Com. v. Jones, N. ( 2017 )

J-S02026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NAEEM JONES
Appellant No. 1432 EDA 2016
Appeal from the PCRA Order April 28, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0006591-2007
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 19, 2017
Appellant, Naeem Jones, appeals from the April 28, 2016 order
entered in the Court of Common Pleas of Philadelphia County (“PCRA
court”), denying his petition for collateral relief pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we
affirm.
The procedural history of the matter is undisputed. Following a jury
trial from August 18-25, 2008, Appellant was found guilty of first-degree
murder and possessing instruments of crime (“PIC”).1 Appellant was
sentenced to life without parole on the murder charge. After having his
direct appellate rights reinstated on November 19, 2010, Appellant appealed
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a) and 907, respectively.
J-S02026-17
to this court. On November 15, 2011, this Court affirmed Appellant’s
judgment of sentence. See Commonwealth v. Jones, 3389 EDA 2010,
Unpublished Memorandum at 11 (Pa. Super. Filed Nov. 15, 2011). Our
Supreme Court denied Appellant’s petition for allowance of appeal on April 4,
2012. Appellant filed a timely pro se PCRA petition on December 21, 2012.
The PCRA court appointed counsel, who filed an amended PCRA petition on
August 12, 2015, an addendum to the petition on October 15, 2015, and a
motion to supplement evidence on January 20, 2016.
The PCRA court held a hearing on January 21, 2016, and April 1, 2016.
Following post-hearing briefs by the parties, the PCRA court denied the
petition on April 28, 2016. Appellant filed a timely appeal on May 4, 2016.
The PCRA court did not direct Appellant to file a concise statement; however,
the PCRA court filed a Pa.R.A.P. 1925(a) opinion on May 24, 2016.
Appellant raises three questions on appeal, which we quote verbatim.
I. Was trial counsel ineffective for failing to request an alibi instruction
where counsel presented alibi testimony and argued that alibi in his
closing? Was this failure the cause of significant prejudice to
Appellant’s cause?
II. Was trial counsel ineffective for failing to object to the introduction
of bad acts evidence, including a police photo, that met none of the
exceptions of a Pa.R.E. 404§(b)(1)? Was this failure the cause of
significant prejudice to Appellant’s cause?
III. Was after discovered evidence that was wholly exculpatory, credible
and compelling enough to warrant a new trial?
Appellant’s Brief at 1 (sic).
-2-
J-S02026-17
Our standard of review of a PCRA court’s denial of a PCRA petition is
well settled.
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court’s decision on any grounds if
the record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
After careful review of the record, the briefs, and the relevant case
law, we find that the PCRA court’s May 24, 2016 opinion, thoroughly and
adequately addresses all of Appellant’s claims. See Trial Court Opinion,
5/24/2016, at 4-12. The PCRA court’s findings are supported by the record
and are free of legal error. We direct that a copy of the PCRA court’s May
24, 2016 opinion be attached to any future filings in this case.
Order affirmed.
-3-
J-S02026-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2017
-4-
,--- .. --· .. Circulated 03/23/2017 01:00 PM
IN
IN THE
THE COURT OF COMMON
COURT OF COMMON PLEAS
PLEAS
FIRST
FIRST JUDICIAL DISTRICT OF
JUDICIAL DISTRICT OF PENNSYLVANIA
PENNSYLVANIA
CRIMINAL
CRIMINAL TRIAL
TRIAL DIVISION
DMSION
COMMONWEALTH OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA : CP-51-CR-0006591-2007
CP-51-CR-0006591-2007
v. FILED
FILED
Comm. v. Jones,
CP-51-CR-QoQ659127 Comm
CP,51.CR-0006591-2007 Jones Naoam
Naeem
MAY 2 4 2016
MAY 2016 e>p;r;on
Opiron
NAEEM JONES
NAEEM JONES Criminal Appeals Unit
Criminal Appeals Unit
First Judicial Distrtct of PA
First Judicial District PA
of
II 111111111111111111111
7451116811
7451116811
,I
OPINION
OPINION
McDermott,
McDermott J. May
May 24
24, 2016
2016
Proceduralllistory
Procedural History
On
On November
November 8, 2006,
2006 the
the Petitioner,
Petitioner Naeem
Naeem Jones,
Jones was
was arrested·
arrested and
and charged
charged with
with
Murder and
Murder and related
related offenses. On August
offenses On August 25,
25 2008,
2008 before the Honorable
before the Honorable Carolyn
Carolyn Temin,
Temin a jury
jury
returned guilty
returned guilty verdicts
verdicts to First-Degree Murder
to First-Degree Murder and
and Possession
Possession of an Instrument
of an Instrument of
of Crime
Crime
PlC On
("PIC"). On December
December 18
18, 2008,
2008 Judge
Judge Temin
Temin imposed
imposed a term
term of imprisonment of
of imprisonment of life without
without life
1
The Petitioner
parole for First-Degree Murder. The
parole for First-Degree Murder.1 Petitioner did
did not
not file an
an appeal.
appeal file
On May
On 13, 2009,
May 13 2009 the
the Petitioner
Petitioner filed
filed a Post-ConvictionRelief
Post-Conviction Relief Act PCRA petition,
Act ("PCRA") petition
seeking reinstatement of
seeking reinstatement of his appellant rights.·
his appellant rights OnOn November
November 19,
19 2010,
2010 the
the Petitioner's
Petitioners direct
direct
appeal
appeal rights
rights were
were reinstated.
reinstated On December
On December 9, 2010,
2010 the
the Petitioner
Petitioner filed
filed an
an appeal
appeal with
with Superior
Superior
Court
Court alleging
alleging that
that the
the evidence
evidence was insufficient
insufficient to
to support
support First-Degree
First-Degree Murder.
