects in the Frankford section of
of Philadelphia,
Philadelphia,
two days
two days after the shooting
after the shooting of Story
Story and Herbert, defendant was seen by Ronald Milburn at
the scene of
the scene of a
acraps
craps game
game firing
firing aanine millimeter
millimeter firearm
firearm multiple
multiple times.
times. N.T.
N.T. 2/20114
2/20/14 atat
138-139, 151-153,
138-139, 151-153, 166; 2124114 at
166; 2/24/14 130, 144.
at 130, 144.6 Milburn
Milburn had seen seen defendant
defendant in in a bar
a bar
approximately
approximately one week earlier in possession
possession of
of what appeared
appeared to be
be that same
same weapon.
weapon
N.T. 2/24114 at
N,T, 2/24/14 130-131. At
at 130-131. At the
the time
time that
that defendant fired the
defendant fired the gunshots
gunshots at at the craps game,
the craps game,
Police officers
Police officers Christine
Christine Hilbert'
Hilbert' andand Stanley
Stanley Galiczynski
Galiczynski were parkedparked in in aamarked
marked police cat'
police car
on the 4900 block of Cottage Street, They heard the gunshots corning
on the 4900 block of Cottage Street. They heard the gunshots coming from the Whitehall from the Whitehall
Projects immediately to their south. N.T.
Projects immediately N.T. 2/19/14
2/19114 at 177-178. As the officers approached the
area,
area, Officer Hilbert saw defendant run from the area where the shots had been fired. N.T. NT,
2119114
2/19/14 at at 179, 207; 2124/14
179, 207; 2/24/14 at 131, 144.
at 131, 144. Upon
Upon seeing
seeing the
the police
police vehicle,
vehicle, defendant
defendant flattened
flattened
hi nself against
himself against a
a wall until Officer Hilbert exited the vehicle, at which time defendant fled.
N.T. 2/19114 at
N.T. 2/19/14 179-180. Ollieer
at 179-180, Officer Hilbert was unableunable to locate defendant, but did recover aa
firearm
firearm from the location
from the where defendant
location where defendant had had fled. N.T. 2119114
fled. N.T. 2/19/14 atat 109, 180, 200,
109, 180, 200, 206.
206.
Police recovered 13
Police recovered 13 nine-millimeter
nine-millimeter fired fired cartridge casings from
cartridge casings frorn the
the area
area where defendant
where defendant
had been
had been seen
seen firing a
a
firing gun.gun. N.T.
NT 2114/14
2/19/14 at
at 104;
104; 2120114
2/20/14 at
at 49-50.
49-50. Analysis
Analysis of the fared
fired
ear-tridge casings
cartridge casings found at
at both
both the
the Hawthorne
Hawthome Street
Street shouting
shooting of
of Herbert
Herbert and
and Story
Story the
and the
GMilburn actually
Milburn saw more than deteendant
actually saw merely firing
defendant merely airing a gun, He saw
a gun. saw dcrcndant shoot and kill one Levon Wilson
defendant shoot
with the
with the gun
gun after
after aadispute
dispute at at the craps game. Because, as discussed below, the gun used
craps game. used by defendant to shoot
I.evon Wilson
cvon Wilson turned out to
turned out to be the
the murder
murder weapon in the
weapon in the killings
killings here
here at issue, the
at issue, the Commonwealth
commonwealth proved
proved that
dcrcndant tired
defendant tined the
the gun on September
gun on September 1I, 11, 2062,
2062, to
to establish
establish his
his access
access to the murder
murder weapon.
wcapon. However,
However, because
because
dcrcndant was not on trial fur
defendant Cor the killing of Wilson in tthe
he case at bar, the Commonwealth
Commonwealth agreed not to present any
evidence that
evidence that the
the gun had been used
gun had used on September 11, 2002.,
September II, 2062, in
in a murder. Defendant was convicted of murdering
a murder, murdering
Wilson hr a separate trial, as is more fully discussed
Wilson in a separate trial, as is more fully discussed below, below.
f)rficer Hilbert
0/%&er Hilbert was previously named
was previously named Christine Vincent.
Vincent. N.T. (Motion Hearing)
NT (Motion 2118114 at
Hearing) 2/1/14 22.
at 22.
s
5
Whitehall
Whitehall Projects
Projects shouting
shooting determined
determined that all
all the
the casings
casings had been fired
had been fired in
in the
the firearm
firearm
recovered
recovered by
by Officer
O[leer Hilbert
Hilbert from
from the
the location
location from
from which
which defendant
defendant had
had fled.
fled. N.T.
N.T 2120114
2/20/14
at
at 58, 63-64.
Police made numerous
Police made numerous attempts
attempts to locate defendant
to locate defendant fifrom
om late
- late 2002
2002 until
until September 2003.
September 2003,
N.T. 2/24/14
N.T. 2124114 at at 34-43,
34-43. Defendant
Defendant was ultimately
ultimately located
located and
and apprehended
apprehended on September
September 30,
2003
2003 atat the
the Rodeway
Rodeway Inn
Inn in
in [Maple
[Maple Shade],
Shade], New
New Jersey,
Jersey, where
where he
he had
had registered
registered under
under an
an
alias.
alias. N.T.
N.T, 2/24114
2/24/14 at 41-43, 50,
at 41-43, 50, 65. Defendant
Defendant asked what what he was
was under
under arrest for, to
to which
the arresting
the arresting officers
officers stated
stated "[f]or
"[flor some
some shootings."
shootings." N.T.
NT 2124/14
2/24/14 at at 71.
7L. Defendant
Defendant
responded that
responded "[he] liked
that [he] liked shooting
shooting people."
people." N.T. 2/24/14 at
N,T, 2/24/14 71-72. Defendant
at 71.72. fulther
Defendant further
provided
provided a
a different
different alias
alias at
at the
the time
time of
of his
his arrest.
arrest. N.T.
NT 2124114
2/24/14 at
at 79.
78.
On
On February 7, 2004,
February 7, 2004, while
while incarcerated, defendant was
incarcerated, defendant involved in
was involved an incident
in an in the
incident in the
ceflblock.
cellblock. N.T.
N,T, 2/24114
2/24/14 at
at 100-101.
100-101. When
When asked
asked by
by a
a corrections
corrections officer,
officer, "[w]hy
"[w]hy do
do you
yo
keep doing these
keep doing these things?" defendant responded
things? defendant "I don't
responded "I don't give
give aashit,
slut ;IIgot
got two bodies, I'm
two bodies, Tm
going to die in prison,
going prison, I
I don't care." N.T.
N.T, 224/14
2/24/14 at 101.
10I
Trial
Trial Court Opinion, filed
Court Opinion, December 9, 2014
filed December 2014 at pp. 2-6
at pp. 2-6.
II.
IL. DISCUSSION
DISCUSSION
An appellate
An curart's review of aaPCRA court's grant or denial of relief "is
appellate court's "is limited to
determining
determining whether
whether the court's findings
findings are supported by the
are supported the record
record and the court's
court's order is
otherwise, free
otherwise free of legal error."
of legal C'onaanonwecalth v.
error." Commonwealth v. Green,
Green, 14
14 A.3d
A.3d 114, 116 (Pa.
114, 1H6 Super. 2011)
(a. Super. 2011)
(internal
(internal quotations omitted). The reviewing
quotations omitted). reviewing court "will not disturb findings that are supported
by
by the record." Id.
record." Id
A.
A. After-Discovered
After-Discovered Evidence
Defendant first
Defendant first claims
claims that the Court
that the court erred
erred in
in failing
failing to grant him
to grant him an
an evidentiary hearing
evidentiary hearing
regarding after-discovered evidence
regarding after-discovered evidence in
in the
the form of an
form of affidavit from
an affidavit from witness
witness Brian Heard.
Brian Heard
Statement
Statement of Matters at B.
¶B. 'This
This claim is without merit.
At defendant's
At trial, the
defendant's trial, the Commonwealth presented
presented the
the testimony
testimony of Brian
Brian Heard.
Heard. Heard
Hcard
testified that
testified that on
on the evening
evening of September 1H,
of September 11, 2002, two days
2002, two days after
after the murders at
the murders at issue
issue in
in the
the
instant case, he
instant case, he saw defendant fire
saw defendant fire a
a handgun
handgun and
and then saw defendant
then saw defendant flee
flee the
the scene,
scene, escaping
escaping
66
through the Whitehall
through the Projects. 8 N,
Whitehall Projects.' T. 2/20/2014 at 131, 139. It was ultimately
N,T. ultimately determined that
that
the handgun
the handgun that
that Heard
Heard saw
saw defendant fire was
defendant fire was the
the same
same weapon
weapon used to murders in
to commit the murders in
the
the instant case. N.T.
instant case. N.T, 2/2012014
2/20/2014 at 63-64. Accordingly, Heard's
at 63-64. Heard's testimony
testimony established
defendant's access
defendant's access to
to the
the firearm.
firearm.
In
In an affidavit attached
an affidavit attached to defendant's Amended
Amended Petition, Heard recanted his testimony,
Heard recanted testimoty,
claiming that he
claiming that only heard
he only heard the sound
sound of gunsliots on
of gunshots on September
September 11,
1. 1, 2002
2002 and
and did not see
did not see the
the
shooter. Amended
shooter, Amended Petition,
Petition, dated 4/2612 018 at
dated 4/26/2018 p. 15,
at p. 15 ;Exhibit
Exhibit 1. Moreover, Heard
L. Moreover, claimed that
Heard claimed that
he;
he and
and another Commonwealth witness,
another Commonwealth witness, Ronald
Ronald Milburn, conspired to pin
Milhurn, conspired pin the
the shooting on
shooting on
defendant so
defendant that they
so that get off
they could get off of probation.
probation. Id. Huard claimed
Id. Finally, Heard claimed that he
he told
told an
an
Assistant District
Assistant District Attorney ("ADA") this
Attorney (ADA") this information
information in
in 2005;
2005; however,
however, the ADA told
the ADA told Heard
Hcard not
not
to
to tell
tell anyone that or
anyone that or the ADA would
the ADA send Heard
would send Heard to
to jail
jail for
for a long time.
a long time, Id.
Id. Heald
Heard failed to
failed to
identify the ADA
identify the spoke to in
ADA he spoke in 2005,
2005, describing
describing him
him only as
as a
a "short white
white man."
man," Id.
1d. 4
To obtain
To relief under
obtain relief under the
the PCRA based on
PCRA based after-discovered evidence,
on after-discovered defendant must
evidence, defendant must
plead
plead and
and prove
prove that
that the evidence: I)
1) could not
not have
have been obtained
obtained prior to
to the conclusion of
the conclusion of the
trial
trial by the exercise
by the reasonable diligence;
exercise of reasonable diligence; 2)
2) it is not merely cumulative; 3) will not
3) will be used
not be used
solely to impeach
solely to impeach the
the credibility
credibility of a
awitness; (4) would likely compel a
witness; and (4) adifferent verdict. 42
Pa.C.S.
Pa.CS. § 9543(a)(2)(vi); Commonwealth •v. D'Atnaro,
$ 9543(3)026vi); D 'Amato, 856 A.2d 806,
856 A.2d 806, 823
823 (Pa.
(Pa. 2004).
2004)
aHeard actually saw
Heard actually savv more than defendant merely
merely firing
firing aagun.
gun. He save'
saw defendant shoot and kill one Levon Wilson
Wilson.
