Com. v. Ramos, W. ( 2017 )

J-A04019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILFREDO RAMOS
Appellant No. 426 EDA 2015
Appeal from the PCRA Order dated January 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0100891-1999
BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 27, 2017
Appellant Wilfredo Ramos was convicted in 1999 of the murder of
James Crawford, otherwise known by the nickname “Jazzie,” who was killed
in the course of a drug transaction. Appellant appeals from an order by the
Court of Common Pleas of Philadelphia County that denied his petition under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, for relief
from his judgment of sentence. We affirm.
The facts of this action were described by the Supreme Court in
Commonwealth v. Ramos, 827 A.2d 1195 (Pa. 2003), cert. denied, 541
U.S. 940 (2004), and we draw on that description for an overview of the
events that are the subject of this appeal:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A04019-17
The record below establishes that on October 11, 1998 at
approximately 2:30 in the morning, James Crawford was
standing in front of a bar at the corner of Lawrence and Indiana
Streets in Philadelphia. Jeanine Davis, the girlfriend of
Crawford’s cousin, approached Crawford with the intent of
procuring drugs from him. Crawford and Davis walked into a
nearby abandoned house at the corner of Leithgow and Indiana
Streets for the purpose of using drugs. When the two entered
the house, Nick Cruz was inside. Meanwhile, Appellant and his
half-uncle, Michael Centeno, drove up in a car and parked in the
middle of Leithgow Street. Appellant and Centeno exited the car
and walked toward the corner of Lawrence and Indiana Streets,
where Crawford’s friend Robert Kennedy was standing. As
Appellant approached Kennedy, he asked Kennedy if anybody
had any drugs. In response, Kennedy yelled for Crawford.
Crawford told Davis and Cruz that he would be right back, and
he left the house.
A few minutes later, Davis, who was standing inside the house,
saw Appellant and Crawford together directly in front of the
house.5 As Appellant began to walk away from Crawford, Davis
heard Crawford yell, “Yo, man, give me my s--t.” N.T.,
12/27/1999, at 70. In response, she heard Appellant command
Crawford to “[b]ack up.” Id. Davis then saw Appellant turn
around and shoot Crawford in the chest from about three feet
away.
5
As the house was dark and its doors and windows were
missing, Davis stood just inside the doorway so that she could
see and hear what was going on outside without being seen
from the outside herself. Similarly, Cruz stood just inside of a
window opening to watch and hear these events unfold.
Once Crawford fell to the ground, Davis watched Appellant turn
around in a circle and look around, which gave her a clear view
of Appellant’s face. She recognized Appellant from having
previously seen him in the neighborhood. Davis then observed
Appellant walk across the street and climb into the passenger
seat of the car parked on Leithgow Street. The car sped away.
Davis subsequently gave a statement to police in which she
described the shooter as a six-foot-tall Hispanic male with a thin
build, about twenty to twenty-five years old, which is consistent
with Appellant’s physical description. Using these
characteristics, [Homicide Unit Detective Paul McElvie] generated
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a line-up containing 106 different photographs [using an imaging
machine. N.T., 12/28/99, at 10-11]. Out of this line-up, Davis
selected two different photographs of Appellant[1] and stated
that he was the shooter.6
6
Cruz and Kennedy also gave statements[2] to police in which
they gave physical descriptions of the shooter. Those
statements were consistent not only with each other but also
consistent with Appellant’s physical description. Cruz and
Kennedy also gave physical descriptions of the shooter’s
accomplice that were consistent with each other and with
Centeno’s physical description. Cruz . . . apparently did not
participate in a photographic line-up, however, nor did [Cruz
and Kennedy] testify at trial. . . .
Id. at 1196–97.
Cruz gave two statements to police. In the first, conducted on
October 11, 1998, Cruz stated that Kennedy was standing on the corner of
Lawrence and Indiana Streets when the shooting occurred. Investigation
Interview Record of Cruz, 10/11/98, at 2. Kennedy’s location at the time of
the shooting was also confirmed by Davis, who stated that, upon her arrival
at the scene, Kennedy was standing on the corner of Lawrence and Indiana
Streets, in front of the bar. Investigation Interview Record of Davis,
10/11/98, at 1-2.
____________________________________________
1
Detective McElvie testified that he had been unaware that there was a
second, different photograph of Appellant in the array until Davis indicated
it. N.T., 12/28/99, at 12.
2
Kennedy gave two separate statements to police. Kennedy gave his first
statement on October 14, 1998; that statement was marked as Petitioner’s
Exhibit 3 (“P-3”) during Appellant’s PCRA hearing on July 14, 2008.
Kennedy gave his second statement on November 12, 1998; that statement
was marked as Petitioner’s Exhibit 4 (“P-4”) during Appellant’s PCRA hearing
on July 14, 2008.
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In Kennedy’s first police statement on October 14, 1998, he likewise
stated that he “was standing on the S/W corner” of Lawrence and Indiana
Streets, “beside the Family Place Bar.” Then he “turned towards the bar.
. . . Then [he] heard a gunshot. [He] turned around and saw the guy with
the striped shirt with the gun in the air[.]” Investigation Interview Record of
Kennedy, 10/14/98, at 1-2. Kennedy also stated that the killer was wearing
sunglasses. Id. at 3. When asked who else witnessed the shooting,
Kennedy answered, “I guess the two people that was in the house, Jeanine
[Davis] and the guy with the bad leg.” Id. at 4.3
On November 12, 1998, Kennedy viewed a photographic array and
gave a second statement to police, in which the following exchange
occurred:
Q. Mr. Kennedy you have also told [the detective conducting
the interview] that the male in the # 2 position [in the
photographic array] is the man that shot James Crawford on 10-
11-98 is that correct?
A. Yes. I have seen him in the area a number of times.
(identifying PP # 768938 assigned to Wilfredo Ramos.)
Investigation Interview Record of Kennedy, 11/12/98, at 2.
On November 17, 1998, Appellant was arrested and interviewed
by police. Appellant gave a statement to police,[4] admitting
____________________________________________
3
Kennedy did not further identify “the guy with the bad leg.”
4
Appellant’s statement included his admission that he “was dealing drugs at
4th and Somerset Street” on the night of the murder. N.T., 12/28/99, at
48; Ex. P-12A, 9/25/08, at 4. The detective who took Appellant’s statement,
Detective Reinhold, testified that Appellant answered his questions
(Footnote Continued Next Page)
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that he had been present at the shooting but accusing Centeno
of robbing and shooting Crawford. According to Appellant’s
statement, as he was on his way to buy drugs at Lawrence and
Indiana Streets, he ran into Centeno. When Centeno found out
where Appellant was going, he decided to join him, telling
Appellant that he was looking to “stick somebody up” and
promising to split the proceeds of the robbery with Appellant.
N.T., 12/28/1999, at 48 (testimony of Philadelphia Police
Detective Richard Reinhold, in which he read Appellant’s
statement into evidence). Appellant claimed that on the way,
Centeno showed him the gun he planned to use to commit the
robbery, but Appellant contended that he did not know that
Centeno was going to shoot anyone. Appellant also claimed that
upon arriving at Lawrence and Indiana Streets, he bought a bag
of heroin and four rocks of crack cocaine from Crawford and then
walked away. Soon thereafter, according to Appellant, he heard
a shot and saw Centeno running down Leithgow Street with a
gun in his hand.
Ramos, 827 A.2d at 1197–98. On February 1, 1999, Centeno was arrested
and charged with murder. N.T., 12/28/99, at 58.
At Appellant’s preliminary hearing on December 24, 1998, Davis gave
testimony that aligned with her police statement. N.T., 12/24/98, at 5-9,
13, 17-18, 28-29.
Voir dire occurred from December 20 to 23, 1999.5 Prior to the start
of Appellant’s trial, his counsel asked the trial court to order Kennedy and
Cruz to be held in Philadelphia County custody so that they could be brought
to the courthouse each day of trial and be reached immediately to testify, if
_______________________
(Footnote Continued)
coherently and appeared to be of sound mind and not under the influence of
alcohol or drugs. N.T., 12/28/99, at 40.
5
As discussed later in the text, two days of the four days of voir dire
proceedings were never transcribed and were never provided to Appellant or
his appellate counsel.
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necessary. N.T., 12/27/99, at 64-66. The trial court agreed. The guilt
phase of Appellant’s jury trial was held on December 27 to 30, 1999; the
penalty phase followed from January 10 to 11, 2000.
At Appellant’s trial, Davis testified to what she saw in the early
morning hours of October 11, 1998, and identified Appellant as
the shooter. The Commonwealth also introduced Appellant’s
police statement into evidence to show that Appellant had
admitted to being present during the shooting. Furthermore, Dr.
Gregory McDonald, a forensic pathologist, testified that Crawford
died of a gunshot that was fired into his chest from point-blank
range. Officer James Joyce, an expert in firearms identification,
testified that the fatal bullet had been fired from a nine-
millimeter or a thirty-eight-caliber handgun, which was
consistent with the nine-millimeter cartridge case found by police
at the scene of the shooting.
Ramos, 827 A.2d at 1198.
Detective Reinhold also testified at Appellant’s trial. During his cross-
examination, the following exchanges occurred:
Q. Is it fair to say that the information which was furnished by
[Appellant] was one of the basic matters which ultimately
resulted in your arresting Michael Centeno and charging him with
the murder of James Crawford?
A. That and the statement that Michael Centeno made that
[Appellant] was the shooter.
* * *
Q. Now just so we get our time sequences correct, Detective
Reinhold, before you interviewed [Appellant] on November the
17th of 1998 you had already taken statements from other
people in this case, Nicholas Cruz, Robert Kennedy; isn’t that so?
A. That’s correct, sir.
* * *
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Q. Do you have any specific information from any source,
very limited question, any source, as to what corner Michael
Centeno was standing on while [Appellant] bought drugs from
James Crawford?
A. From other witness interviews the corner would have been
the southeast corner [of Lawrence and Indiana Streets].
* * *
[Q. A]s the assigned detective and having interviewed Mr.
Cruz and Mr. Robert Kennedy they also furnished information to
you that the shooter was wearing sunglasses; isn’t that right?
A. And that Wilfredo Ramos was the shooter.
* * *
[Q.] You already told us that you took statements from Robert
Kennedy also known as Midnight and from Mr. Nick Cruz. My
question was isn’t it a fact that in the statements you took from
those two people whose names I’ve mentioned, those two
people, Mr. Kennedy and Mr. Cruz both told you when you
interviewed them at some point that the shooter of James
Crawford was wearing sunglasses, yes or no?
A. I believe that is true, sir. I don’t have those interviews in
front of me. I believe that’s true.
N.T., 12/28/99, at 58, 65-69.
Prior to Detective Reinhold’s re-direct examination, the Commonwealth
asked to have Kennedy’s first statement and Cruz’s statement marked as
Exhibits C-8 and C-9, respectively. N.T., 12/28/99, at 71-72, 74. Trial
defense counsel then asked for an offer of proof as to what information the
Commonwealth intended to solicit from Detective Reinhold with these
statements. The Commonwealth explained that after defense counsel had
asked the detective whether he took descriptions of the killer from Kennedy
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and Cruz, “[w]hat [the Commonwealth] propose[d] to do [was] ask
Detective Reinhold to complete the description which was given.” Id. at 72-
73. Defense counsel stated that he had “no problem with that.” Id. at 73.
On re-direct, Detective Reinhold testified as follows:
Q. Detective Reinhold, [defense] counsel asked you some
questions about statements that you took from other individuals,
specifically a Robert Kennedy and a Nick Cruz, I believe.
Referring first to a document that has been marked for
identification as C-8 . . . , could you tell us what that is?
A. This is the interview . . . that I took from Robert Kennedy
on October 14th, 1998 at 8:25 p.m. in reference to the murder
of James Crawford.
Q. Counsel asked you about descriptive information that was
given to you by that witness. Could you please – and I believe I
can refer you to page 3 of that document, correct me if I’m
wrong. . . . Does the witness in fact give you descriptions of two
men that he saw at Leithgow and Indiana on October 11th,
1998?
A. Yes, he does.
Q. Could you tell us what those description[s] are?
A. “Describe the man who asked you if you had weed.”
“Hispanic male, 18 to 19 years, short, medium-
complected, clean-shaven, black, short hair wearing a black
flight jacket. I think he had overalls underneath the jacket. He
had the jacket pulled up on his chin but I could still see his face.
I’ll never forget his face. He was shorter than me, maybe 5’5”.”
“Describe the man who shot Jazzie.”
“He was tall, about six feet to 6’1, Hispanic male, 27 to 28,
thin build, wearing red striped hoodie, like a regular pullover
shirt with a hood on it and sunglasses.” . . .
Q. Could you tell us what descriptions Mr. Cruz gave you.
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A. “Question: Describe the shooter.
“Answer: He was a light-skinned black male or Hispanic
male, 20 to 25 years old, 6’1, thin build, clean-shaven, wearing
a grayish or bluish coat with a hood attached and lines going
down the coat. It looked like different colored stripes. The main
color was all blue. He was wearing gold-rimmed glasses with
dark lenses.
“Question: Describe the Number 2 black male.
“Answer: He was a black male, his face was covered by
the blue zippered jacket, 5’8, 165 pounds, dark-complected, low
cut black hair.”
N.T., 12/28/99, at 73-76.
Later, during the closing jury charge, the trial court gave the following
instructions:
The defendant is not on trial on charges relating to drug dealing.
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. If you find that the
defendant is guilty of the crimes charged in this case it must be
because you are convinced by the evidence that he committed
the crimes charged in this case and not because you believe that
he is wicked or has committed any other offense. . . .
