Commonwealth v. Brown , 2016 Pa. Super. 38 ( 2016 )

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2016 PA Super 38COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHEEN J. BROWN
Appellant No. 3047 EDA 2013
Appeal from the Order October 30, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002569-2012
BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2016
Appellant Rasheen J. Brown appeals the judgment of sentence entered
by the Honorable Glenn B. Bronson of the Court of Common Pleas of
Philadelphia County after a jury convicted Appellant of first-degree murder,
conspiracy to commit murder, possession of a firearm by a prohibited
person, carrying a firearm on a public street or public property in
Philadelphia, and possessing an instrument of crime.1 Appellant alleges that
(1) his convictions are against the weight of the evidence, (2) the trial court
abused its discretion in various evidentiary decisions, (3) the prosecutor
made improper statements in closing argument, (4) the trial court gave an
erroneous jury instruction, and (5) after-discovered evidence entitles him to
a new trial. After careful review, we affirm.
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1
18 Pa.C.S.A. §§ 2502(a), 903, 6105(a)(1), 6108, and 907, respectively.
*Former Justice specially assigned to the Superior Court.
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On October 17, 2011, shortly before midnight, Akkier McKinney (“the
victim”) and a man identified by the nickname “Sheed” began to argue on
the sidewalk in front of El Ran’s Bar in the Frankford section of Philadelphia.
The victim accused Sheed of being disrespectful and asked Sheed to step
into the street to fight. Sheed responded to the victim: “I don’t do this
fighting, I play with guns.” N.T., 6/20/13, at 160.
Witnesses began to gather outside the bar as the two men continued
their heated exchange. Four of Sheed’s friends, including Appellant,
Christopher Graham, Alan Jackson, and an unidentified man in a gray hoodie
came out of the bar to help Sheed. After Sheed told Appellant to “get the
.40,” Appellant walked off with Graham and the man in the hoodie. Id. at
21. Sheed and Jackson continued to argue with the victim, who was now
sitting in the driver’s seat of his vehicle. Shortly thereafter, Appellant
returned to the scene in a silver car, exited the vehicle, and approached the
victim’s vehicle. Looking at Sheed and Appellant, the victim stated “Oh, I
see how you all trying to do.” Id. at 162. Once Sheed yelled “light him the
fuck up,” Appellant fired his weapon at the victim several times. Id.
William Fowler, the bartender at El Ran’s Bar, who had observed the
altercation and shooting, ran back into the bar for cover. Once the shooting
ceased, Fowler exited the bar and found the victim alive, twitching with
broken glass in his eyes from the shattered driver’s side window of his
vehicle. Fowler contacted the police, who transported the victim to the
hospital, where he was pronounced dead. The victim sustained gunshot
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wounds to the head, abdomen, and thigh. Officers retrieved five .40 caliber
Smith & Wesson cartridge casings from the crime scene. Fowler and another
eyewitness, Lalana Brown, gave statements to the police about the shooting.
Fowler was able to identify Appellant, who he knew, as the shooter.
Police also questioned Graham, who told police he had not witnessed
the shooting but heard gunshots from around the street corner. Graham
indicated he called Appellant’s cell phone repeatedly, but was unable to
reach him. However, the morning after the shooting, Graham met with
Appellant and asked what had happened to the victim. Appellant laughed
and replied, “he’s done, it’s over, finito.” Id. at 22. After police showed
Graham still photographs taken from the bar’s surveillance video, Graham
identified Appellant as being present at the shooting.
Appellant proceeded to a jury trial that commenced on June 18, 2013.
During trial, the Commonwealth called Fowler, Brown, and Graham to
testify, but all three witnesses recanted their accounts of the crime. Brown
and Graham claimed to have been intoxicated when they gave their initial
statements to police and were uncooperative with the prosecutor on direct
examination. Fowler alleged that the police coerced his written statement as
he was not given anything to drink for twelve hours and asserted the officers
punched and slapped him until he identified Appellant as the shooter. The
Commonwealth introduced into evidence Fowler, Brown, and Graham’s initial
accounts of the shooting as prior inconsistent statements.
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At the conclusion of the trial, on June 26, 2013, a jury convicted
Appellant of the aforementioned offenses. On the same day, the trial court
imposed a mandatory life sentence for Appellant’s first-degree murder
conviction pursuant to 18 Pa.C.S.A. § 1102(a)(1). On July 1, 2013,
Appellant filed a post-sentence motion through counsel, but subsequently
filed a petition to proceed pro se. On September 6, 2013, the trial court
held a hearing pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713
A.2d 81 (1998), and granted Appellant leave to proceed pro se. After
Appellant adopted the post-sentence motion previously filed by counsel, the
trial court denied the post-sentence motion on October 16, 2013. Appellant
filed this timely appeal on October 30, 2013.