However, because defendant was not on trial for the
However, [lie killing of
of Wilson in thc
the instant case, the Commonwealth agree
agreed
not to
tot present any
to present any evidence
evidence that the gun
gun was u.scd
used in a murder, Defendant was convicted of murdering Wilson in a
a murder, a
separate trial. See CP-51-CR-0207721
separate CP-51-CR-0207721-2004. -2004
I
9In addition
addition to submitting Heard's affidavit in th
to submitting the instant PCRA petition, defendant also presented the the affidavit as
newly-discovered
newly-discovered evidence
evidence in
in a
a PCRA
PCKA petition
petition that
that he
he filed in
in his
his murder conviction stemming
stemming frorn
from the September
the
11,
1I, 2002
2002 shooting,
shooting, which was dismissed as untimely by the Honorable Rose Marie DeFino-Nastasi,
De'ino-Nastasi. See
See PCRA
PCR.A
Court Opinion
Court Opinion at CP-51-CR-0207721-2044, filed October 117,
at docket number CP-1-CR-0207721-2004, 7, 2016,
2016. Specifically, Judge DeFino-
Nastasi
Nastasi concluded
concluded thatthat defendant
defendant could have obtained the information from Heard at an earlier date if he had acted
with due diligence,
with due diligence, sincc affidavit was
sine the affidavit was not
not submitted
submitted until
until approximately ten years
years after defendant's trial
trial in
in that
case, but
case, but defendant had known of of Heard since
sine atat least 2005, Id,
Ad at
t Exhibit A. The Superior Court affirmed the
dismissal, agreeing
dismissal, agreeing that defendant's "bare declaration of bald ignorance does not meet the burden to plead and prove prov
why the
why the information
information now
no proffered
proffered as after-discovered
after-discovered ``evidence'
'evidence' could not have been known
known and obtained earlier
by the exercise
by the exercise of of due diligence." See Commonwealth
duc diligence," Collivronwealth ».v. !real, No. 2514 EDA
Real, No,2514 EDA 2016 (Pa.
(Pa. Super. March 4, 2009) at9- at 9-
14 (unpublished memorandum
IQ mcrnoranduin opinion).
opinion)
7
7
Ilerc,
Ilere, even true, Heard
cven if true, ,srecantation
Heard's recantation does not
not entitle defendant to relief because it fails
to
to meet
meet the
the requirement
requirement that it would likely
likely result in aadifferent verdict at aanew trial. In
determining whether after-discovered
determining after-discovered evidence
evidence would result
result in
in a
a different
different verdict, a
a court is
is to
to
"consider the
"consider integrity of the alleged
the integrity alleged after-discovered evidence, the
the motive
motive of those
those offering the
the
evidence, and
evidence, and the
the overall
overall strength
strength of the supporting the
the evidence supporting the conviction." Commonwealth v.
v
Padillas,
Padiltas, 997 A.2d 356, 365 (Pa.
A.24 356, (Pa. Super.
Super. 2010),
2410), app.
app. denied, 14 A.3d
A.3d 826 (Pa. 2010) (citing
826 (Pa.
Commonivealth ».
Commonwealth v, Parker, 431 A.2d 196, 200 (Pa. 19$1)).
(Pa. 1981))
First,
Fiest, it
it is
is well
well established that such recantations are "extremely unreliable." See
Co mtizonivealth v.
Commonwealth S•ncall, 189
v. Small, A.3d 961,977
189 A.3d 961, 977 (Pa.
(Pa. 2018) (noting that
2018) (noting there is
that there is "no reliable
"no less reliable
form
for of proof,
proof, especially
especially where it involves an admission of perjury").
perjury"). Moreover, Heard's
IIeard's
testimony merely
testimony established defendant's
merely established defendant's access to the
access to the murder weapon, as
murder weapon, as Heard
Heard was only
was only
permitted to testify
permitted to that he
testify that saw defendant
he saw defendant firing
firing the weapon on
the weapon on September
September 11, 2402, and was
I1, 2002, was
barred
harred from testifying that
from testifying that those shots
shots resulted
resulted in
in aathird
third murder
murder in addition to
to the two murders at
al
issue
issue in the case.
the instant case
Moreover, the recantation did
Moreover, did not exculpate defendant,
not exculpate defendant. While Heard
Heard now
now says lie
he did
did not
not
sec
soc defendant
defendant firing
firing the gun, he still acknowledges
the gun, acknowledges that he heard shots at the time the gun was
allegedly fired
allegedly fired by
by defendant.
defendant, Therefore,
Therefore, even Heard's recantation
even if Heard's recantation were
were found
found to
to be credible, it
be credible, it
would
would still consistent with
still be consistent with defendant having
having possession
possession of the
the murder weapon two
murder wcapon two days
days alter
alter
the
the murders here at issue.
issue
Most
Most importantly,
importantly, the Commonwealth presented
the Commonwealth presented additional
additional evidence
evidence regarding
regarding the
September
September 11, 2002 shooting that indepcndently
2002 shooting defendant's access to the murder
independently established dcfendant's inurder
weapon.
weapon., At trial,
trial, Officer Christine Hilbert
Hilbert testified
testified that on
on September 1
11,l,2002,
2002, she and her
partner
partner were on patrol
were on patrol in
in the Whitehall Projects
Projects when they heard the sound of gunshots,
gunshots. MT.
N.T.
8
8
2/19/2014
2/19/2014 at
at 177-78. As they
177.78. As they were driving
driving towards
towards the area where
the area where the
the gunshots
gunshots were coming
were coming
from. Officer Hilbert
from, Officer Hilbert saw
saw a male running
a male from the
running from the scene.
scene. N.T.
N,T. 2/19/2014
2/19/2014 at
at 179.
179. When the
When thc
male spotted
male spotted the officers, he flattened his body
the officers, body against
against a
abuilding.
building. Id. Once Officer Hilbert
exiled
exited the police vehicle,
the police the man
vehicle, the man ran away. 1d.
ran away. She thereafter
Id. She thereafter went to the
went to scene to
the scene assist. N.T.
to assist. NT,
2/19/2014 at 180.
2/19/2014 at 180. After
After the scene was
the scene was secured, Officer Hilbert
secured, Officer retraced her
Hilbert retraced steps to
her steps to where
where she
she
saw
saw the
the male
male running
running to see
see if she
she could
could locate
locate him.
him. N.T.
N.T. 2/1912.014
2/19/2014 at 2.00.
200, When
When she
approached
approached the
the buildings
buildings where
where she saw the
the male
male hiding,
hiding, she observed a
a gun
gun on the ground next
next
to
to aatree.
tree. Id. This was the gun
This was gun that
that was
was ultimately determined to
ultimately determined to be the wcapon
be the weapon used
used in
in the
the
September 11, 2002
September 11, 2002 shooting
shooting and
and in the instant
in the instant murders, as described
murders, as described above. N.T. 2/20/2014
above. N.T, 2/20/2014 at
at
63-64.
63-64,
1n addition
In addition to
to her testimony regarding
her testimony regarding the September 11,
the September 11, 2002
2002 shooting,
shooting, Officer
Officer Hilbert
Hilbert
testified that
testified that approximately one month
approximately one month following
following the
the shooting,
shooting, she saw a
she saw awanted
wanted poster at her
poster at her
police district and
police district recognized defendant,
and recognized defendant, the
the person in the
person in the poster, as the
poster, as the person sine saw
person she saw fleeing
fleeing
the scene of
the scene of the shooting.
shooting. N.T.
N,T 2/19/2014
3/19/2014 at 208-09.
208.09. Moreover, at trial, Officer Hilbert
identified
identified defendant as the
defendant as the perpetrator.
perpetrator. Accordingly, Officer Hilbert's
Accordingly, Officer Hilbert's testimony provided
testimony provided
compelling evidence
compelling evidence that defendant
defendant had access to the murder
murder weapon
weapon used
used in
in the instant
instant case.
Brian Heard
Brian and Officer
Heard and Hilbert were
Officer Hilbert were both corroborated by
both corroborated by Ronald Milburn, who was
Ronald Milburn, was
also present
also at the
present at scene of the September
the scene September 11, shooting and
11, 2002 shooting and had known
known defendant for
for many
years. The
years. The Commonwealth
Commonwealth presented
presented to the jury
to the jury Milburn's
Milburn's preliminary
preliminary hearing
hearing testimony
testimony in
in
which he
which he too
too identified
identified defendant
defendant as
as the
the shooter.
shooter, N.T.
N.T, 2/20/2014
2/20/2014 at
at 138-39,
138-39, 151-53, 166; N.T.
151-53, 166; N.T.
2/24/2014
2/24/2014 at 130, 144.
at 130, 144.
Finally, the Commonwealth
Finally, the Commonwealth presented
presented additional evidence that
additional evidence that overwhelmingly
overwhelmingly
established
established defendant's guilt. First,
defendant's guilt. First, Terrell
Terrell Boyd
Boyd testified that on
testified that the night
on the night of
of the
the murders at
murders at
99
issue in
issue the instant
in the case, he
instant case, he and defendant were
were driving around the
the liFrankford
rankford section
section of
of
Philadelphia
Philadelphia and
and looking someone. N.T.
looking to rob someone, 2/1912014 at 20-21,
N,T. 2/19/2014 20-21. When the pair parked on
Mulberry Street,
Mulberry Street, they
they got
got out of
of the car and walked to Hawthorne
Ha•vthorne Street, N.T. 2/19/2014 at 26
26.
Boyd stopped
Boyd stopped at
at the
the corner while defendant
corner while defendant walked
walked around
around the
the corner.
corer. N.T.
NT, 2/1912[114
2/19/2014 at 25-27.
at 25-27.
Boyd testified
Boyd that he
testified that then heard
he then heard the
the sound
sound of
of gunshots
gunshots being
being fired,
fired, so
so he
he ran
ran back
back to
to the car, and
the car, and
defendant followed
defendant followed soon
soon after.
after. N.T.
N,T, 2/19/2014 at 27-28.
2/19/2014 at 27-28. As they fled
As they fled the scene, defendant
the scene, defendant told
told
Boyd he had
Boyd he had shot one person
shot one in the
person in the head and one
head and one person twice in
person twice in the back
back as
as the person tried
the person tried to
to
run away.
run away, N.T.
N.T, 2/19/2014 29-30. In addition to Hoyd's
2/19/2014 at 29-30. Boyd's testimony,
testimony, the
the Commonwealth
Commonwealth also
also
presented evidence
presented evidence that following
following the shooting,
shooting, defendant evaded capture by fleeing to New
Jersey.
Jersey. N.T. 2/24/2414 a(
N,T 2/24/2014 a[ 41-43.
41-43, NA'lien
When defendant
defendant was
was ultimately
ultimately arrested,
arrested, he told
told police
police that
that
"[he] likeld] shooting
"[he] like[d] people." N.T.
shooting people." 2/24/2014 at
N.T. 2/24/2014 at 71-72, Finally, while
71-72. Finally, while incarcerated,
incarcerated, defendant
defendant
purportedly
purportedly confessed to murder, telling
to the murder, telling a
a corrections officer: "T don't give a
officer: " ashit, IIgot
got two
two
bodies, going to die in prison,
bodies, I'm going prison, IIdon't care." N.T.
N,T. 2/24/2014 at 101.
101. Due to the
overwhelming amount of evidence, independent
overwhelming independent of Heard's testimony,
testimony ;establishing defendant's
guilt, it is
guilt, it is without question that the
without question the information contained in
information contained in Heard's
Ileard's affidavit,
affidavit, even
even if true,
true,
would not
would changed the verdict. Accordingly,
not have changed Accordingly, Heard's recantation does not constitute after-
discovered evidence
discovered evidence that
that would give rise
would give to relief
rise to relief under
under the PCRA.
the PCRA.
B.