Ladies and Gentlemen, you may find the defendant guilty of a
crime without finding that he personally engaged in the conduct
required for commission of that crime. A defendant is guilty of a
crime if he is an accomplice of another person who commits that
crime. . . . He is an accomplice if with the intent of promoting or
facilitating the commission of the crime he aids, agrees to aid or
attempts to aid the principal in planning or committing the
crime. You may find the defendant guilty of the crime on the
theory that he was an accomplice as long as you are satisfied
beyond a reasonable doubt that the crime was committed and
that he defendant was an accomplice of the person who
committed it. . . .
First degree murder is a murder in which the killer has specific
intent to kill. . . . [T]he killer [killed Crawford] with the specific
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intent to kill and with malice. . . . All that is necessary is that
there be time enough so that the killer can and does fully form
an intent to kill and is conscious of that intention. When
deciding whether the killer had the specific intent to kill, you
should consider all the evidence regarding his words and conduct
and the attending circumstances that may show his state of
mind.
N.T., 12/30/99, at 15-17, 25-26.
The Supreme Court described the outcome of Appellant’s trial as
follows:
[The] jury found Appellant . . . guilty of, inter alia, first-degree
murder for shooting and killing James Crawford.1 Following a
penalty-phase hearing, the jury found one aggravating
circumstance2 and no mitigating circumstances and accordingly,
returned a verdict of death. On January 11, 2000, the trial court
formally imposed a sentence of death.3 Appellant filed timely
post-trial motions, which the trial court denied.
1
The jury also found Appellant guilty of robbery, criminal
conspiracy, possessing an instrument of crime, and carrying a
firearm without a license. [The jury made no finding as to
second- or third-degree murder. Verdict Report, 12/30/99, at
1, R.R. at 5997a.]
2
The aggravating circumstance the jury found was that
Appellant committed the murder during the perpetration of a
felony. See 42 Pa.C.S. § 9711(d)(6).
3
Appellant was also sentenced to consecutive terms of ten to
twenty years in prison for each of his convictions for robbery
and criminal conspiracy but received no additional penalty for
his convictions for possessing an instrument of crime and
carrying a firearm without a license.
Ramos, 827 A.2d at 1196. During the penalty phase, the trial court gave
the following jury instruction:
In this case under the sentencing code only the following, if
proved to your satisfaction beyond a reasonable doubt, can be
found to be an aggravating circumstance; that is that the
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defendant committed a killing while in the perpetration of a
felony. In order to find this aggravating circumstance all of you
must be convinced beyond a reasonable doubt that the
defendant committed the killing and was not merely an
accomplice or co-conspirator of the person who actually
committed the killing. You may find this to be an aggravating
circumstance in this case only if you are unanimously convinced
beyond reasonable doubt of this aggravating circumstance.
N.T., 1/11/00, at 65-66 (emphasis added). The jury’s verdict at the penalty
phase thus was rendered in light of this instruction, and the jury thus found
that Appellant actually was a principal in the killing of Crawford, and not
merely an accomplice to the crime. Ramos, 827 A.2d at 1196 (“The
aggravating circumstance the jury found was that Appellant committed the
murder during the perpetration of a felony”).
Under the Judicial Code, 42 Pa.C.S. § 9711(h), the Supreme Court of
Pennsylvania must review the sufficiency of the evidence in all cases in
which a defendant is sentenced to death. After conducting that review, the
Pennsylvania Supreme Court held: “Given this record, we agree with the
trial court that the evidence was clearly sufficient to sustain Appellant’s
conviction for first-degree murder.” Ramos, 827 A.2d at 1198. The Court
also observed:
In his second and third claims [made in his direct appeal to the
Supreme Court], Appellant essentially argues that trial counsel
was ineffective for failing to object to the trial court’s jury
instruction on accomplice liability and for failing to file a motion
in limine in order to redact references to drugs i[n A]ppellant’s
statement to the police. . . . [T]he proper procedure is for this
court to dismiss Appellant’s ineffectiveness claims without
prejudice to Appellant to raise those claims in a petition filed
pursuant to the Post-Conviction Relief Act[.]
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Id. at 1198-99. The Supreme Court affirmed the verdict, and the United
States Supreme Court denied certiorari.
On July 7, 2004, Appellant timely filed the current PCRA petition.6 On
July 27, 2005, Appellant filed a motion for discovery, requesting the
photographic array that had been shown to Davis and “all Philadelphia Police
Department files, including homicide files, pertaining to the investigation and
prosecution of [Appellant] and co-defendant Michael Cent[e]no for the
murder of James Crawford.” Pet’r’s Mot. for Discovery, 7/27/05, at 1.
Appellant argued that “the police files likely contain information that pertains
not only to [Appellant]’s innocence or guilt in the death of Mr. Crawford, but
also to mitigating factors warranting the imposition of a non-death penalty
sentence.” Id. at 7 ¶ 14. Appellant added that he should “be given a full
opportunity to conduct a meaningful investigation into all evidence in this
case, including any leads, alternative theories, or additional witnesses
considered by police. The police files would likely contain any such
information and would therefore be invaluable[.]” Id. at ¶ 16. On
November 7, 2005, the PCRA court held a hearing on this first discovery
motion and denied it, concluding that it was a “fishing expedition[.]” N.T.,
11/7/05, at 29.
____________________________________________
6
The PCRA petition was heard by the same judge who presided over
Appellant’s jury trial.
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On August 31, 2007, Appellant filed a second motion for discovery,
pursuant to Brady v. Maryland, 373 U.S. 83 (1963), seeking (1)
information about the Commonwealth’s compensation of or agreement with
Davis, (2) Philadelphia Police Department log entries relating to an individual
named “Will,” (3) the Commonwealth’s file for co-defendant Centeno, and
(4) any Commonwealth files relating to any investigation of a suspect named
“Santos Roland,” who was identified as a possible suspect in an Investigation
Interview Record. In support of his request for the police department logs,
Appellant wrote:
[Appellant] believes that Ms. Davis misidentified [Appellant],
confusing him with “Will,” another individual who frequented the
drug corners in the area who is the actual shooter.
Ms. Davis’s testimony gives good cause to believe that
Philadelphia Police Department Incident Logs for the 25th Police
District contain entries during the relevant time period relating to
an individual known as “Will.” [Appellant]’s pleading gives good
cause to believe that such entries refer to someone other than
him. Collectively, they establish good cause to believe that
Philadelphia Police Department Incident Logs for the 25th Police
District contain entries during the relevant time period relating to
police knowledge of the existence and activities of an individual
other than [Appellant], known as “Will,” who may be the shooter
in this case.
Pet’r’s Mot. for Discovery Pursuant to Brady v. Maryland, 8/31/07, at 10
¶¶ 45-46. With respect to his renewed request for the Commonwealth’s file
on Centeno, Appellant asserted: “The Commonwealth’s file for Mr. Centeno
likely contains potentially exculpatory information demonstrating
[Appellant]’s innocence.” Id. at 12 ¶ 55.
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On October 18, 2007, the PCRA court held a hearing on Appellant’s
second discovery motion. Regarding Appellant’s request for any information
about any compensation of Davis by the Commonwealth for her testimony,
Appellant claimed, “We don’t know what she got, it was something.” N.T.,
10/18/07, at 5. Appellant continued: “So to date, we’ve never gotten any
confirmation from the [District Attorney]’s office that this occurred, but we
believe that it did occur.” Id. The Commonwealth replied that “nothing was
given to her.” Id. at 9.
During this hearing, Appellant also maintained that Davis had chosen
someone named “Will” while viewing the photographic array; Appellant
complained that no discovery was given to him “about who this person Will
was.” N.T., 10/18/07, at 11. Appellant thus requested the log entries from
the Philadelphia Police Department’s 23rd District station in order to
determine whether there was anyone by the name of “Will” who was
arrested or investigated in relation to this case. The PCRA court suggested
that Davis “identified [Appellant] whose name was Wilfredo, and she
referred to him as Will.” Id. The Commonwealth replied that, except for
Appellant, there was no one else named “Will” connected to the
investigation: “There’s just Wil-fre-do. There is no other Will.” Id. at 12.
The Commonwealth again insisted that Appellant’s discovery request was “a
classic fishing expedition.” Id. at 16. The Commonwealth also stated that it
had “nothing exculpatory, or [it] would have turned it over already.” Id. at
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18. At the close of the hearing, the PCRA court denied Appellant’s second
discovery motion. Id. at 21.
On April 17, 2008, the PCRA court vacated Appellant’s death sentence
“based upon the Commonwealth’s agreement not to contest [Appellant]’s
request for a new penalty hearing based upon ineffective assistance of trial
counsel at the penalty hearing for failure to investigate and present certain
mitigation evidence.” Order, 04/17/08. The court took no additional action
on Appellant’s other grounds for PCRA relief at that time. Appellant is now
serving a life sentence without the possibility of parole.
Between 2008 and 2012, the PCRA court held nine days of PCRA
hearings. At a hearing on July 14, 2008, Kennedy testified that Davis was
high on drugs at the time of the killing. N.T., 7/14/08, at 56-59, 138; N.T.,
7/15/08, at 15. Kennedy also testified he had told police that he had not
seen the shooting, because he was inside the bar when he heard shots, and
that Crawford was already shot when he “came outside” the bar. N.T.,
7/14/08, at 45, 68-69, 76. Kennedy continued that, when he returned to
the bar, he was told that a detective was “looking for” him, and he then
“walked up to them,” after which “they asked [him] a bunch of questions.”
Id. at 69. When shown his first police statement, in which he described a
man holding a gun immediately following the shooting, Kennedy testified
that “the officer . . . typed that” and that “[h]e never asked me questions
like while we were at the desk and he was typing. . . . he didn’t ask
[Kennedy] line by line while he typed it.” Id. at 75-76. Kennedy added that
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he had not read this first statement before signing it; he did not recognize
his second statement; and he did not identify Appellant as the shooter at
any time. Id. at 84-86.
Kennedy further testified that he had felt compelled to sign the two
statements after the police had referenced his open bench warrants. N.T.,
7/14/08, at 71-74 (“I kept looking at the door . . . waiting for a sheriff to
come in and arrest me for my bench warrants”). Kennedy added that he
had viewed a photographic array with eight photographs and that the police
had asked him, “Have you ever seen him before?” Kennedy testified that he
had identified Photograph # 5 on the array in response to that question;
however, Appellant’s photograph was # 2 on the array. Id. at 80-81, 84.
On July 15, 2008, Appellant’s direct appeal counsel testified and was
asked why he limited the number of issues he raised in the case:
[Q. W]hy did you not raise any issues other than the three
that we’ve discussed above? Did you come up with any and
decide not to raise them?
A. No, those are the only ones I could find.
Q. Were there any tactical or strategic reasons –
A. No.
Q. -- for not raising any other meritorious issues other than
those three?
A. No, I just raised whatever I could find.
N.T., 7/15/08, at 174-75.
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At the beginning of the PCRA hearing on September 25, 2008,
Appellant made a discovery request for Centeno’s polygraph tests. N.T.,
9/25/08, at 4. Appellant argued that the test was discoverable, even if it
was not admissible. Id. at 4-5. The Commonwealth answered that
Appellant “not receiving the polygraph results in no way impedes [his] ability
to call Centeno as a witness.” Id. at 9-10. The PCRA court denied this
additional discovery request by Appellant. Id. at 11.
Appellant’s trial counsel testified on September 25 and 26, 2008, and
April 27, 2009. Trial counsel testified that he hired a private detective to
investigate the case; the private investigator accompanied trial counsel to
the crime scene one time, prepared a sketch and took photographs of the
crime scene, and interviewed Appellant. N.T., 9/25/08, at 30, 136-39.
When asked if he “expected” to “be responsible for performing the rest of
the factual investigation and pretrial preparation” himself, trial counsel
answered affirmatively. Id. at 139.
Trial counsel confirmed that Davis was the only witness who testified
at the preliminary hearing. N.T., 9/25/08, at 35. Trial counsel testified
about the photographic array shown to Davis as follows:
Q. When you received the initial discovery package from the
Commonwealth, you were invited to go to the district attorney’s
office to review, specifically, to review photos and physical
evidence, correct?
A. Yeah. That was one of the things that [the
Commonwealth] said in [its] cover letter to me that if I had any
requests for information I could get in touch with the DA’s office.
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Q. And you did not do that, correct?
A. I did not.
Q. Am I correct that prior to trial you had not seen any of the
hundred or so photographs that Miss Davis had been shown on
the machine, correct?
A. I did not.
Q. And nor did you have any knowledge as to what
parameters had been input into the imaging machine which
generated that array, correct?
A. That is true.
Q. And you would have needed to have that information,
would you not, in order to consider whether a motion to
suppress this identification was warranted?
A. That is true.
Q. You wouldn’t have been able to determine whether this
photographic array was unduly suggestive without having seen
the whole array or the parameters that were put into the
machine, correct?
A. I think that’s a fair statement, yes.
Id. at 105-06.
Trial counsel gave the following additional testimony:
• He was provided with statements from six police officers
involved in the investigation — Officers Serrano, Spicer, Long,
Simpson, and Coleman and Sergeant Palumbo — but he did not
interview or contact any of them prior to trial. N.T., 9/25/08, at 47.
• He “had no strategic or tactical reason for not objecting to”
Detective Reinhold’s testimony. N.T., 9/25/08, at 185.
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• He “was not of the impression that [Appellant] had any
mental problems.” N.T., 4/27/09, at 62. He explained that Appellant
“always seemed to be able to communicate”; “[Appellant] answered all
my questions. When he had questions, I tried to answer his questions
and it seemed to me there was pretty good communication between
the two of us.” N.T., 9/25/08, at 177.
Trial counsel stated that his trial strategy was to argue that Centeno
was the killer, not Appellant. N.T., 4/27/09, at 61. He explained that the
reason he chose not to move to suppress Appellant’s police statement was
that the statement was in line with this alternative theory of the case — that
is, “that [Appellant’s] uncle [Centeno] was the shooter.” Id.
