Com. v. Long, B. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BUTCHIE LONG :
:
Appellant : No. 3691 EDA 2016
Appeal from the PCRA Order November 21, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003619-2012
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY BOWES, J.: FILED JUNE 18, 2018
Butchie Long appeals from the order that denied his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
On the evening of November 10, 2011, two groups of men entered a
Philadelphia convenience store at different times. Video footage established
that Appellant was in the first group. The latter group included Ercel Butts-
Stern and Rashan Gaffney. An altercation between the groups occurred
outside the store, during which Mr. Gaffney fired a shot at the ground. A short
time later, Mr. Butts-Stern was shot five times and left in the street.
Bystanders Mazel Matthias and Tracie Hunter witnessed the incident, and they
described that a man stood over Mr. Butts-Stern as he lay on the ground and
shot him. Their descriptions of the shooter matched the clothing Appellant
had been wearing in the convenience store. Mr. Butts-Stern died later that
* Retired Senior Judge Assigned to the Superior Court.
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evening in the hospital. Mr. Gaffney gave a statement to police identifying
Appellant as the shooter.
Appellant was convicted of first-degree murder and firearms offenses
and sentenced to life imprisonment. This Court affirmed Appellant’s judgment
of sentence, and our Supreme Court denied allowance of appeal.
Commonwealth v. Long, 105 A.3d 785 (Pa.Super. 2014) (unpublished
memorandum), appeal denied, 108 A.3d 34 (Pa. 2015).
Appellant filed a timely, counseled PCRA petition. After an amendment,
several supplements, and a hearing, the PCRA court denied Appellant’s
petition. Appellant filed a timely notice of appeal. The PCRA court did not
order Appellant to file a statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b), but did author an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant presents the following issues for our review, which we have
reordered and paraphrased to omit unnecessary detail.1
1. Trial counsel was ineffective for not presenting Delisa Griffin
as a defense witness at trial.
2. Trial counsel was ineffective for not interviewing or
attempting to interview Eric Green before trial.
3. The Commonwealth failed to produce exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963).
4. The cumulative impact of trial counsel’s ineffectiveness and
the Commonwealth’s Brady violation entitles Appellant to relief.
____________________________________________
1See Pa.R.A.P. 2116(a) (“The statement of the questions involved must state
concisely the issues to be resolved, expressed in the terms and circumstances
of the case but without unnecessary detail.”).
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Appellant’s brief at 3-4.
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v.
Johnson, 179 A.3d 1153, 1156 (Pa.Super. 2018) (internal quotation marks
omitted).
We begin with Appellant’s claims that his trial counsel rendered
ineffective assistance, mindful of the following.
Counsel is presumed effective, and an appellant has the
burden of proving otherwise. In order for Appellant to prevail on
a claim of ineffective assistance of counsel, he must show, by a
preponderance of the evidence, ineffective assistance of counsel
which so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
To prevail on his ineffectiveness claims, Appellant
must plead and prove by a preponderance of the
evidence that: (1) the underlying legal claim has
arguable merit; (2) counsel had no reasonable basis
for his action or inaction; and (3) Appellant suffered
prejudice because of counsel’s action or inaction.
With regard to the [reasonable basis] prong, we will
conclude that counsel’s chosen strategy lacked a
reasonable basis only if Appellant proves that an
alternative not chosen offered a potential for success
substantially greater than the course actually
pursued. To establish the [prejudice] prong,
Appellant must show that there is a reasonable
probability that the outcome of the proceedings would
have been different but for counsel’s action or
inaction.
Commonwealth v. Brown, 161 A.3d 960, 965 (Pa.Super. 2017) (citations
and quotation marks omitted).
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With his first two issues, Appellant contends trial counsel was ineffective
in failing to call or investigate certain witnesses. “Counsel has a general duty
to undertake reasonable investigations or make reasonable decisions that
render particular investigations unnecessary.” Commonwealth v. Johnson,
966 A.2d 523, 535 (Pa. 2009). “The duty to investigate, of course, may
include a duty to interview certain potential witnesses; and a prejudicial failure
to fulfill this duty, unless pursuant to a reasonable strategic decision, may lead
to a finding of ineffective assistance.” Id. at 535-36.
[W]hen raising a claim of ineffectiveness for the
failure to call a potential witness, a petitioner satisfies
the performance and prejudice requirements of the
[Strickland v. Washington, 466 U.S. 668 (1984)]
test by establishing that: (1) the witness existed; (2)
the witness was available to testify for the defense;
(3) counsel knew of, or should have known of, the
existence of the witness; (4) the witness was willing
to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have
denied the defendant a fair trial[.]