B Brady Violation
Defendant
Defendant next claims that
next claims the Court
that the Court erred
erred in dismissing his
in dismissing his petition
petition without
without aahearing on
hearing on
defendant's claims pursuant
defendant's claims to Brady
pursuant to v. Maryland, 373
Brady • U.S. 83,
373 U.$, 83, 87 (1963). Statement
87 (1963). Statement of Matters
of Matters
at
at T A.
A. Specifically,
Specifically, defendant
defendant argues
argues tthat
hat the
the Commonwealth failed
failed to disclose the
the following
following
exculpatory evidence: 1)
exculpatory evidence; I) the recantation of
of witness Brian fleard;
Heard; 2) identification information
concerning
concerning aawitness
witness named "Lisa:" 3)
named Lisa;" 3) statements allegedly
allegedly made by Herbert's mother regarding
10
10
what Herbert had
what Herbert had told her; and
told her; and 4)
4) contact
contact information concerning Milburn's
information concerning Milbum's mother.
mother. Statement
Statement
of Matters at
of at TA.
A, These
These claims are without merit.
merit.
Under
Under Brady
Brady v.
• iWaryland,
Maryland, 373 U.S. 83, 87
U,$. 83, 87 (1963),
(1963), exculpatory evidence not
not disclosed to
to
the defense will
the defense will give rise to
give rise to a due process
a du process violation
violation and
and will require a
will require anew
new trial
trial if the exculpatory
exculpatory
evidence is
evidence is "material" either to
"material" either to guilt or punishment.
guilt or punishment, 373
373 U.S.
U.5. at 87; see
at 87; see also
also Pa.R.Crim.
Pa.R.Crim.P,
573(B)(1)(a) (specifying,
5730)(1Ka) (specifying, as
as mandatory discovery, "[a[ny
mandatory discovery, "[any evidence
evidence favorable to the
favorable to accused that
the accused that
is material
is material either
either to
to guilt or to
guilt or to punishment,
punishment, and
and is
is within the possession
within the possession or
or control
control of
of the attorney
the attorney
for the
for the Commonwealth")
Commonwealth"). if the police
If the police possess evidence that is
possess evidence favorable to
is favorable the defense,
to the defense, then
then the
the
Coinrnonwealth
Commonwealth isis deemed to be responsible for
be responsible for its
its disclosure even
even if it
it is solely in
in the possession
of the police.
of the police. ,See Commonwealth •v. Latrzkrl,
See Commonwealth Lambert, 884
884 A,2d 848, 853
A,2d 848, (Pa. 2005)
833 (Pa. 2005) (quoting;
(quoting Brady,
Brady, 373
37
U.S, at
U.S, 87). Defendant
at 87). must therefore
Defendant must therefore establish three elements:
establish three elements: (I)
"(1) suppression
suppression by the
by the
prosecution
prosecution (2) of evidence,
(2) of evidence, whether exculpatory or
whether exculpatory or impeaching,
impeael}ing, favorable
favorable to the defendant, (3)
to the ()
to the
to the prejudice
prejudice of defendant." Commonwealth
of defendant." Commonwealth v. Tedford, 960
• Tedford, 960 A.2d
A.2d 1, 30 (Pa.
1, 30 (Pa, 2008).
2008).
1, Witness
1. Witness Brian
Brian Heard
Defendant claims
Defendant claims that
that the Commonwealth failed
the Commonwealth to provide
failed to provide exculpatory
exculpatory information
information
provided by
provided by Brian
Brian Heard,
Heard, the witness whose recantation affidavit is discussed in section II(A),
above. Statement
above. Statement ofMatters at ¶A.
of Matters at Specifically, defendant
A. Specifically, defendant argues that the
argues that the Commonwealth
Commonwealth
failed
fuailed to
to infonii
inform the
the defense
defense that
that Heard
Heard had
had told an unnanied
unnamed prosecutor
prosecutor that he
lie was
was going to lie
to lic
about defendant's involvement.
about defendant's involvement, Amended Petition, dated 412612018,
Petition, dated 4/26/2018, Exhibit 1. This
Exhibit I, This claim
claim is
is
without merit.
without merit.
As discussed above,
As discussed above, in
in his
his affidavit,
affidavit, Heard
Heard claimed that in
claimed that in May 2005, he
May 2005, he told an ADA
told an ADA
that he
that and Milburn
he and Milburn had agreed
agreed to lie and pin
pin the September 11, 2002 murder on defendant s❑
so
that
that they could get
they could get off
off of
of probation,
probation, and
and that
that the
the ADA
ADA told him not
told him not to
to tell this information
tell this information to
to
11
l
anyone.
anyone. See Amended Petition,
See Amended dated 4/26/2018,
Petition, dated 4126/201$, Fxhibit
Exhibit I.I. However,
However, under
under Brady, exculpatory
exculpatory
evidence not
evidence not disclosed
disclosed to
to the defendant will
the defendant will only
only give
give rise
rise to
to aadue
due process
process violation
violation and
and require
require
a
a new trial if
new trial if the
the evidence is material,
evidence is meaning, "when
material, meaning, "when there
there is aareasonable probability that,
reasonable probability that, had
had
the evidence been
the evidenec been disclosed
disclosed to
to the defense, the
thdefense, the result of the
result of proceeding would
the proceeding would have
have been
been
different." To
different." ford, 960 A.2d at 30 (internal
Tedford, (internal quotations omitted). Here, for the same reasons set
quotations omitted). sct
forth
forth above in Section
above in Section I(A),
II(A), above, it is
above, it clear that
is clear even if this
that even this information
information had been disclosed
had been disclosed to
to
defendant, it
defendant, it would not have
would not have resulted
resulted in adifferent
in a different verdict.
verdict. For that reason,
For that reason, defendant
defendant is
is entitled
entitled
to
to no relief on
no relief on his
his first
first Brady claim.
claim.
2.2. Identification Information Regarding
Identification Information Regarding "Lisa"
"Lisa"
Defendant next
Defendant next claims that the Commonwealth never
never disclosed
disclosed the full name, address,
address, or
statements of
statements of a
apotential witness known
potential witness known as
as "Lisa."
"Lisa." Statement
Statement of Matters at'
of Matters at !A.
A. Defendant
Defendant
alleges that
alleges that police
police received
received information
information from
from Shawn Young and
Shawn Young and Katoria Davis that
Katoria Davis that there
there was
was a
a
female witness
female witness to
to the shooting named
the shooting named"Lisa," Amended Petition,
Lisa." Amended dated 4/26/2018
Petition, dated at pp.
4/26/2018 at pp. 2-3,
2-3, 6,
6,
Exhibits A
Exhibits & F. Defendant
A &F. Defendant further
further alleges
alleges that the
the Commonwealth never
never provided
provided him with
with any
statement from
statement "Lisa," or
from Lisa," or any
any of
of her contact
contact information.
information. Id.
While it is true that both Mr. Young and Ms. Davis told police that someone named
"Lisa" may have
Lisa" may witnessed events
have witnessed events relevant
relevant to the murders,
to the murders, see
see Amended
Amended Petition, dated
Petition, dated
4/26/2018,
4/26/2018, F,xhibits
Exhibits AA&
& F,
F, there is nothing in
is nothing in the
the evidence in
in the case, nor in any
any of the
the multiple
multiple
petitions and exhibits
petitions and exhibits filed
filed by defendant, that
by defendant, that suggests
suggests that
that"Lisa" was ever
Lisa" was located by
ever located either the
by either the
Commonwealth or
Commonwealth or the
the defense.
defense. Defendant
Defendant failed
failed to
to present
present or
or proffer any evidence
proffer any suggesting
evidence suggesting
that "Lisa" had
that "Lisa" had been
been found,
found, that could somehow
that she could somehow exculpate
exculpate defendant, or that
defendant, or that any
any information
information
about
about "Lisa" was
was withheld from the defense.
defense, Accordingly, the Court properly denied defendant's
Brady
Brady claim regarding
regarding "Lisa" without aahearing.
12
3.
11 Decedent Marcus Herbert's
Des&dent Marcus Herbert's Statements his Mother
Statements to his
Defendant
Defendant next
3. next claims
claims that
that the Commonwealth withheld
the Commonwealth exculpatory evidence
withheld exculpatory evidence regarding
regarding
statements made
statements made by one of
by one of the
the decedents, Marcus Herbert,
decedents, Marcus Herbert, to
to his
his mother.
mother. Statement of Matters
Statement of Matters
at 1iA.
at A. Defendant
Defendant alleges
alleges that Herbert's mother
that Herbert's told detectives
mother told that her
detectives that her son said he
son said he "knows what
"knows what
happened to
happened to him,"
him," and that the
and that Commonwealth should
the Commonwealth should have
have disclosed
disclosed the "statements
"statements from
from
Herbert or Herbert's
Herbert or Herbert's mother," Statement of
mother." Statement of Matters at
Matters at ¶A;
A; Amended
Amended Petition,
Petition, dated 412612018,
dated 4/26/2018,
Exhibit
Exhibit F. As stated
F. As stated above,
above, Herbert
Herbert did
did not
not die
die until more than
until more than one year after
one year after the
the shooting.
shooting.
support of
In support of his claim, defendant
his claim, attaches Detective
defendant attaches Detective Bgenlauf's
Egenlauf's October 12, 2002,
October 12, 2002,
activity sheet,
activity sheet, in which the
in which the Dctcctive states that
Detective states that Herbert's mother had told
Herbert's mother told him
him that her son
that her son
briefly was
briefly was able to communicate
able to communicate; while
while in
in the
the hospital and said
hospital and that he knew
said that knew what
what happened
happened to
to
him, but
him, but that she was
that she was unable
unable to
to interview
interview her
her son any further.
son any Amended Petition,
further. Amended Petition, dated
dated
4/26/2018, Exhibit
4/2602018, Exhibit F. Defendant also
, Defendant also attaches an activity
attaches an activity sheet,
sheet, dated
dated November
November 26, 2002, in
26, 2002, in
which
which Detective
Detective Egenlauf
Egenlauf states
states that
that he went to Hahnemann
Hahnemann Hospital
Hospital to interview Herbert.
Amended
Amended Petition,
Petition, dated 4/26/2018,
4/26/2018, Exhibit G. At that time, Herbert was awake and alert, but
was unable
was unable to communicate any
to communicate information. Id.
any information. Id
Nowhere does defendant present
Nowhere present or proffer
proffer any evidence suggesting that Herbert told his
mother
mother anything
anything that
that would tend to exculpate the
to exculpate the defendant, or assist
assist the deiensc in
the defense in any manner.
manner.
Accordingly, the Court
Accordingly, Court properly
properly denied
denied defendant's &ady
Brady claim regarding
regarding Herbert's statements
statements
to his
his mother
mother without
without a hearing.
a hearing
4.
4. Contact Information
Contact Milburn's Mother
laformation of Milbum's Mother
Defendant claims that
Defendant claims that the
the Commonwealth
Commonwealth withheld the contact
withheld the contact information of witness
information of witness
Ronald Milburn's
Ronald Milburn's mother.
mother. Statement
Statement of
of Matters at I
Matters at A.
A. At
At trial, Ronald
Ronald Milburn
Milburn was unavailable
unavailable
and his
and his prior preliminary hearing
prior preliminary hearing testimony
testimony was
was introduced by the
introduced by Commonwealth, N.T
the Commonwealth, N.T.