When the PCRA hearings resumed on May 24, 2010, the PCRA court
heard testimony about Appellant’s cognitive abilities from defense expert
Carol L. Armstrong, Ph.D., a neuropsychologist and University of
Pennsylvania professor. N.T., 5/24/10, at 65-68. Dr. Armstrong testified
that Appellant has a “significant intellectual disability” and “mild mental
retardation.” Id. at 79, 83. She added that the Appellant’s IQ has been
tested repeatedly and demonstrated a steady decline, with his most recent
full-scale IQ being only 65.7 Id. at 81. The next day, Appellant’s mother
____________________________________________
7
When Appellant’s IQ was first tested in 1989, his IQ was 73. In 1999, his
IQ was 71, and, by 2000, it was 70. Most recently, in 2006, his IQ was 65.
N.T., 5/24/10, at 81.
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testified that Appellant’s primary language is English, not Spanish. N.T.,
5/25/10, at 277, 290, 351.
After another delay of over a year and a half due to witness and
counsel unavailability, the PCRA hearing resumed on January 4 and 5, 2012,
with additional testimony about Appellant’s mental abilities from
Commonwealth witness Dr. John Sebastian O’Brien, who practices general
and forensic psychiatry. N.T., 1/14/12, at 16. Dr. O’Brien testified that
Appellant suffers from a “cognitive disorder not otherwise specified” and
“clearly has deficits in IQ testing.” Id. at 111; N.T., 1/15/12, at 17.
On January 16, 2015, the PCRA court issued an order denying
Appellant’s remaining grounds for PCRA relief. Appellant then filed this
timely appeal, in which he raises the following eleven issues:
1. Whether the PCRA court erred in finding that the jury
instructions in [Appellant]’s trial did not contravene
Commonwealth v. Huffman[, 638 A.2d 961 (Pa. 1994)]?
2. Whether trial counsel’s failure to interview key witnesses,
request discovery from the Commonwealth, and examine
evidence used at trial constitutes ineffective assistance of
counsel?
3. Whether the Commonwealth’s failure to disclose and to
correct discrepancies between a witness’s statements and an
investigation interview record violated [Appellant]’s due process
rights?
4. Whether trial counsel was ineffective for failing to call two
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witnesses[8] who were available to provide testimony that
contradicted the Commonwealth’s sole eyewitness?
5. Whether trial counsel was ineffective for failing to object to
hearsay statements introduced by the Commonwealth in
violation of [Appellant]’s rights to confront his accusers under
the United States and Pennsylvania Constitutions?
6. Whether trial counsel was ineffective for failing to seek to
suppress [Appellant]’s coerced and involuntary statement to
police, or to object to the introduction of the statement at trial?
7. Whether the introduction of “other crimes” evidence,
specifically [Appellant]’s unrelated past involvement in drug
dealing, violated his due process rights?
8. Whether the lack of a complete appellate transcript
deprived [Appellant] of his right to meaningful appellate review
under Article V, § 9 of the Pennsylvania Constitution?
9. Whether [Appellant]’s appellate counsel provided
ineffective assistance by failing to raise meritorious constitutional
claims on direct appeal?
10. Whether the cumulative errors made by trial counsel, the
Commonwealth, and the lower court entitle [Appellant] to a new
trial?
11. Whether the PCRA court erred in denying [Appellant]’s
three discovery motions?
Appellant’s Brief at 2-4 (reordered to facilitate disposition).
Our standard of review of a PCRA court’s denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is supported by
the record evidence and free of legal error. Commonwealth v. Wilson,
____________________________________________
8
Although Appellant’s Statement of the Questions mentions “two witnesses,”
the argument in his brief discusses only one, Kennedy. See Appellant’s Brief
at 61-64. We therefore will consider only the failure to call that witness.
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824 A.2d 331, 333 (Pa. Super.) (en banc), appeal denied, 839 A.2d 352(Pa. 2003). Additionally, “[a] PCRA court passes on witness credibility at
PCRA hearings, and its credibility determinations should be provided great
deference by reviewing courts.” Commonwealth v. Raymond Johnson,
966 A.2d 523, 539 (Pa. 2009).
Jury Charge under Commonwealth v. Huffman
(Appellant’s Issue 1)
Appellant first contends that the jury charge on shared specific intent
failed to comply with Commonwealth v. Huffman, 638 A.2d 961 (Pa.
1994). He also contends that his trial counsel was ineffective for failing to
object to this aspect of the charge and in failing to request an appropriate
charge under Huffman. Appellant’s Brief at 24-25, 31.9
In Huffman, our Supreme Court addressed an instruction that failed
to tell the jury that it could find an accomplice guilty of murder in the first
degree only if the accomplice had a specific intent to kill. The Court held
that such a charge was a misstatement of the law on a fundamental issue
____________________________________________
9
In Appellant’s Statement of Questions Involved pursuant to Pa.R.A.P.
2116, his first issue raised before this Court on appeal is: “Whether the
PCRA court erred in finding that the jury instructions in [Appellant]’s trial did
not contravene Commonwealth v. Huffman?” Appellant’s Brief at 2 ¶ 1.
That question does not raise any issue regarding ineffectiveness of counsel.
Rule 2116(a) provides: “No question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.” Because
we find Appellant’s claim under Huffman to be without merit, we need not
decide whether to hear a claim that counsel was ineffective in failing to
make that claim. “[C]ounsel cannot be considered ineffective for failing to
pursue a meritless claim.” Commonwealth v. Lopez, 739 A.2d 485, 495
(Pa. 1999), cert. denied, 530 U.S. 1206 (2000).
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relating to culpability and, thus, was harmful error depriving the defendant
of a fair trial. 638 A.2d at 962. The Court emphasized that the charge must
tell the jury that to find an accomplice guilty of first-degree murder, it must
find that the accomplice harbored a specific intent to kill, and it is not
sufficient to find only that such an intent was harbored by the principal.
Id.
The disputed jury instruction at issue here stated:
A defendant is guilty of a crime if he is an accomplice of another
person who commits that crime. . . . He is an accomplice if with
the intent of promoting or facilitating the commission of the
crime he aids, agrees to aid or attempts to aid the principal in
planning or committing the crime. You may find the defendant
guilty of the crime on the theory that he was an accomplice as
long as you are satisfied beyond a reasonable doubt that the
crime was committed and that the defendant was an accomplice
of the person who committed it. . . .
First degree murder is a murder in which the killer has specific
intent to kill. . . . [T]he killer [killed Crawford] with the
specific intent to kill and with malice. . . . All that is necessary
is that there be time enough so that the killer can and does fully
form an intent to kill and is conscious of that intention. When
deciding whether the killer had the specific intent to kill, you
should consider all the evidence regarding his words and conduct
and the attending circumstances that may show his state of
mind.
N.T., 12/30/99, at 25-26 (emphases added).
Appellant contends that he was charged with murder either as an
accomplice or as a principal, and that, with respect to his potential
culpability as an accomplice, the PCRA court erred in finding that the jury
charge on shared specific intent did not violate Huffman. Appellant argues
that the instruction misled the jury into believing that, if the killer had the
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specific intent to kill, then the killer’s intent alone is sufficient for the jury to
find first degree murder, irrespective of what the accomplice’s intent
was. Thus, according to Appellant, even if the jury concluded that Centeno
shot the victim and that Centeno alone had the specific intent to kill, the
instruction misled the jury into believing that it could convict Appellant of
first-degree murder, regardless of Appellant’s own personal intent. He
maintains that the charge “impermissibly relieved the Commonwealth of its
burden to prove the specific intent element of first-degree murder, violating
[Appellant]’s Fourteenth Amendment due process rights.” Appellant’s Brief
at 28. Appellant contends that the trial court’s “improper instruction on
shared specific intent for murder was not harmless error[,]” because “the
Commonwealth cannot demonstrate beyond a reasonable doubt that this
error could not have contributed to the guilty verdict.” Id. at 30 (citing
Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978)).
Appellant argues further that, as he was not convicted of second- or
third-degree murder, the life sentence he is now serving cannot ameliorate
any prejudice suffered as to the instruction for first-degree murder.
Furthermore, the jury instructions and findings from the penalty phase of his
capital trial cannot cure a constitutional defect that occurred during the
earlier guilt phase. Appellant’s Reply Brief at 9-12. Accordingly, Appellant
demands a new trial.
The Commonwealth contends that Appellant is reading the charge out
of context. The Commonwealth points out that the trial court first instructed
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the jury on the definition of an accomplice, including the requisite intent,
and then instructed the jury on the elements of murder of the first degree,
specifying that murder of the first degree requires “the specific intent to kill.”
When read in their entirety, the court’s instructions told the jurors that, in
order to convict a defendant as an accomplice to murder in the first degree,
they had to find that he had the specific intent to promote or to facilitate
“the crime” – i.e., murder of the first degree. Commonwealth’s Brief at 21-
22. The Commonwealth continues that, even if the instructions were flawed,
Appellant did not suffer any prejudice, because “the record shows that the
jury found that he committed the killing himself. The jury’s penalty phase
verdict found that [Appellant] was guilty as a principal, not as an
accomplice.” Id. at 25.
The PCRA court’s disposition of this issue echoed the argument by the
Commonwealth:
In the case sub judice, this court’s charge, when read in its
entirety, as it should be, appropriately and unambiguously
communicated to the jury that [Appellant] must possess the
specific intent to kill in order to be found guilty of first-degree
murder, regardless of whether he was the principal or an
accomplice.
PCRA Ct. Op. at 14 (citing Commonwealth v. Simpson, 754 A.2d 1264,
1275 (Pa. 2000), cert. denied, 533 U.S. 932 (2001)).
The Supreme Court has instructed:
[W]hen reviewing the adequacy of a jury instruction, we must
consider the charge in its entirety to determine if it is fair and
complete. Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d
655, 669 (2007); Commonwealth v. Murphy, 559 Pa. 71, 739
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A.2d 141, 146 (1999); Commonwealth v. Stokes, 532 Pa.
242, 615 A.2d 704, 709 (1992); Commonwealth v.
Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990). The trial
court has broad discretion in phrasing the charge and the
instruction will not be found in error if, taken as a whole, it
adequately and accurately set forth the applicable law.
Prosdocimo, supra. This was the governing precedent prior to
Huffman and was followed in cases immediately thereafter.
See Commonwealth v. Thompson, 543 Pa. 634, 674 A.2d 217(1996); [Commonwealth v.] Chester[, 587 A.2d 1367 (Pa.
1991)].
Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa. 2009). Upon
reviewing the charge as a whole and considering the jury’s verdict in its
entirety, we conclude that no relief is due on this issue.
Preliminarily, we note that Huffman and its progeny relate to jury
instructions on accomplice liability. Here, the jury found that Appellant
actually killed Crawford, and thus was a principal, and not an accomplice.
Ramos, 827 A.2d at 1196 (“The aggravating circumstance the jury found
was that Appellant committed the murder during the perpetration of a
felony”); see also N.T., 1/11/00, at 65-66. Accordingly, Huffman is
inapplicable to the facts of the current case.
Appellant argues that because the jury’s finding that Appellant was the
shooter did not become clear until the jury made its aggravated
circumstances finding during the penalty phase of his trial, we should not
consider this fact in our analysis. Appellant cites no case directly supporting
this argument, and we find it unpersuasive. Simply put, Appellant asks us to
speculate that the jury may have found Appellant guilty as an accomplice
during the guilt phase of his trial but then sentenced him to death as a
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principal during the penalty phase. Appellant cites no basis for such a
bizarre theory, and nothing in the record supports it. Accordingly, we
conclude that even if the jury charge on accomplice liability had been
erroneous, that error would not have harmed Appellant because he was
convicted as a principal.
We further conclude, however, that the jury charge was not erroneous
with respect to accomplice liability. In Daniels, 963 A.2d at 431, the
Supreme Court approved the following jury instruction as to the requisite
individual specific intent to kill to support accomplice liability in a first-
degree murder case:
Under the law of Pennsylvania you may find a Defendant guilty
of a crime without finding that he personally engaged in the
conduct required for commission of that crime or even that he
was personally present when the crime was committed. A
Defendant is guilty of a crime if he is an accomplice of another
person who commits that crime. . . . He is an accomplice if, with
the intent of promoting or facilitating commission of the crime,
he solicits, commands, encourages, requests the other person to
commit it, or aids, agrees to aid, or attempts to aid the other
person in planning of committing it. . . .
If an intention to kill exists, or if a killing was consciously done
with knowledge of such consequences, or if the killer consciously
decided to kill the victim, the killing is willful. If this intent to kill
is accompanied by such circumstances as evidence or
demonstrate a mind fully conscious of its own purpose and
design to kill, it is deliberate....
The Supreme Court emphasized that, “when reviewing Huffman-type
challenges, courts must follow the well-settled requirement that the
challenged jury charge is to be examined in its entirety.” Id. at 430. In
Daniels, “[a]fter reviewing the charge in its entirety,” the Court “concluded
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that, read as a whole, the charge sufficiently instructed the jury regarding
the requirement that an individual must possess the specific intent to kill in
order to convicted of first-degree murder.” Id.; see also id. at 432.
Similarly, in Commonwealth v. Thompson, 674 A.2d 217, 218 (Pa.
1996), the Supreme Court approved of the following jury instruction:
You may find that the Defendant is guilty of a crime without
finding that he personally performed the act or engaged in the
conduct that is required to commit the crime.
The Defendant is guilty of a crime if he’s an accomplice of
another person who commits the crime. He’s an accomplice if
with the intent to promote or facilitate the commission of the
crime he either solicits, encourages, commands or requests the
other person to commit it or he aids or agrees to aid or attempts
to aid the other person in planning or committing it.
