Com. v. Evans, K. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KHALIL EVANS
Appellant No. 401 EDA 2017
Appeal from the PCRA Order December 19, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004836-2009
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 27, 2018
Appellant, Khalil Evans, appeals from the order entered denying his
petition for collateral relief filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
A prior panel of this Court discussed the facts and procedural history of
this case as follows:
On March 10, 2008, Ramar Cross was approached by Appellant,
who asked to purchase marijuana. Cross replied he did not have
any marijuana. Appellant pulled out a black nine millimeter
handgun and shot Cross in the back as he was trying to run away.
Cross was treated at a nearby hospital.
On November 19, 2009, following a jury trial, Appellant was
convicted of attempted murder, aggravated assault, conspiracy,
disorderly conduct, possessing an instrument of crime, carrying a
firearm without a license, and possession of a firearm by a
prohibited person. On April 1, 2010, Appellant was sentenced to
fifteen to thirty years’ imprisonment. A post-sentence motion was
denied on July 2, 2010.
* Retired Senior Judge Assigned to the Superior Court.
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See Commonwealth v. Evans, 32 A.3d 268, *1-2 (Pa. Super. 2011)
(unpublished memorandum). On appeal, we affirmed Appellant’s judgment
of sentence. Id. The Pennsylvania Supreme Court denied allocatur. See
Commonwealth v. Evans, 64 A.3d 630 (Pa. 2013) (unpublished
memorandum).
On February 19, 2014, Appellant pro se timely filed a PCRA petition.
Counsel was appointed and filed an amended petition on his behalf, raising
claims of ineffective assistance of counsel and prosecutorial misconduct. The
PCRA court sent Appellant notice his petition would be dismissed without a
hearing pursuant to Pa.R.Crim.P. 907. The PCRA court then dismissed
Appellant’s petition.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The trial court issued a
responsive opinion.
On appeal, Appellant raises the following issues for our review:
1. Whether the trial court erred by failing to prevent the
prosecutor from making inappropriate, damaging, and prejudicial
statements referencing the term “snitch” during her opening and
closing statements, and whether trial counsel was ineffective for
failing to object to the prosecutor’s use of the term “snitch”?
2. Whether the PCRA court erred in failing to conduct an
evidentiary hearing on trial counsel’s ineffective assistance of
counsel, or for failing to find that trial counsel provided ineffective
assistance of counsel specifically by failing to request a crimen
falsi instruction, a “false in one, false in all” charge, and for failing
to object to the Commonwealth’s use of the term “snitch”?
Appellant’s Brief at 4.
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We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). We afford the court’s findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48 A.3d
1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995
A.2d 1184, 1189 (Pa. Super. 2010)).
In this case, the PCRA court dismissed Appellant’s petition without a
hearing. See PCRA Court Order, 11/10/16 (citing in support Pa.R.Crim.P.
907). There is no absolute right to an evidentiary hearing. See
Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008). On
appeal, we examine the issues raised in light of the record “to determine
whether the PCRA court erred in concluding that there were no genuine issues
of material fact and denying relief without an evidentiary hearing.” Springer,
961 A.2d at 1264.
Essentially, Appellant’s claims constitute ineffective assistance of
counsel. We presume counsel is effective. Commonwealth v. Washington,
927 A.2d 586, 594 (Pa. 2007). To overcome this presumption and establish
the ineffective assistance of counsel, a PCRA petitioner must prove, by a
preponderance of the evidence: “(1) the underlying legal issue has arguable
merit; (2) that counsel’s actions lacked an objective reasonable basis; and (3)
actual prejudice befell the petitioner from counsel’s act or omission.”
Commonwealth v. Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations
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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.” Id. A claim will be denied
if the petitioner fails to meet any one of these requirements. Springer, 961
A.2d at 1267; Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008).