Murder On November
15,
15 2011,
2011 Superior
Superior Court
Court affirmed
affirmed his
his judgment
judgment of
of sentence.
sentence On December
On December 7, 2011,
2011 the
the
Petitioner
Petitioner filed
filed a Motion
Motion to
to Vacate
Vacate and/or
and/or Reconsider
Reconsider Fines,
Fines Costs,
Costs and
and Restitution,
Restitution which
which Judge
Judge
Temin
Temin denied
denied on
on December 21 On
December 21. On April
April 4, 2012,
2012 the
the Supreme
Supreme Court
Court denied
denied Petitioner's
Petitioners
I The
The Petitioner received
received no
Petitioner no further penalty
penalty on
ftrther on the PIC
PlC charge.
the
charge
Petition for Allowance
Petition for
Allowance of Appeal. On
of Appeal On December
December 21, 2011, the
21 2011 Petitioner filed
the Petitioner filed PCRA -petition.
a PCRA petition
On August 122015
On August 12, 2015, appointed PCRA
appointed PCRA counsel
counsel, Susan
Susan Burt
Burt, Esquire, filed an
Esquire filed Amended Petition
an Amended Petition
alleging layered
alleging layered claims
claims of
of ineffective
ineffective assistance
assistance and
and a claim
claim of after-discovered evidence
of after-discovered evidence. Qn
On
October 15
October 2015, PCRA
15, 2015 PCRA counsel
counsel filed an addendum
filed an addendum to
to that petition. On
that petition December 28
On December 2015 the
28, 2015, the
Commonwealth
Conunonwealth filed Motion to
filed a Motion to Dismiss,
Dismiss but
but did not oppose
did not an evidentiary
oppose an hearing with
evidentiary hearing with regard
regard
to the Petitioners after-discovered
to the Petitioner's after-discovered evidence
evidence claim.
claim
On January
On January 20 2016, PCRA
20, 2016 PCRA counsel
counsel filed
filed a Motion
Motion to
to Supplement
Supplement Evidence of
Evidence of
Ineffectiveness
Ineffectiveness of Trial
of Trial Counsel,
Counsel arguing
arguing an
an additional claim. On
additional claim On January
January 21,
21 2016, this Court
2016 this Court
held an evidentiary hearing, in
held an evidentiary hearing which Robert
in which Robert Corbin
Corbin testified
testified concerning
concerning after-discovered
after-discovered
evidence. The
evidence The hearing
hearing was
was bifurcated,
bifurcated with Corbin testimony
with Corbin's testimony concluding on April
concluding on 2016
April 1, 2016.
Trial counsel,
Trial counsel Fred Harrison, Esquire
Fred Harrison Esquire also
also testi:~ed on this
testified on this date. On April
date On April 21,
21 the·
the
Commonwealth filed
Commonwealth filed a Post-Hearing
Post-Hearing Brief
Brief requesting this Court
requesting this Court to
to deny the
the Petitioner PCRA
Petitioner PCRA
relief. On
relief On April
April 25,
25 2916, the Petitioner
2016 the filed a Supplemental
Petitioner filed Supplemental Brief
Brief in
in Support
Support of New Trial.
of a New Trial
On
On April 28
April 28, this Court dismissed the Petitioner's claims. Ori
this Court dismissed the Petitioners claims On May
May 4, 2016,
2016 the Petitioner filed
the Petitioner filed a
Notice
Notice of
of Appeal
Appeal to
to Superior
Superior Court.
Court
Facts
In
In its November
its November 15,
15 2011
2011 opinion,
opinion the
the SuperiorCourt
Superior Court summarized the facts
summarized the facts as
as follows:
follows
On the
On the evening
evening ofof February
February 20,20 2006,
2006 thethe victim
victim [Steven Bartley]
Bartley and and
his Mend
his
friend, Terrance Speller ("Speller"),
Terrance Speller Speller went
went to
to the
the Big
Big Fells'a
Fellsa sports
sports bar
bar
at 33rd and Reed Streets in Philadelphia.
at 33rd and Reed Streets in
Philadelphia Although
Although Speller
Speller was treating
treating
the bar's patrons
the bars
patrons toto thinks
drinks, hehe and the victim
and the victim were notnot warmly
warmly received.
received
Testimony
Testimony was was presented
presented that
that [the Petitioner]
Petitioner argued
argued with
with Speller
Speller about
about
the use of the juke box in the bar. Additionally,
the use of the juke box in the bar Additionally one of [the Petitioner's]
one of Petitioners
friends,
Mends Charles='Biggie"
Charles Biggie Waters Waters had
Waters ("Waters"), had a heated
heated argument
argument withwith
the
the victim when the
victim when the victim
victim tried
tried to
to talk
talk to
to a woman whom whom Waters
Waters stated
stated
was
was there with him
there with him and
and the
the [the Petitioner].
Petitioner
Later
Later that evening, Kamira
that evening Kamira Woods Woods was
Woods ("Woods") screaming in
was screaming in the
the
mens
men's bathroom. James Frager
bathroom James Frager ("Frager")
Frager and others rushed in and found
and others rushed in and found
Speller
Speller with
with his
his pants
pants and
and belt
belt open.
open Speller
Speller had
had his
his hands
hands around Woods
around Woods'
2
·t
neck.
neck [The Petitioner
Petitioner] had dated Woods
had dated Woods for for five
five years
years but but they
they broke
broke up up
the year
the
year before
before, as as she
she alleged
alleged he he had
had hit
hit herher and threated her
and threated her. Frager
Frager
testified that
testified that [the Petitioner
Petitioner] and and the other men
the other men argued
argued with with Speller
Speller and and
the victim about this incident until the bartender announced "last call
the victim about this incident until the bartender announced last call" andand
the bar
the bar patrons
patrons thereafter
thereafter wentwent outout onto
onto thethe street
street. .
Frager testified
Frager testified that when he
that when he left the
left
the bar
bar, [the Petitioner
Petitioner] was was standing
standing
outside with the victim, Speller
outside with the victim Speller, Waters, and Curtis Scott. A police
Waters and Curtis Scott police officer
officer
driving to the scene
driving to the scene of an
of an unrelated accident observed the victim talking
unrelated accident observed the victim talking
emphatically to
emphatically to another
another man man outside
outside the bar. As
the bar As Frager
Frager got got into
into his
his carcar[,]
he heard
he heard gunshots
gunshots, but but did
did notnot observe anything. Frager
observe anything Frager then then observed
observed
[the Petitioner
Petitioner] and and others
others standing
standing over over thethe victim
victim inunediately
immediately after the
after the
shooting.
shooting
Testimony was
Testimony was presented
presented that that the
the victim
victim died died of of multiple
multiple gunshot gunshot
wounds and
wounds and the the manner
manner of of death
death was homicide. Dr
was homicide Dr. Gregory
Gregory McDonaldMcDonald
stated that the
stated that the victim
victim sustained
sustained approximately
approximately nine nine toto twelve
twelve gunshots
gunshots[,]
fired from at least two semi-automatic weapons
fired from at least two semi-automatic weapons. The victim was
The victim was shotshot
twice in the face at close range
twice in the face at close range. Those bullets penetrated
Those bullets penetrated his skull
his skull, brain
brain
stem,
stem and and cerebellum
cerebellum[,] and and immediately
immediately destroyeddestroyed his his ability
ability to move
to move
volitionally. The
volitionally The victim
victim waswas also shot in the back, arms, legs, and chest.
