Com. v. Goodwin, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHRISTOPHER GOODWIN :
:
Appellant : No. 3609 EDA 2016
Appeal from the PCRA Order October 24, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012214-2011
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 28, 2018
Appellant Christopher Goodwin appeals pro se from the order denying
his timely first Post Conviction Relief Act1 (PCRA) petition without a hearing.
Appellant raises a multitude of ineffective assistance of counsel claims 2 in
connection with his conviction for first-degree murder3 and related offenses.4
Appellant also asserts that the PCRA court erred by failing to hold an
evidentiary hearing, refusing to allow him to amend his PCRA petition, and
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 We have reordered Appellant’s claims and arguments for the purpose of
review.
3 18 Pa.C.S. § 2502(a).
4 18 Pa.C.S. §§ 6106, 6108.
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accepting PCRA counsel’s petition to withdraw as counsel pursuant to
Turner/Finley.5 We affirm.
A review of the record reveals the following facts and procedural history
relevant to this appeal. Shortly after midnight on June 25, 2011, Dwayne
Isaacs (Decedent) was shot and killed in the Wilson Park project in
Philadelphia (Wilson Park). The shooting occurred in a small circular park near
27th and Jackson Streets. Investigators obtained information that three
individuals, Andre Cunningham, Aaron Respes, and Raheem Zachary,
witnessed the shooting.
Philadelphia Police Detective John Verrecchio was assigned the case,
and Detective Thomas Gaul assisted Detective Verrecchio. Police also received
anonymous tips regarding the incident, but those tips were not documented
in writing.
On July 21, 2011, Cunningham gave a written statement to Detectives
Verrecchio and Gaul.6 According to Cunningham’s statement, he was in the
park, and Aaron Respes and Raheem Zachary were sitting on a bench inside
the park. Appellant climbed over a fence to enter the park, went to Respes
____________________________________________
5 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6Cunningham was brought to the police station approximately eighteen hours
before giving his written statement to Detectives Verrecchio and Gaul.
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and Zachary, and asked them if they had any “Xannies.”7 Decedent walked
down the pathway of the park. Appellant approached Decedent and shot
Decedent in the head. After Decedent fell to the ground, Appellant continued
shooting as he walked away from Decedent.
Cunningham identified Appellant as the shooter by Appellant’s
nickname, “Gunna,” by his first name, “Chris,” and by his photograph.
Cunningham signed his written statement to the police and Appellant’s
photograph.
The following day, July 22, 2011, Respes gave a written statement to
Detectives Verrecchio and Gaul.8 According to Respes, he was walking past
the park and saw Appellant shoot Decedent. Respes identified Appellant by
his nickname, and by a photograph. Respes signed his statement and
Appellant’s photograph. Respes did not indicate that there were other people
in the area or that Appellant asked for “Xannies.”
Zachary was also interviewed by police. However, Zachary refused to
give a written statement.9
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7No evidence was introduced to establish that the term “Xannies” referred to
a narcotic. However, “Xannies” apparently referred to Xanax. See N.T.,
5/22/14, at 219.
8 Respes was brought to the police station approximate twelve hours before
giving his written statement to Detectives Verrecchio and Gaul.
9 A police activity log associated with Zachary’s oral statement indicated, in
part, that Zachary told detective that he was in the park at the time of the
shooting but did not see the shooter.
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Investigators also received information that Decedent was involved in a
confrontation with Leroy Brown (Kamac)10 shortly before the shooting. The
information suggested that the confrontation involved a prior home invasion
during which Rahsul Issacs, Decedent’s nephew, shot Lekkir Brown, Kamac’s
son.
On August 2, 2011, Appellant was charged with the murder of Decedent
and was taken into custody that same day. The trial court initially scheduled
a preliminary hearing for August 24, 2011, but continued the hearing when
Cunningham and Respes failed to appear.
On October 25, 2011, Detectives Verrecchio and Gaul brought Respes
to court for the preliminary hearing. At the hearing, Respes testified that
Appellant shot Decedent.11
Immediately after the preliminary hearing, Respes met with Tobi
Downing, a relocation coordinator in the District Attorney’s Office. Respes
signed a form declining relocation assistance.
Two days after his first meeting with Tobi Downing, Aaron Respes called
the relocation office. The next day, on October 28, 2011, Respes again met
with Downing, this time with his mother. At some point after that meeting,
Respes and his mother moved out of Wilson Park.
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10Appellant uses the spelling “Camac” throughout his brief. We use the
spelling “Kamac” based on the spelling used in the trial transcript.
11 Cunningham did not appear at the October 25, 2011 preliminary hearing.
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On June 3, 2012, Cunningham contacted a defense investigator and
recanted his statement to the police. Cunningham informed the defense
investigator that a detective, allegedly Detective John Pitts, choked him before
he gave his statement to Detectives Verrecchio and Gaul.
In May 2013, immediately before trial, Cunningham met the assigned
prosecutor at her office. Detective Verrecchio was also present during
portions of the meeting. At some point during this meeting, the
Commonwealth printed photographs from Facebook purporting to show
Appellant and Lekkir Brown together, as well as Respes.
Appellant proceeded to a jury trial, and the Commonwealth began its
case on May 20, 2013. The Commonwealth asserted that Appellant shot and
killed Decedent in retaliation for the shooting of Kamac’s son by Decedent’s
nephew during a home invasion. In support, the Commonwealth called
Decedent’s sister, Lisa Hall, who testified that Decedent told her about a
confrontation with Kamac. According to Hall, Decedent told her that he was
worried about going out in the neighborhood because of his confrontation with
Kamac.
During the Commonwealth’s direct examination of Cunningham,
Cunningham recanted his statement to police and testified that he did not see
the shooting. According to Cunningham, he was intoxicated at the time of the
interview. The prosecutor also questioned Cunningham about their meeting
shortly before trial and the process by which the prosecutor obtained
photographs from Facebook. The prosecutor also questioned Cunningham
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about statements he purportedly made during that meeting, including
statements involving threats against Respes. The Commonwealth admitted
the Facebook photographs of Appellant and Lekkir Brown and of Respes into
evidence.
On cross-examination, trial counsel elicited Cunningham’s testimony
that he was on Taney Terrace where he saw Appellant with two females.
Cunningham also testified that a black detective with a lump on his neck
choked and threatened him before he gave his statement to Detectives
Verrecchio and Gaul. Cunningham did not know the name of the detective
who threatened him.
During the Commonwealth’s direct examination of Respes, Respes also
recanted his statement to the police.12 The Commonwealth admitted
Cunningham’s and Respes’ prior written and signed statements to police as
substantive evidence. Respes denied receiving any threats or seeking
relocation for himself. Respes explained that he agreed to relocation to assist
his mother.
The defense, in turn, emphasized that Cunningham’s and Respes’
statements to police should not be credited. The defense challenged the
adequacy of the investigation into Decedent’s murder and asserted that there
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12 Cunningham completely recanted his statement to police and testified that
he did not see the shooting. Respes also denied identifying Appellant during
his statement to the police. Respes testified at trial that he was at the scene
of the shooting, heard a gunshot, and saw Decedent and “someone who
looked like [Appellant]” holding a gun. N.T., 5/21/13, at 86-91.
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was a rush to judgment to implicate Appellant. The defense emphasized that
there were more likely suspects in the shooting, including Kamac, with whom
Decedent was in a confrontation over the prior home invasion. Additionally,
Anara Brown—Kamac’s niece and the cousin of Lekkir Brown, who was shot in
the home invasion—testified for the defense. Anara Brown stated she was
with Appellant on the 2600 block of Jackson Street at the time of the shooting.
Appellant elected not to testify at trial.
On May 28, 2013, the jury found Appellant guilty of first-degree murder
and related offenses. That same day, the trial court sentenced Appellant to
life imprisonment.
This Court affirmed his judgment of sentence on July 14, 2014.13
Commonwealth v. Goodwin, 2009 EDA 2013 (Pa. Super. July 14, 2014)
(unpublished memorandum). On January 21, 2015, the Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Goodwin, 108 A.3d 34 (Pa. 2015).
On June 15, 2015, Appellant filed the timely pro se PCRA petition that
gives rise to this appeal. The PCRA court appointed counsel to represent
Appellant, and PCRA counsel entered his appearance on April 11, 2016. On
July 8, 2016, Appellant filed a pro se motion for appointment of new PCRA
counsel. On August 10, 2016, PCRA counsel filed a Turner/Finley “no-merit”
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13In his direct appeal, Appellant challenged the sufficiency and weight of the
evidence. See Goodwin, 2009 EDA 2013, at *2.
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letter. On September 6, 2016, Appellant filed a pro se “Response and
Objection to Counsel’s ‘Finley No-Merit Letter.’” On September 22, 2016, the
PCRA court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.
That same day, the court denied Appellant’s July 8, 2016 request for new
counsel.
Appellant filed a pro se response to the PCRA court’s Rule 907 notice.
On October 24, 2016, the PCRA court denied Appellant PCRA relief and granted
PCRA counsel’s motion to withdraw.
