Com. v. Stewart, R. ( 2019 )


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  • J. S21042/19
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                     :
    :
    RAPHAEL STEWART,                          :         No. 2647 EDA 2018
    :
    Appellant         :
    Appeal from the PCRA Order Entered September 7, 2018,
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No. CP-51-CR-0210251-1999
    BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 25, 2019
    Raphael Stewart appeals from the September 7, 2018 order denying his
    petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
    §§ 9541-9546. After careful review, we remand for an evidentiary hearing on
    the limited issue of why trial counsel elected not to impeach Commonwealth
    witnesses Marlon Wilson1 and Danny Milton with their motive to lie, and affirm
    the PCRA court’s order in all other respects.
    The relevant facts of this case, as summarized by a prior panel of this
    court on direct appeal, are as follows:
    [O]n the evening of November 18, 1998, at
    approximately 7:00 pm, [Wilson], Darris Cuthbert
    (“Cuthbert”), also known as “Dee,” and [Milton] were
    1Throughout his brief, appellant refers to witness Marlon Wilson by his alias,
    “Omar Johnson”; for the ease of our discussion, this witness will be designated
    as Wilson.
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    standing on the corner of Colorado and Susquehanna
    streets in Philadelphia. Wilson and Cuthbert were
    selling drugs. While they were doing so, [a]ppellant,
    Dexter     Lawrence    (“Lawrence”)   and    another
    unidentified individual approached the trio. After
    words were exchanged regarding an alleged robbery
    of a drug house on Taney Street, [a]ppellant,
    Lawrence and the unidentified individual began
    shooting.
    As a result of the shooting, Cuthbert died and Wilson
    suffered significant injuries after being shot in his
    neck, legs, and stomach. Milton sustained no injuries.
    The evidence from the two testifying eyewitnesses,
    Wilson and Milton, established that [a]ppellant shot
    Cuthbert and Lawrence shot Wilson.
    Commonwealth          v.   Stewart,   No.   3375    EDA    2014,   unpublished
    memorandum at 2 (footnotes omitted) (Pa.Super. filed March 15, 2016).
    On January 7, 1999, appellant was arrested in connection with this
    incident and charged with first-degree murder and related offenses.         On
    May 21, 2000, the Commonwealth withdrew the charges when it was unable
    to locate its two primary witnesses, Wilson and Milton. The charges against
    appellant were refiled on June 6, 2001, after the witnesses were located.
    Appellant was a fugitive from justice until September 1, 2013, when he was
    apprehended. On November 12, 2014, appellant proceeded to a jury trial and
    was subsequently found guilty of first-degree murder, attempted murder,
    criminal conspiracy, and possessing instruments of crime.2 On November 18,
    2   18 Pa.C.S.A. §§ 2502(a), 901(a), 903(a)(1), and 907(a), respectively.
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    2014, the trial court sentenced appellant to an aggregate term of life
    imprisonment without the possibility of parole.
    On March 15, 2016, a panel of this court affirmed appellant’s judgment
    of sentence, and appellant did not seek allowance of appeal with our supreme
    court. Id. On December 8, 2016, appellant filed a timely pro se PCRA petition
    and Stephen T. O’Hanlon, Esq. (“PCRA counsel”), was appointed to represent
    him.    On October 16, 2017, PCRA counsel filed an amended petition on
    appellant’s behalf, raising multiple allegations of ineffective assistance of trial
    counsel.3      (See amended PCRA petition, 10/16/17 at 4-6.)            On August 3,
    2018,    the    PCRA   court   provided    appellant   with   notice,   pursuant   to
    Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a hearing.
    Appellant did not respond to the PCRA court’s Rule 907 notice. Thereafter, on
    September 7, 2018, the PCRA court dismissed appellant’s petition without a
    hearing. This timely appeal followed.4
    Appellant raises the following issues for our review:
    1.   Did the PCRA court err in dismissing
    [a]ppellant’s PCRA Petition without a hearing
    because trial counsel was ineffective for failing
    to investigate and call [a]ppellant’s wife,
    Leila Stewart,     to      rebut      Detective
    3 Joseph C. Santaguida, Esq. (“trial counsel”), represented appellant at his
    jury trial.
    4 On September 13, 2018, the PCRA court directed appellant to file a concise
    statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),
    within 21 days.     Appellant filed a timely Rule 1925(b) statement on
    September 18, 2018, and the PCRA court filed its Rule 1925(a) opinion on
    September 21, 2018.
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    Joseph Centeno’s theory that [a]ppellant had
    fled or was in hiding, [a]ppellant suffered
    prejudice as a result, and this matter should be
    remanded for an evidentiary hearing and new
    trial?
    2.     Did the PCRA court err in dismissing
    [a]ppellant’s PCRA Petition without a hearing
    because trial counsel was ineffective for
    agreeing that he could not cross-examine
    witnesses [Wilson] and Milton on open cases to
    assess their prospective sentence exposure and
    associated motive to lie, [a]ppellant suffered
    prejudice as a result, and this matter should be
    remanded for an evidentiary hearing and new
    trial?