also shot in the back arms legs and chest
Those bullets
Those bullets pierced
pierced his spine, liver, kidney, and lungs.
his spine liver kidney and lungs
The Commonwealth presented
The Commonwealth presented evidence
evidence that that later
later thatthat day,
day [the
Petitioner]
Petitioner called his friend,
called his Mend Vincent Dickerson ("Dickerson"),
Vincent Dickerson Dickerson and and stated
stated
that there
that there had had been been a problem
problem with Woods at
with Woods at the
the bar.
bar [The Petitioner]
Petitioner
stated that W
stated that Woodscods had had been prostituting herself
been prostituting herself and and that
that hehe shot
shot a man man that
that
was trying to
was trying to get get involved
involved on Woods behalf
on Woods' behalf [The Petitioner]'
Petitioner told told
that he thought the police were looking for him and that he did
Dickerson
Dickerson that he thought the police were looking for him and that he did
not know
not know where where to to gogo oror what
what to to do.
do.22 TheThe police
police encountered
encountered [the
Petitioner]
Petitioner later later that night in
that night in an
an unrelated
unrelated incident;
incident he he was in in a car car with
with
Biggie
Biggie and and others.
others The police
The police stopped
stopped the car due to a suspicion
the car due to suspicion of of
marijuana The
marijuana The car was searched and [the Petitioner]
car was searched and Petitioner was arrested for drug
was arrested for drug
possession.
possession
Woods gave
Woods gave a statement
statement to to the police on February 21, 2006
the police on February 21 2006 and and
November 3, 2006.
November 2006 In her first statement,
In her first statement she she omitted
omitted reference
reference to to [the
Petitioner];
Petitioner in in thethe second
second [statement], she she overcame
overcame her her fear
fear of of him
him andand
his
his history
history of
of violence
violence and
and described
described his his participation
participation in
in thethe murder.
murder
Woods told
Woods police that
told police that she
she observed
observed [the Petitioner]
Petitioner point point a gun gun at at the
the
victim,
victim stretch
stretch out out his
his arm,
arm and
and shoot
shoot at
at the
the victim
victim numerous times.
times When
When
[the Petitioner]
Petitioner learned learned that Woods gave
that Woods
gave a statement
statement to to thethe police
police on on
February
February 21, 21 2006,2006 he he sought
sought her her out
out the
the next
next dayday toto ask
ask if if the·
the detectives
detectives
mentioned
mentioned his his name,
name whosewhose picture
picture theythey showed
showed her, her and and whose
whose names names
the police
the had
police had. Thereafter, in early
Thereafter in early November, Dickerson also provided
November Dickerson also provided a
2
Dickerson testified that the statement
testified statement presented
that the presented by
by the Commonwealth
Commonwealth that the Petitioner confessed
the that the
confessed Petitioner was fabricated
was fabricated
by
by police.
police
3
I
statement to
statement to the police detailing [the Petitioner's]
the police detailing Petitioners involvement .in
involvement the
in the
murder.
murder.3
3 [The Petitioner] was arrested
Petitioner was arrested onon November
November 8, 2006. 2006
A Cobra
Cobra Arms
Arms M-lM-11 semi-automatic
semi-automatic weapon
weapon was found in
was found in an
an abandoned
abandoned
house around the comer from 33rd street. Officer Ernest Bottomer;a
house around the corner from street Officer Ernest Bottomer forensic
forensic
ballistics expert, testified that the gun
ballistics expert testified that the
was one
gun was of the murder
one of the murder weapon.
weapon Officer
Officer
Bottomer testified that there was a least
Bottomer testified that there was
least one
one other
other gun used in
gun used in the
the murder.
murder
The
The defense presented the testimony of Debbie Royster ("Royster'').
defense presented the testimony of Debbie Royster Royster
Royster testified that when the shots
Royster testified that when the shots rang out she
rang out[,] was in
she was in the
the ladies'
ladies room
room
of the bar with [the Petitioner].
of the bar with Petitioner Royster averred
Royster averred that
that she
she and
and [the Petitioner]
Petitioner
were doing
were doing cocaine
cocaine together
together at that
at time and
that time and exited
exited the
the bathroom
bathroom upon
upon
hearing the
hearing the gunshots.
gunshots
Commonwealth
Commonwealth Naeem Jones,
v. Naeem Jones 3389 EDA 2010
3389 EDA 2010 (November
November 15,
15 2011) (non-precedential
2011 non-precedential
decision) (internal
decision citations omitted).
internal citations omitted
Discussion
Discussion
The Petitioner
The raises four layered ineffective assistance of counsel claims along with a
Petitioner raises four layered ineffective assistance of counsel claims along with
claim of after-discovered evidence. To
claim of after-discovered evidence To obtain relief based
obtain relief based on
on a claim
claim of
of ineffective
ineffective assistance
assistance of
of
counsel, a petitioner
counsel must show
petitioner must that such
show that ineffectiveness "in
such ineffectiveness in the
the circumstances
circumstances of
of the
the particular
particular
case, so undermined the truth-determining process
case so undermined the truth-determining process that
that no
no reliable
reliable adjudication
adjudication of
of guilt
guilt or
or
innocence
innocence could have taken
could have taken place
place." Commonwealth
Commonwealth v. Jones,
Jones 912 A.2d 268,
912 A.2d 268 278
278 (Pa.
Pa 2006);
2006 42
42
PaC.S.
Pa.C.S § 9543(aX2Xii).
9543a2ii Counsel
Counsel is strongly
strongly presumed
is
to have
presumed to rendered effective
have rendered effective assistance
assistance and
and
made
made all significant
significant decisions
all
decisions in
in the
the exercise of reasonable
exercise of reasonable professional
professional judgment.
judgment Strickland
Strickland v.
Washington 466 U.S
Washington, 466 U.S. 668 1984 Commonwealth
668 (1984); Commonwealth v. Weiss, 81 A.3d
Weiss 81 A.3d 7_67,
767 783
783 (Pa.
Pa 2013).
2013
To overcome this
To overcome this strong
strong presumption
presumption, the
the Petitioner
Petitioner has
has to
to satisfy
satisfy the
the performance
performance and
and
prejudice test forth in
set forth Strickland v. Washington,
prejudice test set in Strickland
Washington 466
466 U.S.
U.S 668
668 {1984).