Appellant filed a timely notice of appeal pro se. The PCRA court did not
order Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant, in his pro se brief, sets forth thirteen issues with related
arguments. For the purposes of this appeal, we reproduce the headings of
Appellant’s arguments in the following order:14
1. Was trial counsel ineffective for failing to adequately prepare
a pretrial investigation[?]
2. Was trial counsel ineffective for failing to object to the
prosecutor eliciting hearsay evidence of [Decedent’s] then
existing state of mind[?]
3. Was trial counsel ineffective for failing to object to the
prosecutor eliciting hearsay evidence of threats, arguing with
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14 Appellant presents fifteen questions involved in this appeal, but combines
several questions in the headings in his brief. Appellant’s Brief at 7-8. We
elect to address Appellant’s issues as stated in the headings for each issue in
his brief, but have reordered the issues.
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[a] witness, improper bolstering, the trial court giving a faulty
instruction and allowing threat evidence[?]
4. Was trial counsel ineffective for opening the door to numerous
[instances of] prejudicial testimony[?]
5. Was direct appeal counsel ineffective for failing to challenge
hearsay evidence[?15].
6. Was trial counsel ineffective for failing to object and request
a mistrial due to [a] pretrial discovery violation[?]
7. Was trial counsel ineffective for failing to elicit testimony that
[K]amac was a possible shooter, by impeaching the witness
with exculpatory evidence within his possession[?]
8. Was trial counsel ineffective for failing to object to the
prosecutor’s numerous fraud[s] upon the court[?]
9. Was trial counsel ineffective for failing to object to the
numerous [instances of] prosecutorial misconduct in closing
argument[?]
10. Was trial counsel ineffective for failing to object to the
prosecutor improperly focusing the jury[’s] attention on the
element of fear in order to inflame the passions of the jury[?]
11. W[ere] Appellant’s due process rights violated due to the
cumulative effect of the errors complained of herein[?]
12. Did the PCRA court err[] by denying Appellant’s PCRA petition
without a[n] evidentiary hearing, failing to grant leave to
amend, and accepting PCRA counsel Finley letter[?]
13. Was PCRA counsel ineffective due to the following
performance summarized below[?]
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15 The heading in page 27 of Appellant’s brief stated: “Was trial counsel
ineffective for opening the door to numerous prejudicial testimony and was
direct appeal counsel ineffective for failing to challenge hearsay evidence.”
Appellant’s Brief at 27 (some capitalization omitted). We have separated
these two arguments for the purposes of this disposition.
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See Appellant’s Brief at 11-12, 19, 21, 27, 31, 35, 38, 40, 44, 48, 51, 52
(some capitalization omitted).
Appellant, in his first ten issues, contends that the PCRA court erred in
dismissing his ineffective assistance of counsel claims. Our review is governed
by the following principles:
We must examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is free
of legal error. The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
***
It is well-established that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations
omitted). We may affirm the PCRA court’s ruling on any basis apparent in the
record. Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009).
1. Trial counsel’s failure to prepare a pretrial investigation
In his first issue, Appellant asserts that the PCRA court erred in
dismissing his claims that trial counsel failed to prepare for trial. In support,
he argues that trial counsel failed to investigate or call two witness—Tiara
Young and Raheem Zachary. Appellant’s Brief at 13-15. Appellant also
suggests that trial counsel appeared to be unaware of information in the
anonymous tips given to police and Respes’ relocation paperwork. Further,
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Appellant argues that trial counsel should have discovered and presented
evidence that Detective Pitts had a history of threatening and assaulting
suspects. Id. at 15-17. We address these arguments separately.
(A) Tiara Young
The background to Appellant’s claim that trial counsel should have
investigated Tiara Young is as follows. Yvette Morris gave a statement to
police that Young called her after the shooting and said that there was a rumor
that Kamac shot the victim. Appellant’s Brief at 13. From this, Appellant
suggests that a proper investigation of Young would have revealed the identity
of the individual who stated that Kamac was the actual shooter.
When raising a claim of ineffectiveness for failure to call a potential
witness, a petitioner must establish 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.
Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013) (en
banc) (citation omitted).
Instantly, Appellant failed to establish that either Tiara Young or the
individual who allegedly told Young about the crime existed or were available
and willing to testify for the defense. Thus, Appellant’s claim that trial counsel
was ineffective for failing to investigate or call Young fails. See Matias, 63
A.3d at 810-11.
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(B) Raheem Zachary
As to Zachary, Appellant assserts Zachary would have testified that he
saw the shooter, who did not match Appellant’s description, and could have
provided further testimony to support Appellant’s alibi defense by testifying
that he saw Appellant with two females on the 2600 block of Jackson Street.16
Appellant specifically argues the PCRA court erred in concluding that Appellant
failed to establish prejudice. Appellant’s Brief at 14-15.
Our review reveals that Zachary’s proposed testimony that he saw an
individual running from the scene is too speculative to warrant relief, as
Zachary testified he was one block away from the shooting and did not see
the shooting. Thus, Zachary’s mere assertion that the individual he saw was
the shooter, does not establish merit or prejudice based on trial counsel’s
alleged failure to discover this information. See Matias, 63 A.3d at 810-11.
Moreover, Zachary’s proposed testimony that he saw Appellant with two
women on the 2600 block of Jackson Street was cumulative of testimony
already presented at trial. Anara Brown testified at trial that she was with
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16 We note that Appellant, in his response to the PCRA court’s Rule 907 notice
provided a certification that Raheem Zachary would testify that he had a clear
view of the shooter and that Appellant was not the shooter. Appellant’s
certification also indicated that Zachary refused to sign a statement the
detective’s prepared implicating Appellant during the investigation. Appellant
has also attached to his brief an affidavit in which Zachary states he saw
Appellant and two females outside 2620 Jackson Street, and then heard shots.
Zachary saw a person fleeing the scene of the shooting who did not match
Appellant’s description. We will consider Zachary’s affidavit for the purpose
of this appeal.
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Appellant in front of 2620 Jackson Street at the time of the shooting and that
Appellant did not shoot Decedent.17 N.T., 5/22/13, at 248-49, 252-53.
Accordingly, we agree with the PCRA court that Appellant did not establish
prejudice from trial counsel’s alleged failure to interview or call Zachary. See
id.(C) Anonymous tips and Aaron Respes’ relocation paperwork
Appellant also argues the PCRA court improperly rejected his claim that
trial counsel’s failed to investigate the anonymous tips received by police and
Respes’ relocation paperwork. In sum, Appellant claims that if trial counsel
had been prepared, counsel could have utilized information to better effect or
refrained from referring to other information. These arguments, however, are
duplicative of more specific claims discussed below. At this juncture, we note
that the record belies Appellant’s arguments that trial counsel failed to
discover the information that (1) the anonymous tips received by the police
implicated Appellant, as well as other individuals, in the shooting, and (2)
Respes declined relocation services.
(D) Evidence regarding Detective Pitts
Appellant further argues the PCRA court should have granted relief on
his claim that trial counsel was ineffective for failing to investigate the
detective who allegedly brutalized Cunningham before Cunningham gave his
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17Additionally, after recanting his statement to police, Cunningham testified
that he observed Appellant with the two women at the time of the murder.
See N.T. Trial, 5/20/13, at 247.
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written statement. Appellant’s Brief at 18. Appellant specifically asserts that
the PCRA court erred in concluding that evidence of Detective Pitts’ behavior
in other cases was not admissible in the instant case. Id. at 18-19. Appellant
argues that the evidence of Detective Pitts’ record in other cases would be
admissible as rebuttal evidence of Detective Gaul’s testimony regarding the
character of Detective Pitts. Id.
The PCRA court, when dismissing this claim, opined:
[Appellant] alleges that trial counsel failed to introduce
corroborating evidence tending to prove that Detective James
Pitts threatened and choked Cunningham in order to elicit a
statement. Cunningham testified that Pitts choked him in both
direct and cross-examination. [Appellant] claims that two
homicide cases . . . were dismissed because witnesses were
choked by Detective Pitts. [Appellant] argues that trial counsel
was unaware of these cases, and had he brought them up,
[Appellant] would have been acquitted.
[Appellant] fails to demonstrate that such evidence is relevant and
admissible. Detective Pitts did not interview Cunningham, he did
not record Cunningham’s statement, nor did he testify at trial,
precluding introduction on an impeachment basis. If such
evidence were offered to show that Pitts did in fact choke [other
defendants], it would be precluded as inadmissible hearsay.
Moreover, the Petitioner cannot demonstrate prejudice. Trial
counsel effectively and reasonably raised the issue. Not only did
Cunningham testify that Detective Pitts choked him, but trial
counsel elicited further evidence of Pitts’ abuse while cross-
examining Cunningham, Detective Gaul, and Detective
Verrecchio. Trial counsel’s examination permitted the jury to infer
that Detective Pitts may have coerced Cunningham, but they
found the Petitioner guilty regardless.
