Com. v. Peoples, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DOMINICK PEOPLES
Appellant No. 408 EDA 2015
Appeal from the PCRA Order January 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0312271-2006
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED January 13, 2017
Appellant, Dominick Peoples, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas, dismissing his timely
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history are as follows. After a
dispute over a dice game, Appellant shot and killed Lamar Canada. A jury
convicted Appellant of first-degree murder, criminal conspiracy, and
possessing instruments of crime (“PIC”).1 The court imposed a life sentence,
and Appellant appealed. In an unpublished memorandum filed on May 7,
2010, this Court affirmed Appellant’s judgment of sentence; thereafter, the
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1
18 Pa.C.S.A. §§ 2502, 903, and 907, respectively.
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Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal, and the United States Supreme Court denied certiorari. See
Commonwealth v. Peoples, 4 A.3d 185 (Pa. Super. 2010) (Table), appeal
denied, 12 A.3d 752 (Pa. 2010), cert. denied, 563 U.S. 951, 131 S. Ct. 2131
(2011).
Appellant timely filed a pro se PCRA petition. The PCRA court
appointed counsel, who filed a “no-merit” letter and petition to withdraw
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The
PCRA court issued Rule 907 notice, granted counsel’s petition to withdraw,
and subsequently dismissed Appellant’s petition without a hearing. Appellant
filed a notice of appeal and complied with Pa.R.A.P. 1925(b).2
Appellant raises the following issues, which we have rephrased for
clarity and reordered for ease of disposition:
1. Was trial counsel ineffective for failing to file a pretrial motion
to preclude the prosecution’s references to other bad acts,
including unrelated firearms evidence?
2. Was trial counsel ineffective for failing to file a pretrial motion
to preclude references to Yahya Abdul-Latif, who did not
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2
Appellant timely filed a notice of appeal following the PCRA court’s
dismissal. Appellant then filed a pro se “Petition to Remand to Obtain Lower
Court Documents and File Supplemental 1925(b) Statement.” This Court
denied Appellant’s petition, erroneously stating that Appellant’s appeal
involved an untimely PCRA and it lacked jurisdiction to entertain his claim.
Appellant then filed “Appellant’s Application for Panel Reconsideration,”
which this Court granted, and Appellant’s appeal proceeded as follows.
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testify in the case, because such references violated
Appellant’s rights under the Confrontation Clause?
3. Was trial counsel ineffective for failing to appeal the
introduction of autopsy photos?
4. Did the PCRA court err when it granted PCRA counsel’s
motion to withdraw because Appellant’s ineffectiveness claims
lacked merit?
5. Did the PCRA court err in finding Appellant’s isolated claims
failed to constitute cumulative error warranting a new trial?
6. Did the PCRA court err by failing to hold an evidentiary
hearing on Appellant’s newly discovered evidence claim?
Appellant’s Brief, at 11-13.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the
PCRA court level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.
2012) (citation omitted).
Counsel is presumed effective; thus, an appellant has the burden of
proving otherwise. See Commonwealth v. Pond, 846 A.2d 699 (Pa. Super.
2004). “In order for Appellant to prevail on a claim of ineffective assistance
of counsel, he must show, by a preponderance of the evidence, ineffective
assistance of counsel which … so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.”
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Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(citation omitted).
To prevail on his ineffectiveness claims, Appellant must plead
and prove by a preponderance of the evidence three elements:
(1) the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for his action or inaction; and (3)
Appellant suffered prejudice because of counsel’s action or
inaction. With regard to the second, i.e., the reasonable basis
prong, we will conclude that counsel’s chosen strategy lacked a
reasonable basis only if Appellant proves that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued. To establish the third, i.e., the
prejudice prong, Appellant must show that there is a reasonable
probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations and
quotation marks omitted).
Unlike the harmless error standard, which requires the Commonwealth
to show beyond a reasonable doubt that an error did not contribute to the
verdict, the prejudice standard in an ineffective assistance of counsel claim
requires an appellant to demonstrate that counsel’s course of action
adversely affected the outcome of the proceedings. See Commonwealth v.
Freeland, 106 A.3d 768, 776 (Pa. Super. 2014). While an underlying claim
of error at trial is significant in assessing a claim of counsel’s ineffectiveness,
it is relevant only to the extent that it bears upon the three-part test for
assessing counsel’s ineffectiveness. See Commonwealth v. Gribble, 863
A.2d 455, 472 (Pa. 2004).