1984 TheThe Strickland
Strickland test
test
applies by
applies looking to
by looking to three
three elementswhether
elements-whether:(1) the
the underlying· claim has
underlying claim has arguable
arguable merit;
merit (2)
·1
no reasonable basis
no reasonable basis existed
existed for
for counsel's
counsels actions or failure
actions or failure to
to act;
act and
and (3) the
the petitioner
petitioner has
has
shown
shown that he
that
he suffered
suffered prejudice
prejudice as
as a result
result of
of counsel's
counsels lapse, i.e., that
lapse i.e that there
there is a reasonable
reasonable
is
3At trial, Woods
3At Woods did
trial not contradict her
did not her statement, but indicated that she
statement but
contradict indicatedshe did not remember
did not
that remember the incident due
the due to
incident to ckug
drug
use.
use
4
probability that
probability that the result of
the result of the would have
the proceeding would have been different. Commonwealth
been different Commonwealth v.
Bennett 57 A.3d 1185Bennett, 57 A.3d 1185, 119596 Pa 2012
1195-96 (Pa. (citing Commonwealth
2012) citing Commonwealth v. Pierce 527 A.2d
Pierce, 527 A.2d 973973, 975
975
(Pa. 1987
Pa 1987)). Failure
Failure to
to satisfy
satisfy any
any prong
prong of this test
of this test for
for ineffectiveness
ineffectiveness will require rejection of
will require rejection of
the claim. Commonwealth v. Fulton
the claim Commonwealth Fulton, 830
830 A.2d 567, 572
A.2d 567 Pa Super
572 (Pa. 2003 If
Super. 2003). If
claim fails under
a claim under fails
any necessary element of the Strickland test, the court may proceed
any necessary element of the Strickland test the court proceed to
to that element first. Bennett,
that element first Bennett
57 A.3d at 1196
57 A.3d 1196. A claim
at "claim has arguable merit
has arguable merit where
where the
the factual
factual avennents, if accurate,
averments if accurate could
could
establish cause
establish for relief
cause for relief." Commonwealth
Commonwealth v. Pander,
Pander 100
100 A.3d 626, 631
A.3d 626 Pa Super.
631 (Pa. 2013
Super 2013).
An
An adequate and properly layered claim must contain more than boilerplate assertions of
adequate and properly layered claim must contain more than boilerplate assertions of
prior counsels
prior counsel's ineffectiveness, because "[sjuch an
ineffectiveness because an undeveloped argument, which
undeveloped argument which fails to
to fails
meaningfully
meaningfully discuss and apply
discuss and the standard
apply the standard governing
governing the
the review
review of
of ineffectiveness
ineffectiveness claims,
claims
simply does not satisfy Appellant's burden of
simply does not satisfy Appellants burden of establishing
establishing that
that he
he is entitled
entitled to
to any
is
any
. .
relief." Commonwealth v. Rivera
relief Commonwealth Rivera, 816 A.2d 282816 A.2d 282 (Pa.
Pa Super. 2003) (quoting
Super 2003 quoting Commonwealth
Commonwealth v.
Abdul-Salaam, 808
Abdul-Salaam 808 A.2d 558A.2d 558 (Pa. 2001).
Pa 2001 A layered
layered claim
claim also
also cannot
cannot be
be sustained
sustained where
where the
the
. . .
underlying-claim
underlying claim is unmeritorious.
unmeritorious Commonwealth
is Commonwealth v. Williams,
Williams 950
950 A.2d
A.2d 294,
294 300
300 (Pa.
Pa 2008);
2008
Commonwealth
Commonwealth v. McGill,
McGill 832
832 A.2d
A.2d 1014 102 122 (Pa.
1014, 1021-22 Pa 2003).
2003 This Court finds
This Court finds that
that the
the
Petitioner has submitted
Petitioner has submitted properly
properly layered
layered claims.
claims
In
In his
his first issue
first
issue, the
the Petitioner
Petitioner claims
claims that his first PCRA counsel
that his counsel was
first was ineffective
ineffective for
for
. failing
failing to
to raise the issue that trial counsel
raise the issue that counsel did
did not
trial not request
request records
records for
for a landline
landline phone
phone at at
Dickerson's home.
Dickersons 4 In his statement, Dickerson told police that the Petitioner called him on the
home.4 In his statement Dickerson told police that the Petitioner called him on the
phone
phone after
after the
the shooting
shooting and told him
and told that Woods
him that Woods had
had been
been prostituting
prostituting herself
herself at
at a bar,
bar and
and that
that
he
he shot man who
shot a man who was trying
trying to
to get
get involved
involved on
on her
her behalf.
behalf The
The Petitioner
Petitioner also
also told
told Dickerson
Dickerson
that he
that he thought the police
thought the police were
were looking
looking for
for him
him and
and that
that he
he did
did not know where
not know where to
to go.
go N.T.
N.T
4 This claim
This claim was added
was added by
by the Petitioner in his January
the Petitioner January 20,
in his 20 2016
2016 Motion
Motion to Supplement
to Supplement Evidence
Evidence of
of Ineffectiveness
Ineffectiveness
of
of Trial Counsel.
Trial Counsel
5
8/21/2008 at 18890
8/21/2008 at ~ 88-90. At
At both
both the
the preliminary hearing and
preliminary hearing and at trial, Dickerson
at trial Dickerson refuted
refuted his
his
statement and
statement and said
said that
that he
he did not own
did not own a landline phone at 1518
landline phone 1518 Conies
Corlies Street
Street at
at
the time
at the time of
of the
the
call. N.T
call N.T. 5/29/2007
5/29/2007 at 67; N.T
at 67 N.T. 8/21/2008 at 193
8/21/2008 at 193. From
From a records
records subpoena
subpoena issued
issued to Verizon in
to Verizon in
2015,
2015 the Petitioner maintains
the Petitioner maintains that
that there
there was
was no
no record
record of
of a landline
landline at Dickerson's home in
Dickersons homeat
in
2006
2006.5 Petitioner argues
Petitioner argues that
that because
because trial counsel
counsel knew
knew about
trial
about this
this issue
issue from the preliminary
from the preliminary
hearing, he
hearing he should
should have
have issued
issued a subpoena before trial to
subpoena before to verify that Dickerson
verify that Dickerson did
trial
did not
not have
have a
landline phone
landline phone.