PCRA Ct. Op., 10/24/16, at 22 (footnotes and record citations omitted).
Following our review, we agree with the PCRA court’s cogent analysis.
Of note, the PCRA judge in this case also presided over trial and was able to
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make factual findings and credibility determinations based on the existing
record that Cunningham did not encounter Detective Pitts. See Franklin,
990 A.2d at 797. Thus, we discern no basis upon which to disturb its ruling.18
2. Trial counsel’s failure to object to the prosecutor eliciting hearsay
evidence of Decedent’s then existing state of mind
Appellant’s next issue focuses on trial counsel’s failure to object to
testimony regarding statements Decedent made before he was killed.
According to Appellant, trial counsel’s omission permitted the Commonwealth
to introduce hearsay evidence that resulted in prejudice.
The background to this claim is as follows. Lisa Hall testified for the
Commonwealth that she spoke with Decedent on the telephone approximately
two hours before Decedent was shot. Hall and Decedent discussed the prior
home invasion during which Decedent’s nephew, Rahsul Isaacs, was rumored
to have shot Lekkir Brown. See N.T., 5/21/13, at 263. Hall further testified
that Decedent told her he “was kind of leery about going out to the project
because of what [Kamac] had said to him and the young guys that was out
there.” Id.____________________________________________
18 Appellant has also filed an application to vacate and remand based on after-
discovered evidence related to this claim. Specifically, he references
additional evidence regarding Detective Pitts, namely, that a court has
reviewed Detective Pitts’ internal affairs file and that another PCRA petitioner
obtained a new trial in a case in which the detective was involved. However,
given the PCRA court’s factual findings and determinations of credibility based
on the existing record, this additional evidence does not warrant relief.
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Appellant, in his pro se PCRA petition, alleged that trial counsel should
have objected to Hall’s testimony that Decedent was afraid as hearsay. PCRA
Pet., 6/15/15, at 36. PCRA counsel, when seeking leave to withdraw from
representation, asserted that Appellant’s claim was meritless because Hall’s
testimony fell within the state of mind exception to the general rule against
hearsay. Finley Ltr., 6/11/16, at 5 (unpaginated).
The PCRA court dismissed Appellant’s claim on an alternative basis. The
court reasoned that Decedent’s statements were admissible because the
“evidence was not offered for the truth of the matter, but rather to establish
[Appellant’s] motive[.]” PCRA Ct. Op., at 9-10. Thus, the court concluded
that trial counsel had no basis to object.19
Appellant presently argues that the PCRA court’s rationale is
unsustainable. In support, Appellant relies on Commonwealth v. Moore,
937 A.2d 1062 (Pa. 2007). Appellant’s Brief at 21.
It is well settled that “[h]earsay is an out-of-court statement offered to
prove the truth of the matter asserted” and is generally inadmissible. See
Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999) (citation omitted).
When an extrajudicial statement is offered for a purpose other
than proving the truth of its contents, it is not hearsay and is not
excludable under the hearsay rule. Thus, statements are
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19 The PCRA court specifically rejected PCRA counsel’s assertion that the
testimony regarding Decedent’s statements were admissible under the “state
of mind” exception to the rule against hearsay. See PCRA Ct. Op. at 10 n. 2.
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admissible to establish ill-will or motive where they are not being
offered for the truth of the matter contained therein.
Id.In Commonwealth v. Moore, 937 A.2d 1062 (Pa. 2007), however, the
Pennsylvania Supreme Court determined that a victim’s statement that was
admitted as “circumstantial evidence to establish the victim’s fear,” and
establish the defendant’s motive was inadmissible. Id. at 1072. In Moore,
the Court concluded was statements of the victim that the defendant bullied
him was “plainly relevant to [the defendant]’s motive only to the degree that
the hearsay statements were true.” Id.In light of the foregoing, we agree with the PCRA court that Decedent’s
statement regarding the prior shooting of Lekkir Brown and the rumor that
Decedent’s nephew was responsible for the shooting of Lekkir Brown was not
hearsay. The truth of those matters were not at issue and, therefore, did not
constitute hearsay. See Puksar, 740 A.2d at 225.
Decedent’s statements that he was in a confrontation with Kamac and
was fearful of going out into the neighborhood, however, fall closer to Moore
than Puksar. The motive or ill-will asserted by the Commonwealth in this
case depended on the truth of Decedent’s statement that the confrontation
occurred. See Moore, 937 A.2d at 1072.
Nevertheless, unlike Moore, Decedent’s statements regarding the
confrontation with Kamac, Lekkir Brown’s son, did not directly implicate
Appellant in any prior bad acts or wrongdoing. Moreover, the fact that Kamac
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confronted Decedent about the prior shooting of Lekkir Brown was undisputed
and was essential to the defense’s theory that Kamac had a greater motive to
kill Decedent that Appellant. Under these circumstances, we cannot conclude
that the error in admitting Decedent’s statement resulted in a reasonable
probability that the outcome at trial would have been different. Thus, this
claim of ineffective assistance of counsel did not warrant relief. See Franklin,
990 A.2d at 797; Wiley, 966 A.2d at 1157.
3. Trial counsel’s failure to object to the prosecutor eliciting hearsay
evidence of threats, arguing with a witness, improper bolstering,
the trial court giving a faulty instruction and allowing threat
evidence
In his next issue, Appellant claims that the PCRA court erred in rejecting
his ineffectiveness claims as to: (A) the prosecutor’s references to threats
during the examination of Cunningham and Respes, the two witnesses who
provided statements to the police, (B) the trial court’s cautionary instructions,
(C) hearsay evidence regarding threats against Respes that were introduced
through the relocation coordinator Tobi Downing, and (D) the prosecutor’s
“arguing” with Cunningham.20 See Appellant’s Brief 19-27.
(A) Threats
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20 We have reordered the presentation of Appellant’s arguments in support of
this issue.
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As to the prosecutor’s references to threats against Cunningham and
Respes, Appellant cites to the following portions of the Commonwealth’s direct
examination of Cunningham:
[Prosecutor] Okay. Didn’t you tell me in my office on Friday
that [Appellant’s] brother, Gunna Ish, that goes by that nickname,
Gunna Ish, threatened Aaron [Respes]?
[Cunningham] No.
Q You didn’t tell me in my office that [Appellant’s] brother told
Aaron, if he does time, then Aaron’s dead?
A No.
N.T., 5/20/13, at 227.
Appellant also refers to the following portions of the Commonwealth’s
direct examination of Respes regarding the events after Respes testified at
the preliminary hearing:
[Prosecutor] Okay. How about when you were leaving the
courthouse with the detectives.
Did you see people from Wilson [Park] outside the room?
[Respes] No.
Q How about outside the courthouse?
A No.
Q Nothing?
A No. You can’t see out of those curtains.
Q I’m talking about when you were walking out with detectives
over to my office.
Do you remember that?
A No.
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Q You don’t remember?
A Yeah, I remember walking over, but I didn’t see anybody from
Wilson.
Q You don’t remember anyone yelling “snitch” when you were
walking with the detectives?
A No.
Q Do you remember why you went to my office after?
A No.
Q Do you remember that you got interviewed for possible
relocation?
***
[Prosecutor] Do you know the [Appellant’s] brother, Ishmael
Goodwin?
[Respes] Yes.
Q Does he have a nickname?
A Ish.
Q Okay. Do they call him Gunna Ish or just Ish?
A Ish. I call him Ish.
Q Okay. He never threatened you?
A No.
Q Never said that if his brother does time, you’re going to get
killed?
A No.
Q Do you see Ish in the courtroom?
A Yes, he's right there.
Q What color shirt is he wearing?
A Blue.
Q The second row of people in that light blue shirt right there?
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A Yes.
Q That’s [Appellant’s] brother?
A Yes.
Q Okay. Do you see other people in the neighborhood from
Wilson?
A Yes.
N.T., 5/21/13, at 138, 146-47.
Appellant asserts that the PCRA court erred in concluding that the
prosecutor’s references to threats were introduced to explain Cunningham’s
and Respes’ recantation at trial. Appellant insists that this evidence was
introduced to allege that he and his brother intimidated witnesses and to
establish consciousness of guilt. He further contends that the testimony
regarding threats was unreliable because both Cunningham and Respes
testified at trial that they were not threatened. Appellant’s Brief at 22-23.
We have reviewed the record and discern no merit to Appellant’s claim.
Although a variety of threat evidence was presented at trial and referred to
by the Commonwealth, the evidence was admitted to explain Cunningham’s
and Respes’ recantations of their statements to the police. See
Commonwealth v. Ragan, 645 A.2d 811, 824 (Pa. 1994) (indicating that
where the purpose of introducing threat evidence is not to establish guilt, but
to explain a prior inconsistent statement, it is a permissible use). Indeed, the
trial court issued a cautionary instruction to this effect and clearly stated that
the only purpose of the evidence of threats against Cunningham and Respes
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was for assessing the credibility of their trial testimony.21 N.T. Trial, 5/28/13,
at 113; see Commonwealth v. Mason, 130 A.3d 601, 673 (Pa. 2015)
(reiterating that “[j]uries are presumed to follow such instructions”). Thus,
we discern no basis to disturb the PCRA court’s ruling that the threats evidence
was admissible and that trial counsel had no basis to object.