Appellant first claims that counsel provided ineffective assistance in
failing to request a crimen falsi instruction and a “false in one, false in all”
charge regarding Mr. Cross’ testimony where he had three crimen falsi
convictions.1 See Appellant’s Brief at 9. Appellant also claims the court erred
in failing to grant such instructions. Id. Mr. Cross was convicted in November
1998 of receiving stolen property, in August 2003 of false identification to law
enforcement officers, and in July 2005 of forgery.2 Id. at 20.
At trial, Mr. Cross testified that he had previous convictions for drug
trafficking and forgery charges, and was under the supervision of the Adult
Probation and Parole Department. See Notes of Testimony (N.T.), 11/18/09,
at 50. Although he was asked whether forgery was a crime of dishonesty, an
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1 Initially, we note with disapproval the disorganization of Appellant’s brief.
Appellant lumps several sub-issues, many of them not actually related, into
his two issues. For ease of analysis, we will address his ineffectiveness claims
in the order they are presented, prior to addressing his claim of prosecutorial
misconduct. See Appellant’s Brief at 15.
2 18 Pa.C.S. §§ 3925, 4914, and 4101, respectively.
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objection to that question was sustained. Id. at 111-12. During the charging
conference, counsel did not request either a crimen falsi or a “false in one,
false in all” charge. Id. at 181-91. At the jury charge, the court read the
“false in one, false in all” charge, a Kloiber3 charge, and general instructions
on witness credibility, but did not instruct the jury as to crimen falsi. See
N.T., 11/19/09, at 50.
Appellant’s claim regarding the “false in one, false in all” charge is not
of arguable merit, as the court did give that charge. See N.T., 11/19/09 at
50. Accordingly, he is not entitled to relief. See Springer, 961 A.2d at 1267.
Further, as the record enables us to establish that the PCRA court did not err,
an evidentiary hearing is not necessary on these claims. Id. at 1264.
The decision to request additional points for charge is a tactical decision
within the exclusive province of counsel. See Commonwealth v. Sullivan,
299 A.2d 608, 610 (Pa. 1973). In Pennsylvania, “evidence of prior convictions
can be introduced for the purpose of impeaching the credibility of a witness if
the conviction was for an offense involving dishonesty or false statement, and
the date of conviction or the last day of confinement is within ten years of the
trial date.” Commonwealth v. Coleman, 664 A.2d 1381, 1383 (Pa. Super.
1995); see also Pa.R.E. 609. Thus, the conviction for receiving stolen
property, more than ten years from the date of trial, would not be admissible
and solely the false identification and forgery convictions remained. Id.
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3 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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The standard jury instructions, Section 4.08D, instruct the jury that the
only purpose for which they may consider the evidence of a prior conviction is
whether or not to believe all or part of the witness’ testimony. See Pa. SSJI
(Crim), § 4.08D (2016). The jury may consider the type of crime committed,
how long ago it was committed, and how it may affect the likelihood that the
witness has testified truthfully in this case. Id.
However, where the Commonwealth preemptively raises the issue of a
witness’ crimen falsi, there is no obvious benefit to counsel raising it again.
See Commonwealth v. Treadwell, 911 A.2d 987, 992 (Pa. Super. 2006)
(noting that the Commonwealth also raised the fact that the witness was on
probation for a non crimen falsi conviction and faced pending drug related
charges at trial, and counsel was not ineffective for failing to raise the point
again). Similarly, in the instant case, the jury was aware that at the time of
trial, the victim had a forgery conviction. See N.T., 11/18/09, 49-50, 111.
Further, the trial court extensively instructed the jury on assessing witness
credibility, offered a Kloiber charge, and counsel argued that Mr. Cross had
a motive to lie. Accordingly, Appellant cannot show that the outcome of the
trial would have been different if the charge had been requested and given.
See Johnson, 966 A.2d at 533.