The Petitioner
The Petitioner has
has failed to
failed to meet
meet his
his burden
burden in demonstrating that
in demonstrating that the
the underlying
underlying claim
claim
has arguable merit Based upon the evidence provided
has arguable merit Based upon the evidence provided, this
this Court cannot conclude
Court cannot conclude that
that
Dickerson did
Dickerson did not have a landline
not have landline phone. In April
phone In April 2015,
2015 the Petitioner subpoenaed Verizon
the Petitioner subpoenaed Venizon
requesting "[ a]ny and
requesting and all records
records of
of a telephone
all telephone number
number issued to 1518
issued to 1518 S. Corlies
Corlies Street,
Street
Philadelphia PA
Philadelphia, PA during 2006 On
during 2006." April 2, 2015,
On April 2015 Verizon's
Verizons Legal
Legal Compliance Office
Office
responded by
responded by stating
stating that
that the subpoena was "being returned ...
the subpoena was being returned
[as] no accounts, documents,
no accounts documents
records,
records or
or other
other materials were responsive
materials were responsive to
to the
the legal
legal 'r equest, based
request based upon
upon the
the information
information
provided,"
provided Verizon
Verizon added
added that,
that "land
land line
line records are telephone"
records are telephone number
number driven."
driven (emphasis
emphasis
added Verizon
added). Verizon's response
response did
did not attest
attest that there w_ere not landline phones at 1518
that there were not landline phones 1518 S. Corlies
Corlies at
Street
Street Rather,
Rather their
their response
response plainly
plainly indicated.
indicated that the
that the subpoena
subpoena was
was insufficient
insufficient as
as the
the
Petitioner
Petitioner needed to provide
needed to provide more
more information
information to
to fulfill the
the request.
request Moreover,
Moreover even
fulfill even if'Verizon
if Verizon
could
could attest that it did
attest that did not
not have
it have any
any landline
landline ·phones
phones at
at the
the subject
subject address,
address that
that information
information
would
would still not
not be
stillbe dispositive
dispositive as
as Verizon
Verizon was not
not the
the sole
sole provider
provider for
for landline
landline phones
phones in
in
Philadelphia
Philadelphia in 2006 For
in 2006. For these
these reasons;
reasons this
this 'claim is dismissed.
claim dismissed is
s The
The Petitioner attached
attached Verizon's
Petitioner Verizons subpoena
subpoena response
response to his January
January 21,
to his 21 2006
2006 Motion
Motion to Supplement
Supplement Evidence
to Evidence ofof
Ineffectiveness of
Ineffectiveness of Trial Counsel.
Counsel Although
Trial Verizons response
Although Verizon's response was
was dated
dated April
April 2, 2015, Ms Burt
2015 Ms. Burt stated that she
statedshe did
that did
not receive the response
not receive response until January
the January 15,
until 2016, because
152016 because it was
was directed to an
it an address
address where
directed to where she
she no
no longer
longer received
received
mail.
mail
6
The
The Petitioner asserts that his first PCRA
Petitioner asserts that his
PCRA counsel
counsel failed
first
failed to raise trial counsels
to raise counsel's failure
trial
to
failure to
to evidence
object to
object evidence that
thatthe small amount
Petitioner was arrested for a small
the Petitioner was arrested for
amount of
of drugs within a day
drugs within day of
of the the
murder
murder. At
At trial Officer Gamble
trial, Officer Gamble testified that
testified
that he small amount
found a small
he found amount of
of marijuana
marijuana on
on the
the
Petitioner during
Petitioner
during a vehicle
vehicle stop
stop, about
about twenty
twenty hours
hours after
after the
the shooting.6 N.T 8/21/2008
shooting.6 N.T. 8/21/2008 at 234
at 234.
At sidebar
At sidebar, the
the judge
judge sought
sought the relevancy
the relevancy of
of the
the· officer's
officers testimony. The Commonwealth
testimony The Commonwealth stated
stated
that the testimony
that the testimony was relevantto
was relevant to show that the
show that the description
description of
of the Petitioner's clothing
the Petitioners clothing at the
the at
time of the stop matched his
time of the stop matched clothing from
his clothing from the
the shooting.
shooting Defense counsel stated
Defense counsel that he
stated that he was
was
cross-examining the officer to show that the Petitioner did not attempt to flee from police during
cross-examining the officer to show that the Petitioner did. not attempt to flee from police during .
the stop
the stop. Id
Id. at 25 152
251-52.
at
This
This Court
Court finds that the
finds that the Petitioner's claim is without
Petitioners claim merit as
without merit as trial counsel
is counsel offered
trial offered a
reasonable basison the
reasonable basis-on the recordon
record-on why he did
why he did not
not object
object to
to the.officer's
the officers testimony.
testimony Further,
Further
II. the drug reference
the drug was minimal
reference was minimal and
and no~ dwelled onby
not dwelled the Commonwealth
on by the Commonwealth. For
For these
these reasons..
reasons
I
I the Petitioner cannot
the Petitioner cannot show
show that
that without this testimony
without this testimony about
about a small
small amount
amount of
of marijuana,
marijuana a
i
reasonable probability -existed
reasonable probability existed that the result
that the result of
of the
the proceeding
proceeding would have been
would have been different.
different See
See
Commonwealth
Commonwealth v. Weiss,
Weiss 81 A.3d 76781 A.3d 767 (Pa.
Pa 2013)
2013 (finding
fmding a minimal
minimal drug reference that-was
drug reference that was not
not
dwelled on by
dwelled on by the
the Commonwealth
Com.tnonwealth did
did not
not amount
amount toprejudice).
to prejudice
The
The Petitioner
Petitioner also
also claims
claims that
that his PCRA counsel
his first PCRA counsel failed
firstfailed to·
to raise
raise trial counsel's
counsels
trial
failure
failure to
to object
object to the jury
to the seeing the
jury seeing the Petitioner's
Petitioners photograph
photograph related
related to
to the
the marijuana
marijuana arrest.
arrest At
At
trial, when questioning
trial when questioning a witness
witness (James
James Frager)
Frager about
about hispolice
his police statement,
statement the
the Commonwealth
Commonwealth
showed
showed the
the Petitioner's
Petitioners photograph
photograph related
related to·
to the
the marijuana
marijuana arrest.
arrest At
At sidebar,
sidebar trial counsel
counsel trial
·) indicated
indicated
that
that he
he did not object
did not object because
because the
the Petitioner
Petitioner was arrested
arrested later
later that
that day
day for
for the
the subject
subject
homicide. N.T 8/21/2008
homicide N.T. 8/21/2008 at 54S
at.54-55.
6 The
The drug charge was
drug charge dismissed prior to trial.
was dismissed prior to trial
7
ThePetitioner
The Petitioner fails to
fails
to show
show prejudice
prejudice as
as courts
courts have
have held
held that
that an
an arrest
arrest photo
photo itself does
does
itself
not infer that the Defendant is a criminal
not infer that the Defendant See Commonwealth
criminal. See
is
Commonwealth v. Lawrence 596 A.2d
Lawrence, 596 A.2d 165, 169
165 169
(Pa. Super
Pa Super. 1991
1991) abrogated
(abrogated on
on other
other giound by Commonwealth
ground by Commonwealth v. Jette 23 A.3d
Jette, 23 A.3d 10321032 Pa
(Pa.