Although Appellant had been permitted to proceed pro se, Appellant
reconsidered his request and filed a motion asking to be reappointed
counsel, claiming he had been placed in a Restricted Housing Unit and had
little access to a typewriter, paper, or the materials necessary to represent
himself on appeal. On November 15, 2013, Appellant complied with the trial
court’s request to submit a Concise Statement of Errors Complained of on
Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), with
the caveat that he was never provided access to his trial transcripts and
again asked for counsel to preserve his desired claims for appeal. The trial
court filed its Rule 1925(a) opinion, finding several of Appellant’s claims
waived for lack of specificity.
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On April 7, 2014, Appellant filed a Petition to Suspend the Filing of
Appellant’s Brief, asserting there had been a breakdown in the judicial
process as the court clerk failed to file the complete record. On April 22,
2014, Appellant filed an Application for the Appointment of Counsel. On May
5, 2014, this Court entered a per curiam order directing the trial court to
certify and transmit a supplemental record to this Court. As Attorney Jason
Kadish entered his appearance on Appellant’s behalf on April 24, 2014, this
Court denied Appellant’s request for counsel as moot and permitted
Appellant to file an amended 1925(b) statement through counsel.
Appellant raises six issues for our review on appeal:
1) Whether the guilty verdicts as to the charges of murder of
the first degree, conspiracy to commit murder of the first
degree, possession of a firearm prohibited, carrying a firearm
on a public street, and possessing an instrument of crime
were against the weight of the evidence?
2) Whether [the] Commonwealth impermissibly elicited
testimony regarding the Appellant being in custody and
having a prior record?
3) Whether Philadelphia Police Detective James Dunlap was, in
error, allowed to narrate, interpret, identify, and describe the
events and individuals depicted in the surveillance video
played to the jury?
a. Whether the Commonwealth was erroneously permitted to
play the surveillance video frame-by-frame when it was
not provided in a frame-by-frame format in discovery and
defense counsel lacked the ability to view the video frame-
by-frame prior to its introduction by the Commonwealth at
trial?
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4) Whether the prosecutor during her closing statement,
impermissibly argued the following thereby depriving the
Appellant of a fair trial?
a. Fear and intimidation were the reason for the recantations
of several Commonwealth witnesses during their testimony
when there existed not one iota of evidence regarding
witness intimidation or coercion.
b. The Appellant was “D’Bo’s brother,” and therefore, one
would expect the Appellant to have a propensity for using
and/or possessing firearms.
c. Her belief/opinion that the written statements allegedly
provided by witnesses William Fowler and Christopher
Graham to the Philadelphia Police Department were “the
truth.”
5) Whether the trial court erred by erroneously instructing the
jury as to the concept of reasonable doubt?
6) Whether the instant matter should be remanded to the trial
court for a hearing on after-discovered evidence.
Appellant’s Brief, at 6-7.
Appellant first challenges the weight of the evidence supporting each
of his convictions. Our standard of review in evaluating a challenge to the
weight of the evidence is well-established:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, 560 Pa. 308,
319, 744 A.2d 745, 751–52 (2000); Commonwealth v.
Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new
trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. Widmer, 560 Pa. at 319–20,
744 A.2d at 752. Rather, “the role of the trial judge is to
determine that ‘notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.’” Id. at 320,
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744 A.2d at 752 (citation omitted). It has often been stated that
“a new trial should be awarded when the jury's verdict is so
contrary to the evidence as to shock one's sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.” Brown, 538 Pa. at 435, 648
A.2d at 1189.
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the
weight of the evidence. Brown, 648 A.2d at
1189. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination
that the verdict is against the weight of the
evidence. Commonwealth v. Farquharson, 467
Pa. 50, 354 A.2d 545 (Pa. 1976). One of the least
assailable reasons for granting or denying a new trial
is the lower court's conviction that the verdict was or
was not against the weight of the evidence and that
a new trial should be granted in the interest of
justice.
Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis
added).
Commonwealth v. Clay, 619 Pa. 423, 431-32, 64 A.3d 1049, 1054-55
(2013).
Appellant broadly asserts that the weight of the evidence does not
support the Commonwealth’s theory that he was the perpetrator responsible
for the victim’s death. Appellant contends Fowler’s initial statement
identifying him as the shooter was unreliable as Fowler claims he was
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coerced into making this accusation after officers kept him at the police
station for twelve hours and subjected him to physical and psychological
abuse. As noted above, Fowler recanted at trial and denied seeing who shot
the victim. Appellant argues Fowler’s identification is contradicted by video
surveillance outside the bar which Appellant alleges shows he was across the
street from the victim’s vehicle at the time of the shooting. Appellant also
points to the testimony of Officer Raymond Andrejczak, the Commonwealth’s
ballistics expert, who opined that the shooter was likely within three to five
feet of the victim at the time of the shooting based on the location of the
recovered cartridge casings.