You may find the Defendant guilty of the crime on the theory
that he was an accomplice as long as you’re satisfied beyond a
reasonable doubt that the crime was committed and that the
Defendant was an accomplice of the person who committed it.
Id. at 222–23 (citation omitted). The Court observed, “This portion of the
charge was preceded by the definitions of the different degrees of murder
and the definition of specific intent which is required to find a person guilty
of first degree murder.” Id. at 223. In upholding the charge, the Court
stated:
The charge in Huffman incorrectly advised the jury that they
could find the defendant guilty of first degree murder if either he
or his co-conspirator possessed the necessary specific intent to
kill at the time of the murder. In contrast to Huffman, the
charge in the instant case correctly stated the law as to the
liability of an accomplice in the commission of the crime.
Id. at 222.
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The PCRA court concluded that the disputed jury instruction is
comparable to the instructions in Daniels and Thompson, and we agree.
As in those cases, the court initially instructed on accomplice liability,
stating, in words nearly identical to those in the Daniels and Thompson
charges, that a defendant “is guilty of a crime if he is an accomplice of
another person who commits that crime” and is an accomplice “if with the
intent of promoting or facilitating the commission of the crime he aids,
agrees to aid or attempts to aid the principal in planning or committing the
crime.” Then, it charged on the requirements for proof of first-degree
murder, including that “the killer has specific intent to kill” and acted “with
the specific intent to kill and with malice.” N.T., 12/30/99, at 16-17, 25-26.
Under Daniels and Thompson, the jury charge was valid.
A case in which the Supreme Court of Pennsylvania found the jury
instruction on co-conspirator liability as to first degree murder to be deficient
provides us with further guidance. In Commonwealth v. Wayne, 720 A.2d
456 (Pa. 1998), cert. denied, 528 U.S. 834 (1999), the trial court gave the
following instruction on the legal culpability of the appellant as either an
accomplice or a co-conspirator:
Now, with regard to co-conspirator, someone is liable even
though he was the conspirator who had the state of mind as
necessary. The person is guilty as a co-conspirator doesn’t
have to have the same state of mind.
In other words, two people conspire to kill someone, the person
who pulls the trigger may have the intent to kill. It doesn’t
matter whether the co-conspirator had it in his mind or
not. He’s responsible.
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Id. at 463 (emphasis added and citation omitted). On appeal, the appellant
“assert[ed] that the charge misstated the law by informing the jury that
appellant could be guilty of first degree murder even though he did not
possess a shared specific intent to kill with his co-conspirators,” id. at 462
(emphasis in original), and the Supreme Court agreed. Id. at 464. By
comparison, none of the language rejected by the Supreme Court in Wayne
appears in the challenged jury instruction in the current action. Compare
id. at 463, with N.T., 12/30/99, at 16-17, 25-26.
In conclusion, when read in its entirety, the jury charge was not
invalid under Huffman and its progeny. Thus, the entirety of Appellant’s
first issue is meritless.
Issues Relating to Robert Kennedy
(Appellant’s Issues 2 (part), 3, and 4)
Appellant raises several issues relating to the statements made by
Robert Kennedy prior to trial and to his counsel’s failure to investigate facts
relating to Kennedy and to call Kennedy as a witness. During Kennedy’s
testimony at Appellant’s PCRA hearing, Kennedy made four statements
about the facts of this case that form the basis of all of these issues:
• First, Kennedy testified that Davis was high on drugs at the time
of the murder. N.T., 7/14/08, at 56-59, 138; N.T., 7/15/08, at 15.
However, when initially interviewed by police, Kennedy never made any
statements about Davis’ sobriety or inebriety. See generally Investigation
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Interview Record of Kennedy, 10/14/98; Investigation Interview Record of
Kennedy, 11/12/98.
• Second, Kennedy testified that he had not seen the shooting,
N.T., 7/14/08, at 68-69, 76, which is consistent with Kennedy’s statements
to police. Kennedy had told police that he had “turned towards the bar . . .
[t]hen [he] heard a gunshot.” Investigation Interview Record of Kennedy,
10/14/98, at 2. Kennedy never said that he had seen anyone pull the
trigger or had seen the bullet hit Crawford. See generally id.;
Investigation Interview Record of Kennedy, 11/12/98.
• Next, Kennedy testified that Crawford was already shot when
Kennedy “came outside.” N.T., 7/14/08, at 68. His initial statement was
that, prior to the shooting, he had “turned towards the bar.” Investigation
Interview Record of Kennedy, 10/14/98, at 2. Neither the PCRA testimony
nor the statement reflect that Kennedy actually observed the shooting.
• Finally, Kennedy testified that he did not identify Appellant as
the shooter at any time. N.T., 7/14/08, 84-86. Nonetheless, Kennedy did
identify Appellant’s photograph from the array shown to him during his
second police interview. Investigation Interview Record of Kennedy,
11/12/98, at 2. The Investigation Interview Record, id., has a handwritten
note that the photograph identified by Appellant as “the man that shot
James Crawford” was “PP # 768938 assigned to Wilfredo Ramos.” The
Investigation Interview Record has no indication that Kennedy was ever told
that the photograph he selected was that of Appellant. See generally id.
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In sum, between Kennedy’s statements to police in 1998 and his
testimony during the PCRA hearings in 2008, whether Kennedy identified
Appellant as the killer is the only source of direct conflict and potential
recantation. As noted above, during Appellant’s trial, Detective Reinhold had
testified that Kennedy had told him during his police interview “that Wilfredo
Ramos was the shooter,” without additional explanation. N.T., 12/28/99, at
69. In addition, Kennedy’s PCRA testimony made a claim about Davis’ lack
of sobriety that had not previously been in the record.
Ineffective Assistance of Counsel Regarding Kennedy
Appellant maintains that trial counsel was ineffective for failing to
interview, to investigate, and to call Kennedy as a trial witness. Appellant’s
Brief at 2 ¶¶ 2, 4 & at 34-36, 61-64. To obtain relief under the PCRA
premised on a claim that counsel was ineffective, a petitioner must
demonstrate that (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3)
petitioner was prejudiced by counsel’s act or omission. See
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). In this context,
a finding of “prejudice” requires the petitioner to show “there is a reasonable
probability that, but for the error of counsel, the outcome of the proceeding
would have been different.” Commonwealth v. Stevens, 739 A.2d 507,
512 (Pa. 1999). If a petitioner fails to prove any of these prongs, then the
claim fails. Id. Where “the underlying claim is meritless, the derivative
claim of ineffective assistance of counsel for failing to object has no arguable
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merit.” Commonwealth v. Spotz, 47 A.3d 63, 122 (Pa. 2012);
Commonwealth v. Lopez, 739 A.2d 485, 495 (Pa. 1999), cert. denied,
530 U.S. 1206 (2000).
Citing Kennedy’s PCRA testimony, Appellant insists that “Kennedy was
compelled to sign two statements after the police referred to his open bench
warrants.” Appellant’s Brief at 35 (emphasis in original). Appellant also
asserts that trial counsel had no reasonable, strategic basis for failing to
investigate or to interview Kennedy and that his failure to do so was not the
result of a lack of access, because trial counsel had asked the trial court to
order Kennedy to be held in Philadelphia County custody, so that he could be
brought to the courthouse each day of trial and be reached immediately, if
necessary. Id. at 36-37; see also N.T., 12/27/99, at 64-66. Appellant
broadly contends that trial counsel failed to “investigate the facts and
circumstances of [Appellant]’s case” and that this failure “constitutes
ineffective assistance of counsel.” Appellant’s Brief at 46. Appellant further
avers that this inactivity by trial counsel is unreasonable per se. Id. at 38;
see also id. at 46 (“Under these circumstances, trial counsel’s investigation
was unreasonably limited”).
Appellant alleges that trial counsel’s failure to interview Kennedy
caused Appellant prejudice and affected the outcome of his trial, Appellant’s
Brief at 39-41, as follows: (1) Kennedy’s testimony would have undermined
Davis’s credibility, because Kennedy would have testified that Davis was
high on drugs when Crawford was shot, N.T., 7/14/08, at 57-59; and (2)
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Kennedy would have challenged Detective Reinhold’s statement that
Kennedy identified Appellant as the shooter, because Kennedy never saw
Crawford’s shooter, id. at 75-76, 85-86. Appellant also complains that trial
counsel did not ask the private investigator he hired to interview or to
attempt to interview any other alleged witnesses, and the investigator
therefore did not do so. N.T., 9/25/08, at 30, 135-39.10
The Commonwealth answers, generally, that Appellant “bases his
claim on Kennedy’s recantation, years later, that asserted he did not see the
murder,” Commonwealth’s Brief at 27; however, “recantation has often been
recognized as one of the least reliable forms of after-discovered evidence.”
Commonwealth v. Busanet, 54 A.3d 35, 47 (Pa. 2012), cert. denied,
134 S. Ct. 178 (2013).
The PCRA court determined that trial counsel was not ineffective for
failing to conduct an investigation into this issue. PCRA Ct. Op. at 21-29.11
____________________________________________
10
Appellant further contends that trial counsel was ineffective in failing to
speak with the six police officers whose statements he had received as part
of pre-trial discovery. Appellant’s Brief at 48 (citing N.T., 9/28/05, at 47).
However, Appellant does not clarify how he believes he was prejudiced by
trial counsel’s failure to interview these police officers. See generally
Pierce, 527 A.2d at 975.
11
In reaching this conclusion, the PCRA court cited only to the standard for
failure to call a witness. PCRA Ct. Op. at 21-22. Appellant maintains that
the PCRA court misunderstood his argument and thought that his only claim
was that trial counsel was ineffective for not calling certain witnesses,
whereas he was also challenging trial counsel’s failure to investigate certain
witnesses. Appellant’s Brief at 33-34. Since we resolve all of Appellant’s
claims about Kennedy’s potential testimony together and can affirm on any
(Footnote Continued Next Page)
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The PCRA court agreed with the Commonwealth that Kennedy’s testimony at
the PCRA hearing on July 14, 2008, was a recantation of “both of his police
statements claiming . . . that he . . . was . . . unaware of who, in fact, shot
the victim.” Id. at 23 (citing N.T., 7/14/08, at 38-154). The PCRA court
concluded that “Kennedy’s PCRA recantation testimony . . . lacks credibility
and should be disregarded.” Id. at 27; see also id. at 28.
We must defer to the credibility determinations of the PCRA court.
Raymond Johnson, 966 A.2d at 539. Since the PCRA court held that
Kennedy’s PCRA testimony “lacked credibility and should be disregarded” to
the extent it was at odds with Kennedy’s police statements and with the
testimony of all other witnesses, we therefore must discount it. PCRA Ct.
Op. at 28. Although Kennedy’s PCRA testimony did not recant any earlier
statement that he saw Appellant commit the murder (since Kennedy made
no such earlier statement), it did depart from what Kennedy had earlier
stated about seeing the shooter after the shots were fired and his photo
identification. The PCRA court properly exercised its discretion in
disregarding this changed testimony.
Because we must defer to the PCRA court’s credibility determinations,
all issues as to the potential effect of Kennedy’s PCRA testimony do not
merit relief. Trial counsel cannot be found to have been ineffective for
_______________________
(Footnote Continued)
basis, Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009),
this distinction is inconsequential.
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failing to investigate or to call Kennedy as a potential defense witness
where, according to the PCRA court’s findings, Kennedy would not have
given any information inconsistent with that presented to the court.
“[C]ounsel cannot be considered ineffective for failing to pursue a meritless
claim.” Lopez, 739 A.2d at 495 (Pa. 1999); see also Spotz, 47 A.3d at
122; Pierce, 527 A.2d at 975. Accordingly, the PCRA court’s denial of these
ineffectiveness claims was supported by the evidence of record and free of
legal error. See Wilson, 824 A.2d at 333.
Brady Violation Regarding Kennedy’s Statements
Appellant submits that the PCRA court erred in finding that the
Commonwealth did not violate Brady v. Maryland, 373 U.S. 83 (1963),
through its “failure to disclose and to correct discrepancies between
[Kennedy]’s statements and an investigation interview record.” Appellant’s
Brief at 2 ¶ 4. According to Appellant, these “discrepancies” are that “[t]he
Investigation Interview Record contains statements allegedly made by
Kennedy in which he describes the shooter,” but, “during the PCRA hearing,
Kennedy testified that he told detectives that he did not see the shooting
and could not describe, or identify, the shooter.” Id. at 56-57. Assuming
the truth of Kennedy’s PCRA testimony, Appellant further argues that the
PCRA court erred in failing to hold that the Commonwealth violated his due
process rights by not “correcting” the “false testimony” about Kennedy’s
initial statements that was presented at trial. Id. at 59-60. Appellant also
claims that his trial counsel was ineffective for failing to discover and to raise
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the alleged Brady violation. Appellant’s Brief at 2 ¶ 4. The PCRA court
rejected these claims. PCRA Ct. Op. at 30.
To establish a Brady violation, “[A]ppellant must demonstrate: (1)
the prosecution concealed evidence; (2) the evidence was either exculpatory
or impeachment evidence favorable to him; and (3) he was prejudiced.”
Commonwealth v. Treiber, 121 A.3d 435, 460–61 (Pa. 2015). As for the
second factor, “[e]xculpatory evidence is that which extrinsically tends to
establish defendant’s innocence of the crimes charged.” Commonwealth v.
Lambert, 765 A.2d 306, 325 n.15 (Pa. Super. 2000); see also
Commonwealth v. Redmond, 577 A.2d 547, 552 (Pa. Super. 1990)
(“[e]xculpatory evidence includes material that goes to the heart of the
defendant’s guilt or innocence as well as that which might well alter the
jury’s judgment of the credibility of a crucial prosecution witness” (internal
quotation marks omitted) (citing Giglio v. U.S., 405 U.S. 150 (1972)));
Commonwealth v. Watson, 512 A.2d 1261, 1266 (Pa. Super. 1986)
(same as Lambert), appeal denied, 527 A.2d 540 (1987). “Brady does
not require the disclosure of information that is not exculpatory but might
merely form the groundwork for possible arguments or defenses.”