13
13
2/24/2.014
2/24/2014 at
at 122-42; N.T. 2120/2014
122-42; N.T 2/20/2014 at 6-1.1, 119-25. Milburn
at 6-11, Milburn testified
testified at
at the prelinlinary
the preliminary
hearing that be
hearing that he witnessed
witnessed defendant
defendant shooting
shooting the possible
possible murder weapon at aalocal bar aaweek
prior to
prior to the
the murders,
murders, and that two days
days after the murders Milburn again saw defendant shooting
what could have
what could have been
been the
the murder weapon. N.T,
murder weapon. N.T. 2/24/2014 at 126-42.
2/24/2014 at 126-42, Defendant
Defendant alleges that,
alleges that,
had Milburn's
had mother been
Milbur's mother contacted, she
been contacted, she would
would have
have refuted
refuted her
her son's testimony.
son's testimony.
Supplemental PC1ZA
Supplemental PCRA Petition, dated 8/6/201
Petition, dated 816/2018 at p.
8 at p. 3.
3.
In
In particular, defendant alleges
particular, defendant alleges that Milburn's
Milburn's mother would have
have testified that
that Milburn's
testimony was aalie,
testimony was lie, and that
that the
the Commonwealth violated
violated Brady
Brady by
by not
not producing the mother's
contact
contact information. Supplemental PCRA
information. Supplemental PCRA Petition 81612018 at
Petition,;dated 8/6/2018 at p.
p. 3. At trial, defense
counsel stated that
counsel stated that defendant's
defendant's mother
mother had told
told defense counsel
counsel that
that Milburn's mother
mother had said
said
to her
to that Milburn's
her that Milburn"s testimony
testimony was
was untrue,
untrue. NT,
N.T. 2/19/2014 at 255-5b.
2/19/2014 at However, defendant
255-56. However, defendant
never presented
never presented a
astatement
statement or witness certification from Milburn's mother
mother to show
show that she
she
actually had anything
actually had anything to say
say that was in
that was in anyway helpful to
any way helpful to the defense. Nor
the defense. Nor did he present
did he present or
or
proffer any evidence that the Commonwealth had kriowledgc
proffer any knowledge of any contact information for
for
Milburn's
Milburn's mother
mother that
that was
was not available to the
not available defense. Accordingly,
the defense. Accordingly, the
the Court
Court properly denied
properly denied
defendant's Brady
defendant's Brmly claim regarding
regarding contact information for Milburn's mother without a
a hearing.
C. Ineffective
C Ineffective Assistance of Counsel
Assistance of
Defendant
Defendant next claims that trial counsel was ineffective on the grounds that: I)
next claims 1) counsel
failed to investigate
failed to investigate defendant's
defendant's alibi defense;
defense; 2)
2) counsel
counsel failed
failed to properly
properly prepare
prepare for
for trial
because
because he did not
he did not investigate
investigate or intcrview an
or interview an alleged
alleged eyewitness
eyewitness named "Lisa,"
"Lisa," three
three friends
friends of
co-defendant Terrell
co-defendant Terrell Boyd, and Karl
Boyd, and Karl May; 3) counsel
May; 3) counsel filed to retain
failed to retain aaDNA expert to
DNA expert to test the hat
test the bat
collected by
collected by police,
police, the gull, and any
the gun, any and all physical
physical evidence; 4) counsel failed to attack the
completeness of
completeness of the
the police
police investigation;
investigation; 5)
5) counsel
counsel failed to object
failed to object when
when the Commonwealth
the Commonwealth
14
called
called furl May as a
Karl May awitness after the witness broke sequestration:
sequestration; 6) counsel failed to make aa
Batson objection
Batson objection to the use of peremptory
perm"ptory challenges by the Commonwealth to strike all
potential
potential Hispanic
Hispanic voir dire persons;
persons; 7)
7) counsel failed to move to prohibit the Commonwealth
frorn
from introducing
introducing evidence of an
evidence of an unrelated
unrelated crime;
crime; and 8)
8) counsel
counsel failed
failed to
to object
object to
to the
the
identification of
identification of defendant
defendant made
made by Officer Christine
by Officer Christine Hilbert.
Hilbert. Statement Errors at
of Errors
Statement of at % C(l)-
C(D)-
C(8).
C(8)
Under
Under Pennsylvania
Pennsylvania law,
law, counsel
counsel is
is presumed to be effective and the burden to prove
presumed to
otherwise
otherwise lies
lies with the petitioner.
petitioner. Commonwealth v.
• Reid, 99 A.3d 427, 435 (Pa.
(Pa. 2014) (citing
Cotntnonivealth •
Commonwealth v. Miller,
Miller, 819 A.2d 504, 517 (Pa.
A.24 504, (Pa. 2002)).
2002)). To obtain collateral relief based on the
ineffcetive assistance of counsel,
ineffective assistance counsel, a
a petitioner
petitioner must show that counsel's representation fall
fell below
accepted standards
accepted standards of advocacy
advocacy and that as a
a result thereof, the petitioner was prejudiced.
prejudiced
Strickland
Strickland v.P. Washington,
Washington, 466 U.S. 668, 694 (1984).
U,$. 668, (1984). In Pennsylvania, the Strickland standard is
interpreted
interpreted as requiring proof that:
requiring proof (1) the claim underlying the ineffectiveness claim had
that: ()
arguable merit;
arguable merit; (2)
(2) counsel's any reasonable
counsel's actions lacked any reasonable basis;
basis; and
and (3) the
the inefteetivcness
ineffectiveness of
counsel
counsel caused the petitioner
caused the petitioner prejudice. Commonwealth v.v. Millet',
prejudice Commonwealth 987 A.2d
Miller, 987 A.2d 638,
638, 648
648 (a.
(Pa. 2009);
2009);
Cotnmomi ,ealth •
Commonwealth v. Pierce, 527 A.24
Pierce, 527 A.2d 973,
973, 975
975 (Pa.
(a. 1987). To satisfy
1987). To satisfy the third prong
the third prong of
of the
th test,
test,
the petitioner must
the petitioner roust prov
prove that,
that, but for counsel's
but for counsel's error,
error, there
there is areasonable
is a reasonable probability
probability that
that the
thc
outcome of
outcome of the
the proceeding
proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067,
1084 (Pa. 2006)
1084 (Pa, (citing Strickland,
2006) (citing Strickland, 466
466 U.S.
US. at
at 694).
694), If
If the PCRA
the PCR A court determines that
court determines that any
any one
one
of the
of the three
three prongs cannot be
prongs cannot be met,
met, then
then the court need
the court need not
not hold an evidentiary
hold an evidentiary hearing
hcaring as such aa
as such
hearing
hearing would
would serve
serve no purpose.
purpose. Commonwealth v. ,Jones, 942 A.2d 903, 906 (a.
• Jones, (Pa. Super.), a1•7a.
app
denied, 956 A.2d
dented, (Pa. 2049).
A.2 433 (Pa. 2008)
15
to Investiaatc
1. Failure to Investigate Defendant's Alibi Defense
Alibi Defense
Defendant's
Defendant's first
first ineffective assistance of
ineffective assistance of counsel claim js
counsel claim is that
that trial
trial counsel
counsel was
was
ineffective
ineffective for failing to
for failing investigate a
to investigate apotential
potential alibi
alibi defense.
defense. Statement
Statement of
of Matters
Matters at'
at;-C(I)
C(1).
This
This claim is without
claim is merit.
without merit.
Defendant alleges
Defendant alleges that
that trial
trial counsel was
was aware
aware that defendant
defendant had
had aa. part-time job at aa
warehouse
warehouse at the time
at the time of
of the
the murders
murders and that defendant
and that defendant believes
believes he was more
he was more than likely at
than likely al
work
work when the murders
when the murders occurred. Amended Petition,
occurred. Amended dated 4/26/2018
Petition, dated 4/26/2418 at
at pp. 5-6, However,
pp. S-6. However,
defendant also
defendant also told
told trial
trial counsel
counsel that
that he
he was not absolutely
was not absolutely certain
certain that
that lie
he was
was at
at work on that
work on that
Amended Petition,
date. Amended dated 4/26/2018
Petition, dated 4/26/2018 at
at p. 6.
p.6.
While defendant
While defendant alleges
alleges that
that he
he might
might have been at
have been at work,
work, he
he failed
failed to
to present or proffer
present or proffer
any
any evidence to show
evidence to show that
that he was
was actually
actually at work at
at the
thc time
time of
of the
the murders,
murders, such
such as potential
potential
alibi witnesses
alibi or documentation.
witnesses or documentation, Accordingly,
Accordingly, the
the Court
Court properly denied his
properly denied his claim
claim that
that trial
trial
counsel was
counsel was ineffective for failing
ineffective for failing to
to pursue
pursue an
an alibi
alibi defense.
defense.
2.2.. Failure to investigate and Interview
Investigate and Interview Witnesses
Witnesses
Defendant next
Defendant claims that
next claims trial counsel
that trial counsel was ineffective for
was ineffective for failing
failing to
to investigate
investigate and
and
interview witnesses, Statement
interview witnesses, of Matters
Statement of at11 C(2),
Matters at C(2). Those
Those witnesses
witnesses are: "Lisa;" Karl
are: Lisa;" May; and
Karl May; and
tthree
hrce friends of Terrell
friends of Terrell Boyd.
Boyd. Id. This
This claim is without
claim is without merit.
merit.
The
['he first
first witness, "Lisa," is the purported
witness, "Lisa," purported witness, discussed above,
above, who was never
located
located by either the
by either the Commonwealth
Commonwealth or
or defense. See Section
defense. See Section IT(B)(2), supra. Because
I(Q2), supra. Because
defendant
defendant has
has neither presented
presented nor
nor proffered that ``°I.isa"
proffered any evidence that Lisa" would
would have testified
testified to
anything helpful
anything helpful to
to the
the defense, or that
defense, or that she
she could have been
could have found through
been found through reasonable
reasonable
investigation, defendant
investigation, defendant cannot
cannot prove that defense
prove that defense counsel
counsel was
was ineffective for failing
ineffective for failing to
to
investigate and interview
investigate and interview this witness.
this witness.
16
16
The second
The second witness,
witness, Karl May,
May, who is
is the step-father
step-father of murder victim Marcus Herbert,
testified for
testified for the
the Commonwealth at
at trial ana was
trial and was cross-examined
cross-examined by defense counsel.
counsel. N.T.
N,T
2/19/2014 at
2/19/2014 230-50. While
at 230.50, While trial
trial counsel
counsel may not have
may not have interviewed
interviewed May
May before the trial,
before the our
trial, our
appellate
appellate courts "have never held that trial counsel is obligated to interview
interview every
Commonwealth witness prior
Commonwealth witness to trial."
prior to trial." Commonwealth
Cnmmonivealth •v. Washington, 927
927 A.2d 586, 598 (Pa.
(Pa.
2007). Where, as here,
2007). Where, here, trial counsel vigorously
vigorously cross-examines the Commonwealth's witnesses,
counsel's election not to interview Commonwealth witnesses
counsel's election Ainesscs will not render counsel'S
counsel's
representation
representation to be constitutionally deficient.
be constitutionally deficient. Commonwealth v.
v. SnOth,
Smith, 17 A.3d 873, 888-89
888.89
(Pa. 2011).