As noted above, we need only assess the trial court’s exercise of
discretion in evaluating whether the jury’s decision to give more weight to
certain facts constitutes a denial of justice. The trial court determined there
were no grounds to disturb the jury’s credibility findings or reweigh the
evidence after examining all of the evidence. In his initial statement to
police, Graham shared that Sheed directed Appellant to go “get the .40” as
Sheed was having a heated altercation with the victim. N.T., 6/20/13, at
21. Commonwealth witness Fowler told police that Appellant returned to the
scene and opened fire on the victim after Sheed directed Appellant to “light
him the fuck up.” Id. at 162. Upon investigation of the scene, officers
recovered fired cartridge casings from a .40 caliber semiautomatic weapon.
Although Appellant discounts Fowler and Graham’s statements to
police as they later recanted at trial, the jury was free to credit the
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witnesses’ prior inconsistent statements over their recantations. In a similar
case, the Pennsylvania Supreme Court held that the prior inconsistent
statements of witnesses who recanted at trial constituted sufficient evidence
to support the defendant’s murder conviction when the witnesses testified at
trial and were subject to cross-examination before a factfinder that could
reasonably credit the prior statements over the witnesses’ in-court
recantations. Commonwealth v. Brown, 617 Pa. 107, 154, 52 A.3d 1139,
1168 (2012).
Although Graham and Fowler recanted their accounts of the crime at
trial, they were subject to cross-examination before the jury and presented
explanations for making the inconsistent statements. While Graham claimed
he was intoxicated when he gave his statement to police, the interviewing
officer testified there was no indication that Graham was under the influence
of any drugs or alcohol at that time. Although Fowler alleged he was forced
to identify Appellant by the coercive and abusive environment at the police
station, officers denied any such abuse and explained Fowler could not be
interviewed for an extended period of time that evening as the department
was investigating four separate homicides. Officers noted that Fowler was
initially reluctant to give an account of the shooting, but fully cooperated
with police before trial. In his formal statement to police, Fowler admitted
he was fearful of the consequences of talking with police, indicating, “I’m
sorry I didn’t tell you guys everything the first time. I’m just scared. This is
how people get killed and I don’t want to be that guy.” N.T., 6/20/13, at 15,
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24. In addition, the prosecutor impeached Fowler’s credibility when Fowler
claimed he did not know Appellant before trial by presenting prison visitor
logs that showed that Fowler visited Appellant in prison after the shooting.
The jury had a full opportunity to observe the witnesses and assess the
credibility of their explanations for the recantations.
Moreover, while Appellant claims that the surveillance videos outside
the bar prove he was not the shooter, the trial court explained that the
“video did not depict the shooter because of the angle of the camera [but]
showed the events leading up to the shooting and the aftermath.” Trial
Court Opinion, 3/7/14, at 5. After reviewing all the evidence, the jury found
that the credible evidence identified Appellant as the shooter. As such, we
conclude the trial court properly exercised its discretion in finding the jury’s
verdict was not so contrary to the evidence as to shock the conscience.
Second, Appellant asserts the prosecutor improperly elicited evidence
that Appellant was incarcerated when cross-examining Graham. The trial
court found the Commonwealth properly attempted to impeach Graham
following his assertion that he never knew Appellant by pointing out that
prison logs showed Graham visited Appellant in prison:
[Prosecutor:] Do you remember visiting [Appellant] while he
was in custody prior to this case?
[Graham:] I don’t remember.
[Defense counsel:] Objection.
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[Prosecutor:] I’m sorry. When he was in custody since his
arrest for this case is what I meant.
[Trial Court:] Yes, yes.
[Prosecutor:] Prior to your testimony is what I meant.
[Trial Court:] Ok.
[Graham:] I don’t know. I don’t remember that.
N.T., 6/19/13, at 203-204. Appellant also takes issue with the fact that the
prosecutor mentioned Appellant’s inmate number in an attempt to refresh
Graham’s memory that he signed a prison log to visit Appellant before trial.
Appellant’s claim fails as the prosecutor did not suggest Appellant had
been incarcerated for another crime, but clarified Appellant was in custody
for the instant charges. To further ensure that these comments did not
cause any confusion, the trial court instructed the jury that they were to
consider the evidence that Graham visited Appellant in prison for the sole
issue of whether Graham contacted Appellant before trial and cautioned the
jury that they should not draw any adverse inference against Appellant
based on his arrest in this case. Id. at 207. As a result, Appellant is not
entitled to relief on this claim.
Third, Appellant argues that the trial court erred in allowing
Philadelphia Police Detective James Dunlap to narrate and describe events
and individuals in the surveillance video that was played to the jury. In
addition, Appellant claims that the Commonwealth should not have been
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allowed to play the video frame by frame as the defense lacked the ability to
view the video in this manner before its admission at trial.