Commonwealth v. Roney, 79 A.3d 595, 608 (Pa. 2013) (citations and
internal quotations omitted), cert. denied, 135 S. Ct. 56 (2014).
Critically, Appellant cannot demonstrate that the evidence allegedly
withheld by the Commonwealth — specifically, that there were discrepancies
between what Kennedy actually told police during his interview after the
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shooting and what was recorded in the typed investigation interview record
— was exculpatory. The PCRA court found no such discrepancies and
rejected Kennedy’s assertions at the PCRA hearing that the Commonwealth’s
summaries of his police interviews were inaccurate. Moreover, even if the
alleged discrepancies did exist, they would not establish Appellant’s
innocence of the crimes charged. Kennedy’s contention that he did not see
Appellant shoot Crawford does not establish that someone else shot
Crawford, and Kennedy does not claim to offer such evidence. Any of the
supposedly undisclosed evidence from the investigation interview record
therefore would not definitively establish Appellant’s innocence or someone
else’s guilt. See Redmond, 577 A.2d at 552.
As Appellant fails to establish one prong of the Brady test, we need
not exam the remaining two prongs, because his entire Brady claim fails if
any one prong cannot be supported. See Treiber, 121 A.3d at 460–61.
Since Appellant’s Brady challenge is meritless, any claim that his trial
counsel was ineffective with respect to seeking this Brady material also is
without merit. See Lopez, 739 A.2d at 495; see also Spotz, 47 A.3d at
122.
Confrontation Clause Claims
(Appellant’s Issue 5)
As we summarized in Commonwealth v. Yohe, 79 A.3d 520 (Pa.
2013), cert. denied, 134 S. Ct. 2662 (2014):
The Confrontation Clause of the Sixth Amendment, made
applicable to the States via the Fourteenth Amendment, Pointer
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v. Texas, 380 U.S. 400 . . . (1965), provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right ... to be
confronted with the witnesses against him....” . . . Article I,
Section 9 of the Pennsylvania Constitution . . . similarly
provides: “In all criminal prosecutions the accused has a right
. . . to be confronted with the witnesses against him.”
79 A.3d at 530-31 & n.10. Insofar as is relevant here, the substantive
standards under the Pennsylvania Constitution do not differ from those
under its federal counterpart. See id. at 531 n.10.
Appellant complains that during Detective Reinhold's trial testimony,
he referenced a statement made by Michael Centeno:
Q. Is it fair to say that the information which was furnished by
[Appellant] was one of the basic matters which ultimately
resulted in your arresting Michael Centeno and charging him with
the murder of James Crawford?
A. That and the statement that Michael Centeno made that
[Appellant] was the shooter.
N.T., 12/28/99, at 58. Trial counsel did not request that this reference be
stricken. See id. In addition, on re-direct examination, Detective Reinhold
read excerpts from the police statements by Kennedy and Nick Cruz in which
they described the two men they saw on the night of the shooting. Id. at
73-76. Trial counsel did not object to that testimony either; in fact, trial
counsel specifically stated that he had “no problem with that.” Id. at 73.
Thus, trial counsel did not preserve any challenge pursuant to the
Confrontation Clause to the references to or the reading of sections of these
three statements into the record. Appellant contends that trial counsel
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rendered ineffective assistance of counsel for failing to preserve these
claims. Appellant’s Brief at 73.
Appellant bases his Confrontation Clause claim on Crawford v.
Washington, 541 U.S. 36, 68-69 (2004). In Yohe, the Pennsylvania
Supreme Court explained the rule of Crawford as follows:
In Crawford, 541 U.S. at 51, . . . the Court held that the Sixth
Amendment guarantees a defendant’s right to confront those
“who ‘bear testimony’” against him, and defined “testimony” as
“a solemn declaration or affirmation made for the purpose of
establishing or proving some fact.” The Confrontation Clause,
the High Court explained, prohibits out-of-court testimonial
statements by a witness unless the witness is unavailable and
the defendant had a prior opportunity for cross-examination.11
Id. at 53–56. . . .
11
The Court described the class of testimonial statements
covered by the Confrontation Clause as follows:
Various formulations of this core class of “testimonial”
statements exist: “ex parte in-court testimony or its
functional equivalent — that is, material such as
affidavits, custodial examinations, prior testimony that
the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably
expect to be used prosecutorially;” “extrajudicial
statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior
testimony, or confessions;” “statements that were
made under circumstances which would lead an
objective witness reasonably to believe that the
statement would be available for use at a later trial.”
Crawford, 541 U.S. at 51–52 . . . (internal citations
omitted).
To further elucidate the distinction between testimonial and
nontestimonial statements, the Court in Davis v. Washington,
547 U.S. 813[, 822] (2006), addressed two types of statements
to police and held that whether a statement is testimonial
depends on its “primary purpose”:
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Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution.
79 A.3d at 531 (Pa. 2013) (brackets and some footnotes omitted).
Appellant insists that “the testimony of Detective Reinhold, who read
into evidence statements given to the police by Centeno, Kennedy, and Cruz
without [Appellant] having had an opportunity to confront them on the
witness stand, was blatantly improper” under Crawford. Appellant’s Brief
at 66. In the alternative, Appellant asserts that, “[e]ven if Crawford does
not apply, admission of [Detective] Reinhold’s testimony violated
[Appellant]’s Sixth Amendment right to confrontation under Ohio v.
Roberts, 448 U.S. 56 (1980).” Id. Appellant concludes that, due to this
violation of his Confrontation Clause rights and to trial counsel’s failure to
object to this violation, he should be granted a new trial. Id. at 76.
On this issue, the PCRA court stated:
Here, [Appellant] did not preserve a Confrontation Clause issue
at trial; he is, therefore, not entitled to the retroactive
application of Crawford. Furthermore, in light of the
overwhelming evidence of [Appellant]’s guilt, [Appellant] failed
to establish that he was prejudiced by his trial counsel’s failure
to object to Detective Reinhold’s reading into the record
statements by Kennedy, Cruz, and Centeno, all of which
identified him as the shooter. [Appellant] failed to show that
had his counsel objected to this testimony, [Appellant] would
have been acquitted. No relief is due.
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PCRA Ct. Op. at 20-21. In response, Appellant argues that the PCRA court
erred in holding that a preservation failure precludes him from asserting
claims under Crawford and that he was required to show that, had the
Confrontation Clause violation not occurred, he “would have been acquitted.”
Appellant’s Brief at 64 (quoting PCRA Ct. Op. at 20-21). Appellant maintains
that he could not have preserved any issue pursuant to Crawford, because
Crawford was not decided until after his trial. Id. at 65.12
Although it does not argue that Crawford does not apply on collateral
review, the Commonwealth asserts that Appellant’s “Confrontation Clause
claim is waived and [that] his derivative ineffectiveness claim is meritless.”
Commonwealth’s Brief at 37. The Commonwealth adds that, “[a]nalyzed
under the proper ineffectiveness standard, [Appellant] plainly cannot prove
prejudice from the detective’s unsolicited remarks on cross-examination.”
Id. at 38.13 The Commonwealth also declares that Appellant “cannot satisfy
the Crawford standard” because “Crawford prohibits the introduction of
formalized, testimonial statements of absent witnesses. The prosecutor
elicited no such evidence.” Id. at 38-39 (citing 541 U.S. at 51-52).
____________________________________________
12
Crawford was decided on March 8, 2004, while Appellant’s petition for
certiorari was pending following his direct appeal.
13
We note that Detective Reinhold read excerpts from Robert Kennedy’s and
Nick Cruz’s police statements on re-direct examination, not on cross-
examination. See N.T., 12/28/99, at 71, 73-76.
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In addressing Appellant’s ineffective assistance argument on this
issue, we again consider whether the underlying claim has arguable merit,
counsel had any reasonable strategic basis for his or her action or inaction,
and petitioner was prejudiced by counsel’s act or omission. Pierce, 527
A.2d at 975. As to the first prong of this test, we assume that Appellant’s
claim has arguable merit, at least with respect to the use of the statements
by Kennedy and Cruz. Although those two statements were not admitted
into evidence as exhibits, the prosecutor provided Detective Reinhold with
copies of Kennedy’s and Cruz’s statements and prompted the detective to
read specific excerpts from them into the record. Trial Exs. C-8, C-9; N.T.,
12/28/99, at 71-76. Furthermore, these quotations were put forth by the
Commonwealth, as part of re-direct examination, to establish a consistent
description of the murderer by multiple witnesses. Id.14 Kennedy’s and
Cruz’s statements thus were “declaration[s] or affirmation[s] made for the
purposes of establishing or proving some fact” — i.e., that the shooter
looked like Appellant and did not look like Centeno. See Crawford, 541
U.S. at 51; Yohe, 79 A.3d at 531. Kennedy and Cruz were not unavailable;
they were both in Philadelphia custody and could be transported to the
courthouse for Appellant’s trial. N.T., 12/27/99, at 64-66. Therefore, under
the Confrontation Clause, the Commonwealth could have been required to
____________________________________________
14
Appellant opened that line of questioning by asking on cross-examination
whether the statements showed that the shooter wore sunglasses. N.T.,
12/28/99, at 58, 65-69.
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produce Kennedy and Cruz as witnesses for confrontation by Appellant. See
Crawford, 541 U.S. at 51-52.15
Appellant therefore could have asserted a Confrontation Clause claim
regarding these statements if his counsel had objected during trial. See
Commonwealth v. Whitaker, 878 A.2d 914, 920 n.3 (Pa. Super.), appeal
denied, 891 A.2d 732 (Pa. 2005).16 Appellant’s counsel made no objection,
however. And during the PCRA hearings, trial counsel admitted that he “had
no strategic or tactical reason” for not objecting to Detective Reinhold’s
testimony. N.T., 9/25/08, at 185. Whether Appellant is entitled to relief on
____________________________________________
15
We do not assume that Appellant’s claim with respect to Centeno’s
statement also has arguable merit, however. That statement was not read
to the jury. See N.T., 12/28/99, at 58. Furthermore, the only passing
reference to Centeno’s statement was elicited during cross-examination and
was not put forth by the Commonwealth. Id. The one-off comment made
by Detective Reinhold about Centeno’s remarks was not used
prosecutorially. Thus, it did not trigger the Confrontation Clause, and the
Commonwealth was not required to produce Centeno as a witness for
confrontation by Appellant. See Crawford, 541 U.S. at 51-52.
16
Although the Supreme Court of Pennsylvania has held that “Crawford
does not apply to collateral review,” Commonwealth v. Carter, 932 A.2d
1261, 1265 n.3 (Pa. 2007), Appellant’s direct appeal was still pending when
Crawford was decided on March 8, 2004, and his appeal did not conclude
until March 22, 2004, when the United States Supreme Court denied
Appellant’s petition for a writ of certiorari. Ramos v. Pennsylvania, 541
U.S. 940 (2004). In Whitaker, we held that Crawford may apply
retroactively to cases that were pending on direct appeal at the time
Crawford was decided, so long as an objection to the contested evidence
was made — even though the objection did not specifically reference
Crawford. 878 A.2d at 920 n.3; see also Commonwealth v. Hood, 872
A.2d 175, 184 (Pa. Super. 2005) (in order to preserve Crawford argument,
defendant was required to object to admissibility on Sixth Amendment
Confrontation Clause grounds), appeal denied, 889 A.2d 88 (Pa. 2005).
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this issue therefore depends on the third prong of the Pierce ineffective
assistance test — whether Appellant was prejudiced by his counsel’s failure
to object to the recitation of Kennedy’s and Cruz’s statements. See Pierce,
527 A.2d at 975.
The PCRA court held that the failure to assert Confrontation Clause
rights with respect to the Kennedy and Cruz statements was harmless error.
PCRA Ct. Op. at 20-21. We have held that Confrontation Clause errors can
be harmless. See Commonwealth v. Rosser, 135 A.3d 1077, 1088 (Pa.
Super. 2016) (en banc), appeal denied, ___ A.3d ___, 2017 WL 1194930(Pa., Mar. 31, 2017). And after a careful review of the trial record, we agree
with the PCRA court that the asserted error by trial counsel was harmless
here. On this record, we cannot see how the brief reading of these short
excerpts during Appellant’s three-day trial swayed the jury in any way, given
all of the other overwhelming evidence presented by the Commonwealth, as
summarized by the Supreme Court on Appellant’s direct appeal, see
Ramos, 827 A.2d at 1198. We see no reasonable likelihood that the
outcome of the proceedings would have been different if an objection to
these statements had been made.
In challenging this result, Appellant states:
[C]ontrary to the PCRA court’s opinion, Reinhold’s impermissible
identification testimony was highly prejudicial. First, the PCRA
court erred in applying the wrong standard. The PCRA court
concluded that “Ramos failed to show that . . . [he] would have
been acquitted.” This conclusion is a clear misinterpretation of
the law, which requires [Appellant] to show only that there is a
reasonable likelihood the outcome of the proceeding would have
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been different. [Appellant] plainly satisfies this standard,
because without Reinhold’s testimony, the Commonwealth’s case
would have been based upon a single eyewitness, who was at a
known “crack house” when she allegedly witnessed [Appellant]
shoot Crawford. Had trial counsel objected, moved to strike,
moved in limine to exclude, or impeached this testimony, the
jury would have been exposed to, or would have been instructed
not to consider this damaging testimony.
Appellant’s Brief at 75-76 (citations omitted). We disagree. First of all, we
do not view the PCRA court’s use of the word “acquitted” as controlling.