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Appellant first argues that his trial counsel rendered ineffective
assistance by failing to move pre-trial to preclude the Commonwealth from
referencing other bad acts evidence. “[T]he admission of evidence is within
the sound discretion of the trial court and will be reversed only upon a
showing that the trial court clearly abused its discretion.” Commonwealth
v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012) (citation omitted).
It is impermissible to present evidence at trial of a defendant’s prior
bad acts or crimes to establish the defendant’s criminal character or
proclivities. See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.
Super. 2008). Such evidence, however, may be admissible “where it is
relevant for some other legitimate purpose and not utilized solely to blacken
the defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,
1092 (Pa. Super. 2007) (citation omitted). The Rules of Evidence specifically
provide that “[e]vidence of other crimes, wrongs, or acts may be admitted
for other purposes, such as proving … intent … identity, absence of mistake,
or lack of accident.” Pa.R.E. 404(b)(2).
Appellant challenges the introduction of testimony that he gave a “bag
full of guns” to Martin Thomas. N.T., Trial, 2/29/08, at 37. Thomas told
police that Appellant bragged that one of the guns was “dumped into” Lamar
Canada, and police recovered several firearms Appellant left on Thomas’s
property. Id., at 38. Appellant argues that forensic analysis determined the
guns at issue were not used in the murder of Lamar Canada, and evidence
of their existence should have been inadmissible at trial. Appellant does not
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contest the admission of his statement to Martin Thomas about shooting the
victim. Appellant contends only that counsel was ineffective for failing to file
a motion to preclude the evidence regarding the guns recovered from
Thomas.
Instantly, the Commonwealth conceded at trial that ballistics analysis
determined the guns found in Martin Thomas’s backyard were not the guns
used to shoot Lamar Canada. The Commonwealth proposed Appellant had
told Mr. Thomas they were the guns used in order to test Mr. Thomas’s
loyalty. Without commenting on the Commonwealth’s characterization of the
evidence, the trial court found that it was admissible because it showed
Appellant had access to guns.
In its opinion, the court cites Commonwealth v. DeJesus, 880 A.2d
608 (Pa. 2005), for the proposition that a trial court may properly admit
evidence of a gun conclusively proven not to be the murder weapon for
other purposes. See PCRA Court Opinion, filed 3/9/15, at 8. However, the
court fails to acknowledge the distinct facts in DeJesus supporting the
holding. There, the Commonwealth introduced evidence that the defendant
possessed a shotgun unrelated to the murder in order to show the
defendant’s attempts to evade police custody. See 800 A.2d at 615. Here,
on the other hand, the Commonwealth failed to offer any similarly valid
reason for introducing the testimony about the guns Appellant gave Mr.
Thomas.
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The court also relies on Commonwealth v. Williams, 640 A.2d 1251
(Pa. 1994), for the notion that “evidence of a defendant’s access to the type
of weapon used in a crime – such as a firearm – is a relevant purpose.”
PCRA Court Opinion, filed 3/9/15, at 8. This holding from Williams,
however, was later flatly rejected by our Supreme Court in Commonwealth
v. Christine, 125 A.3d 394 (Pa. 2015). The Commonwealth in Christine
sought to introduce evidence that the defendant possessed a shank, even as
it acknowledged that it was not the shank used in the relevant assault. The
Christine Court determined the similar-weapon exception does not
encompass cases where the Commonwealth concedes the weapon at issue
was not used in the crime. See id., at 400-401. Here, the Commonwealth
also admitted the firearms Appellant gave Mr. Thomas were tested—and
found unrelated to the murder.
Appellant’s issue bears greater similarity to Commonwealth v.
Stokes, 78 A.3d 644 (Pa. Super. 2013). In that case, the Commonwealth
introduced evidence of ammunition seized from the defendant’s home. The
ammunition was of a different caliber than the murder weapon, and the
Commonwealth recognized that it was unrelated to the crime. Nevertheless,
the trial court permitted its introduction into evidence. When the defendant
appealed to this Court, the panel determined that while the trial court had
erred in admitting the ammunition, the error was harmless given the
overwhelming amount of other evidence demonstrating the defendant’s
guilt. See id., at 655-656. We find similar reasoning applicable in this case.