2011)). In
2011 InLawrence
Lawrence, where a photographic
where photographicarray
array including
including the
the appellants
appellant's photograph was
photograph was
shown to
shown to the
the jury
jury, the
the court
court held
held that
that "[ajlthough no
no testimony
testimony existed
existed to
to explain
explain police
police
possession of the photo, the
possession of the photo the most
most that couldbe
that could inferred from
be inferred from such
such a reference
reference was
was that
that appellant
appellant
had had prior contact with the police and not a prior
had had prior contact with the police and not record or
prior record or a previous
previous conviction
conviction." 596
596 A.2d
A.2d
at 16970
at 169-70; see
see also Commonwealth v. Allen
also Commonwealth 292 A.2d
Allen, 292 A.2d 272272 (Pa. 1972) (no
Pa 1972 prejudice found
no prejudice found where
where
police assembled
police assembled a photo
photo array
array with
with the
the Petitioner's
Petitioners police photo); see
police photo see also Commonwealth v.
also Commonwealth
Brown,
Brown 512 A.2d 596 Pa
512 A.2d 596 (Pa. 1986
1986) (where
where "mugshots" were shown
mugshots were shown to the jury,
to the jury the
the court held that
court held that
''prior contact with the police in itself proves nothing
prior contact with the police in itself proves nothing. It doesnot prove a prior
does not prove prior record
It record or
or
previous crime;
previous crime it only
only proves
proves a previous
it previous contact.").
contact. Prior
Prior contact with the
contact with the police
police can
can occur
occur
under a variety
under variety of
of circumstances
circumstances that
that are.
are not
not criminal
criminal in nature including
in nature including involvement
involvement in
in a motor
motor
vehicle accident
vehicle accident or
or violation,
violation or
or being
being a witness
witness or
or a victini
victim to
to a crime;
crime Commonwealth
Commonwealth v. Young,
Young
849
849 A,2d
A.2d 1152,
1152 1156
1156 (Pa.
Pa 2004). At best
2004 At best, the
the photograph
photograph in
in the
the instant
instant matter
matter indicated
indicated prior
prior
contact
contact with
with police;
police not
not a prior
prior arrest or conviction."
arrest or conviction.7 Because
Because the
the Petitioner
Petitioner cannot
cannot show
show
prejudice, he is not
prejudice he not entitled
isentitled to
to relief.
relief .
.I The
The Petitioner
Petitioner claims
claims that.
that his
his first PCRA
PCRA counsel
counsel was
first was ineffective
ineffective for
for failing
failing to
to raise
raise trial trial
counsel,
counselss failure
failure to
to request
request an
an alibi
alibi instruction..
instruction AtAt trial,
trial Royster
Royster testified
testified that
that she
she was in the
was in the
bathroom
bathroom doing
doing drugs
drugs with
with the
the Petitioner
Petitioner at
at the
the time
time of
of the
the shooting;
shooting and
and that
that after
after hearing
hearing
gunfire,
gunfire she
she and
and the
the Petitioner
Petitioner ran
ran to
to the
the bar's
bars front
front door,
door which
which was
was locked
locked by
by the
the .b artender,
bartender
7 Even
Even if the photograph
photograph did
if the did indicate a prior arrest,'
indicate arrest the Petitioner cannot
prior the cannot show
Petitionershow prejudice
prejudice as the jury
as thejury was
was aware
aware that
that
he
he was
was arrested for a small
arrested forsmallamount
amount of
of marijuana.
marijuana
8
temporarily preventing them from going outside
temporarilypreventing N.T 8/22/2008
them from going outside. N.T. 8/22/2008 at 233
233. Defense
Defense counsel
counsel did
did
at
not request an alibi instruction; nor was one given in the jury charge.
not request an alibi instruction nor was one given in the jury charge
Failure to request
Failure to
request an
an alibi
alibi instruction
~nstructio~ is 'not per se
not per se ineffectiveness.
is Commonwealth v.
ineffectiveness Commonwealth
Hawkins, 894
Hawkins A.2d 716
894 A.2d 716 Pa
(Pa. 2006).
2006 For
For counsel to be
counsel to be deemed
deemed ineffective
ineffective for
for failing to request
failing to request
an alibi instruction
an instruction, all three
alibi
three prongs
prongs of
of the
all
the Pierce/Strickland
Pierce/Strickland test for ineffectiveness
test for ineffectiveness must met.
be met'
must be
Commonwealth
Commonwealth v. Sileo
Sileo, 32
32 A.3d 753 Pa
A.3d 753 (Pa .. Super
Super. 2011
2011) stating
(stating that
that there must be
there must prejudice for
be prejudice for
ineffectiveness regarding
ineffectiveness regarding failure
failure to
to request
request an
an alibi
alibi instruction
instruction); see
see also Hawkins, 894
also Hawkins 894 A.2d
A.2d 716
716
(if counsel had
if counsel had a reasonable
reasonable explanation
explanation for failing to
for falling to request
request an alibi instruction
an alibi instruction, no
no
ineffectiveness is present).
ineffectiveness present.88
is ·
At
At the evidentiary hearing
the evidentiary hearing, trial counsel
counsel offered
offered a reasonable
trial reasonable explanation
explanation for not
for not
requesting an alibi
requesting an alibi instruction He articulated
instruction. He that he
articulated that he did
did not
not request
request one
one because the Petitioner
because the Petitioner
was
was still on the
still the premises
premises at
at the
the time of the
time of the shooting.
shooting Trial
Trial counsel believed an
counsel believed argument could
an argument could
still be
still
be made
made that the Petitioner
that the Petitioner left the left 6869
bar and committed the murder . .N.T.. 4/01/2016 at 68-69.
the bar and committed the murder N.T 4/01/2016 at
Even if trial counsel
Even if counsel did
trial did not
not have
have a-reasonable
reasonable basis
basis for his inaction,
for his inaction this
this Court
Court still finds
finds still
that the Petitioner
that the Petitioner fails to show how
to show how counsel's
failscounsels failure
failure to
to request
request an
an alibiinstruction
alibi instruction prejudiced
prejudiced
him.
him Commonwealth
Commonwealth v. Ali
AU, 10
10 A.3d
A.3d 282
282 (Pa.