    Appellant’s brief at 4.
    Proper appellate review of a PCRA court’s dismissal of a PCRA petition
    is limited to the examination of “whether the PCRA court’s determination is
    supported by the record and free of legal error.” Commonwealth v. Miller,
    
    102 A.3d 988
    , 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
    findings will not be disturbed unless there is no support for the findings in the
    certified record.” Commonwealth v. Lawson, 
    90 A.3d 1
    , 4 (Pa.Super. 2014)
    (citations omitted). In order to be eligible for PCRA relief, a defendant must
    plead and prove by a preponderance of the evidence that his conviction or
    sentence arose from one or more of the errors listed at 42 Pa.C.S.A.
    § 9543(a)(2). Further, these issues must be neither previously litigated nor
    waived. 42 Pa.C.S.A. § 9543(a)(3).
    Here, both of appellant’s claims on appeal concern the purported
    ineffectiveness of trial counsel. To prevail on a claim of ineffective assistance
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    of counsel under the PCRA, a petitioner must plead and prove by a
    preponderance of the evidence that counsel’s ineffectiveness “so undermined
    the truth-determining process that no reliable adjudication of guilt or
    innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). We apply
    a three-pronged test for determining whether trial counsel was ineffective,
    derived from the test articulated by the United States Supreme Court in
    Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984), and as applied in
    Commonwealth v. Pierce, 
    527 A.2d 973
     (Pa. 1987). Commonwealth v.
    Simpson, 
    66 A.3d 253
    , 260 (Pa. 2013).
    The Pierce test requires a PCRA petitioner to prove:
    (1) the underlying legal claim was of arguable merit;
    (2) counsel had no reasonable strategic basis for his
    action or inaction; and (3) the petitioner was
    prejudiced — that is, but for counsel’s deficient
    stewardship, there is a reasonable likelihood the
    outcome of the proceedings would have been
    different.
    
    Id.,
     citing Pierce, 527 A.2d at 975.
    “[C]ounsel is presumed to be effective and the burden of demonstrating
    ineffectiveness rests on appellant.”       Commonwealth v. Ousley, 
    21 A.3d 1238
    , 1242 (Pa.Super. 2011) (citation omitted), appeal denied, 
    30 A.3d 487
    (Pa. 2011). Additionally, we note that counsel cannot be found ineffective for
    failing to raise a claim that is devoid of merit.       See Commonwealth v.
    Ligons, 
    971 A.2d 1125
    , 1146 (Pa. 2009).
    Appellant first contends that trial counsel was ineffective for failing to
    investigate    and   call   his   wife,   Leila   Stewart,   to   rebut   Detective
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    Joseph Centeno’s testimony during trial that appellant had fled or was in
    hiding. (Appellant’s brief at 8-9.)
    A claim that counsel was ineffective for failing to investigate potential
    witnesses or call them to testify at trial requires a petitioner to “establish that
    the witness existed and was available, that counsel was informed of the
    witness’ existence, that the witness was ready and willing to testify and that
    the absence of the witness prejudiced the defendant to a point where the
    defendant was denied a fair trial.” Commonwealth v. Moser, 
    921 A.2d 526
    ,
    531 (Pa.Super. 2007) (citation omitted). “A petitioner establishes prejudice
    when he demonstrates that there is a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceeding would have been
    different.”   Commonwealth v. Johnson, 
    966 A.2d 523
    , 533 (Pa. 2009)
    (citations omitted).
    Upon review, we find that appellant has failed to demonstrate that he
    was prejudiced by trial counsel’s decision not to call Leila Stewart at trial. Our
    review of the record reveals that Detective Centeno’s testimony was offered
    for the limited purpose of explaining to the jury why there was a substantial
    gap in time between the November 18, 1998 shooting and appellant’s
    subsequent apprehension in 2013. Specifically, at trial, Detective Centeno
    testified at follows:
    Q.   Based on your finding of [Wilson and Milton],
    were the charges against [appellant] refiled?
    A.   Yes.
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    Q.     And those were the charges in this case that I’m
    talking about?
    A.     Correct.
    Q.     Do you know the date that the charges were
    refiled?
    A.     June 6th of ‘01 -- the nolle prosse was lifted on
    June 6th and a bench warrant was issued on
    June 22nd of '01.
    ....
    Q.     So I’d now like to direct your attention to
    September 1, 2013. Was [appellant] arrested
    on September 1, 2013?
    A.     Yes, he was.
    Q.     Between the dates of the bench warrant,
    June 22, 2001 and September 1, 2013, were
    you able to find or did you ever find [appellant]?
    A.     No.
    Notes of testimony, 11/13/14 at 82-84.