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Here, the court permitted the Commonwealth to introduce testimony
that Appellant possessed a “bag of guns,” which he entrusted to Martin
Thomas. The Commonwealth’s ballistics expert testified he compared
Appellant’s firearms to the fired cartridges recovered at the scene, and
determined they were not a match. Thus, the court erred in permitting the
Commonwealth to present evidence of the guns. Consequently, Appellant’s
claim satisfies the first prong of the ineffective assistance test, as it has
arguable merit.
Since the PCRA court failed to hold a hearing in this case, we are
unable to determine whether counsel had a reasonable basis for his decision
not to object. Despite this, Appellant fails to prove that counsel’s failure to
object to this error constituted actual prejudice to his case given the
overwhelming evidence of his guilt.
At trial, the Commonwealth presented evidence from eyewitnesses
who identified Appellant as the shooter, as well as witnesses who testified to
a disagreement between Appellant and the victim, Lamar Canada. The
Commonwealth also presented evidence of Mr. Canada’s extensive injuries,
including gunshot wounds indicating that he was shot after he had fallen to
the ground, in order to prove the element of specific intent. Moreover,
Appellant admitted to Martin Thomas that he “dumped” one of the guns into
the victim, and this evidence was properly admitted at trial. Based on the
foregoing, we find Appellant cannot show how counsel’s actions actually
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prejudiced his case. Accordingly, Appellant’s first claim of ineffective
assistance of counsel fails.
Appellant also contests the propriety of the prosecution’s references to
Yahya Abdul-Latif. Appellant claims his counsel erred by failing to seek the
exclusion of any mention of or allusions to Mr. Abdul-Latif, whom police
could not find after his initial interview. Appellant contends the prosecution
created an inference that police were unable to locate Mr. Abdul-Latif
because he was too scared to testify against Appellant. Appellant vigorously
argues that the testimony referring to Abdul-Latif violated Appellant’s right
to confront witnesses against him. Appellant concludes his counsel was
ineffective for failing to object or file a motion to preclude references to
Abdul-Latif.
Despite his fervent assertions about his rights under the Confrontation
Clause, Appellant fails to show Abdul-Latif was actually a witness against
him. The references to which Appellant now objects consisted of a single
brief exchange, confirming the police had spoken to a witness to the crime
named Yahya Abdul-Latif. The officer testifying at trial also stated the police
were unable to locate Abdul-Latif after he gave his initial statement, despite
searching for him. At trial, counsel for the Commonwealth stated he briefly
elicited this testimony in order to illustrate the attempts made by police to
find additional testifying witnesses. The Commonwealth did not introduce
Abdul-Latif’s statement into evidence, and made no further mention of him
or the substance of his conversation with police. Appellant fails to indicate
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how the mere mention of Abdul-Latif served as identification evidence
implying Appellant was the culprit. As a result, Appellant’s issue lacks
arguable merit, and counsel was not ineffective for failing to pursue it.
Appellant also contends counsel was ineffective for failing to appeal
the admission of the autopsy photographs. Appellant concedes that counsel
objected to the introduction of the photographs at trial and was overruled by
the court. Appellant insists counsel erred by not raising the issue again in
Appellant’s direct appeal, and avers he was prejudiced by counsel’s decision
not to do so. Appellant concludes this Court should grant him a new trial.
“The viewing of photographic evidence in a murder case is, by its
nature, a gruesome task. But photographs of a corpse are not inadmissible
per se.” Commonwealth v. Hetzel, 822 A.2d 747, 765 (Pa. Super. 2003)
(citation omitted).
In determining whether photographs [of a decedent] are
admissible, we employ a two-step analysis. First, we consider
whether the photograph is inflammatory. If it is, we then
consider whether the evidentiary value of the photograph
outweighs the likelihood that the photograph will inflame the
minds and passions of the jury. Even gruesome or potentially
inflammatory photographs are admissible when the photographs
are of such essential evidentiary value that their need clearly
outweighs the likelihood of inflaming the minds and passions of
the jurors.
Commonwealth v. Solano, 906 A.2d 1180, 1191-1192 (Pa. 2006).