(Pa. 2011). Moreover, defendant has
Moreover, defendant has not presented nor
not presented nor proffered any evidence
proffered any evidence tending
tending to
to prove
prove
that had
had trial
trial counsel
counsel interviewed
interviewed May,
May, some evidence would
would have been uncovered that
have becn that could
could
have helped the
have helped the defense.
defense
his Statement
In his of Matters
Statement of Matters and
and Amended
Amended Petition, defendant specifically
Petition, defendant specifically alleges
alleges that
that
May could
May could have
have led
led trial
trial counsel
counsel to
to another
another relevant witness. Statement
relevant witness. Statement of
of Matters
Matters 11 C(2);
CQ2);
Amended Petition,
Amended dated 4/26/2018
Petition, dated 4/26/2018 at p. 6.
at p. 6. in support of
In support of this contention, defendant
this contention, defendant attached
attached as
as
an exhibit to his petition,
petition, a
a police activity sheet dated August 24, 2004, which indicates that May
police activity
told detectives that
told detectives that he
he knew of an
knew of an unnamed female eyewitness.
unnamed female eyewitness. Amended
Amended Petition,
Petition, dated
dated
4/26/2018, Exhibit H.
4/26/2018, Exhibit H. However,
However, the
the activity
activity sheet
sheet merely states that
merely states that May
May "has
"has knowledge
knowledge of
of a
a
female eve ,
%ritness to this
female eyewitness this incident
incident who has never been interviewed."
interviewed." Id Defendant
Defendant has neither
presented
presented nor
nor proffered any evidence
proffered any evidence that
that May ever provided
May ever police, or
provided police, or anyone
anyone else,
else, with
with any
any
additional information regarding
additional regarding this witness. Nor has defendant presented or proffered evidence
that
that had trial counsel interviewed
had trial interviewed May,
May, that
that May
May would
would have provided
provided him
him with
with the contact
information for this witness.
information witness, In
In addition,
addition, the is devoid
the record is of evidence
devoid of evidence that this unnamed
that this unnamed
witness would
witness would have provided any
have provided any evidence
evidence helpful
helpful to
to the defense.
the defense.
17
17
Defendant also alleges
Defendant also alleges that his trial
that his trial counsel
counsel was ineffective for
was ineffective for failing
filing to investigate and
investigate and
interview three
interview throe friends
friends of ``f'crrelI
Terrell Boyd:
Boyd: Michael Simpson, Maurice McCoy, and Alan Rothwcll.
Rothwell
Statement of
Statement of Matters
Matters at
at¶C;(2);
C(2); Amended Petition, dated
Amended Petition, dated 4/26/2018
4/26/2018 at 6. As
at p. 6. As stated above,
stated above,
Terrell Boyd
Terrell Boyd was defendant's coconspirator,
was defendant's coconspirator, and cooperated with the prosecution,
prosecution. Among
Among other
things,
things, Boyd
Boyd testified
testified that
that he
he and defendant were
and defendant were childhood
childhood friends
friends who were driving
who were driving around
around on
on
the day
the day of
of the murders looking
the murders looking for someone to
for someone to rob. Defendant argues
rob, Defendant that Boyd's
argues that three friends
Boyd's three friends
would
would have testified that
have testified that Boyd defendant were
Boyd and defendant were not
not friends
friends and
and that
that Boyd
Boyd disliked defendant.
disliked defendant
Amended Petition, dated
Amended Petition, dated 4/26/2018 at p.
4/26/2018 at p. 6
6.
However,
However, defendant
defendant failed to submit
failed to submit affidavits
affidavits or
or witness certifications from
witness certifications from any
any of
of these:
these
three witnesses
three witnesses to
to prove
prove that they actually would have provided
they actually provided evidence helpful to the defense,
and that
and that they
they were
were available
available at
at the
the time of trial
time of trial and
and willing
willing to testify.
testify. Accordingly, defendant
Accordingly, defendant
could not
could not have proven at
have proven at a
a hearing that trial
hearing that trial counsel
counsel would
would have developed evidence
have developed evidence helpful
helpful to
to
the defense had
the defense had he
he investigated or interviewed
investigated or these witnesses.
interviewed these witnesses.
Therefore, defendant
Therefore, defendant failed to present
failed to or proper
present or any evidence
profler any evidence to
to show that trial
show that counsel
trial counsel
could have
could have assisted by investigating
assisted the defense by investigating or interviewing any of the five
fv
i e witnesses
identified by defendant.
identified by defendant. Accordingly,
Accordingly, the
the Court
Court properly denied without
properly denied without aahearing his
hearing his
ineffective assistance
ineffective assistance of counsel claim premised
counsel claim upon these
premised upon witnesses.
these witnesses.
3.3. Failure
Failure to Retain a
a DNA Expert
Expert
Defendant next claims
Defendant next claims trial
trial counsel
counsel was
was ineffective for failing
ineffective for failing to
to retain
retain aaDNA expert to
DNA expert to
test the hat collected by
test the police, the gun,
by police, gun, and any and all physical evidence. Statement of Matters
at ¶C(3).
at C(3). Defendant claims that
Defendant claims that testing
testing done
dove by
by a
adefense
defense DNA
DNA expert
expert would
would have eliminated
have eliminated
him as
him as a
a suspect. Amended Petition,
suspect. Amended Petition, dated
dated 4/26/2018
4/26/2018 at
at p.
p. 7.7. This
This claim
claim is without
without merit.
merit.
18
At trial, the Commonwealth
trial, the Commonwealth presented
presented testimony
testimony from an exper
expert in DNA analysis,
analysis, The
'The
Commonwealth's
Commonwealth's DIVA
DNA expert
expert testified
testified that
that blood
blood found
found on the
the hat recovered at the
the scene
belonged to
belonged to decedent
decedent Marcus
Marcus Herbert. N.T,
N.I, 2/20/2014 at 95-96. The expert also testified that
the DNA
the taken from
DNA taken from the sweatband of the
sweatband of the same
same hat
hat was compared ta
was compared to the DNA sample
the DNA sample from
from
defendant
defendant and
and the
the results were inconclusive. N,T,
were inconclusive. NX. 2/20/2014
2/20i2014 at 90.-93,
90-93, 95-96. Defendant argues
argues
that he
that he was
was entitled
entitled to aadefense
defense DNA expert, and that
DNA expert, that aathorough test done
thorough test done by
by aadefense
delensc DNA
DNA
expert would have
expert would have eliminated defendant's DNA IYom
eliminated defendant's any of the
from any the physical evidence. Amended
physical evidence. Amended
Petition,
Petition, dated 4/26/201 Sat
dated 4/26/2018 at p. 7.
p. 7
Derendant's
Defndant's
e claim fails
claim for three
fails for three reasons.
reasons. First,
First, the
the testimony of the DNA
testimony of DNA expert did not
expert did not
incriminate the
incriminate the defendant.
defendant. Therefore,
Therefore, it was
was unquestionably reasonable for
unquestionably reasonable trial counsel
for trial counsel 'lot to
not to
retain
retain aaDNA
DNA expert
expert to
to conduct
conduct independent
independent testing.
testing. Second, even if further
further testing showed that
that
the
the DNA
DNA found on the
found on the sweatband of the hat was
was conclusively not
not from the defendant,
defendant, that would
not exonerate defendant,
not exonerate nor in
defendant, nor in a"y
any way
way undermine
undermine the Commonwealth's case.
the Commonwealth's case. Finally,
Finally, as
as to the
to thc
gun and
gun and "any
"any and
and all physical evidence," defendant
physical evidence," defendant has
has neither
neither presented nor
nor proffered any
evidence suggesting
evidence suggesting that
that a
a DNA test
test regarding
regarding of
of any
any piece of evidence
piece of evidence would
would have
have assisted the
assisted the
defense.
defense.
Accordingly, the Court
Accordingly, the Court properly denied without
properly denied without aahearing defendant's inelectivoe
hearing defendant's ineffective
assistance of
assistance of counsel
counsel claim
claim premised upon counsel's
premised upon counsel's failure
failure to hire
hire aaDNA expert.
expert
4.4. Failure the Completeness
Failure to Attack the Completeness and
and Reliability
Reliability
of
of the
the Investigation Conducted by
Investigation Conducted Police
by Police
Defendant
Defendant also claims that trial counsel was ineffective for failing to attack the
completeness and reliability
completeness and reliability of the investigation
of the done by
investigation done by police. Statement of
police. Statement of Matters
Matters at 11 C(4).
at C(4)
Defendant specifically
Defendant specifically argues
argues that counsel erred
that counsel by neglecting
erred by to present
neglecting to evidence that
present evidence that the
the police
police
failed to
failed to do the following:
do the (a) interview
following: (a) interview,"Lisa"; (b) interview
"Lisa"; (b) interview the
the female witness identified
female witness identified by
by
19
Karl
Karl May;
May; (c)
(c) compare Boyd's DNA to the DNA on the hat found on the scene;
compare oyd's scene: (d) consider
Boyd to be
Boyd to be the
the primary
primary suspect;
suspect; and (c) show
and (e) show Boyd's
Boyd's photograph to "Lisa,
photograph to Lane and
Lisa, Lane and IIerbert.
IHerbert." "1°
Statement of Matters
Statement of at
Matters at ¶C(4);
C(4); Amended Petition ;dated 4/26/201
Amended Petition, 4/26/20188 at
at pp. 8-9.
pp. 8-9
(a) &
(a) & (b) FAurc to Investigate
(b) Failure bivestigate and Interview.
Interview "Lisa"
and the
the Witness
Witness Identified
Identified by May
by Mav
As
As stated
stated in
in section
section II(C)(2), neither "Lisa," nor the
LI(C(2), above, neither the female
female witness identified by
Karl May, was
Karl May, ever identified
was cver identified or
or interviewed.
interviewed. With the record
With the devoid of
record devoid of evidence
evidence that
that either
either
putative
putative witness
witness would have provided
would have provided evidence
evidence favorable
favorable to the defense,
to the defendant cannot
defense, defendant cannot show
show
that trial
that counsel could
trial counsel could have
have helped defendant by
helped defendant by attacking
attacking the police
police investigation
investigation of these
these two
two
witnesses.
(c)
(c) Failure
Failure to Compare
Compare Boyd's DNA to
Boyd's DNA to the DNA
DICTA Found on the Hat
the Ila
As discussed
As discussed in section II(C)(3),
in section II(Cy3), above,
above, defendant
defendant neither presented nor
neither presented any
nor proffered any
evidence
evidence that
that additional DNA
DNA analysis
analysis would
would have helpful to
have been helpful to the
the defense.
defense. Accordingly,
there is no reason to believe that the police
police failure to compare the DNA of Boyd to the DNA
found on
on aahat
hat at
at the scene prejudiced
the scene defendant.
prejudiced defendant
(d)
(d) Failum to be the
Failure to Consider Boyd to the Primary
Primary Suspect
Defendant's
Defendant's assertion
assertion that police did not
that police not adequately investigate Boyd
Boyd as
as aasuspect is
is
belied by the record.
belied by record. In the course of the police's
police's investigation,
investigation, Boyd admitted his involvement
and cooperated with police,
and cooperated testifying at trial and ultimately pleading guilty. N,T,
police, testifying N.T. 2/19/2014
2/19/2014 at
a
33-37.
33-37. Boyd
Boyd testified that he
hc was with defendant at the time of the murders, heard
hcard the shots, and
that defcndant admitted
that defendant admitted to him that he committed the murders afterwards.
afterwards. N,T, 2/19/2014 at 25-
1° The Statement of
The Statement of Matters
Matters states
states in paragraph C(4e),
in paragraph C(4)(c), that
that the
the police
police failed
failed to show "appellant's
to show appellant' photograph,"
photograph," not not
Boyd's photograph,
Boyd's photograph, to the three witnesses.
witnesses. Ilowever,
IIowever, it is apparent from
frorn the section of the pr•a
pro se petition cited in
the Statement of
the Statement of Matters, that defendant's
detendant's complaint is that the police
that the police failed
failed to show Boyd's
to show Boyd``s photograph
photograph to these
to these
witnesses. See
witnesses. See Amended
Amendcd Petition, dated 4/2602018 p. 8s(na
4/26/2018 at p. (,, no police personnel displayed Boyd's
Loyd's photograph to to
Lane, Herbert, or ``Lisa"').