(B) Cautionary instructions
Appellant also complains that the trial court’s cautionary instructions
implicated him in the threats against and that trial counsel should have
objected. As noted above, the Commonwealth referred to threats during its
direct examination of Cunningham and Respes. However, both Cunningham
and Respes denied the allegations that threats were made. Additionally,
Respes specifically denied hearing any threats after his preliminary hearing or
seeing any individuals from the Wilson Park neighborhood at the preliminary
hearing.
The Commonwealth, however, subsequently called Detective Gaul.
Detective Gaul testified, in part, that Aaron Respes appeared fearful when
entering and leaving the courtroom. Detective Gaul further testified that after
Respes testified at the preliminary hearing, the detective and Respes were
____________________________________________
21 The entire cautionary instruction issued by the trial court is reproduced
below in connection with Appellant’s separate challenge to the instruction
itself. Moreover, we note that the court did not issue a consciousness of guilt
instruction.
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walking through the hallway of the courthouse to go to the District Attorney’s
office. N.T., 5/22/13, at 48. Detective Gaul continued:
Basically, after we passed through, like, you know, it was a large
crowd. But as you’re walking through the crowd, you can’t see
who’s yelling stuff, but they’re yelling at [Respes], you know,
snitch, things of that nature. And we’re just trying to get him
through the crowd and get him over the District Attorney’s Office,
but he was visibly shaken by what was going on.
Id.In its charge to the jury, the trial court issued the following cautionary
instruction:
You also heard evidence throughout the course of this trial about
alleged intimidation and/or threats. I want to point out to you
that the only specific evidence that you had in this case was that
someone shouted out after the preliminary hearing a Mr. Respes
was walking down the hall, called him a name, and I believe it was
a snitch.
Now, first of all, there’s no evidence that that was done on
the defendant’s behalf or clearly it was not done by the
defendant. But this evidence is before you for, once again, a
limited purpose, and that is that the evidence of the calling out of
the name and any other evidence concerning possible intimidation
or about any of the witnesses in this case, this evidence is before
you for a limited purpose, and that is for the purpose of helping
you in assessing the credibility of Mr. Cunningham and Mr.
Respes. It must not be considered by you in any way other than
the purpose for which I stated. It’s one factor that you use when
you determine the credibility and weight of each of the witnesses.
N.T., 5/28/13 at 112-13 (emphasis added).
Appellant complains that by referencing the evidence that someone
yelled “snitch,” the trial court improperly suggested that Detective Gaul’s
version of the events at the preliminary hearing were credible. Appellant’s
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Brief at 25. Appellant further suggests that the instruction insinuated that
Appellant was connected to the threats. Id. He asserts that the trial court
should have stated that there was no evidence linking Appellant to the threats
and then stopped. Id. Thus, Appellant asserts that trial counsel was
ineffective for failing to object to the instruction, and that the PCRA court erred
in dismissing this claim as meritless.
Following our review, we agree with the PCRA court that this claim relies
on a strained reading of the cautionary instruction, which was proper in all
respects. The trial court accurately indicated that there was evidence that an
unknown individual called Respes a snitch. The trial court further made clear
that Appellant was not linked to the name calling or any threats. Thus, the
PCRA court properly concluded that Appellant’s assertion that the instruction
was improper lacked arguable merit.
(C) Testimony of Tobi Downing
Appellant next claims that trial counsel was ineffective for failing to
object to the testimony of the relocation coordinator Tobi Downing, who
discussed her two meetings with Respes after Respes testified at the
preliminary hearing. Appellant argues that the Commonwealth elicited
hearsay statement from Respes and improperly bolstered Respes’ prior
statement to the police. Appellant contends the admission of those
statements violated Crawford v. Washington, 541 U.S. 36 (2004).
Appellant further contends that Ms. Downing’s testimony improperly bolstered
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the “fear factor” emphasized by the Commonwealth throughout trial.
Appellant’s Brief at 24.
However, the record indicates that the Commonwealth did not elicit Tobi
Downing’s testimony regarding statements made by Aaron Respes. Rather,
Downing testified to the facts regarding their meetings after Respes testified
at the preliminary hearing. Moreover, Respes was available for cross-
examination by Appellant. In any event, Appellant appears to suggest that
Downing’s testimony was unreliable because Respes, at trial, testified he
denied relocation services at the first meeting with Downing and only
appeared to accept relocation services at the second meeting to assist his
mother. Such evidence was admissible for the purposes of impeachment to
explain Respes’ recantation. Therefore, Appellant fails to establish any
arguable merit to his claim that trial counsel should have objected to
Downing’s testimony.
(D) Arguing with a Witness
Appellant next contends that trial counsel was ineffective for failing to
object to the prosecutor’s examination of Cunningham regarding the meeting
between the prosecutor and Cunningham shortly before trial.
By way of background, Detective Verrecchio described the meeting as
follows. Cunningham was with the prosecutor in the prosecutor’s office and
was “cooperative and forthcoming.” N.T., 5/22/13, at 154. According to the
detective, at some point during the meeting, Cunningham accessed Facebook
on the prosecutor’s computer and identified individuals from pictures on
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Facebook. Id. at 155. Copies of those pictures were printed at that time. At
trial, they were marked as exhibits, and published to the jury.
Appellant’s claim arises out of the following portion of the
Commonwealth’s direct examination of Cunningham:
[Prosecutor] And when you were in my office, do you
remember talking with me in front of Detective Verrecchio?
[Cunningham] Yeah. He was asking me why I didn’t come to
court and stuff.
Q And we also went over what happened the night of the
murder; right?
A Yes.
Q And you told me everything that you saw, and what you told
me was consistent with this statement; right?
A No. I told you that I was on Taney Terrace.
Q Are you telling me that in my office with Detective
Verrecchio you didn’t tell me how this defendant committed this
murder?
A I told you I was on Taney Terrace.
Q You’re not answering my question.
A You never said nothing about that. You said, What
happened? And I told you I was on Taney Terrace. And then you
started going into the statement and stuff, and that was about it.
Q Actually, I never showed you your statement when you were
there. You didn’t show me the statement. You started talking
about it.
Q I asked you what happened, and you told me that [Appellant],
Gunna, committed the shooting and you saw it; right?
A I did not say that.
Q You didn’t say that?
A No.
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Q Well, you sat down, in fact, at my computer and started
printing out Facebook pictures of everyone, didn’t you?
A No. You went on my Facebook.
THE COURT: She went on your Facebook?
[Cunningham]: Yes. She asked me to log in. And I logged
in for her, and she went on my Facebook.
THE COURT: Was there a detective there?
THE WITNESS: He was in and out. He was in and out.
THE COURT: Okay. Go ahead.
***
Q All right. Well, let me ask you this: You have a Facebook
page?
A Yes.
Q Is there a password for your Facebook page?
A Yes.
Q And on last Thursday, after you repeated the whole murder
that you witnessed, you said, I’ll even show you some pictures of
everyone on Facebook, and you showed them to me, didn't you?
A No. I gave you my password. You went through it, and I
was sitting in the chair. And that’s when you offered to buy me
soup.
Q To buy you soup?
A Yes.
Q Are you saying that you only gave me Facebook pictures
because I bought you soup?
A No.
Q You didn’t eat all night overnight, did you?
A I didn’t eat since I was locked up.
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Q You told that your stomach hurt and you didn’t want to eat;
right?
A I told you I was cool. You kept offering to buy me soup.
You said you was going to go get it.
Q All right. Am I supposed to let you starve in my office?
A No.
N.T., 5/20/13, at 206-08.
According to Appellant,
The prosecutor sought to bolster the witness[’] out-of-court police
statement by arguing with Mr. Cunningham about things the
witness allegedly said to her out of court. The prosecutor claimed
that Mr. Cunningham told her exactly what [i]s in his police
statement when they were at her office. The witness claimed that
he told her exactly what [i]s in his affidavit taken by the defense
investigator. The prosecutor continued to argue with the witness
and insinuated the witness is lying. The prosecutor presented no
evidence, not even in the form of a written statement or recording
of that interv[ie]w. The prosecutor then argued with the witness
about [F]acebook pictures. The witness claimed that the
prosecutor went through his [F]acebook page and the prosecutor
claim[ed] that the witness gave her the pictures. Through the
course of them arguing about who printed the pictures, the
prosecutor is calling the witness a liar and claiming that he
identified peo[pl]e to her personally. Also, the [t]rial [c]ourt had
to stop the prosecutor from bullying the witness.
Trial counsel[’s] failure to object was not the result of any
strategy. [T]rial counsel allowed the prosecutor to inject facts
outside the record to allege [A]ppellant’s guilt. Moreover[,] the
prosecutor undermined Mr. Cunningham’s credibility. The
prosecutor offered no evidence of proof and this misconduct was
seen by the jury as the prosecutor[’s] own personal[] opinion of
the witness.