To demonstrate Strickland prejudice, a petitioner must show how
the uncalled witnesses’ testimony would have been beneficial
under the circumstances of the case. Counsel will not be found
ineffective for failing to call a witness unless the petitioner can
show that the witness’s testimony would have been helpful to the
defense.
Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa.Super. 2013) (citations
and quotation marks omitted).
With this in mind, we turn to Appellant’s witness claims. Appellant
contends that trial counsel, Eugene Tinari, Esquire, was ineffective in failing
to call Delisa Griffin as an alibi witness. Ms. Griffin testified at the PCRA
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hearing that Appellant was with her at the time of the murder, but that she
did not come forward initially because doing so would reveal to her friend
Jazmine Cobb, who was also Appellant’s girlfriend at the time, that Ms. Griffin
and Appellant had been sleeping together behind Ms. Cobb’s back. N.T. PCRA
Hearing, 11/21/16, at 96. However, she said that she eventually talked to
Appellant’s Attorney Tinari on the phone and informed him that she could offer
alibi testimony. Id. at 87-90. Ms. Griffin indicated that she attended
Appellant’s trial with the understanding that she would be called as a witness,
and spoke with Attorney Tinari in the hallway outside of the courtroom to
inquire whether she would be called. Id.
Attorney Tinari testified that he knew Appellant’s girlfriend was Ms.
Cobb, and that he spoke to Ms. Cobb often. He did not recall Ms. Griffin, and
did not remember ever discussing an alibi witness with Appellant as part of
his defense. Id. at 114-15. Attorney Tinari indicated that the “defense
centered around reasonable doubt that [they] believed was going to come
from the Commonwealth witnesses,” and that they did not have any witnesses
to establish a different location for Appellant at the time of the shooting. Id.
at 116. Had there been an alibi that was “appropriate and advantageous,”
Attorney Tinari would have filed the required notice of alibi. He filed no such
notice in Appellant’s case “[b]ecause it wasn’t an alibi defense.” Id. at 117.
If Ms. Griffin had come to him in the middle of trial about being an alibi
witness, he would have told her to stay outside the courtroom while he
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attempted to obtain leave to present a late-identified witness so as not to
violate witness sequestration. Id. at 124-25. Moreover, the trial transcript
reveals that the trial court asked Appellant after the Commonwealth rested
whether Appellant has any witnesses that should have been called but were
not, and Appellant indicated that he did not. Id. at 35. Rather, Appellant
stated that he was in agreement with Attorney Tinari’s advice regarding
potential witnesses. Id.
The PCRA court found no reason to disbelieve Attorney Tinari’s
testimony, and, conversely, that Ms. Griffin was incredible:
Th[e PCRA c]ourt found [Ms.] Griffin’s testimony unreliable
as she could not conclusively establish that the events she
described occurred on the night of the murder. While [she]
described hosting [Appellant] at her home on the night of the
murder, she appeared to describe a common pattern of her and
[Appellant’s] behavior instead of a specific recollection of events.
When pressed to provide specifics, [Ms.] Griffin peppered her
testimony with qualifiers and hedging.
PCRA Court Opinion, 1/27/17, at 8.
Appellant spends five pages in his brief arguing that Attorney Tinari was
not a credible witness, but Ms. Griffin was. Appellant’s brief at 66-70.
However, it is well-established that “the PCRA court’s credibility
determinations are binding on the reviewing court, where there is record
support for those determinations.” Commonwealth v. Lambert, 765 A.2d
306, 323 (Pa.Super. 2000). The portions of the record discussed supra
support the PCRA court’s determinations. Accordingly, we are bound by them,
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and we cannot grant relief based upon the argument that we should believe
Appellant’s witness instead.
Appellant’s next argument, that Attorney Tinari was ineffective in failing
to interview Eric Green, suffers from the same defect. Attorney Tinari testified
at the PCRA hearing that he recalled Mr. Green’s name from the discovery
materials that the Commonwealth provided prior to Appellant’s trial.
Specifically, Mr. Green was identified in the police activity sheets as someone
they questioned about Mr. Butts-Stern’s murder when they interviewed him
regarding an unrelated matter. However, the document indicates that no
formal statement was taken from him because Mr. Green was not present
during the murder and had no information about it. N.T. PCRA Hearing,
11/21/16, at 121-22.