'Lisa").
20
30. Defendant
30, has neither
Defendant has neither presented
presented nor proffered
proffered any
any evidence to support his claim that had
police
police conducted
conducted aamore
more thorough
thorough investigation,
investigation, it
it would have revealed
revealed Boyd
Boyd to be the shooter
shooter
or led
or led to
to Boyd being the
Boyd being "primary suspect."
the "primary suspect."
{e)
(e) Failure
Failure to
to Show
ShowBo d's Photo
Boyd's rah to Witnesses
Photograph Witnesses
Defendant neither presented,
Defendant neither presented, nor proffered,
proffered, any
any evidence to support his claim that
evidence favorable
evidence favorable to the defense
to the would have
defense would been uncovered
have been uncovered if police had shown
police had shown Boyd's
Boyd's
photograph to
photograph to witnesses "Lisa," Lane,
witnesses "Lisa," Lane, and
and Herber..
Herbert. As discussed
discussed above,
above, "Lisa" was
was never able
to be
to be identified
identified or
or interviewed. Therefore, the police
interviewed. Therefore, police could not
not have
have shown
shown her any photographs.
In
In addition, there is
addition, there nothing in
is nothing in the
the record
record suggesting that either
suggesting that either Lane or Herbert
Herbert would
would have
have
identified Boyd as
identified Boyd as the shooter had they
they been shown Boyd's
Boyd's photograph. defendant
photograph. Accordingly, defcndant
has not
has proven that counsel was ineffective
not proven ineffective for
for failing
failing to
to attack the
the Commonwealtl's
Commonwealth's
investigation
investigation for
for failing photograph.
failing to show witnesses Herbert's photograph
Finally, the
Finally, the record
record establishes
establishes that
that trial counsel did
trial counsel aid aggressively
aggressively and extensively attack
and extensively attack
the Commonwealth's investigation,
the Commonwealth's investigation, and did forcefully argue that Boyd was the
the shooter. During
During
closing argument,
closing argument, defendant's
defendant's trial counsel described
trial counsel described Boyd
Boyd as
as a
a "Cominonwealth
"Commonwealth witness
witness who is
who is
bought and paid
bought and paid for
for with
with aadeal."
deal." N.T. 2/24/2014 at
N.T. 2/24/2014 at 214,
214, Trial counsel then
Trial counsel went through
then went through
Boyd's
Boyd's statements
statements and his testimony
and his illustrating inconsistencies
testimony illustrating inconsistencies for
for the
the jury. N.T. 2/24/2014
jury, N,T. at
2/24/2014 at
214-17. Trial
214-17, counsel also
Trial counsel stated that, "it turns
also stated turns out
out Terrell
Terrell Boyd set these
Boyd set these guys
guys up," and that
up," and that
anybody who
anybody was looking
who was looking at
at the
the time
time of the incident
of the saw a
incident saw ablack
black male
male running
running away after the
away after the
shots
shots were
were fired," N.T. 2/24/2014 at 217.
fired,'' N,T, 217, Trial counsel then went through the descriptions from
eye witnesses saying
eye witnesses saying they
they saw
saw aablack male running,
black male and told
running, and told the
the jury these people
jury these people were
were
describing:
describing Terrell
Terrell Boyd.
Boyd, N.T.
N,T. 2/2412414 218-24.
2/24/2014 at 218-24
Ii Boyd is aablack male, while defendant is a
Boyd is male.
a Hispanic male
21
Accordingly, the defendant
Accordingly, the defendant has
has failed
failed to present or
to present or proffer evidence to prove
proffer evidence prove that
that
counsel's
counsel's failure
failure to attack
attack the police
police investigation
investigation in the specific manners set forth in the
Statement of Matters
Statement of Matters denied defendant effective
denied defendant effective representation. NOrelief
representation. No is due.
relief is due.
5. Failure
5. Failure to
to Object
Object to Karl
Karl Mav's
May's tcsti-mony after
testimony after
May
May Allegedly Violated Seques
Sequestration
tration
Defendant claims
Defendant claims that
that trial counsel was
trial counsel was ineffective
ineffective for
for failing
failing to object
object to Karl May's
to Karl May's
testimony on the
testimony on the basis
basis that
that May
May violated
violated sequestration.
sequestration. Statcinent of "vlatters
Statement of Matters atat I( C(5)
C(5), This
This
argumcnt
argument is
is without
without merit.
merit.
May,
May, the step-father
step-father of decedent Herbert,
of decedent Herbert, had given a
had given astatement
statement to
to police
police that
that he
he had seen
seen
a black male
a black male running
running from the scene of the shooting, At trial,
the shooting. trial, in
in violation
violation of
of a
a sequestration
sequestration
order, he was
order, he present during
was present during aamorning
morning of testimony, including
of testimony, including the
the testimony
testimony of
of Terrell
Terrell Boyd.
Boyd
When he
When he was called as
was called as a
a Commonwealth witness, he changed
Commonwealth witness, changed his
his description of the
description of the individual he
individual hc
saw running
saw running from
from the shooting
shooting from
from aablack
black male to a
male to aHispanic
Hispanic male. Defendant now
male. Defendant claims that
now claims that
counsel should
counsel should have
have kept
kept May
May off the by objecting
the stand by objecting on the ground
ground of the
the violation
violation of
sequestration.
sequestration.
This argument
This argument fails
fails for
for two
two reasons.
reasons. First,
First, May's prior statement
May's prior statement to police
police was
was very
very
helpful
helpful to the defense,
to the since May's
defense, since May's description of the perpetrator
description of perpetrator as
as a
ablack male tended
black male tended to
inculpate
inculpate Boyd
Boyd and
and exculpate defendant. Defense counsel
exculpate defendant. counsel had
had no
no reason
reason to
to know that May
know that May was
was
going to
going change his
to change his description
description during
during his
his trial testimony and had
testimony and good reason
had good reason to
to believe
believe that
that he
would help the
would help the dcfcnse.
defense. In fat,
fact, May
May did help
help the defense, since trial counsel was able to bring
out his
out his helpful
helpful statement
statement to
to police as aaprior
police as prior inconsistent
inconsistent statement after May
statement after May changed
changed his
his
description of the perpetrator.
description N.T. 2/19/2014 at 233-35, 238-48.
perpetrator. N.T,
In addition, an
In addition, objection based
an objection on the
based on the sequestration
sequestration order would unquestionably
order would unquestionably have
have
been
been denied
denied by the Court.
by the Court. Under
Under Pennsylvania Rule of
Pennsylvania Rule Evidence 615,
of Evidence the Court
615, the Court may order
may order
22
22
sequestration
sequestration in order to
in order to prevent
prevent aawitness
witness from
from learning
learning frorn
from the
the testimony of another
testimony of another witness
witness.
The decision whether
The dccision or not
whether or to permit
not to permit aawitness
witness who
who has
has broken
broken aasequestration order to testify
sequestration order testify is
is
within the
within the sound
sound discretion
discretion of the trial
trial judge. Conmmnweallh v,v. Smith, 324 A.2d 483,492(a.
judge. Commonwealth 483, 492 (Pa.
Super.
Super. 1974). rn exercising
1974), In exercising its discretion,
discretion, the
the trial court should consider, I)
should consider; 1) the seriousness
seriousness of
of
the violation,
the violation, 2)
2) the
the impact of the
impact of testimony on
the testimony on the
the witness, 3) the
witness, ) the probable impact upon
probable impact upon the
the
outcome of
outcome of the
the trial,
trial, 4) whether the
4) whether witness intentionally
the witness intentionally violated the court's
violated the court's sequestration
sequestration order,
order,
and
and 5)
5) whether
wbether the
the calling
calling party
party procured
procured the witness's disobedience. Commonwealth v. Mokluk,
444 A.2d 1214,
444 A.2d 1214, 1216
1216 (Pa.
(Pa. Super.
Super. 1982).
1982).
Here, there
Here. there was
was no evidence that
no evidence that May
May was
was aware
aware of
of the
the sequestration order or
sequestration order or that
that his
his
violation
violation was
was intentional.
intentional. As the step-father of one
the step-father one of the decedents,
decedents, he
he had
had aagreat interest in
observing
observing the trial. Similarly,
the trial. Similarly, there was no
there was evidence that
no evidence the Commonwealth
that the Commonwealth was
was aware that he
aware that
had been in
had been in the courtroom or
the courtroom or was
was otherwise
otherwise complicit
complicit in
in the
the violation. In addition,
violation, In addition, the Court
the Court
pernuttcd defense during
permitted the defense during the
the trial
trial to
to baring out and
bring out and fully
fully explore
explore the violation to
the violation to minimize
minimize any
any
prejudice to the
prejudice to the defendant.
defendant. N.T.
N,T, 2/1912014
2/19/2014 at
at 250. Because "[o]nly
250. Because "[o]nly in
in extreme cases of
extreme cases of flagrant
flagrant
and intentional violations
and intentional violations may
may a
a witness be barred from testifying,"
testifying," the Court would
would have
have denied
any defense motion
any defense motion to keep
keep May off the witness
May off stand. See Ohlhaum
witness stand. Ohlbuum on the Pennsylvania Rules
of Evidence $§615.09[11
of 615.09[l] (2020
(2020 ed.) (Hon. Daniel
ed.) (Hon. J. Anders,
Daniel J. Anders, General
General Editor).
Editor)
Accordingly, trial counsel's
Accordingly, trial object to May's
counsel's failure to objcet May's testimony
testimony based on the
the violation of
sequestration
sequestration could not have
could not have prejudiced defendant and
prejudiced defendant and denied
denied him
him effective assistance ol
effective assistance of
counsel.
counsel, No relief is due
due.
23
23
6. Failure
6. Failure to
to Malce
Make aaBatson Objection
Objection
Defendant
Defndant
e claims
claims trial
trial counsel
counscl was
was ineffective for
for failing to make
make aaBatson objection to
Batson12objection
the use
the of peremptory
use of peremptory challenges
challenges by
by the Commonwealth to
to strike
strike all potential
potential Hispanic
Hispanic jurors.
jurors.
of Matters
Statement of at¶C(6).
Matters at C(6)
It is well-scttled
It is well-settled "that the government denies
the government denies a
a defendant equal protection
defendant equal protection of the laws
of the laws
when
when it
it ``puts
'puts him on trial
him on trial before
before aajury
jury from
from which members of
which members of his
his race
race have
have been
been purposefully
purposefully
excluded,"' Comionwealth v.v. Werra.
cxeluded." Commonwealth (Pa. 2004) (citing Ratson
Udera, 862 A.2d 74, 83 (Pa. Batson v.
• K(
Kentucky,
476 U.S. 79, 85 (1986))
476 0,$.79,85 (1986)). Batson established
established aalhrce-part inquiry for
thrcc-part inquiry evaluating aadefendant's
for evaluating defendant's
claim of
claim of racial
racial discrimination injury
discrimination in jury selection:
selection
First,
First, the defendant must
the defendant make out
must make out a
a prima
prima jracie showing that
facie showing the prosecutor
that the prosecutor has
has
exercised peremptory challenges
exercised peremptory challenges onon the
the basis of race.
basis of race. Second,
Second, if the
the requisite
requisite
showing
showing has
has been
been made,
made, the burden
burden shifts
shifts to
to the prosecutor
prosecutor to articulate
articulate a race-
a racc-
neutral
neutral explanation
explanation for striking the jurors
for striking jurors inin question. Finally
Finally the
the trial court must
must
determine yvliether the
determine whether the defendant
defendant has carried his
has carried burden of
his burden of proving
proving purposeful
purposeful
discrimination.
discrimination.