Viewed in context, it is clear that the court was referring to whether an
objection to the testimony would have been likely to change the result of the
trial. And in any event, we have conducted our appellate review under the
proper prejudice standard stated in Pierce. Second, we do not view the
record that would remain without the contested statements to be as bereft
of probative evidence as Appellant suggests. And despite Appellant’s effort
to denigrate Davis’ testimony, she provided direct eyewitness evidence that
identified Appellant as the murderer. Striking of the contested statements
would not have removed that compelling testimony.
We conclude that the PCRA court did not err in finding that Appellant
therefore suffered no prejudice from trial counsel’s failure to object and that
his claim of ineffective assistance of counsel with respect to the
Confrontation Clause issue is without merit. See Commonwealth v.
Simpson, 66 A.3d 253, 260 (Pa. 2013); Stevens, 739 A.2d at 512; Pierce,
527 A.2d at 975.
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Challenge to the Photographic Array Shown to Davis
(Appellant’s Issue 2 (part))
In another of Appellant’s claims of ineffective assistance of his trial
counsel, Appellant contends that trial counsel “failed to examine the photo
array from which Davis allegedly identified [Appellant] as the shooter.”
Appellant’s Brief at 49. The background of this issue is as follows: Detective
McElvie generated a line-up containing 106 different photographs using an
imaging machine. N.T., 12/28/99, at 10-11; Ramos, 827 A.2d at 1197.
Out of this line-up, eyewitness Jeanine Davis selected two different
photographs of Appellant and stated that he was the shooter. Detective
McElvie testified during trial that he had been unaware that there was a
second, different photograph of Appellant in the array until Davis identified
it. N.T., 12/28/99, at 12. Trial counsel never reviewed the full photo array.
Appellant argues that “had trial counsel investigated the photo array,
he . . . would have been able to determine the parameters that lead to
Davis’s signature on two different photographs that both purport to be her
identification of [Appellant] as the shooter.” Appellant’s Brief at 50-51; see
also id. at 47 (“Trial counsel made no attempt to investigate the credibility
of Davis’s statements, even though Davis was the Commonwealth’s primary
witness: she was the only witness who testified at the preliminary hearing,
her two police interviews were provided in discovery to trial counsel, and she
was the lone alleged eyewitness presented by the Commonwealth at trial”
(emphasis and citations to the record omitted)). Appellant continues:
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Not only did trial counsel fail to view the actual photo array, but
he also admitted that he was unaware of the parameters that
had been input into the imaging machine to generate the array.
He had the opportunity to request this information, but failed to
do so. . . . Although trial counsel failed to examine the photo
arrays, or request related information, [Appellant]’s current
PCRA counsel has since requested this information from the
Commonwealth. The Commonwealth has stated that the file and
information concerning the photo arrays and lineup are
irretrievable.
Id. at 52, 54; see N.T., 9/25/08, at 105-06.17
The PCRA court construed this issue in the context of an overbroad
discovery request. It did not directly address Appellant’s ineffective
assistance of counsel claim as to trial counsel’s failure to examine the
photographic array. PCRA Ct. Op. at 51-53.
We conclude that Appellant is not entitled to relief on this issue. At
trial, Detective McElvie testified that he entered Davis’s description of the
murderer into the imaging machine, as well as an age range and a date
____________________________________________
17
The Commonwealth contends that Appellant “conceded that he cannot
show prejudice from counsel’s alleged failure” to “examine the photo array in
which Davis identified him as the shooter.” Commonwealth’s Brief at
32. We disagree. Instead, Appellant has stated:
The Commonwealth has stated that the file and information
concerning the photo arrays and lineup are irretrievable. For
this reason, current counsel, and this Court, are unable to
determine the full extent to which [Appellant] has been
prejudiced by trial counsel’s failures to investigate the photo
arrays. However, it is clear that the prejudice caused by these
errors is significant and permanent.
Appellant’s Brief at 54-55 (emphasis added). Accordingly, Appellant did not
concede this point.
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range. N.T., 12/28/99, at 9-11. Appellant thus was informed of the
parameters of the photo array. Although his appellate brief raises the
specter of “innumerable dangers and variable factors” that might make the
array unreliable, Appellant’s Brief at 51 (quoted citation omitted), Appellant
never identifies any specific impropriety about the photo array procedure
used here.
Even if trial counsel had found differences between photographs
included in the array and Davis’s description of the perpetrator, these
differences would relate to the credibility of Davis’s identification, not to the
undue suggestiveness of the array. Commonwealth v. Fulmore, 25 A.3d
340, 347 (Pa. Super. 2011), appeal denied, 34 A.3d 827 (Pa. 2011); see
also Commonwealth v. Stiles, 143 A.3d 968, 979 (Pa. Super.) (“An
unduly suggestive photographic array would be one wherein [a]ppellant’s
photograph stood out as compared to the others”), appeal denied, 163
A.3d 403 (Pa. 2016). There is no evidence of undue suggestiveness here.
Davis identified two different photographs of Appellant from among 106
photographs that were shown to her. Even Detective McElvie was unaware
that there was more than one photograph of Appellant in the array until
Davis identified the second image. N.T., 12/28/99, at 10-11; Ramos, 827
A.2d at 1197. Her dual identifications bolster the reliability of the process
used.
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We thus conclude that any challenge to the photographic array shown
to Davis is meritless, and “counsel cannot be considered ineffective for
failing to pursue a meritless claim.” Lopez, 739 A.2d at 495.
Challenges to the Admission of Appellant’s Statement
(Appellant’s Issue 6)
Appellant contends that the PCRA court erred in concluding that trial
counsel was not ineffective for failing to (1) move to suppress Appellant’s
statement to police, or (2) object to its introduction at trial. Appellant’s Brief
at 3 ¶ 6 & 76, 80-82. Appellant continues that the basis for either approach
should have been that Appellant was mentally unable to provide a voluntary,
knowing statement. Appellant supports this claim with opinions from both
his and the Commonwealth’s experts that he suffers from a “cognitive
disorder not otherwise specified”; “clearly has deficits in IQ testing” — with
a full-scale IQ of only 65; and suffers from mild mental retardation or mild
intellectual disability. N.T., 5/24/10, at 65-68, 77-84; N.T., 1/4/12, at 16,
111; N.T., 1/5/12, at 17. In addition, Appellant complains that the police
who interrogated him used a Spanish interpreter, even though Appellant’s
primary language is English, not Spanish. N.T., 5/25/10, at 277, 290, 351.
Appellant concludes that the PCRA court erred in determining that trial
counsel had a reasonable basis for not moving to suppress Appellant’s
statement, PCRA Ct. Op. at 35, 40-41, and argues that trial counsel’s
strategy of relying on Appellant’s statement as part of his defense was
patently unreasonable.
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In Commonwealth v. Harrell, 65 A.3d 420 (Pa. Super. 2013),
appeal denied, 101 A.3d 785 (Pa. 2014), we stated:
A confession obtained during a custodial interrogation is
admissible where the accused’s right to remain silent and right
to counsel have been explained and the accused has knowingly
and voluntarily waived those rights. The test for determining the
voluntariness of a confession and whether an accused knowingly
waived his or her rights looks to the totality of the circumstances
surrounding the giving of the confession.
The Commonwealth bears the burden of establishing whether a
defendant knowingly and voluntarily waived his [rights under]
Miranda [v. Arizona, 384 U.S. 436 (1966)] . . . .
When deciding a motion to suppress a confession, the
touchstone inquiry is whether the confession was voluntary.
Voluntariness is determined from the totality of the
circumstances surrounding the confession. The question of
voluntariness is not whether the defendant would have
confessed without interrogation, but whether the interrogation
was so manipulative or coercive that it deprived the defendant of
his ability to make a free and unconstrained decision to confess.
The Commonwealth has the burden of proving by a
preponderance of the evidence that the defendant confessed
voluntarily.
When assessing voluntariness pursuant to the totality of the
circumstances, a court should look at the following factors: the
duration and means of the interrogation; the physical and
psychological state of the accused; the conditions attendant to
the detention; the attitude of the interrogator; and any and all
other factors that could drain a person’s ability to withstand
suggestion and coercion.
65 A.3d at 433–34.
The Supreme Court of Pennsylvania has “consistently refused to
adhere to a per se rule of incapacity to waive constitutional rights based on
mental disease or deficiency.” Commonwealth v. Hughes, 555 A.2d 1264,
1275 (Pa. 1989). “The fact that a defendant has a low I.Q. does not in and
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of itself render his confession involuntary.” Commonwealth v. Whitney,
512 A.2d 1152, 1157 (Pa. 1986); accord Commonwealth v. Chacko, 459
A.2d 311, 317 (Pa. 1983); Commonwealth v. Glover, 412 A.2d 855, 859
(Pa. 1980).
We agree with the PCRA court that the record indicates that Appellant
was not so mentally incompetent as to render his statement unknowing and
involuntary. PCRA Ct. Op. at 34. Trial counsel testified that Appellant
“always seemed to be able to communicate.” N.T., 9/25/08, at 177. He
added, “In my judgment, and the several times I interviewed him, we were
always able to relate pretty well. And I was not of the impression that the
young man had any mental problems, no.” N.T., 4/27/09, at 62. Detective
Reinhold, who took Appellant’s statement, testified that Appellant answered
his questions coherently and appeared to be of sound mind and not under
the influence. N.T., 12/28/99, at 40. Additionally, Appellant made no claim
and presented no evidence that his interrogation was “manipulative or
coercive.” Harrell, 65 A.3d at 434. Accordingly, the PCRA court found that
Appellant had no difficulties communicating and did not present himself as
“afflicted with any mental disability.” PCRA Ct. Op. at 36 (citing N.T.,
9/25/08, at 177; N.T., 4/27/09, at 62).
We hold that the record supports the PCRA court’s “firm[] . . . belief
that [Appellant]’s statement[ was] not involuntary” and that his “voluntary,
knowing, and intelligent statement afforded no meritorious grounds for filing
a motion to suppress.” PCRA Ct. Op. at 40; see also id. at 34. We
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therefore cannot conclude that Appellant’s intellectual disability rendered
him incapable of understanding his constitutional rights or rendered his
confession involuntary. See Hughes, 555 A.2d at 1275; Whitney, 512
A.2d at 1157; Chacko, 459 A.2d at 317; Glover, 412 A.2d at 859.
Appellant’s trial counsel cannot be held ineffective for failing to file a
meritless motion on that basis or objecting to the statement’s introduction at
trial. Lopez, 739 A.2d at 495.
As trial counsel explained, he did not object to use of Appellant’s
statement because it supported his strategy of arguing that Centeno was the
killer. N.T., 4/27/09, at 61. Counsel was not ineffective for following that
strategy.
Prior Bad Acts
(Appellant’s Issue 7)
Appellant contends that the PCRA court erred in concluding that the
introduction of allegedly improper and prejudicial “other crimes” evidence –
specifically, drug dealing – by Detective Reinhold and by trial counsel did not
violate Appellant’s due process rights. Appellant’s Brief at 82.
The PCRA court held that trial counsel was not ineffective for failing to
object to this evidence or to request an appropriate limiting instruction about
it:
Here, the Commonwealth introduced [Appellant]’s statement to
police which referenced his drug dealing. In the statement,
[Appellant] explained that he was selling drugs from 5:00 pm to
midnight on the evening before the shooting and that afterwards
he met with Centeno, his uncle, and looked to purchase drugs
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for himself. (The decedent’s drug-selling corner was open all
night.)
Th[e PCRA] court finds that the evidence of [Appellant]’s drug
dealing was properly admitted for the legitimate purpose of
showing res gestae. The evidence was, in fact, an integral part
of the case’s history as it provided the initial link to the
subsequent criminal acts — the robbery and shooting of the
decedent.
Furthermore, any potential for unfair prejudice to [Appellant]
would have been mitigated by th[e trial c]ourt’s limiting
instructions:
Ladies and Gentlemen, you have heard evidence tending
to prove that the defendant was dealing drugs between
5:00 p.m. and midnight in the hours before the killing of
James Crawford. The defendant is not on trial on
charges relating to drug dealing. 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. If
you find that the defendant is guilty of the crimes charged
in this case it must be because you are convinced by the
evidence that he committed the crimes charged in this
case and not because you believe that he is wicked or has
committed any other offense.
(N.T.[,] 12/30/1999, [at] 15) (emphasis added).
In light of th[e trial] court’s limiting instructions, it would be safe
to presume that the jury would have disregarded any allegedly
improper testimony by Detective Reinhold. . . . Furthermore,
[Appellant] has not sustained his burden of proving that but for
his trial counsel’s alleged omission, there is a reasonable
probability that the jury would have acquitted him. Absent any
showing of prejudice, [Appellant] cannot prove that trial counsel
was ineffective.
It follows, therefore, that th[e PCRA] court correctly concluded
that [Appellant]’s counsel was not ineffective for failure to object
to the introduction of “other crimes” evidence, as the evidence of
[Appellant]’s drug dealing was properly admitted for the
legitimate purpose of showing res gestae, the history of the
case. Th[e PCRA] court also correctly concluded that
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[Appellant]’s counsel was not ineffective for failure to request an
“appropriate” limiting instruction for this evidence, as th[e trial]
court already provided a limiting instruction which cured any
potential for prejudice to [Appellant]. No relief is due.
PCRA Ct. Op. at 44-46.
In Commonwealth v. Chmiel, 889 A.2d 501 (Pa. 2005), cert.
denied, 549 U.S. 848 (2006), the Supreme Court stated:
It is a long-standing principle in this Commonwealth that
evidence of a distinct crime, except under special circumstances,
is inadmissible. Commonwealth v. Morris, 493 Pa. 164, 425
A.2d 715, 720 (1981). Permissible use of evidence of other
crimes is addressed in Pa.R.E. 404(b), which states, “evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith” but “evidence of other crimes, wrongs, or acts may
be admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident.”