Pa 2010)
2010 (Petitioner
Petitioner has not suffered
has not suffered prejudice.
prejudice ffrom
rom
counsel's
counsels alleged
alleged deficient
deficient performance
performance unless there is a 'reasonable
unless there reasonable probability
probability that-the
that the verdict
is verdict
would
would have
have been
been different).
different Trial counsel highlighted
Trial counsel highlighted Royster's
Roysters testimony
testimony in
in closing
closing arguments
arguments
and
and argued
argued not
not only
only that the jury_
that the jury should
should evaluate
evaluate her
her testimony,
testimony but
but also
also that
that the
the Commonwealth
Commonwealth
had
had failed
falled to
to offer
offer a witness to refute
witness to refute her,
her including
including .ssubpoenalng
ubpoenaing the
the bartender
bartender who
who Royster
Royster had
had
testified
testified locked
locked her
her and
and the
the Petitioner
Petitioner inside
inside the
the bar N.T
bar.. N. T. 8/25/2016
8/25/2016 at 6364 The
at 63-64. The jury's
jurys verdict
verdict
88Hawkins
Hawkins found
found that counselhad
counsel had a reasonable
that reasonable basis for not
not requesting
requesting an
an alibi instruction where
basis for where counsel
counsel stated that·
alibi instruction stated that
where
where alibi testimony
testimony is weak,
alibi weak highlighting that testimony
is
testimony explicitly as alibi evidence
highlighting that evidence disserves the defendant's
explicitly as alibi defendants disserves the
interests. Commonwealth
interests Commonwealth v. Hawkins,
Hawkins 894
894 A.2d
A.2d 716
716 (Pa.
Pa 2006).
2006
9
indicates that
indicates
that they
they chose
chose not
not to
to believe
believe Roysters
Royster's testimony
testimony. It is extremely
It
extremely unlikely-with
is unlikelywith or
or
without an
without alibi instructionthat
an alibi instruction-thatthe
the jury
jury would
would have believed Royster
have believed Roysteryet
yet still convicted
convicted the
still
the
Petitioner of
Petitioner of the
the crime
crime.
Moreover, the
Moreover the Commonwealth
Commonwealth presented
presented overwhelming evidence to
overwhelming evidence to support the
support the
Petitioner's guilt
Petitioners guilt. Two
Two witnesses
witnesses placed
placed the
the Petitioner
Petitioner outside the bar
outside the bar at the time
at the time of the shooting.
of the shooting
Woods
Woods told
told police
police that
that she
she witnessed the Petitioner
witnessed the Petitioner point
point a gun
gun at
at the
the victim
victim and
and shoot
shoot him
him
[: numerous times. Frager testified
numerous times Frager testified that
that when
when he
he left the
the bar,
left
the Petitioner
bar the Petitioner was standing outside
was standing outside
:
with the victim. Immediately
with the victim
Immediately after hearing gunshots, Frager saw the Petitioner standing over the
after hearing gunshots Frager saw the Petitioner standing over the
· victim
victim. In
In addition to there
addition to there being
being two
two witnesses,
witnesses the
the Petitioner
Petitioner also
also confessed
confessed to
to the
the murder.
murder
Following the shooting
Following the shooting, the
the Petitioner
Petitioner told Dickerson of
told Dickerson of his
his involvement in the
involvement in the murder
murder as
as well
well as
as
his motive for
his motive the shooting.
for the shooting For
For these
these reasons,
reasons the
the Petitioner
Petitioner cannot
cannot demonstrate
demonstrate prejudice.
prejudice
Thus,
Thus no
no relief
relief is warranted.
warranted
is
This
This Court examined the
Court examined the cumulative prejudicial effect
cumulative prejudicial effect of
of the alleged errors
the alleged errors of
of trial
trial
counsel,
counsel and
and finds
finds there
there was no reasonable
was no reasonable probability
probability that
that had
had these matters been
these matters been handled
handled
differently,
differently the
the result
result of
of the
the trial would
trial would have
have been
been different.
different None
None of
of the
the Petitioner's
Petitioners claims
claims
necessitates new trial.
necessitates a new trial See
See Commonwealth Johnson 966
Commonwealth v. Johnson, 966 A2d
A.2d 523 Pa 2009 (stating
523 (Pa."2009) stating that
that if if
multiple instances of
multiple instances deficient performance
of deficient performance are
are found,
found the
the assessment
assessment of
of prejudice
prejudice properly
properly may
may
be premised upon cumulation). Courts
be premised upon cumulation Courts have
have consistently
consistently held
held that
that no
no number
number of
of failed
failed claims
claims
may
may collectively
collectively warrant
warrant relief
relief if they
they fail to
if to do
fail so individually.
do so individually Commonwealth Cox 983
Commonwealth v. Cox, 983
A.2d 666 (Pa.
A.2d 666 Pa 2009)
2009 (citing
citing Commonwealth Washington 927
Commonwealth v. Washington, 927 A.2d
A.2d 586,
586 617
617 (Pa.
Pa 2007)).
2007 This
This
Court
Court is satisfied
issatisfied that
that no
no cumulative
cumulative prejudice
prejudice relief
relief is warranted.
warranted
is
Lastly,
Lastly the
the Petitioner
Petitioner makes
makes a claim
claim of
of after-discovered
after-discovered evidence.
evidence The
The Petitioner
Petitioner averred
averred
that
that on
on June
June J17
7, 20 5nine years
201J 5-nine years after
after the
the murder-he
murderhe became
became aware
aware of
of a witness,
witness Robert
Robert
10
10
----···· ----·
Corbin. Corbin
Corbin Corbin asserted that he
asserted that he witnessed
witnessed the
the subject
subject shooting
shooting while
while on
on his
his way
way to
to purchase
purchase .
cigarettes for
cigarettes for his
his then-fiancé Corbin, who
then-fiance. Corbin who knew
knew the Petitioner from
the Petitioner from the
the neighborhood
neighborhood, claimed
claimed
that he
that he did
did not
not see
see the
the Petitioner
Petitioner outside
outside the
the bar
bar at
at the
the time
time of
of the
the shooting
shooting and
and that
that two other
two other
men shot
men shot the
the victim. N.T
victim N.T. 1/21/20
1/21/2016 4060
16 40-60.
ForFor a new
new trial
trial, based
based on
on after-discovered
after-discovered evidence
evidence, the
the Petitioner must show by a
Petitioner must show by
preponderance of
preponderance of the
the evidence
evidence that
that: (1) the
the evidence
evidence has
has been
been discovered
discovered after
after trial and
and it could
could
trial it
not have been
not have been obtained
obtained at
at or
or prior
prior to
to trial through
through reasonable
trial
reasonable diligence;
diligence (2) the
the evidence
evidence is not
not is
cumulative; (3) it is not
cumulative it
not being
isbeing used
used solely
solely to
to impeach
impeach credibility
credibility; and
and (4) it would
it
likely compel
would likely compel a
different verdict
different verdict. Commonwealth
Commonwealth v. D 'Amato, 856 A.2d
Amato 856 806, 823
A.2d 806 Pa 2004).