Lrderra, 862 A.2d
Uderra, 862 A.2d at
at 83, citing Hernandez
83, citing Hernandez v. Mee ,York,
». New 500 U.S.
York, 500 U.S. 352,
352, 358-59, C'ominanwealth 1'.
358-59. Commonwealth v
Harris, 817
Harris, A.2d 1033,
817 A.24 1033, 1042 (Pa. 2002).
1042 (Pa. 2002). To satisfy its
To satisfy obligations during
its obligations during the
the second part of
second part the
of the
Batson
Batson inquiry,
inquiry, the Commonwealth need
the Commonwealth need not
not provide
provide explanations
explanations that
that are "persuasive or
are "persuasive or even.
even
plausible." Commonwealth
plausible." C'ominonwealth v. Roney, 79
v». Roney, 79 A.3d 595,619
A.,3d 595, 619 (Pa.
(Fa. 2013),
2013), quoling Purkett V.
quoting Purkett ». Elem, 514
Elem, 514
U.S. 765,
U.S, 765, 767-768 (1995), "Rather,
767-768 (1995). "Rather, the
the issue
issue at [thc
[the second] stage
stage ``is
'is the
the facial validity of
facial validity of the
the
prosecutor's
prosecutor's explanation.
explanation. Unless
Unless aa. discriminatory
discriminatory intent
intent is
is inherent in the
inherent in the prosecutor's
prosecutoes
explanation,
explanation, the reasons
reasons offered
offered will be
be deemed race neutral."
deemed race neutral." Id. Once race-neutral
Id Once race-neutral
explanations arc
explanations are provided,
provided, the "persuasiveness of the
the "persuasiveness the facially
facially neutral
neutral explanation proffered
proffered by
by
the Commonwealth
the Commonwealth is relevant" and
is relevant" the court
and the court is
is to make
make a
a determination
determination as
as to
to whether the
whether thc
12 Ralson v.
Batson • Kentucky,
Kentucky, 476 U.S. 744760.8. 79 (1986) (prohibiting the
(1986) (prohibiting the use
use of
of peremptory race).
peremptory challenges on account of race)
24
moving party
moving party has
has proven
proven purposeful
purposeful discrimination.
discrimination. Id,
Id, quoting Commonwealth v.
• Williains,
Williams,
980 A,24
A.2d 510, 529-30 (Pa. 2409).
2009)
Here, trial
Here. counsel did
trial counsel did raise
raise aaBalson
Batson objection
objection based on the
the Commonwealth's
Commonwealth's use of
Peremptory challenges to strike three Hispanic
peremptory challenges Iispanic males:
n}ales: juror 11and 27 from day one of
juror numbers 1l of
juror selection,
juror selection, and juror
juror number 55 from day
day two of
of juror selection. N.T. 2/11/2014
selection, NT, 2!11/2014 at 215-22.
218-22.
After determining
Aller determining that
that there
there were legitimate race-neutral
were legitimate race-neutral reasons
reasons for
for striking each of thosc
striking each juroi•s,
those jurors,
.
the Court denied
the Court denied defense
defense counsel's
counsel's Batson claim. N.T.
N.T. 2/11/2014 at 224-35,
224-36. Defendant
Defendant now
now
claims that
claims that trial
trial counsel
counsel was ineffective for failing
failing to include in his Batson claim, juror number
98
98 from clay one,
from day one, a Hispanic female,
a Hispanic female. Amended Petition ;dated
Amended Petition, 4/26/2018 a
dated 4/26/2018 at P. 11.
p. Il.
The
The record refutes defendant's argument.
argument. During the Batson challenge, the Court found
that defendant satisfied
that defendant satisfied the first
first prong of Batson by
prong of by establishing
establishing a facie case
a prima facle of
case ol
discrimination in
discrimination in that
that the
the Commonwealth
Commonwealth used peremptory challenges
used peremptory challenges on
on three
three out
out of
of threc
three
Hispanic venirepersons.
Hispanic venirepersons. Therefore, adding a
Therefore, adding afourth challenged
challenged Hispanic venireperson could not
have benefited defendant regarding
regarding the required prima facte
facie showing.
As to
As to the
the prosecution's
prosecution's requirement
requirement to
to present
present aacredible race-neutral
race-neutral justification for
for the
the
peremptory
peremptory challenges,
challenges, the record shows that during voir dire, juror number 98 told the Court
that
that her
her daughter's boyfriend was in
daughter's boyfriend in federal
federal prison
prison on
on gun charges. N.T.
N.T. 2110/2014
2/10/2014 at
at 250.
250. She
She
described herself
described herself as
as "kind
kind of close
close with him
him and that he
he had
had been elating
dating her
her daughter for
for 12
I2
years. N.T.
years. 2/10/2014 at
N.T, 2/10/2014 at 250-51.
250-51. This
This is
is aaclearly
clearly legitimate
legitimate race-neutral justification for
race-neutral justification for using
using aa
peremptory challenge on
peremptory challenge on the juror. As
the juror. As a
aresult,
result, including
including this
this juror in defense
juror in defense counsel's
counsel's Balson
Batson
challenge would
challenge would not
not have
have affected the
the outcome of that
that challenge.
Accordingly, wunsel was
Accordingly, trial counsel was not
not ineffective
ineffective for
for failing
failing to
to raise
raise aaBatson objection
objection to the
the
fourth
fourth Hispanic venireperson. No
Hispanic venireperson, No relief is due.
is due,
25
77. Failure
Failure to Move to Prohibit
Prohibit Evidence Defendant
Defendant Fircd
Fired aaArun
Gun
In the Air One Week
Week Before
Before tthe
he Murders and Failure to Object
Failure to
to Prosecutor's
to Prosecutor's Closing Comments Regarding
Closing Comments Regarding that Ev
Evidence
idence
Defendant claims
Defendant claims trial counsel was
trial counsel was ineffective
ineffective for
for failing
failing to
to move
move to prohibit the
to prohibit the
Commonwealth from
Commonwealth introducing evidence
from introducing evidence of
of another
another crime,
crime, that
that is, that defendant
is, that defendant had
had fired aa
gun in
gun the air
in the air a
aweek
week prior
prior to
to the
the incident.
incident. Defendant
Defendant also claims that
also claims that trial counsel was
trial counsel was
ineffective for
ineffective not objecting
for not objecting to comments made
to comments made by
by the
the prosecutor regarding that
prosecutor regarding that evidence during
evidence during
her closing argument. Statement
closing argument. Statement of
of Matters at IC(7).
Matters at These arguments
C(7). These arg unents are
are without
without merit.
merit.
The
The evidence here at issue consisted of preliminary
evidence here preliminary hearing testimony of Ronald Milburn,
which
which was
was read to
to the jury
jury since Milburn was unavailable for trial.
trial. In that testimony, Milburn
stated that
stated that he had seen
he had seen defendant
defendant in
in aabar approximately one
bar approximately one week
week prior
prior to
to the murders firing
the murders firing aa
gun into
gun into the air. According
the air. According to
to Milburn,
Milburn, that
that gun
gun looked like the
looked like same 99millimeter
the same millimeter weapon that
weapon that
he also
also saw
saw defendant
defendant shooting
shooting two days
days after the murdcrs,
murders, and which turned out to be the
murder
murder weapon.
weapon. N.T. 58, 63-64,
N,T. 2/20/2014 at 58, C3-64, 138-39, 151-53,
151-53, 166;
166; N.T.
N.T. 2/24/2014 at 130,
130, 144;
sec
see p. 5, supra
p.5, supra.
It
It is
is well-established that evidence
well-established that evidence that
that "[a]
"[a] weapon shown to
weapon shown to have been in
have heen in aadefendant's
def'endant's
possession
possession may
may property
properly be admitted into evidence, even though it cannot positively be
identified
identified as
as the
the weapon
weapon used in the
used in the commission
commission of
of a particular crime,
a particular crime, if it tends
if it tends to prove that
to prove the
that the
defendant had
defendant had a
a weapon similar to
wcapon similar to the one used
the one used in the perpetration
in the of the
perpetration of the crime.
crime. Any uncertainty
Any uncertainty
that
that the
the weapon the actual
wcapon is the actual weapon
weapon used in the
used in the crime
crime goes
goes to the weight
to the of such
weight of evidence."
such evidence."
Commonwealth
Commonwealth v. Williams, 640
• Williams, 640 A.2d 1251, 1260
A.24 1251, 1260 (Pa.
(Pa. 1994).
1994). Accordingly, evidence that
Accordingly, evidence that
defendant
defendant possessed
possessed a
a gun
gun approximately one week
approximately one week prior to the
prior to the murders that looked
murders that looked like the
like the
murder
murder weapon
wcapon was clearly admissible. As
was clearly As aaresult,
result, trial counsel could
could not
not have been ineffective
failing to object
for failing object to that evidence.
26
As
As for
for the
the prosecutor's closing, it
prosecutor's closing, it is true that
is true that the ADA commented
the ADA that defendant
commented that defendant had
had the
the
apparent murder weapon
apparent murder weapon in
in his
his possession
possession prior the day
prior to the day of
of the
the murders. N.T. 2/2412014
murders. N,T. 2/24/2014 at
at
275.
275. This was proper
This was argument based
proper argument based upon
upon properly
properly admitted
admitted evidence.
evidence. Therefore,
Therefore, counsel
counscl
could
could not have been
not have been ineffective for failing
ineffective [or failing to
to object
object to
to it.
8.
8. Failme to
Failure Object to
to Object the Identification
to the ofDefendant
Identification of Defendant
made
made by
by Police Officer Christine
Police Officer Christine Hilbert
Hibert
Defendant claims
Defendant claims that trial counsel
that trial was ineffective
counsel was ineffective for
for failing
failing to
to object
object to
to the
the admission
admission
of
of Officer
Officer Christine Hilbert's identification
Christine Hilbert's of defendant.
identification of Statement of
defendant. Statement Matters aat I
of Matters C(8).
C(8). t
Defendant alleges that
Defendant alleges that this
this identification
identification was
was previously
previously ruled inadmissible by
ruled inadmissible Judge DeFino-
by Judge DeFino-
Nastasi. Statement
Nastasi. of Matters
Statement of at ¶C(8);
Matters at C(8); Amended Petition, dated
Amended Petition, dated 4/2012018 at p.
4/26/2018 at p. 14.