Id. at 534 (brackets omitted). In Commonwealth v. Lark, 543 A.2d 491,
497 (Pa. 1988), the Supreme Court held that evidence of other crimes may
be admissible under the res gestae exception, where the evidence became
part of the history of the case and formed part of the natural development of
the facts. See Commonwealth v. Cousar, 154 A.3d 287, 303–04 (Pa.
2017).
Here, the evidence established that Appellant sold drugs until a few
hours before the murder and then went with his uncle to buy more drugs in
an area where they are sold twenty-four hours a day. N.T., 12/28/99, at 48.
This evidence about the drug transactions established that Appellant was at
the crime scene with the co-defendant, how he arrived there, and his reason
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for being there. See Cousar, 154 A.3d at 303–04. Thus, we agree with the
PCRA court that this evidence of other crimes met the res gestae exception.
See Pa.R.E. 404(b); Cousar, 154 A.3d at 303–04; Chmiel, 889 A.2d at
534. Therefore, trial counsel could not be deemed ineffective by failing to
object to it.
Additionally, the trial court instructed the jury that Appellant was “not
on trial on charges relating to drug dealing” and that it “must not regard this
evidence [of drug dealing] as showing that [Appellant] is a person of bad
character or criminal tendencies from which you might be inclined to infer
guilt.” N.T., 12/30/99, at 15. The jury is presumed to have followed the
court’s instruction. See Commonwealth v. Hairston, 84 A.3d 657, 666
(Pa.), cert. denied, 135 S. Ct. 164 (2014). Because the trial court did give
an appropriate limiting instruction, there was no reason for trial counsel to
request one.
For these reasons, this claim by Appellant is meritless. Where “the
underlying claim is meritless, the derivative claim of ineffective assistance of
counsel for failing to object has no arguable merit.” Spotz, 47 A.3d at 122.
Missing Voir Dire Transcripts
(Appellant’s Issue 8)
Appellant alleges that two days of the four days of voir dire
proceedings from the underlying trial were never transcribed and the
transcripts were never provided to Appellant or his appellate counsel.
Appellant’s Brief at 85. He contends that he “suffered prejudice because,
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had appellate counsel sought the missing transcripts during the direct
appeal, he would have learned that the transcripts were unavailable, and he
could have argued for a new trial on direct appeal.” Id. Appellant argues
that “the PCRA court erred in concluding that the absence of transcripts did
not prevent adequate appellate review.” Id. at 84.
The PCRA court expressed its reasoning on this issue as follows:
[Appellant] does not single out any issues which could not have
been adequately reviewed because of the above deficiency of the
transcript’s voir dire portion. [Appellant]’s allegation that the
untranscribed portion of the transcript might have allowed his
appellate counsel to mount a meritorious challenge is
[conclusory] and is not sufficient to raise a violation-of-due-
process claim. [Appellant] failed to present any concrete
evidence to show that the untranscribed portion of the voir dire
notes may be of importance for elucidating a cognizable claim.
See [Commonwealth v.] Marinelli, 910 A.2d [672,] 688 [(Pa.
2006),] (“[A] conclusory allegation is utterly insufficient to raise
a colorable question of whether due process was violated[] by
the alleged unavailability of the notes of a particular day’s
testimony.”) (citation and internal quotation marks omitted).
Th[e PCRA] court, therefore, correctly concluded that that the
absence of the untranscribed portion of the voir dire notes did
not result in violation of [Appellant]’s due process rights and that
it neither prevented our Supreme Court from fulfilling its
statutory obligations nor deprived [Appellant] of adequate
appellate review. No relief is due.
PCRA Ct. Op. at 49.
During an appeal from the denial of a PCRA petition in
Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), the appellant —
argue[d] that he was denied his right to meaningful appellate
review due to the selective transcription of the voir dire
proceedings and the absence of a transcript of defense
testimony during one day of his trial, including that of [several
defense character witnesses and] his expert witness . . . He also
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argue[d] that his counsel on direct appeal was ineffective in
failing to secure a complete record of the proceedings.
Id. at 701. The Supreme Court of Pennsylvania rejected the appellant’s
claim, pointing out that “[t]o be entitled to relief due to the incompleteness
of the trial record the defendant must [first] make some potentially
meritorious challenge which cannot be adequately reviewed due to the
deficiency in the transcript.” Id. (emphasis added). The Court concluded
that a bald assertion that there may have been improper questions was
insufficient to sustain the appellant’s argument that his due process rights
were violated and “insufficient to raise any inference of prejudice from trial
and direct appeal counsel’s failure to pursue this issue.” Without
establishing prejudice, the appellant could not sustain an ineffective
assistance of counsel claim. Id. at 701-02; see also Commonwealth v.
Schwenk, 777 A.2d 1149, 1157 (Pa. Super. 2001) (no relief for failing to
request that the closing arguments of counsel be transcribed);
Commonwealth v. Richard Johnson, 459 A.2d 5, 10 (Pa. Super. 1983)
(no relief for failing to request transcription of the opening and closing
arguments).
We agree with the PCRA court that Appellant did “not single out any
issues which could not have been adequately reviewed” due to the
untranscribed portions of the voir dire. PCRA Ct. Op. at 49. As in Albrecht,
720 A.2d at 701, Appellant makes no claim as to what particular errors could
have been proven had he had access to these untranscribed notes of
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testimony; he presents only the speculative potential of possible error. His
allegation is insufficient to sustain a claim for relief. See Albrecht, 720
A.2d at 701-02; Schwenk, 777 A.2d at 1157; Richard Johnson, 459 A.2d
at 10.
Denial of Appellant’s Discovery Requests
(Appellant’s Issue 11)
Appellant filed discovery motions in 2005 and 2007. Appellant
specifically requested: (1) the photographic array shown to Davis; (2)
information about the Commonwealth’s compensation of or agreement with
Davis; (3) Philadelphia Police Department log entries relating to an individual
named “Will”; (4) the Commonwealth’s file for co-defendant Centeno; and
(5) any Commonwealth files relating to any investigation of “Santos Roland,”
who was identified as a possible suspect in an Investigation Interview
Record. Appellant’s Brief at 88-89.18 The PCRA court denied his requests.
“We review a PCRA court’s denial of an appellant’s request for
discovery for abuse of discretion.” Roney, 79 A.3d at 603l; see also
Commonwealth v. Miller, 987 A.2d 638, 671 (Pa. 2009); Commonwealth
v. Collins, 957 A.2d 237, 265 (Pa. 2008).
____________________________________________
18
In 2008, Appellant also made an oral motion requesting the results of
Centeno’s polygraph examinations. N.T., 9/25/08, at 4-5, 9-11. However,
Appellant makes no argument regarding these polygraph exam results in his
brief or his reply brief to this Court, and we therefore deem this issue
waived.
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Appellant contends that the PCRA court “erred by refusing to provide
[Appellant] discovery in aid of his PCRA petition.” Appellant’s Brief at 88.
Appellant argues that, “[i]n each discovery motion, [he] readily
demonstrated the existence of good cause and, in addition, established that
he was entitled to discovery pursuant to Brady and Giglio v. U.S., 405 U.S.
150 (1972), among other authorities.” Id. at 90. He maintains that “such
discovery would confirm that trial counsel was ineffective in failing to
undertake a full investigation of the underlying charged crimes.” Id. at 89;
see also id. at 46 (trial counsel “failed to conduct any further investigation
into the Commonwealth’s case to prepare [Appellant]’s defense”). Appellant
concludes that “[t]he PCRA court’s denial of these discovery motions was
improper and warrants reversal on this ground alone.” Id. at 90. The
Commonwealth briefly counters that “the PCRA court did not abuse its
discretion by denying discovery.” Commonwealth’s Brief at 56.
The PCRA court stated that it “correctly denied [Appellant]’s motions
for discovery.” PCRA Ct. Op. at 50. It explained:
Th[e PCRA] court is firmly of the belief that [Appellant]’s motion
[for discovery dated July 27, 2005,] was overbroad and that
even if it is deemed not to be, [Appellant] has failed to show
good cause as required by Pa.R.Crim.P. []902(E)(2).
Upon consideration, th[e PCRA] court determined that this
motion was a “fishing expedition,” and that the defense was not
entitled to information on every possible lead the police may
have followed. [N.T.], 11/7/2005, [at] 29.
With regard to [Appellant]’s August 31, 2007 motion, th[e PCRA]
court concluded that, contrary to the defense claims, the
discovery sought did not involve any Brady material. [N.T.],
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10/18/2007, [at] 4[.] . . . Referring to [Appellant]’s discovery
request as a “classic fishing expedition,” the Commonwealth
stressed that it possessed nothing exculpatory and that if it had
exculpatory materials it would have turned them over to
[Appellant]. [N.T.], 10/18/2007, [at] 16, 18.
Upon consideration of [Appellant]’s discovery requests for the
Commonwealth’s file on Michael Centeno, the police log entries,
and the information regarding Davis’ location or relocation, th[e
PCRA] court, therefore, properly denied them. . . . Here,
[Appellant]’s request for discovery is based on no more than
speculation and conjecture. . . . Granting [Appellant]’s request is
to enter into the type of “fishing expeditions” not permitted in
criminal proceedings. . . . Th[e PCRA] court, therefore, correctly
denied [Appellant]’s motions for discovery. No relief is due.
Id. at 52, 54, 57.
A petitioner’s right to PCRA discovery is governed by Pa.R.Crim.P.
902(E):
(1) Except as provided in paragraph (E)(2), no discovery shall be
permitted at any stage of the proceedings, except upon leave of
court after a showing of exceptional circumstances.
(2) On the first counseled petition in a death penalty case, no
discovery shall be permitted at any stage of the proceedings,
except upon leave of court after a showing of good cause.
As Appellant’s 2005 and 2007 discovery motions were filed while Appellant
was still sentenced to death, prior to his re-sentencing to life without parole
in 2008, we will examine them pursuant to the less stringent standard of
Pa.R.Crim.P. 902(E)(2).19
____________________________________________
19
The Commonwealth concedes that Rule 902(E)(2) is applicable because
“[t]his was a capital case at the time of [Appellant]’s first discovery motion.”
Commonwealth’s Brief at 57 & n.29. The PCRA court also employed this
standard. PCRA Ct. Op. at 52 (citing Pa.R.Crim.P. 902(E)(2)).
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The key questions for determining whether good cause exists to
compel additional discovery under Rule 902(E)(2) are whether any of the
documents would be exculpatory and whether the defendant’s reasons for
his requests constitute more than mere speculation. See Commonwealth
v. Elliott, 80 A.3d 415, 449-50 (Pa. 2013) (defendant could not establish
good cause necessary to compel additional discovery in death penalty
collateral proceedings; he could not identify documents that would be
exculpatory, and his claims to the contrary constituted mere speculation),
cert. denied, 135 S. Ct. 50 (2014). Additionally, a petitioner is not entitled
to discovery where he has not shown the existence of the requested
documents; speculation that the requested documents exist and will reveal
exculpatory evidence does not satisfy the discovery rule. Commonwealth
v. Carson, 913 A.2d 220, 261 (Pa. 2006), cert. denied, 552 U.S. 954(2007). In light of these standards, we turn to each of Appellant’s discovery
requests.
The Photographic Array Shown to Davis
The first piece of discovery requested by Appellant was the
photographic array shown to Davis. Appellant admits that “the
Commonwealth has stated that the file and information concerning the photo
arrays and lineup are irretrievable.” Appellant’s Brief at 54. Because this
photographic array does not exist, Appellant is not entitled to it. Carson,
913 A.2d at 261.
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Alleged Compensation of or Agreement with Davis
Appellant requested information about any compensation of or
Commonwealth agreement with Davis. Our Supreme Court has rejected
similar discovery requests because they fail to meet the “showing of good
cause” standard under Rule 902(E)(2). Thus, in Commonwealth v.
Bridges, 886 A.2d 1127, 1131 (Pa. 2005), the Court disallowed a discovery
request for information about whether a Commonwealth witness was paid, a
request that parallels Appellant’s request for information about whether
Davis was compensated by the Commonwealth. We therefore conclude that
the PCRA court correctly disallowed this discovery.20
Philadelphia Police Department Log Entries
Appellant’s discovery request for Philadelphia Police Department log
entries relating to an individual named “Will” is based upon Appellant’s
contention that, while considering the photographic array, Davis selected
someone named “Will.” Appellant’s Brief at 49; N.T., 10/18/07, at 11; PCRA
Ct. Op. at 53. Appellant, whose first name is Wilfredo, argues that he has
never used the name “Will” and therefore should be allowed to examine the
station’s log entries to try to discover whether there was anyone by the
name of “Will” who was arrested or investigated. Appellant also links this
____________________________________________
20
The PCRA court noted that, in any event, the Commonwealth represented
to the court that “nothing” was given to Davis. PCRA Ct. Op. at 53 (quoting
N.T., 10/18/07, at 9).
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discovery request to his claim that trial counsel failed to investigate the facts
of this case, stating —
Had trial counsel investigated [Appellant]’s family background
and personal history, he would have discovered that [Appellant]
was never called “Will” by his family, friends, or anyone who
knew him and [Appellant]’s mother was willing to testify to this
fact during [Appellant]’s trial. Trial counsel’s failure to
investigate even general background information about
[Appellant] led trial counsel to miss a crucial opportunity to
impeach Davis on cross-examination.
Appellant’s Brief at 49.21
In response, the Commonwealth represented that there were no other
suspects or any other persons connected to this case named “Will”: “There’s
just Wil-fre-do. There is no other Will.” N.T., 10/18/07, at 12.