Here, the autopsy photographs are not in the certified record. But from
what we can glean from the notes of testimony we have no doubt they were
gruesome and potentially inflammatory to members of the jury. Indeed, the
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trial court acknowledged the gruesome nature of the photographs in its
discussion with Appellant’s counsel and noted that they could prove
inflammatory to members of the jury. See N.T. Trial 2/28/08, 4-6.
Nevertheless, the photographs constituted a key piece of evidence to the
prosecution’s case and its ability to prove a charge of first-degree murder.
From the wounds displayed in the photographs, the Commonwealth
was able to show that Appellant continued to fire multiple rounds even after
Mr. Canada had fallen to the ground. This evidence demonstrated a specific
intent to kill, necessary for the jury to convict Appellant of first-degree
murder. See Solano. Moreover, Appellant’s counsel did object to the
introduction of these photographs at trial, but was overruled. For the
aforementioned reasons, the trial court permitted the Commonwealth to
introduce the photographs over objection. Appellant’s counsel cannot be
deemed ineffective for failing to raise a meritless claim on appeal. See
Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa. 2012). Accordingly, this
claim warrants no relief.
We decline to address Appellant’s fourth issue. Based on the question
presented, Appellant’s intent behind raising this issue was to rehash points
made in his first three issues, under the guise of his PCRA counsel’s failure
to pursue those same meritless arguments against Appellant’s trial counsel.
However, Appellant does not explore this issue in his brief. Accordingly,
Appellant’s failure to develop this argument in his brief waives the issue for
our review. See Spotz, 18 A.3d at 282.
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In Appellant’s fifth question presented, he argues the prosecution
committed numerous violations of his rights, as explored in previous issues.
Appellant asserts each of these violations prejudiced his case and deprived
him of his right to a fair trial. Appellant maintains that, should this Court fail
to grant him relief on any of his other issues for lack of prejudice, he is
entitled to a new trial based on the cumulative error rule. “Where a claimant
has failed to prove prejudice as the result of any individual errors, he cannot
prevail on a cumulative effect claim unless he demonstrates how the
particular cumulation requires a different analysis.” Commonwealth v.
Hutchinson, 25 A.3d 277, 319 (Pa. 2011) (citations and brackets omitted).
Instantly, Appellant presented several issues without arguable merit,
in addition to a single issue with arguable merit that failed based on his
inability to prove prejudice. Appellant’s bald claim of cumulative error fails to
assert new grounds for demonstrating prejudice, and we consequently
decline to grant relief on this issue.
Appellant’s final claim disputes the PCRA court’s decision not to hold
an evidentiary hearing on his newly discovered evidence claim. Appellant’s
“newly discovered evidence” consists of two newspaper articles detailing
Detective Dove’s dismissal from the police force. Dove was an investigating
officer in Appellant’s case who testified at trial. Appellant avers Dove’s firing
for police misconduct, based on allegations Dove concealed evidence from
an unrelated homicide that his girlfriend was involved in, establishes Dove’s
character for extralegal behaviors. Appellant claims without support that
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Detective Dove forced one of the witnesses in his case to give a statement
identifying Appellant as the shooter. Appellant concludes he is entitled to an
evidentiary hearing on this issue.
To obtain relief based on after-discovered evidence, appellant
must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the credibility
of a witness; and (4) would likely result in a different verdict if a
new trial were granted.
Commonwealth v. Montalvo, 986 A.2d 84, 109 (Pa. 2009) (citation
omitted).
The right to an evidentiary hearing on a post-conviction petition is not
absolute. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.
Super. 2001). 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. See id. It is the responsibility of the
reviewing court on appeal to 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
material fact in controversy and in denying relief without conducting an
evidentiary hearing. See Commonwealth v. Hardcastle, 701 A.2d 541,
542-543 (Pa. 1997).
Instantly, Appellant fails to fulfill the requirements for obtaining relief
based on after-discovered evidence. Appellant is unable to show how
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Detective Dove’s subsequent misconduct bears on Appellant’s own case.
Appellant’s accusations center on alleged threats Detective Dove made to a
witness in Appellant’s case. Appellant does not link these claims of
intimidation to Detective Dove’s later dismissal, save for broad assertions
about Detective Dove’s character. At most, the allegations Appellant touts as
newly discovered evidence constitute impeachment evidence insufficient for
obtaining relief. See Montalvo, 986 A.2d at 109. We therefore conclude
Appellant is due no relief on this claim, and affirm the order denying
Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2017
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