823 (Pa. PCRA court
2004 A PCRA court is is
tasked with assessing a witnesss
tasked with assessing witness's credibility
credibility PCRA hearing
at a PCRA
at hearing, and
and its credibility
its
credibility
determinations should be
determinations should be provided great deference
provided great by a reviewing
deference by reviewing court.
court Johnson,
Johnson 966
966 A.2d
A.2d at at
539 one of
539 ("one the primary
of the primary reasons PCRA hearings
reasons PCRA hearings are
are held
held in the first place
in the place is so
first so that
that credibility
is
credibility
determinations can be made;
determinations can be made otherwise, issues of
otherwise issues of material
material fact
fact could
could be decided on
be decided pleadings and
on pleadings and
affidavits alone.").
affidavits alone.
This
This Court finds Corbins
Court finds Corbin's testimony
testimony contrived,
contrived inconsistent,
inconsistent and incredible. First,
and incredible First
Corbin's
Corbin story
story on
on why
why he
he waited
waited nine
nine years
years to
to come
come forward.
forward lacked
lacked believability.
believability Corbin
Corbin
testified that he
testified that he failed
failed to
to come
come forward
forward at
at his mother's request.
his mothers N.T 4/1/2016
request N.T. 4/1/2016 at 4142 A year
at 41-42.
year
later
later when
when his
his motherdied,
mother died Corbin
Corbin again
again failed
failed to
to come
come forward,
forward even
even though
though he
he knew
knew the
the
wrong
wrong man
man had
had been
been arrested
arrested for
for the
the murder-he
murderhe claimed
claimed that
that his
his father prevented him
father prevented him from
from
doing
doing so. When his
so When father moved away
his father moved
away a few
few years
years later,
later Corbin
Corbin failed
failed to
to come
come forward
forward yet
yet
again In
again. In the
the
subsequent
subsequent years,
years no
no longer
longer afraid
afraid nor
nor under
under his
his parents'
parents control-and
controland admittedly
admittedly
still able
still able to
to identify
identify the
the two
two shooters-Corbin
shootersCorbin still failed
failed to
to go
still go the
the police
police or
or inform
inform anyone
anyone of
of
what
what he
he saw
saw that
that night.
night N.T.
N.T 1/21/2016
1/21/2016 at
at 59;
59 N.T.
N.T 4/1/2016
4/1/2016 at 4549
at 45-49.
11
11 .
Next, Corbin
Next Corbin's testimony
testimony was
was inconsistent
inconsistent. The record
The record reflects that the shooting occurred
reflects that the shooting occurred
right after last
right after "last call
call," at
at or about 2 a.m
or about In Corbins
a.m. In Corbin's statement
statement attached
attached to
to the
the Petitioners
Petitioner's
petition, Corbin
petition Corbin asserted
asserted that
that he
he was
was outside
outside the bar at 145
the bar a.m when
1 :45 a.m. when he
he witnessed
witnessed the
at
shooting.
the shooting
·! Yet at the
Yet the evidentiary
at evidentiary hearing
hearing, Corbin
Corbin stated
stated that
that he
he was
was outside the bar
outside the 1240 a.m
at 12:40
bar at a.m. N.T
N.T.
I
1/21/2016 at 43
1/21/2016 43. This
atThis Court
Court finds
finds this
this disparity even more
disparity even more glaring
glaring since Corbin testified that he
since Corbin testified that he
knew
knew what
what time
ti.me the bar closed2
the bar closed-2 a.m.because the bar
a.m.-because the "bar close[
close d] at the same
at the same time
time every night."
every night
N.T
N.T. 4/01/2016 at 9 (emphasis
4/01/2016 emphasis added).
at added.99
Finally, Corbin's testimony
Finally Corbins testimony also
also conveniently eliminated all of
conveniently eliminated of the people who
the people who were
were all
outside the
outside the bar
bar at
at the
the time
time of
of the
the shooting
shooting. As
As noted above, Corbin
noted above Corbin stated that he
stated that he still could
could still
identify the two
identify the two shooters
shooters; yet
yet when
when shown
shown photographs
photographs at the evidentiary hearing
the evidentiary of Terrance
hearing of Terrance
at
Speller, Steven Barkley
Speller Steven Barkley the
(the victim), Curtis Scott,
victim Curtis Scott Charles
Charles "Biggie" Waters, as
Biggie Waters well as
as well as James
James
the aforementioned people and the Petitioner outside the bar 10Corbin
Frager-who
Fragerwho witnessed
witnessed the aforementioned people and the Petitioner outside the bar10-Corbin
failed to identify any
failed to identify of them
any of them as
as being
being present
present outside
outside the bar at
the bar at the time of
the time of the
the shooting.
shooting Id.Id at
at
22-25, 48-49,
2225 4849 54.
54 Because Corbin
Because Corbin was unable
was unable to identify any
to identify any of the participants
of the participants outside
outside the bar,
the bar
this
this Court
Court finds
finds it exceedingly
exceedingly unlikely
it unlikely that
that he
he could
could say
say with
with any
any level
level of
of certainty
certainty that
that the
the
Petitioner was
Petitioner was not
not one of those participants.
of those participants Accordingly,
Accordingly this
this Court
Court finds
fmds Corbin's
Corbins testimony
testimony
unlikely
unlikely to
to compel
compel a different
different verdict
verdict.
For the foregoing
For the foregoing reasons,
reasons these
these claims
claims are DENIED
are DENIED.
BY THE COURT,
BY THE COURT
., i
I
Barbara
Barbara A. McDermott,
McDermott J
9
This
This Court
Court is not
isnot persuaded
persuaded by
by the fact that Corbin
the fact Corbin later gave
that gave an
an accurate time
later time for the shooting
accurateshooting on
on day
day two
for thetwo of
of the the
bifurcated evidentiary hearing
bifurcated hearing.
1°
evidentiary
Frager testified that everyone
Frager testified everyone he
that he saw
saw inside the
the bar
inside bar that night
night was
thatwas outside when
when he
he left the bar
outside bar right before
before the
left the right the
shooting.
shooting N.T.
N.T 8/21/2008
8/21/2008 3031 Woods
at 30-31.
at Woods also told police that Frager
also told Frager was
police was outside the bar
that bar atthe time
time of
outside the of the at the the
shooting.
shooting N.T.
N.T 8/2212008
8/22/2008 at 56.
56at
12
12