Appellant’s Brief at 23-24.
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Even if trial counsel could have objected to the manner of the
prosecutor’s questioning of Cunningham, the exchange did not affect a fair
consideration of Respes’ prior statements identifying Appellant as the shooter.
Therefore, under the totality of the circumstances of this case, Appellant has
failed to demonstrate that there was a reasonable possibility that the jury
would have found Appellant not guilty had trial counsel objected to this
exchange. See Franklin, 990 A.2d at 797; Wiley, 966 A.2d at 1157.
4. Trial counsel’s ineffectiveness for opening the door to numerous
instances of prejudicial testimony
Appellant, in his next issue, asserts that the PCRA court erred in
dismissing his claims that trial counsel “opened the door” to irrelevant and
prejudicial testimony. Appellant specifically argues that trial counsel was
ineffective for eliciting (A) references to anonymous tips identifying Appellant
as the killer; (B) references to Raheem Zachary’s oral statement to police; (C)
statements referring to Appellant’s prior possession of a firearm; and (D)
Appellant’s statement to Detective Verrecchio that he used “Xannies.”
Appellant’s Brief at 27-31, 32-35.
(A) Anonymous Tips
As to Appellant’s argument as to anonymous tips received by police, the
record reveals the following. During cross-examination of Detective Gaul, trial
counsel inquired: “What did you do to find out the who, what, when, and
why[]” of the shooting. N.T., 5/22/13, at 50. Trial counsel then asked where
the detective obtained information that Appellant was an associate of Lekkir
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Brown and the alleged motive for the shooting of Decedent. Id. at 52. The
detective responded that “it was through, like, anonymous tips and
investigation, you know, as far as motive and what was done throughout the
investigation and what the investigation led to.” Id.
Additionally, trial counsel posed the following question to Detective
Gaul: “You told the ladies and gentlemen of the jury that immediately there
were anonymous tips coming into the police department about who did it and
what happened; right?” Id. at 68. The detective responded:
Just anonymous tips coming into the Homicide Unit. Our general
number is (215) 686-3334 or 3335, also 3336. I’m sorry. And
people would call and say, Look, I know who did that shooting out
there. They wouldn’t say how they know who did it, but they
would supply a name or nickname. And all the consistent tips
were Gunna. That’s what we had at first.
N.T., 5/22/13, at 69.
The record also reveals that the trial court later cautioned the jury on
the use of the reference to the anonymous tips during the presentation of the
Commonwealth’s evidence:
Members of the jury . . . I’m telling you, this morning you heard
a lot of testimony about information from anonymous sources and
what things normally happen.
I ruled about in response to rumors and alleged retaliation and
intimidation of witnesses. I’m going to give you specific charges
or instruction in reference to that before you begin your
deliberations, but I just want to remind you that this is not really
being offered for the truth of the matter in certain instances, but
it’s being offered to challenge the credibility of certain witnesses.
And I just want to let you know that you will get more specific
instructions on that later because, generally speaking, what other
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people said isn’t before you for the truth of the matter. That’s
why we have the witnesses come to court and testify. But right
now, for instance, with the detectives, part of what's going on is
there’s a question about what they did or why they did something
and not other things. So some of that comes in for that purpose
only and not for the truth of the matters.
So about the rumors, we have trials. We don’t convict people on
rumors. That’s why we have trials and we have live witnesses.
By live witnesses, I mean people that come in and testify in front
of you.
N.T., 5/22/13, at 173-74. As noted above, the trial court repeated a similar
instruction in its final charge to the jury.22 See N.T., 5/28/13, at 111-12.
Appellant presently asserts that the references to the anonymous tips
identifying him as the shooter constituted hearsay evidence and violated his
confrontation rights. Id.
As noted above, “an extrajudicial statement is offered for a purpose
other than proving the truth of its contents, it is not hearsay and is not
excludable under the hearsay rule.” Puksar, 740 A.2d at 225 (citation
omitted). Moreover, even if inadmissible hearsay is admitted at trial, a
cautionary instruction can dispel the prejudice as it is presumed that the jury
followed the trial court’s instructions. Commonwealth v. Bedford, 50 A.3d
707, 713 (Pa. Super. 2012) (en banc).
Instantly, the information contained in the anonymous tips were not
admitted for the truth of the matter contained in the tips. See Puksar, 740
____________________________________________
22The cautionary instruction in the trial court’s final charge is reproduced
above in conjunction with Issue 3(B).
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A.2d at 225. Additionally, the trial court’s careful instructions belie Appellant’s
assertions that he suffered prejudice as a result from the remarks that the
tips identified him as the shooter. See Bedford, 50 A.3d at 713. Therefore,
no relief is due based on this claim.
(B) Raheem Zachary’s statement
Appellant next argues that the trial counsel was ineffective for opening
the door to references to Raheem Zachary’s oral statement to the police.
Appellant’s Brief at 32. Appellant’s argument arises out of trial counsel’s
cross-examination of Detectives Gaul and Verrecchio regarding their efforts to
corroborate Cunningham’s statement to police. For example, during the
cross-examination of Detective Gaul, trial counsel engaged in the following
exchange:
[Trial counsel] In Mr. Cunningham’s statement, he said he
went to a lady’s house by the name of Theresa; remember that?
[Detective Gaul] Yes, sir.
Q Anybody try to find Theresa?
A I believe that --
Q Try and corroborate that that’s where he was and that’s
what he did?
A That may have been attempted. I know we did -- the main
person that I know that we contacted to try to corroborate was
Raheem Zachary.
Now, our contact with him was documented within an
activity sheet that I believe was dated -- I believe it was filled out
on July 30, and he was brought into the Homicide Unit on July 27.
He refused to go on paper, but he also supplied information. I
mean, if you’re asking for documentation, I believe that activity
sheet’s within the file.
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Q I’ve seen that.
A Okay.
Q But I’m talking about Mr. Cunningham’s statement because
Mr. Zachary didn’t give you a statement; right?
A Well, Mr. Zachary is mentioned in Mr. Cunningham’s
statement, I believe, as far as being out there.
Q I understand.
A There were attempts made. As far as, like, Theresa that was
mentioned, I might not have been the detective that went out and
spoke with Theresa or maybe tried to locate Theresa, but it might
have been done. Again, as far as my knowledge, you know, it
could have been done; it couldn’t have been done. I wouldn’t be
able to tell you.
N.T., 5/22/13, at 72-73.
Moreover, during trial counsel’s cross-examination of Detective
Verrecchio, the following exchange occurred:
[Trial counsel] Well, to corroborate what Mr. Cunningham said.
He said that at least when he was giving his narrative, according
to this interview about what happened, he said he was in the
speakeasy. He was in the speakeasy with my client. He didn’t
know my client had left the speakeasy, and identified him as a
shooter, at least in this interview.
[Detective Verrecchio] Well, there’s a lot of other corroboration
in the interview. We don’t go out and corroborate every little
detail that somebody would tell us. What we do is we corroborate
what they’re saying, and he gave a lot of corroborative
information during the course of the interview that definitely had
the ring of truth.
Q Definitely had the ring of truth?
A Yes, sir.
Q Like Aaron Respes was sitting on a bench at the circle?
A Yes, with Zachary, Raheem Zachary.
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Q Yeah.
A He was sitting on the bench with him.
Q So he would have been -- both Aaron and Zachary would
have been in the circle at the time that [Decedent] was shot?
A That’s correct.
Q And that had the ring of truth to you?
A Yes, it did. Raheem Zachary told us he was in the
circle with him.
Q Did you write that down anywhere?
A I believe it’s in an activity sheet.
Q Did you do a formal interview with Mr. Zachary when he told
you that?
A No. He refused to provide a written interview.
Id. at 180-81 (emphasis added).
Appellant disputes the PCRA court’s conclusion that Appellant could not
establish prejudice because the contents of Zachary’s statement were not
revealed at trial. Appellant’s Brief at 32. Appellant asserts that trial counsel
elicited hearsay statements by Zachary that bolstered the Commonwealth’s
case and undermined the in-court testimony of other witnesses. Id. at 33.
Appellant further suggests that trial counsel’s reference was prejudicial
because it permitted the jury “to infer that . . . Zachary had harmful
information[.]” Id. at 32.
We agree with the PCRA court that Appellant failed to establish a basis
for relief, albeit on different grounds. See Wiley, 966 A.2d at 1157. With
respect to Detective Gaul’s testimony, the record establishes that Detective
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Gaul did not testify as to the contents of Raheem Zachary’s oral statement to
police. Therefore, Appellant’s assertion that trial counsel permitted Detective
Gaul to present hearsay evidence lacks arguable merit.