I4
The
The ruling;
ruling at issue was made by Judge DeFino-Nastasi in the PCRA proceedings
by Judge
regarding defendant's separate
regarding defendant's separate murder CP-5 1-CR-0207721-20 04, in
murder case, at docket number CP-51CR-0207721-2004, in
which he was
which was charged
charged with
with killing I,evon Wilson at
killing Levon at aacraps game
game two days after
after the
the murders of
Herbert and Story
Herbert and Story here
here at issue.
issue, Because ballistics evidence showed that
that the same weapon
weapon was
was
used
used in all three
in all three murder's, the Commonwealth
murders, the Commonwealth was
was permitted,
permitted, in the case
in the case at
at bar,
bar, to prove that
to prove that
defendant fired the weapon
defendant fired weapon at
at the craps game,
the craps in order
game, in order to
to show
show that he
he had
had possession of the
possession of the
murder weapon
murder weapon used
used in
in the
the double
double murder
murder two days
days later.
later. See pp.
pp. 5-6,
5-f, supra'
SU17ra. 13
In both
In both trials,
trials, officer
Officer Christine Hilbert made
Christine Ililbert made an
an in-court
in-court identification of defendant
identification of as the
defendant as the
person
person she observed fleeing
she observed fleeing from the scene
from the scene of
of the
the shooting at the
shooting at craps game.
the craps game. In the PCRA
In the PCRA
proceedings
proceedings regarding the
regarding the Wilson
Wilson murder, .fudge DeFino-Nastasi
murder, Judge opined that
DeFino-Nastasi opined Officer HilbeWs
that Officer Hilbert's
in-court
in-court identification of defendant
identification of defendant "most likely should
"most likely should not have been
not have been permitted" dining the
permitted" during the
Wilson murder
Wilson trial. See Tn7al
murder trial. Trial Court Opinion, filed December
Court Opinion, December 9, 2014, at p. 15; N.T. (CP-51-
15; N.T
As stated
"Ag
13 above, the
stated above, Commonwealth was
the Commonwealth anlY permitted
was only permitted to prove
prove that defendant
defendant fired
fired the weapon at the craps
game, and was barred
game, and was bared fi om
from
- proving
proving that
that defendant
defendant used
used the
the gun
gun shoot
shoot and
and kill
kill Wilson at that
that game.
game, See p. n.t
p. S5n G;
supra.
sap
27
CR-0207721-2004) 5/3/2013
CR-0207721-2004) at d,
5/3/2013 a1 13-20. 14 Now
6, 13.-20./ Now defendant
defendant claims
claims that
that trial counsel in
trial counsel in the case at
the case at
bar was ineffective
bar was ineffective for not objecting
objecting to Hilbert"s
Hilbert's identification on the basis of Judge DeFino-
Nastasi's opinion.
Nastasi's opinion
it
It is
is true
true that, under the coordinate jurisdiction
that, under jurisdiction rule, aajudge is ordinarily bound by
hy the
decision of
decision of another
another judge jurisdiction on
judge of coordinate jurisdiction on the same issue.
issue, However, the
the rule
rule only
applies
applies to decisions made
to decisions made in the same
in the same case.
case. See,
See, e,g.,
e.g., Commonweallh
Commonwealth v. Hernandez, 39 A.3d
39 A.3d
406, 412. (Pa.
406, 412 (Pa. Super.
Super. 2012),
2012), app. iL.3d 1244 (Pa.
app denied, 63 A.3d (Pa. 2013). Therefore, an
2013). Thercfore, an objection by
trial counsel based
trial counsel on an
based on argument that
an argument the trial
that the trial judge was bound by
judge was by Judge
Judge DeFino-Nastasi's
DcFino-Nastasi
decision in
decision in another case would
another case have been
would have been frivolous.
frivolous
Moreover, Judge
Moreover, Judge DeFino-Natasi's decision was premised upon aafailure of the
Commonwealth to
Commonwealth to disclose
disclose to the defense
to the defense aaprior
prior out-of-court
out-of-court identification
identification made by Officer
made by Officer
Hilbert. In
Hilbert. In the
the case at bar,
case at bar, however,
however, the
the prier
prior identification was Billy
identification was disclosed pretrial.
fully disclosed 'Phis
pretrial. This
Court addressed
Court addressed the issue as follows in its opinion
opinion on defendant's direct appeal:
appeal;' 15
Here, unlike the Wilson
Here, unlike Wilson murder
murder trial, defense counsel
trial, defense counsel had
had full
full disclosure
disclosure of of all of the
all of the
identifications made by.
identifications by Hilbert well before
bcfore trial, and was able to raise all of
of the
identification
identification issues
issues in an extensive pretrial
pretrial hearing.
hearing. See N.T. (Motion) 2/18/14 2/18114 at 7-92
(hearing
(hearing on motion to suppress
on motion suppress identification evidence).
evidence). Following the hearing, this
Court
Court excluded
excluded Hilbert's
Hilbert's pretrial
pretrial identification
identification of dcfcndant
of defendant in in the
the prep
prep session with the
session with the
assistant district
assistant district attorney,
attorney, but permitted Hilbert
but permitted Hilbert to
to testify
testify that she had
that she had recognized
recognized
defendant on
defendant on the poster
poster in
in the
the police
police district,
district, and
and allowed
allowed her
her to
to make
make an in-court
an in-court
identification.
identification. Nothing in Judge
Nothing in Judge Derino-Nastasi's
DeFino-Nastasi's decision,
decision, which
which was premised upon
was premised upon aa.
claim or
claim discovery violations arising
of' discovery arising at aadifferent trial, barred that decision,
decision.
'1'rial Court
Trial Court Opinion,
Opinion, filed
fifed December 9, 2014 at pp,
December 9, pp. 15-16.
15-15. Accordingly, any that trial
any objection tbat trial
cotulsel would
counsel would have made to the admission of officer
Officer Hilbert's in-court identification based on
Notwilhslanding this
'Notwithstanding
14 this finding,
finding, Judge
Judge DeFino-Nastasi denied the
DeFino-Nastasi denied the PCRA
PCRA petition on the ground
petition on ground that error
that counsel's error
did
did not prejudice defendant. Id.prejudice defendant. Id at
at 20-21.
20-21.
' I)efendant
11Defendant set
set forth
forth the
the issue
issue of the Hilbert identification testimony in his Statement of Errors for his direct appeal,
but decided not
but decided to raise
not to raise the
the issue
issue in the Superior
in the Superior Court.
Court. See Superior
Superior Court
Court Opinion, dated November
Opinion, dated November 20,20, 2015, at p.
2015, at p
2 issues on
(listing; the issues
2(listing on direct appeal).
appeal).
28
Judge
Judge DcFino-Nastasi's
De'ino-Nastasi's decision
decision would
would have been meritless.
have been meritless, Therefore, trial counsel
Therefore, trial counsel was
was not
not
ineffeetivc
ineffective for failing objection.
failing to make such an objection
D. The PCRA Cort
D. Courl erred by Denying Defendant's
Defendant 's Discovery Request
Delendarit
Defendant claims
claims that the Court committed ail
an abuse of discretion by denying defendant's
discovery request.
discovery request. Statement of Matters at ¶D. This claim is without merit.
Matters at merit
In
In defendant's
defendant's Second Supplemental
Supplemental Petition,
Petition, he requested
requested "the entire Police
Police
investigation file."
investigation Second Supplemental
file." Second Petition, dated
Supplemental Petition, dated 2/8/2019
2/8/2019 at
at p.
p. 5. Defendant
Defendant alleged
alleged that
that
since "the
since "the Police
Police conducted a
a ``shoddy' investigation and the Commonwealth has repeatedly
'shoddy' investigation
withheld exculpatory evidence,"
withheld exculpatory evidence," defendant
defendant was
was entitled to review
entitled to review the
the police investigation file
police investigation file in
in
order to "discover
discover any Id.any other exculpatory evidence being withheld." Id
In PCRA proceedings
[n PCRA proceedings in which the death penalty
penalty is not at issue,"
issuC, 16 "no discovery shall be
permitted
pemitted at any stage
at any stage of the
the proccedings,
proceedings, except upon
upon leave of court after
after aashowing of
exceptional
exceptional circuanstances."
circumstances." PaKCrim.P.
Pa.R.Crim,P, 902(1;)(1).
90241(1). Our Supreme Court has specifically held
held
that aaPCRA
that petitioner is not entitled to inspect
PCRA petitioner inspect the Commonwealth's files for the purpose of
determining the existence of exculpatory
determining exculpatory evidence in support of a
a Brady claim. Commonwealth
•v. Tedford,
Tedford, 228
228 A.3d
A.3d 891, 909-10 (Pa.
891, 908-10 (Pa. 2020).
2020). 17 Here,
Here, just Tedford defendant's
just as in Tedford, defendant's discovery
discovery
request
rcquest to review all
to review all of
of the
the police
police files
files "is comprised
comprised entirely
entirely of
of conjecture
conjecture that damaging
that damaging
documents
documents may
may exist in
in those files." Id. For that reason, defendant's discovery request was
properly
properly denied.
16As discussed
As above, Nvhile
discussed above, the Commonwealth
while the Commonwealth sought adeath
sought a death sentence
sentence in this case,
in this case, the
the jury
jury returned
returned aaverdict of
verdict of
life in
life in prison
prison.
1' Because Tedford
Because Tedford was
was a collateral challenge
u collateral challenge to aasentence of death, the Court
Cout applied
applied the more permissive
permissive
discovery
discovery standard
standard for
for death penalty
penalty cases,
cases, allowing
allowing discovery tip
uponon a
a showing of "good cause," rather than
"exceptional
exceptional circumstances."
circumstances." See Pa.R.Crim.P.
Pa.Crim.P, 902(E)(2).
902(EX2). Accordingly
Accordingly, ;the holding of Tedford applies here
here a
a
fbrtiori.
fortiort
29
Hl. CONCLUSION
II1.
For all
'or all of
of the foregoing reasons,
the foregoing the Court's
reasons, the Court's artier
order dismissing defendant's PCRA
dismissing defendant's PCRA petition
petition
should be affirmed.
should be affirmed.
BY THE COURT:
COURT
GLENN
GLENN B.
B. BRONSON,
BRONSON, J.
I
30
Commonwealth v.
Commonwealth v. Fernando
Fernando Real
Real CP-5L-CR-0008511-2008
CP-51-CH-0008511-2008
Type
Type of
of Order:
Order: Opinion
Opinion CP-51-CR-0048526-2008
CP-51-CR-0008526-2008
PROOF
PROO OF
OF SERVICE
SERVICE
I hereby certify
I hereby certify that
that I
I am this day
day serving
serving the foregoing
foregoing Court Order upon the person(s), and in
the inanner
the manner indicated
indicated below,
below, which
which service
service satisfies
satisfies the requirements
the of Pa.R.Crim.P,
requirements of 1. 14:
Pa.R.Crim.P.114:
Defense
Defense Cuunsel/Party:
Counsel/Party
John
John Belli, Esquire
Belli, Esquire
2Penn Center,
2Penn Center, Suite 940
Suite 900
Philadelphia,
Philadelphia, PA 19102-1532
PA 19102-1532
Type
Type of
of Service:
Service () Personal (X)
()Personal (X) First Mail () Other,
First Class Mail Other, please specify:
specify
District Attorney:
Distriet Attorney;
Lawrence Goode, Esquire
Lawrence Goode, Esquire
Interim Supervisor, Appeals
Interim Supervisor, Appeals Unit
Unit
Office
Office of the District
of the Attorney
District Attorney
Three
Three South
South Penn Square
Penn Square
Philadelphia,
Philadelphia, PA 19107-3499
Type
Type of
of Service
Service () Personal (
()Personal () First
First Class
Class Mail (X)
(X) Other,
Other, please
please specify:
specify: Intergffce
Interoffice
Additional Counsel/Party:
Additional CounseUParty:
Joseph D.
Joseph D. Seletyn, Esquire
Seletyn, Esquire
Prothonotary
Prothonotary
Office of
Office the Prothonotary
of the Prothonotary —Superior
Superior Court
Court
530 Walnut
530 Street, Suite
Walnut Street, Suite 315
315
.Philadelphia,
Philadelphia, PA
PA 19106
19106
Type of Service:
Type of Servicc () Personal (X)
(Personal (X) First
First Class
Class Mail () Other, please
please specify:
specify:
Dated: March
Date«d: March 12, 2021
12, 2021
-Ly_0AC
Megur O'Donnell
Megani O'Donnell
Law Clerk to Hon,
Clerk to Glenn B.
Hon. Glenn B. Bronson
Bronson