Appellant’s next claim involves the ineffective assistance of counsel for
failing to object to the Commonwealth’s use of the term “snitch.” See
Appellant’s Brief at 19. It is difficult to discern the exact argument Appellant
is attempting to make in this instance. Counsel spends extensive time
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discussing the Commonwealth’s use of the term “snitch” to explain Mr. Cross’
fear of testimony, before concluding that this use does not rise to the level of
prosecutorial misconduct. See Appellant’s Brief at 16-19. In the next page,
counsel notes that trial counsel was ineffective for failing to prevent the
prosecutor from making inappropriate, damaging, and prejudicial statements
referencing the term “snitch” in her opening and closing, but does not identify
such statements. Id. at 20. Nor does counsel seem to realize that on the
previous page, she had concluded that the prosecutor’s statements did not
constitute misconduct. Id. The sole reference, unsupported by any authority,
to trial counsel’s actions is that his reference to the term “was unreasonable
where the evidence strongly suggested the witness could be lying, or that he
has lied at some point in the prosecution.” Id. at 20.
This Court will not act as counsel to develop arguments on behalf of an
appellant, and where defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or find issues
within to be waived. See Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.
Super. 2010). Thus, due to Appellant’s failure to properly develop and present
this argument, we find it waived. Id.; see also Pa.R.A.P. 2101.
Appellant next claims that the Commonwealth committed a Brady4
violation by concealing the identity of a confidential informant during trial.
See Appellant’s Brief at 11. Appellant argues that because the
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4 Brady v. Maryland, 83 S. Ct. 1194 (1963).
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Commonwealth did not present the CI at trial but was able to admit the CI’s
identifying testimony through a detective, this was 1) a Brady violation, and
2) a denial of Appellant’s right to confront a witness. See Appellant’s Brief at
11. Had trial counsel possessed details regarding this informant, Appellant
argues that he could have sought to suppress this identification. Id. at 14-
15. Appellant also argues that counsel was ineffective for failing to object to
the admission of this testimony.
Under Brady, a prosecutor must disclose all exculpatory evidence
material to the guilt or punishment of an accused, including evidence of an
impeachment nature. Commonwealth v. Roney, 79 A.3d 595, 607–08 (Pa.
2013). To prove a Brady violation, the defendant has the burden of
demonstrating that:
(1) the prosecutor has suppressed evidence; (2) the evidence,
whether exculpatory or impeaching, is helpful to the defendant,
and (3) the suppression prejudiced the defendant. Prejudice is
demonstrated where the evidence suppressed is material to guilt
or innocence. Further, favorable evidence is material, and
constitutional error results from its suppression by the
government, if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.
Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) (internal citations
and quotations omitted).
Initially, we note that this issue could have been raised at trial and/or
on direct appeal, and Appellant makes no attempt to argue to the contrary, or
explain why prior counsel could not have uncovered the alleged violations with
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reasonable diligence, and provides no indication as to when or how he first
became aware of said violations. See Roney, 79 A.3d at 609. Thus, we find
Appellant’s prosecutorial misconduct claim waived. Id.
Regardless, Appellant’s ineffectiveness claim in connection with the
issue of the CI’s identity is meritless. First, Brady applies only to exculpatory
evidence, which this identification evidence was not. See Koehler, 36 A.3d
at 133. Further, the identity of a CI is not something which the
Commonwealth is obligated to expose. Indeed, a request for disclosure is
subject to qualified privilege. See Commonwealth v. Bing, 713 A.2d 56, 58
(Pa. 1998). The defendant must establish that the information sought is
material to the preparation of the defense and that the request is reasonable.
See Commonwealth v. Jordan, 125 A.3d 55, 63 (Pa. 2015); see also
Pa.R.Crim.P. 573(B)(2)(a)(i). The court must then balance the public interest
in the police's ability to obtain information against the defendant's right to
prepare his defense. Id. Appellant does not make any argument regarding
these requirements and, accordingly, has not developed his argument such
that we may conclude it has arguable merit. Springer, 961 A.2d at 1267.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/18
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