Detective Verrecchio, however, testified to a portion of Raheem
Zachary’s statement. Even assuming that trial counsel should have stricken
or otherwise challenged the detective’s testimony, the passing reference to
Zachary’s statement was not so inflammatory that the jury could not fairly
decide Appellant’s guilt or innocence in this case. Appellant’s boilerplate
contention that the jury could have concluded that Zachary implicated
Appellant is too speculative to warrant relief.23 Furthermore, as noted above,
although Detective Verrecchio’s unsolicited testimony could be read to
corroborate Cunningham’s testimony, the jury also had Respes’ prior
statement identifying Appellant as the shooter. Therefore, we decline to
disturb the PCRA court’s ruling on this argument.
(C) Testimony referring to a firearm that admitted Appellant’s guilt
Appellant argues that trial counsel posed a question that conceded
Appellant’s guilt regarding possession of the murder weapon or a prior bad
act. Appellant’s Brief at 33-34. During the Commonwealth’s direct
examination of Detective Verrecchio, the Commonwealth presented evidence
that a search warrant was not obtained for Appellant’s residence. The
____________________________________________
23Raheem Zachary did not place Appellant at the scene of the murder, but
asserted he did not see the shooter.
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Commonwealth elicited the detective’s testimony to explain the decision not
to seek a search warrant for the murder weapon at the time of Appellant’s
arrest. Specifically, the Commonwealth adduced testimony that it would be
unlikely that Appellant would still have the murder weapon at the time of his
arrest approximately one month after the shooting.
The challenged testimony arose during the following exchange between
trial counsel and Detective Verrecchio regarding the failure of investigators to
seek a search warrant for Appellant’s residence:
[Trial counsel] But let me ask you this. You wouldn’t know
whether there was a gun present or not unless you looked; right?
In this case, this case, you wouldn’t know whether
[Appellant] is dumb enough to leave a gun someplace
unless you look; right?
[Detective Verrecchio] There was information that came to light
about a weapon.
N.T. 5/22/13, at 231 (emphasis added).
The PCRA rejected Appellant’s argument, opining that “trial counsel
clearly sought to raise an inference of reasonable doubt by challenging the
thoroughness of the Commonwealth’s investigation into the murder weapon.”
PCRA Ct. Op. at 16. The court further concluded that Detective Verrecchio
appropriately indicated and later explained at a sidebar conference that his
reference to “information . . . about a weapon” could have introduced evidence
of a prior, unrelated charge for possession of a firearm. Id. at 15.
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Instantly, we agree with the PCRA court that Appellant’s narrow focus
on trial counsel’s question to assert that counsel conceded his guilt did not
warrant relief. Trial counsel question to the detective—“you wouldn’t know
whether the defendant is dumb enough to leave a gun someplace unless you
look”—was not a concession of guilt but a challenge to the adequacy of the
investigation, in particular, the decision not to seek a warrant for Appellant’s
home.
With respect to Appellant’s challenge to Detective Verrecchio’s
testimony that he received information about “a weapon,” the record
establishes that Detective Verrecchio mistakenly believed that Appellant had
been charged with possessing a firearm between the murder of Decedent and
the time of his arrest. However, Appellant was charged with possession of a
firearm well before the murder.24 Even assuming that trial counsel should
have moved to strike Detective Verrecchio’s testimony, Appellant cannot
establish prejudice as trial counsel subsequently elicited the detective’s
concession that a murder weapon in this case was not found. N.T., 5/22/13,
at 235. Thus, we discern no basis upon which to conclude that this passing
reference resulted in prejudice.
(D) Appellant’s statement that he used “Xannies”
____________________________________________
24 Appellant also challenges Detective Verrecchio’s reference to receiving
information about a weapon in his claim that the prosecution knowingly
introduced false information. As discussed below, we find no merit to this
claim.
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Appellant, in support of his claim that trial counsel improperly opened
the door to Appellant’s drug use, refers to the following excerpt of trial
counsel’s cross-examination of Detective Verrecchio regarding the quality of
the investigation and whether there was corroboration of Cunningham’s
statement to police:
[Trial counsel] Okay. Now, you said there was a lot of
corroboration in Mr. Cunningham’s statement. Are you telling the
ladies and gentlemen of the jury that the fact that he said he went
to the speakeasy wasn’t that important to check whether or not
that occurred?
[Detective Verrecchio] I’m not telling the ladies and gentlemen of
the jury that it’s not important. What I’m saying to you is that
there is a lot of corroboration in the interview. If you give me one
second, I’ll point all the corroboration out for you.
Q Okay.
A He says Gunna was the person who did it, and he knew his
first name was Chris. That was corroborated.
Q What did that corroborate?
A Gunna’s nickname and his real name is Christopher. So
that’s corroborated.
Q That his name was Gunna?
A No, that he knew him as Gunna but his real name is Chris.
That’s true.
Q Everybody in the neighborhood knows that; right?
A You’re asking me what's corroborated. It’s a true
statement.
Q Okay. Right.
A I’m telling you what –
Q Go ahead. I’m sorry. Go ahead.
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A I was walking. I saw [Decedent] and he was ahead of me
and he was walking through the circle. [Decedent] was walking
through the circle because that’s where he was killed.
Q Well, okay. Go ahead.
A Gunna hopped the fence by an alleyway. There is a fence
there in the alleyway.
Q Okay.
A He didn’t realize he left the speakeasy. Gunna stopped first
and was talking to two boys who were sitting on the bench. We’ve
identified them as Raheem and Aaron. He was asking them if they
had any Xannies. We know he uses Xannies.
Q Who do you know uses Xannies?
A Gunna, your client.
Q Oh, did he tell you that?
A Yes.
Q When did he tell you that?
A When he was arrested.
N.T., 5/22/13, at 183 (emphasis added). Trial counsel continued to question
the detective regarding Appellant’s alleged use of “Xannies” to emphasize that
the detective did not document Appellant’s statement in any reports. Id. at
183-84.
The trial court called a recess and convened a sidebar conference. At
the conference, trial counsel indicated that he had spoken with Appellant many
times and that he was “almost positive” that Appellant “didn’t say that” to the
detective. N.T., 5/22/13, at 188-89. The court called Detective Verrecchio to
clarify the circumstances under which Appellant allegedly made the statement
to the detective. According to the detective, after Appellant’s arrest,
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it was explained to him what he was there for, and he was just,
like, I just do my Xannies. It was kind of, like, just blowing
everything off.
***
It was more like, I didn’t kill nobody. I just do my Xannies. I ain’t
sweating this.
Id. at 193.
Further discussions at the conference ensued about whether the
testimony violated Appellant’s right to post-arrest silence. Trial counsel then
requested that the detective’s testimony regarding be stricken. The trial court
granted the motion, and when the jury returned from lunch, the court issued
the following instruction:
[M]embers of the jury, before lunch, you may have heard a
comment about [Appellant] allegedly made that he, in fact, uses
Xannies.
That comment is stricken from the record, so if anyone wrote it
down, you have to strike it because you treat it as if it was never
said.
Id. at 198.
The PCRA court concluded Appellant’s argument was meritless.
According to the court, trial counsel did not reveal that Appellant had a drug
problem and reasonably used the testimony to challenge the thoroughness of
the investigation. PCRA Ct. Op. at 14.
Appellant now contends that his claim has arguable merit because trial
counsel examination led to Detective Verrechio confirming that Appellant used
“Xannies.” Appellant asserts that trial counsel’s decision to ask who used
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Xannies was unreasonable because trial counsel did not know the answer.
Lastly, Appellant states that trial counsel’s more extended examination
regarding Detective Verrecchio’s testimony was prejudicial because it
corroborated Cunningham’s statement to police that Appellant asked for
“Xannies” before the murder and it implicated him in prior bad acts.
Contrary to Appellant’s arguments, trial counsel did not “open the door”
to the references to “Xannies.” Rather, the implications of drug use were
raised in Cunningham’s statement to the police and then in Detective
Verrecchio’s narrative testimony regarding points of corroboration. Thus,
Appellant’s assertion that trial counsel was ineffective for “opening the door”
to the issue of drug use lacks arguable merit.
Appellant further argues that he was entitled to relief because trial
counsel failed to move for a mistrial. However, in light of the trial court’s
striking the offending testimony and issuing a limiting instruction, we discern
no basis to conclude that the trial court would have granted such a motion.
Therefore, Appellant has not established arguable merit to his argument that
he was entitled to a mistrial.
In any event, having reviewed the entirety of the trial record, we
conclude that Appellant cannot establish prejudice based on the Detective
Verrecchio’s testimony referring to Appellant’s statement at the time of arrest.
As noted previously, even if the reference to Appellant’s use of “Xannies”
improperly bolstered Cunningham’s statement identifying Appellant as the
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shooter, the jury was still entitled to credit Respes’ prior statement.
Therefore, no relief is due.