    Contrary to appellant’s contention, this testimony did not create a
    “strong inference that [a]ppellant fled” during the 12-year gap between when
    the charges were refiled and appellant’s subsequent apprehension.        (See
    appellant’s brief at 9.) Moreover, at no point during the course of appellant’s
    trial did the Commonwealth argue to the jury that this time period was the
    result of appellant’s fleeing police custody or was evidence of appellant’s
    consciousness of guilt.       Lastly, as recognized by the PCRA court, calling
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    Leila Stewart as a witness would not have changed the outcome of the trial.
    The trial court reasoned as follows:
    [A]ssuming the wife had accounted for [appellant] for
    every moment during the twelve-year life of the open
    bench warrant, [appellant] still knew of the charges
    and failed to turn himself into the authorities. No
    matter what explanation she would have given to the
    jury, it would have had no effect on the verdict.
    PCRA court opinion, 9/21/18 at 4.
    Here, appellant has failed to demonstrate he suffered any prejudice as
    a result of trial counsel’s inaction.        Accordingly, his first claim of
    ineffectiveness must fail.
    Appellant next argues that the PCRA court erred in dismissing his
    petition without conducting an evidentiary hearing “because trial counsel was
    ineffective for agreeing that he could not cross-examine witnesses [Wilson]
    and Milton on open cases to assess their prospective sentence exposure and
    associated motive to lie[.]”   (Appellant’s brief at 11-12 (full capitalization
    omitted).)
    “It is within the PCRA court’s discretion to decline to hold a hearing if
    the petitioner’s claim is patently frivolous and has no support either in the
    record or other evidence.”     Commonwealth v. Wah, 
    42 A.3d 335
    , 338
    (Pa.Super. 2012) (citations omitted). When the PCRA court denies a petition
    without an evidentiary hearing, we “examine each issue raised in the PCRA
    petition in light of the record certified before it in order to determine if the
    PCRA court erred in its determination that there were no genuine issues of
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    material fact in controversy and in denying relief without conducting an
    evidentiary hearing.” Commonwealth v. Khalifah, 
    852 A.2d 1238
    , 1240
    (Pa.Super. 2004).
    Here, at the beginning of the second day of trial, the following discussion
    took place outside the presence of the jury:
    [COMMONWEALTH]: I just wanted to place one quick
    thing on the record. Both of the witnesses in this case
    are in custody. They are both in custody on crimes
    that do not involve falsehood. I have no issues
    whatsoever with counsel bringing up that they are in
    custody, raising the question as to whether any
    promises have been made to them, et cetera, but I
    would ask he not mention the charges for which they
    are incarcerated as neither of them have to do with
    crimes of falsehood.
    THE COURT: We had this discussion off the record.
    I’m in agreement with the Commonwealth in that
    respect. Okay.
    Thank you.
    [TRIAL COUNSEL]: Sure.
    Notes of testimony, 11/13/14 at 5.
    Contrary to appellant’s contention, we discern no ineffectiveness on the
    part of trial counsel in agreeing not to question Wilson and Milton on the nature
    of their pending charges, as neither witness’ pending charges involved falsity
    or deceit and could not have been used to impeach their testimony. “[I]t is
    well settled that a witness may be impeached on the basis of a prior conviction
    only if the crime involves dishonesty or false statement.” Commonwealth
    v. Hall, 
    867 A.2d 619
    , 638-639 (Pa.Super. 2005) (citation omitted; emphasis
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    added), appeal denied, 
    895 A.2d 549
     (Pa. 2006).           The record, however,
    provides no insight as to why trial counsel elected not to cross-examine these
    witnesses with respect to any motive to lie, for instance such as a promise
    made by the prosecution.        It is well settled that “a witness may be
    cross-examined as to any matter tending to show the interest or bias of that
    witness so that a jury can properly evaluate the witness’ credibility.”
    Commonwealth v. Rouse, 
    782 A.2d 1041
    , 1045 (Pa.Super. 2001) (citation
    and parentheses omitted).      “[T]he exposure of a witness’ motivation in
    testifying is a proper and important function of the constitutionally protected
    right of cross-examination.” Commonwealth v. Bozyk, 
    987 A.2d 753
    , 756
    (Pa.Super. 2009) (citations omitted).         “Where the determination of a
    defendant’s guilt or innocence is dependent upon the credibility of a
    prosecution witness,” as is the case here, “it is particularly important that the
    defendant be accorded an adequate opportunity to demonstrate through
    cross-examination that the witness is biased.” Commonwealth v. Davis,
    
    652 A.2d 885
    , 888 (Pa.Super. 1995) (citation omitted).
    Based on the foregoing, we remand this matter for an evidentiary
    hearing on the limited issue of why trial counsel elected not to impeach
    Commonwealth witnesses Wilson and Milton with their motive to lie, and affirm
    the September 7, 2018 order of the PCRA court in all other respects.
    Order affirmed, in part. Case remanded for a limited evidentiary hearing
    consistent with this memorandum. Jurisdiction relinquished.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/25/19
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