Mr. Green testified at the PCRA hearing that he was with the decedent’s
group when he was shot, that he saw the shooter’s face, that the shooter was
not Appellant but was some unknown older bearded man, and that Mr. Green
gave a statement to police informing them of all of these facts. N.T. PCRA
Hearing, 11/18/16, at 31-36. Appellant contends that Mr. Green’s testimony
at the PCRA hearing “supports” the conclusion that, had Attorney Tinari
interviewed Mr. Green, Attorney Tinari would have obtained an exculpatory
statement that would have changed the outcome of Appellant’s trial.
Appellant’s brief at 63-65.
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The PCRA court determined the claim did not warrant relief because Mr.
Green was not a credible witness. The PCRA court explained as follows.
[Mr.] Green’s testimony was not only unpersuasive but also
incredible. Nothing in [his] recollection of the facts indicated that
he was present at the shooting and that his observations were
accurate. [Mr.] Green failed to corroborate [Ms.] Matthias, [Ms.]
Hunter, and [Mr.] Gaffney’s testimony that the shooter stood over
the decedent and executed him. [The statement given by another
of the men who was with the decedent that night] does not
mention that [Mr.] Green was present for the shooting, while [Mr.]
Gaffney’s statement can only confirm that [Mr.] Green was
present prior to the shooting. Moreover, [Mr.] Green’s testimony
that he looked at the shooter’s face for five minutes immediately
before the shooting is implausible, as the eyewitnesses at trial
testified that the decedent’s group was running away from the
perpetrator immediately before the shooting. [Mr.] Green’s
testimony is further clouded by the fact that he only developed
this story after meeting [Appellant] in prison. Prior to that
meeting, [Mr.] Green denied having been present at the shooting.
PCRA Court Opinion, 1/27/17, at 9-10 (citations omitted).
Again, the facts upon which the PCRA court bases its determination are
supported by the record. Therefore, we cannot reach a different conclusion
even though it is also supported by the record, by ignoring the PCRA court’s
credibility judgments. Comonwealth v. Jones, 912 A.2d 268, 293 (Pa.
2006) (“We will not disturb the findings of the PCRA court if they are supported
by the record, even where the record could support a contrary holding.”).
Appellant’s second claim merits no relief.
Appellant next contends that he is entitled to relief based upon Brady
v. Maryland, supra. He maintains that the prosecution committed a Brady
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violation by not advising the defense of the exculpatory statement Mr. Green
gave to the police. Appellant’s brief at 74.
“The crux of the Brady rule is that due process is offended when the
prosecution withholds material evidence favorable to the accused.”
Commonwealth v. Wholaver, 177 A.3d 136, 158 (Pa. 2018). “To succeed
on a Brady claim, the defendant must show: (1) evidence was suppressed by
the prosecution; (2) the evidence, whether exculpatory or impeaching, was
favorable to the defendant; and (3) prejudice resulted.” Commonwealth v.
Hannibal, 156 A.3d 197, 209 (Pa. 2016). “A Brady violation exists only
where the suppressed evidence is material to guilt or punishment, i.e., where
there is a reasonable probability that, had the evidence been disclosed, the
result of the proceeding would have been different.” Id.As discussed above, the PCRA court did not believe that Mr. Green gave
the exculpatory statement to the police upon which Appellant’s claim is based.
Accordingly, Appellant failed to prove that the prosecution suppressed
favorable information. As such, Appellant’s Brady claim warrants no relief.
See, e.g., Commonwealth v. Roney, 79 A.3d 595, 610 (Pa. 2013)
(explaining Brady claim failed because, inter alia, the “PCRA court found that
the Commonwealth had disclosed all the information in its possession”).
Appellant’s final contention on appeal is that the cumulative prejudice
suffered by Attorney Tinari’s alleged ineffectiveness and the Commonwealth’s
alleged Brady violation rendered his trial unconstitutionally unfair.
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Appellant’s brief at 76. We reject Appellant’s claim. As discussed above, we
have affirmed the PCRA court’s conclusions that there was no ineffective
assistance of counsel or Brady violation. The basis of our rejection of
Appellant’s individual claims was not his failure to prove prejudice. Therefore,
Appellant cannot raise a claim of cumulative prejudice. See Commonwealth
v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011) (“[C]umulative prejudice from
individual claims may be properly assessed in the aggregate when the
individual claims have failed due to lack of prejudice[.]”). Thus,
Appellant’s final issue merits no relief.
Appellant has failed to convince this Court that the PCRA court erred
and that he is entitled to relief. Commonwealth v. Miner, 44 A.3d 684, 688
(Pa.Super. 2012) (“It is an appellant’s burden to persuade us that the PCRA
court erred and that relief is due.”). Accordingly, we affirm the order denying
Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/18
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