5. Direct appeal counsel’s failure to challenge hearsay evidence
Appellant, in his next issue, claims that the PCRA court erred in
concluding that there was no merit to the claim that his direct appeal counsel
was ineffective for failing to challenge the admission of hearsay evidence
based on the references to anonymous tips. Appellant’s Brief at 31. This
claim is related of Appellant’s assertion that trial counsel was ineffective for
opening the door to such evidence, which was discussed in issue 4(A). In any
event, our review reveals that trial counsel did not object to the testimony
regarding anonymous tips or otherwise preserve this issue for review on direct
appeal. See 42 Pa.C.S. § 9544(b); Commonwealth v. Blakeney, 108 A.3d
739, 777 (Pa. 2014). Accordingly, Appellant’s claim that direct appeal counsel
was ineffective for raising this claim lacks merit.
6. Trial counsel’s failure to object to or request a mistrial for
discovery violations
Appellant’s next issue focuses on the PCRA court’s dismissal of his claims
that trial counsel should have objected to and requested a mistrial due to
alleged discovery violations. In support, he refers to (1) the relocation
paperwork completed by Aaron Respes, (2) the anonymous tips, (3) threats
against witnesses; (4) Decedent’s statements to Hall; and (5) Appellant’s
statement to Detective Verrecchio that Appellant used “Xannies.”
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Pennsylvania Rule of Criminal Procedure 573 provides, in relevant part,
that “the Commonwealth shall disclose to the defendant’s attorney . . . any
written confession or inculpatory statement, or the substance of any oral
confession or inculpatory statement, and the identity of the person to whom
the confession or inculpatory statement was made that is in the possession or
control of the attorney for the Commonwealth.” Pa.R.Crim.P. 573(B)(1)(b).
This Court has held that an inculpatory statement made to a police
investigator, but not in the possession or control of the attorney for the
Commonwealth is not subject to disclosure under Pa.R.Crim.P. 573(B)(1)(b).
See Commonwealth v. Sullivan, 820 A.2d 795, 804 (Pa. Super. 2003). But
see Commonwealth v. Burke, 781 A.2d 1136, 1142 (Pa. 2001) (discussing
exculpatory information known to police but not within the possession of the
Commonwealth).
Moreover, the remedy for an alleged violation of the rules of disclosure
are discretionary with the trial court. Burke, 781 A.2d at 1143. It is further
well established that:
[a] motion for mistrial is a matter addressed to the
discretion of the court. A trial court need only grant a
mistrial where the alleged prejudicial event may reasonably
be said to deprive the defendant of a fair and impartial trial.
A mistrial is not necessary where cautionary instructions are
adequate to overcome any possible prejudice.
The law presumes that jurors will follow the trial court’s
instructions.
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Commonwealth v. Gillen, 798 A.2d 225, 231 (Pa. Super. 2002) (citations
omitted).
With respect to Appellant’s first four arguments, Appellant fails to
establish that the Commonwealth did not disclose the information or material.
Therefore, Appellant claims of ineffectiveness fail for lack of arguable merit.
As to Appellant’s fifth argument, regarding Detective Verrecchio’s
testimony that Appellant told the detective that Appellant used “Xannies,”
Appellant fails to demonstrate that this information resulted in prejudice. As
noted above, the testimony was stricken and the trial court issued an
instruction for the jury to disregard the reference. See Gillen, 798 A.2d at
231.
7. Trial counsel’s failure to elicit testimony that Kamac was a
possible shooter by impeaching witnesses
Appellant, in his next issue, claims that the PCRA court erred in
dismissing his assertion that trial counsel failed to cross-examine Detective
Gaul with alleged exculpatory evidence that Kamac shot Decedent.
Appellant’s Brief at 38-39. According to Appellant, the PCRA court
misconstrued his claim. Specifically, he argues that that the PCRA court
focused on trial counsel’s impeachment of Detective Gaul using evidence that
Kamac threatened Decedent before the shooting. He contends his present
claim is based on trial counsel’s failure to confront the detective with evidence
that others named Kamac as the shooter.
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However, as noted above, Appellant does not establish the existence of
any admissible exculpatory evidence that Kamac shot Decedent.25
Additionally, Appellant fails to establish any prejudice resulting from trial
counsel’s failure to confront Detective Gaul with evidence that there were
rumors that Kamac shot Decedent, where trial counsel cross-examined the
detective about Kamac’s stronger motive to kill Decedent.
8. Trial counsel’s failure to object to the prosecutor’s numerous
frauds upon the court
Appellant’s next issue relates to his allegations that the Commonwealth
admitted false evidence, namely: (1) threats against Respes and (2) Detective
Verrecchio’s reference to receiving information regarding the murder weapon.
Appellant’s Brief at 40-44.
Our review is governed by the following principles:
The prosecution may not knowingly and deliberately misrepresent
the evidence in order to gain a conviction. Nevertheless, a claim
of purposeful prosecutorial misrepresentation will not stand if
examination of the record fails to reveal any indication of
deceptive tactics on the part of the prosecution. Minor
discrepancies in the Commonwealth’s case will not be considered
false evidence.
Commonwealth v. Ali, 10 A.3d 282, 294 (Pa. 2010) (citations omitted).
With respect to Respes, Appellant notes that Respes testified that he
was not threatened and that he only sought relocation to enable his mother
____________________________________________
25As noted above, Appellant’s sole reference to exculpatory evidence was that
Yvette Morris indicated that Tiara Young heard rumors that Kamac shot
Decedent.
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to move to a better neighborhood. From this Appellant complains that all
evidence that Respes was threatened was false and the Commonwealth
knowingly admitted false evidence of threats. Such a boilerplate allegation
false to establish “fraud” or prosecutorial misconduct. See id.With respect to Detective Verrecchio’s testimony that he obtained
information regarding a weapon, we have previously noted that Detective
Verrechio’s reference was premised on a mistake. Appellant, however, asserts
that the Commonwealth must have “intended to sneak this false evidence in
through Dt. Verrecchio’s testimony.” Appellant’s Brief at 44.
Appellant’s assertions fail to establish any arguable merit to his
argument that the Commonwealth knowingly attempted to introduce false
evidence. Indeed, as discussed above, the detective testified to this matter
on cross-examination by trial counsel, and there is no indication that the
Commonwealth intended to admit the evidence. Thus, no relief is due.
9. Trial counsel’s failure to object to the numerous instances of
prosecutorial misconduct in closing argument
In his next issue, Appellant claims that the PCRA court erred in rejecting
his argument that trial counsel failed to object to the Commonwealth’s closing
argument. Appellant asserts that the prosecutor expressed her personal
opinions by calling a defense witness a liar, shifted the burden of proof by
noting Appellant did not call additional alibi witnesses, and established
Appellant’s guilt when the prosecutor referred to him as a stone cold killer.
Appellant’s Brief at 44-47.
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As our Supreme Court has noted,
[i]t is settled that it is improper for a prosecutor to express a
personal belief as to the credibility of the defendant or other
witnesses. However, the prosecutor may comment on the
credibility of witnesses. Further, a prosecutor is allowed to
respond to defense arguments with logical force and vigor.
Commonwealth v. Chmiel, 889 A.2d 501, 544 (Pa. 2005) (citations omitted
and emphasis added).
Here, the instances that Appellant characterizes as the prosecutor
expressing her personal opinion were simply her argument regarding the
credibility of certain witnesses and the credibility of Appellant’s alibi defense.
See N.T. Trial, 5/28/13, at 79-81. Moreover, trial counsel had made
Detectives Gaul and Verrecchio out to be liars. See id. at 23, 25-26, 32-33,
41, 44-45. Thus, the Commonwealth’s argument concerning credibility is a
logical and vigorous response.
Moreover, we agree with the PCRA court that “[t]he prosecutor’s
comment that [Appellant’s] associates Natika Hawkins, Dooler, and Black
were not at trial is a logical attack on alibi witness [Anara] Brown’s credibility,
not an impermissible shifting of the burden of proof.” PCRA Ct. Op. at 18. As
to the use of the phrase “stone cold killer,” this is nothing more than oratorical
flair. [CITE]. Thus, we discern no basis to disturb the PCRA court’s ruling that
Appellant failed to establish arguable merit to his claim that trial counsel was
ineffective for failing to object during closing argument.
10. Trial counsel’s failure to object to the prosecutor improperly
focusing the jury’s attention on the element of fear in order to
inflame the passions of the jury
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Appellant’s next issue focuses on the PCRA court’s rejection of his claim
that trial counsel failed to object to prosecutorial misconduct based on the
Commonwealth’s references to and admission of evidence of threats.
Appellant’s Brief at 48-51. Appellant contends the Commonwealth
intentionally inflamed the passions of the jury such that it could not have
rendered a fair verdict.
However, as discussed above, the threat evidence was admitted for the
narrow purpose of evaluating the credibility of Cunningham and Respes and
specifically weighing their prior statements to the police versus their trial
testimony recanting their statements. As we have also stated above,
Appellant cannot establish prejudice in light of the trial court’s cautionary
instructions. Moreover, we note that trial counsel did object shortly after the
above-recited passage when the Commonwealth’s argument began to
implicate the specific facts of this case. Thus, Appellant failed to establish
arguable merit to this re-casted claim of ineffectiveness.