We agree with the PCRA court that Appellant is only speculating that
another individual named “Will” was arrested, investigated, or has had any
association with this matter. Indeed, Appellant has stated his argument only
in terms of an unsubstantiated “belief.”22 Because Appellant’s reasons for
____________________________________________
21
There is no evidence that Davis was family or a friend or acquaintance of
Appellant.
22
See Pet’r’s Mot. for Discovery Pursuant to Brady v. Maryland, 8/31/07,
at 10 ¶¶ 45-46 (“[Appellant] believes that Ms. Davis misidentified
[Appellant], confusing him with ‘Will,’ . . . Ms. Davis’s testimony gives good
cause to believe that Philadelphia Police Department Incident Logs for the
25th Police District contain entries during the relevant time period relating to
an individual known as ‘Will.’ [Appellant]’s pleading gives good cause to
believe that such entries refer to someone other than him. Collectively,
they establish good cause to believe that Philadelphia Police Department
Incident Logs for the 25th Police District contain entries during the relevant
(Footnote Continued Next Page)
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making this request do not constitute more than mere speculation, we agree
with the PCRA court that good cause did not exist to compel this additional
discovery, and Appellant’s request was properly denied. See PCRA Ct. Op.
at 53; Carson, 913 A.2d at 261; Elliott, 80 A.3d at 449-50.
The Commonwealth’s Files for Centeno and “Santos Roland”
Appellant requested files relating to his uncle and co-defendant,
Centeno, and to a hypothesized suspect named “Santos Roland.” He says
that he “sought discovery of police files in order to determine the extent to
which detectives pursued possible leads and suspects other than
[Appellant].” Appellant’s Brief at 88-89.23
In Commonwealth v. James Williams, 86 A.3d 771 (Pa. 2014), the
Supreme Court of Pennsylvania rejected a similar request for discovery of
the Commonwealth’s files and other notes about co-conspirators. The Court
explained:
A defendant’s right to discover exculpatory evidence does not
include the unsupervised authority to search through the
Commonwealth’s files. . . . Unless defense counsel becomes
aware that other exculpatory evidence was withheld and brings it
to the court’s attention, the prosecutor’s decision on disclosure is
_______________________
(Footnote Continued)
time period relating to police knowledge of the existence and activities of an
individual . . . known as ‘Will’” (emphases added)).
23
The Commonwealth makes no specific arguments about Appellant’s
challenge to the denial of these two discovery requests, besides “direct[ing]
this Court’s attention” to the PCRA court’s discussion of these claims.
Commonwealth’s Brief at 57 n.30. The PCRA court made no findings
particular to these requests, beyond its general analysis of why it denied all
of Appellant’s discovery requests. PCRA Ct. Op. at 50-54, 57.
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final. Defense counsel has no constitutional right to conduct his
own search of the State’s files to argue relevance. . . . A
sufficient, specific PCRA factual proffer may be made and
credited by the PCRA judge so as to, for example, convince the
judge that the Commonwealth has not been candid about the
content of its files, so that inspection, whether in camera or by
the defense, is warranted. But, the mere fact that a claim
sounds in Brady does not, on its own, create a special right to
PCRA discovery.
86 A.3d at 788-89 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 59-60
(1987)); see Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (“There is
no general constitutional right to discovery in a criminal case, and Brady did
not create one”).
Appellant’s basis for requesting the Commonwealth’s file on Centeno is
mere conjecture. At the time of his motion, Appellant argued that “the
police files likely contain information that pertains not only to [Appellant]’s
innocence or guilt in the death of Mr. Crawford, but also to mitigating factors
warranting the imposition of a non-death penalty sentence.” Pet’r’s Mot. for
Discovery, 7/27/05, at 7 ¶ 14 (emphasis added). Appellant continued that
he should “be give a full opportunity to conduct a meaningful investigation
into all evidence in this case, including any leads, alternative theories, or
additional witnesses considered by police. The police files would likely
contain any such information and would therefore be invaluable[.]” Id. at ¶
16 (emphasis added). Thus, Appellant merely speculated that this file would
likely contain something useful, but he could not articulate what he
anticipated would be present in the file. Appellant’s speculation was not a
proper basis for obtaining the discovery he sought.
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With respect to Appellant’s other request, there is no evidence that
“Santos Roland” even exists — let alone that there was ever an investigation
into this alleged suspect. Without explaining with greater specificity what he
hopes to find, Appellant cannot be granted “unsupervised authority to search
through the Commonwealth’s files.” James Williams, 86 A.3d at 788. As
in James Williams, Appellant’s supposition is not evidence, and mere
speculation cannot constitute good cause to compel discovery. See Elliott,
80 A.3d at 449-50.
For these reasons, we concur with the PCRA court that none of
Appellant’s PCRA discovery requests constitute good cause, and, accordingly,
we find that the PCRA court did not abuse its discretion in denying
Appellant’s discovery requests. See Elliott, 80 A.3d at 449-50; Roney, 79
A.3d at 603.
Ineffectiveness of Appellate Counsel
(Appellant’s Issue 9)
In his ninth issue, Appellant claims that “the PCRA court erred in
concluding that appellate counsel’s deficient representation did not deny
[Appellant] a right to a direct appeal.” Appellant’s Brief at 86. Appellant
argues:
Despite the many meritorious constitutional claims [allegedly
raised by Appellant in this PCRA appeal], appellate counsel failed
to identify even one record-based claim on [direct] appeal, and
had no strategic reason for this failure. [N.T., 07/15/08, at
175.] . . . Prejudice is presumed “if counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing
. . . mak[ing] the adversary process itself presumptively
unreliable.” [United States v.] Cronic, 466 U.S. 648, 659
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(1984). . . . Appellate counsel’s deficient performance effectively
denied [Appellant] assistance of counsel in his direct appeal,
making the adversary process presumptively inadequate. . . . It
was error for the PCRA court to find that appellate counsel was
effective.
Id. The Commonwealth replies:
[Appellant] may not have a presumption of appellate counsel’s
ineffectiveness. . . . [Appellant]’s vague allusions to appellate
counsel’s alleged failure to identify “the many meritorious
constitutional claims . . .” (Brief for Appellant at 86), falls well
short of proof that appellate counsel failed to subject the
Commonwealth’s case to meaningful adversarial testing, the
rarely applied Cronic exception he seeks to invoke. . . . No relief
is due.
Commonwealth’s Brief at 53-55.
In rejecting this issue, the PCRA court stated:
Appellate counsel was not ineffective for not raising any of the
alleged violations on appeal. . . . It is the province of appellate
counsel to make strategic decisions as to what issues to raise on
appeal “in order to maximize the likelihood of success.” Smith
v. Robbins, 528 U.S. 259, 288 [(2000)]. . . . Here, by not
raising [Appellant]’s claims on direct appeal, appellate counsel
demonstrated that he recognized the claims as meritless. . . .
PCRA Ct. Op. at 46-47. After carefully reviewing the record, we agree.
Because, as demonstrated above, Appellant would not have been afforded
the relief sought on these claims, appellate counsel had no reasonable basis
to bring them. See Commonwealth v. Davidson, 860 A.2d 575, 579 n.1
(Pa. Super. 2004) (“the effectiveness of appellate advocacy may suffer when
counsel raises numerous issues, to the point where a presumption arises
that there is no merit to any of them” (citations omitted)), aff’d, 938 A.2d
198 (Pa. 2007); Pierce, 527 A.2d at 975. Additionally, Appellant cannot
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succeed in demonstrating that, but for appellate counsel’s alleged omissions,
the outcome of his direct appeal would have been different. Id.
Appellant attempts to analogize his case to Cronic, 466 U.S. 648.
Appellant’s Brief at 86. However, the United States Supreme Court clarified
in Florida v. Nixon, 543 U.S. 175, 189-90 (2004), that the circumstances
giving rise to the Cronic presumption are infrequent and are limited to
situations where counsel’s failure is complete – that is, where “counsel has
entirely failed to function as the client’s advocate.” Here, appellate counsel
did raise issues on appeal. See Ramos, 827 A.2d at 1196, 1198 (listing
appellate issues). Nothing about appellate counsel’s actions in the current
matter represent the “complete failure” of counsel that would trigger the
Cronic presumption. See Commonwealth v. Mallory, 941 A.2d 686, 702
(Pa.), cert. denied, 555 U.S. 884 (2008).
Thus, we concur with the PCRA court that appellate counsel did not
provide ineffective assistance. Appellant’s penultimate claim is meritless.
Cumulative Errors
(Appellant’s Issue 10)
Finally,24 Appellant claims that the PCRA court “erred in failing to
consider the prejudicial effects of cumulative errors, entitling [Appellant] to
____________________________________________
24
Appellant’s briefs consume more than 100 pages, and we have carefully
reviewed all of the arguments made by Appellant in those briefs. This
memorandum addresses the main arguments presented by Appellant. Any
argument that is not addressed here has been considered and found without
merit.
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relief.” Appellant’s Brief at 88. In response, the Commonwealth states that
“[Appellant] may not have relief on the cumulative effect of non-existent
errors” and that “[Appellant] has not demonstrated, as he must, that
although he has not proved prejudice from any individual error, a different
cumulation analysis entitles him to relief.” Commonwealth’s Brief at 55-56
(citing Commonwealth v. Hutchinson, 25 A.3d 277, 318-19 (Pa. 2011),
cert. denied, 132 S. Ct. 2711 (2012)). The PCRA court agreed with the
Commonwealth, stating:
Under Pennsylvania law, “no number of failed claims may
collectively attain merit if they could not do so individually.”
Commonwealth v. [Craig] Williams, 532 Pa. 265, 278, 615
A.2d 716, 722 (1992). See also Commonwealth v. Ellis, 700
A.2d 948, 962 (Pa. Super. Ct. 1997) (“Ellis contends that the
individual claims may not require a new trial, but the cumulative
impact of them may have led to an improper verdict. This
argument is clearly meritless.”).
Here, individually and together, [Appellant]’s claims lack merit.
Th[e PCRA] court agrees with the Commonwealth’s conclusion
that since none of [Appellant]’s claims merits relief individually,
there simply is no “cumulative effect” to consider.
Commonwealth’s Post-Hearing Brief, 06/30/2014, [at] 41.
[Appellant]’s assertion that he was entitled to relief from his
conviction due to the prejudicial effects of the cumulative errors
in his case is meritless.
PCRA Ct. Op. at 46-47, 50.
We agree:
[The Supreme Court of Pennsylvania has] often held that no
number of failed claims may collectively warrant relief if they fail
to do so individually. However, we have clarified that this
principle applies to claims that fail because of lack of merit or
arguable merit. When the failure of individual claims is
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grounded in lack of prejudice, then the cumulative prejudice
from those individual claims may properly be assessed.
However, while cumulative prejudice may properly be assessed
with respect to individual claims that have failed due to lack of
prejudice, nothing in our precedent relieves an appellant who
claims cumulative prejudice from setting forth a specific,
reasoned, and legally and factually supported argument for the
claim. A bald averment of cumulative prejudice does not
constitute a claim. Appellant has set forth no reviewable claim,
and he is entitled to no relief.
Spotz, 47 A.3d at 129 (internal brackets, citations, and quotation marks
omitted); see also Commonwealth v. Bryant, 855 A.2d 726, 751 (Pa.
2004) (“No number of failed claims may collectively attain merit if they could
not do so individually” (brackets and citation omitted)).
We have held in this memorandum that Appellant has not raised any
claims that entitle him to relief. We found no errors with respect to
Appellant’s challenge under Huffman, challenges to trial counsel’s
investigation and selection of witnesses, the failure to assert purported
Brady errors, the challenge to the admission of Appellant’s statement and to
res gestae evidence, the challenges to the lack of transcripts and discovery,
and the attack on Appellant’s appellate representation. Because none of
these claims have merit, counsel could not have been ineffective in asserting
them. See Spotz, 47 A.3d at 122; Lopez, 739 A.2d at 495. Because each
of these claims was meritless individually, they cannot attain merit
collectively. See Spotz, 47 A.3d at 129.
Appellant’s only “individual claims that have failed due to lack of
prejudice,” see Spotz, 47 A.3d at 129, were his challenges to Detective
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Reinhold’s reading of Kennedy’s and Cruz’s statements during the detective’s
testimony. However, Appellant makes no particularized, specific, or
reasoned argument for prejudice related to cumulative error for these or any
other claims. See id. He does not even identify these or any other
particular issues as the bases for his cumulative error challenge or articulate
how these two challenges in combination were so prejudicial as to entitle
him to relief, even though the challenges did not give rise to a right to relief
individually. See Appellant’s Brief at 87-88.
Appellant’s entire argument consists of five sentences and a citation to
several federal decisions, without detailing how those cited cases apply.
See Appellant’s Brief at 87-88. Such a vague, generalized, undeveloped
claim is not reviewable. See Chmiel, 30 A.3d at 1189 (when appellant’s
“entire argument consists of three sentences, with citation to two United
States Supreme Court cases, generally asserting a right to relief grounded in
an alleged denial of his rights under the 5th, 6th, 8th, and 14th
Amendments,” cumulative error claim “is not reviewable” (citing
Commonwealth v. Small, 980 A.2d 549, 579 (Pa. 2009) (rejecting broad
and vague claim of the prejudicial effect of cumulative errors)). It certainly
is not so persuasive as to entitle Appellant to relief. After engaging in our
own review of these claims, we, like the Supreme Court of Pennsylvania in
Chmiel, 30 A.3d at 1190, “discern the absence of any furrow deep enough
to allow a ‘cumulating’ impact of prejudice to flow in establishing a right to a
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new trial or penalty hearing.” Accordingly, Appellant’s final issue is without
merit.
CONCLUSION
Having discerned no abuse of discretion or error of law, we affirm the
order denying Appellant’s PCRA petition. See Wilson, 824 A.2d at 333.
Order affirmed.
Judge Shogan joins the memorandum.
Judge Platt concurs in the result.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 9/27/2017
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