To summarize our review of Appellant’s first ten issues claiming
ineffective assistance of counsel, we conclude Appellant failed to establish
arguable merit in Issues 1, 3(A)-(C), 4(A) 5, 6 (A)-(D), 7, 8, 9, and 10. We
further conclude that Appellant failed to establish prejudice in Issues 3(D),
4(B)-(D), and 6(E). For these reasons, we decline to disturb the PCRA court’s
rulings on Appellant’s individual claims of ineffective assistance of counsel.
11. Cumulative effect of the errors
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Appellant’s next issue raises a claim of cumulative error. According to
Appellant,
[c]ounsel opened the door to a wide range of hearsay evidence
and prior bad acts. All of which went directly towards [A]ppellant’s
guilt. [T]rial counsel not only elicited prejudicial information but
allowed the prosecutor to undermine[ A]ppellant’s trial. The
prosecutor [used] the victim hearsay statements as substantive
evidence of guilt, labeled [A]ppellant’s alibi defense as fraudulent,
used the element of fear to inflame the jury, and [failed] to turn
over pretrial discovery material, which created a trial by ambush.
Also[,] the prosecutor introduce[d] false evidence into the guilt of
[A]ppellant. Moreover, trial counsel had witnesses who were
willing to come to court and testify to [A]ppellant’s innocence and
counsel failed to used exculpatory evidence within his possession.
Appellant’s Brief at 51. Appellant concludes that “these errors destroyed the
confidence of [A]ppellant’s trial.” Id. at 52.
The Pennsylvania Supreme Court has stated:
We have 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 grounded in lack of prejudice, then the
cumulative prejudice from those individual claims may properly be
assessed.
Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011) (citations omitted).
As noted above, Appellant did not establish prejudice with respect to the
following individual issues: (1) Issue 2, which relates to hearsay evidence
about the confrontation between Kamac and Decedent; (2) Issue 3(D), which
relates to the prosecutor’s question of Cunningham regarding their meeting
before trial, (3) Issue 4(B), which relates to Detective Verrecchio’s references
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to Raheem Zachary; (4) Issue 4(C) which relates to Detective Verrecchio’s
information about a weapon; and (5) Issues 4(D) and 6(E), which relate to
Detective Verrecchio’s reference to Appellant’s statement regarding
“Xannies.” Following our review, we conclude that the combined effect of
these issues did not undermine the reliability of the jury’s verdict. As noted
above, Respes unequivocally identified Appellant as the shooter in his prior
statement to the police and at the preliminary hearing. Although Respes
recanted his identification of Appellant at trial, he continued to suggest that
the shooter “looked like” Appellant. Thus, Appellant’s claim of cumulative
error fails.
12. PCRA court’s error by denying Appellant’s PCRA petition
without an evidentiary hearing, failing to grant leave to amend,
and accepting PCRA counsel’s Finley letter & 13. PCRA counsel’s
ineffectiveness
Appellant’s final two issues, which we address together, allege error in
the PCRA court’s decisions to (A) deny relief without a hearing, (B) deny his
request to file an amended petition, and (C) permit PCRA counsel to withdraw
despite Appellant’s allegations of PCRA counsel’s ineffectiveness. Appellant’s
Brief at 11-12.
(A) Evidentiary hearing
Appellant argues that the PCRA court erred in declining to hold an
evidentiary hearing. He contends that he was entitled to a hearing to consider
claims that the PCRA court dismissed based on findings that trial counsel acted
with a reasonable strategic basis. He further contends that the credibility of
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Raheem Zachary’s recent statements indicating Appellant did not shoot
Decedent were at issue.
It is well-settled that “[t]here is no absolute right to an evidentiary
hearing on a PCRA petition, and if the PCRA court can determine from the
record that no genuine issues of material fact exist, then a hearing is not
necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008).
However, because we have concluded above that Appellant failed to
establish a genuine issue of material fact on any of his ineffectiveness claims,
we discern no error in the PCRA court’s decision to deny Appellant’s petition
without a hearing. See id.(B) Denial of request to amend petition
Appellant argues that the PCRA court erred by failing to grant him leave
to amend his PCRA petition and instead accepting PCRA counsel’s petition to
withdraw. However, this contention amounts to little more than a bald claim
in Appellant’s brief. See Appellant’s Brief at 11 (noting that the PCRA court
found his claims to be largely incomprehensible and this alone “should have
given the PCRA court reason to grant leave to amend these defects”).
The decision whether to permit amendment is within the PCRA court’s
discretion. See Commonwealth v. Williams, 732 A.2d 1167, 1191 (Pa.
Super. 1999). Amendment shall be freely allowed to achieve substantial
justice.” Pa.R.Crim.P. 905(A). While Rule 905 provides for liberal
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amendment, when such amendment is frivolous or meritless, such
amendment is unnecessary. See Pa.R.Crim.P. 907(1).
Instantly, the PCRA court conducted an independent review of the
record and determined that no relief was due. Thus, permitting amendment
of Appellant’s PCRA petition was unnecessary. While the PCRA court found
portions of Appellant’s brief to be incomprehensible, the court addressed each
potential issue it perceived from Appellant’s petition and his Rule 907
response. Additionally, Appellant has adduced no further materials or claims
in this appeal worthy of further relief. Therefore, we discern no error on the
part of the PCRA court in denying Appellant’s request to amend his PCRA
petition.
(C) PCRA counsel’s Turner/Finley letter and ineffectiveness
Finally, Appellant asserts that PCRA counsel failed to follow the
standards of Turner/Finley when seeking leave to withdraw. Appellant’s
Brief at 55. Appellant further raises claims that PCRA counsel was ineffective
for the following reasons:
1. Failure to investigate Tiara Young;
2. Failure to raise trial counsel ineffectiveness for failing to
interview and call Raheem Zachary;
3. Failure to raise trial counsel ineffectiveness for failing to
investigate Mr. Cunningham’s claim of police brutality;
4. Improvidently filing a Turner/Finley letter and failing to follow
the standard of Turner/Finley; and
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5. Failing to discover newly discovered evidence of a Brady v.
Maryland[26] violation, namely Appellant’s belief that Aaron
Respes received a deal in exchange for his testimony.
Appellant’s Brief at 52.
In order to withdraw pursuant to Turner/Finley,
[i]ndependent review of the record by competent counsel is
required before withdrawal is permitted. Such independent
review requires proof of:
1. A “no-merit” letter by PCRA counsel detailing the nature
and extent of his review;
2. The “no-merit” letter by PCRA counsel listing each issue
the petitioner wished to have reviewed;
3. The PCRA counsel’s “explanation”, in the “no-merit”
letter, of why the petitioner’s issues were meritless;
4. The PCRA court conducting its own independent review
of the record; and
5. The PCRA court agreeing with counsel that the petition
was meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009) (citation and
brackets omitted). Additionally,
PCRA counsel who seeks to withdraw must contemporaneously
serve a copy on the petitioner of counsel’s application to withdraw
as counsel, and must supply to the petitioner both a copy of the
“no-merit” letter and a statement advising the petitioner that, in
the event that the court grants the application of counsel to
withdraw, he or she has the right to proceed pro se or with the
assistance of privately retained counsel.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) (citation
and emphasis omitted).
____________________________________________
26 Brady v. Maryland, 373 U.S. 83 (1963).
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Instantly, PCRA counsel complied with the procedural requirements for
withdrawing from representation. Therefore, Appellant’s assertion that
counsel failed to follow the Turner/Finley standard to withdraw warrants no
relief.
As to the PCRA counsel’s alleged failure to investigate Tiara Young and
Raheem Zachary as witnesses,27 we have previously concluded that those
arguments lacked merit. Thus, there can be no ineffective assistance of PCRA
counsel in relation to these claims.
As to the failure to investigate Cunningham’s claim of police brutality,
we have already concluded that the PCRA court properly determined that
further evidence regarding Detective Pitts was not relevant or admissible at
trial. Thus, Appellant’s claim that PCRA counsel should have conducted further
research into this matter lacks arguable merit.
Finally, as to Appellant’s assertion of a Brady violation, Appellant
contends that there was a cooperation agreement between Respes and the
Commonwealth. Specifically, Appellant claims that the Commonwealth
withdrew attempted murder charges against Respes shortly after Appellant
was sentenced.
However, Appellant was well aware of the open charges against Respes
at trial. During direct examination, the Commonwealth questioned Respes
____________________________________________
27 We note that PCRA counsel averred that he attempted to contact Tiara
Young, but that she could not be found. Additionally, Appellant raised his
claim regarding Zachary in response to the PCRA court’s Rule 907 notice.
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regarding Respes’ open case for attempted murder. N.T., 5/21/13, at 153.
The Commonwealth further elicited Respes’ testimony that there was no deal
with the police or the Commonwealth in exchange for his testimony. Id. at
154. To the extent Appellant now speculates that a cooperation agreement
was in place, we note that Respes recanted his identification of Appellant at
trial and was not a cooperative witness for the Commonwealth. Thus,
Appellant’s claim that the Commonwealth violated Brady does not warrant
relief.
Order affirmed. Application to vacate and remand denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/18
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