In reviewing a challenge to the admissibility of evidence, we note that
such matters are within the sound discretion of the trial court and thus, we
“will reverse the trial court's decision only if the appellant sustains the heavy
burden to show that the trial court has abused its discretion.”
Commonwealth v. Christine, ___Pa.___, 125 A.3d 394, 398 (2015)
(citation omitted).
It is not sufficient to persuade the appellate court that it
might have reached a different conclusion; it is necessary to
show an actual abuse of the discretionary power. An abuse of
discretion will not be found based on a mere error of judgment,
but rather exists where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
Id. (citation omitted).
Pennsylvania Rule of Evidence 701 provides a lay witness may offer
opinion testimony as long as the opinion is “(a) rationally based on the
witness's perception; (b) helpful to clearly understanding the witness's
testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.”
Pa.R.E. 701.
After allowing the Commonwealth to present the surveillance video to
the jury, the trial court permitted Detective Dunlap to give limited testimony
to direct the jury’s attention to specific images depicted in the video. When
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defense counsel objected to Detective Dunlap’s identification of an individual
in the video, the trial court sustained the objection, prohibited Detective
Dunlap from speculating as to the identities of individuals seen in the
footage, and instructed the jury that their own observations controlled. The
trial court allowed Detective Dunlap to describe images on the video and call
attention to specific portions of the video. Accordingly, the trial court found
Detective Dunlap’s commentary was rationally based on his observations
and assisted the jury in keeping track of the various individuals appearing on
the video.2 We conclude the trial court acted within its discretion in
allowing Detective Dunlap to offer his observations to assist the jury.
Likewise, Appellant’s claim that the Commonwealth should not have
been permitted to show the surveillance video frame by frame is also
without merit. As the Commonwealth complied with discovery in providing
the defense with the video before trial, Appellant has not established that
the Commonwealth was responsible for the defense’s failure to review the
video at different speeds. The prosecution presented the video in a manner
that was helpful to the jury to better visualize the events that occurred the
night of the shooting. See Commonwealth v. Jordan, 619 Pa. 513, 534,
65 A.3d 318, 330 (2013) (concluding the trial court properly exercised its
discretion in allowing the prosecutor to show the surveillance video in slow
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2
Appellant does not contend Detective Dunlap’s testimony was based on
scientific, technical, or other specialized knowledge.
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motion). As a result, the trial court did not abuse its discretion in allowing
the jury to view the video frame by frame.
Fourth, Appellant argues that the trial court should have granted a
mistrial as the prosecutor committed misconduct with respect to three
comments she made during closing argument. In reviewing the denial of a
motion for a mistrial, we evaluate whether the trial court abused its
discretion. Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa.Super.
2015).
[i]t is well settled that a prosecutor has considerable latitude
during closing arguments and his arguments are fair if they are
supported by the evidence or use inferences that can reasonably
be derived from the evidence. Further, prosecutorial misconduct
does not take place unless the unavoidable effect of the
comments at issue was to prejudice the jurors by forming in
their minds a fixed bias and hostility toward the defendant, thus
impeding their ability to weigh the evidence objectively and
render a true verdict. Prosecutorial misconduct is evaluated
under a harmless error standard.
Id. (citations omitted). “Not every unwise, intemperate, or improper
remark made by a prosecutor mandates the grant of a new trial.”
Commonwealth v. Watkins, ___Pa.___, 108 A.3d 692, 720-21 (2014). A
mistrial is “required only when an incident is of such a nature that its
unavoidable effect is to deprive the appellant of a fair and impartial trial.”
Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015). Moreover, a trial court
may issue curative instructions to remove taint unless after a review of all
the circumstances it determines that a curative instruction would be
insufficient, warranting the extreme remedy of a mistrial. Id.- 14 -
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Appellant argues that it was improper for the prosecution to speculate
on the reasons for the Commonwealth’s witnesses to recant their original
statements to police and suggest that they were fearful of identifying
Appellant in the courtroom. However, the record shows that Fowler
admitted his fear of cooperating with the police in his initial statement,
indicating, “I’m sorry I didn’t tell you guys everything the first time. I’m just
scared. This is how people get killed and I don’t want to be that guy.” N.T.
6/20/13, at 15, 24. As such, we agree with the trial court that it was a fair
inference to expect that Fowler and Graham, who lived in the same
neighborhood as Appellant, would be concerned about the consequences of
giving testimony in open court identifying Appellant as the shooter. Further,
the prosecutor did not suggest that Appellant had threatened the witnesses
but merely offered fear as a possible explanation for the witnesses’
recantation of their original statements implicating Appellant in the shooting.
As a result, no further review of this claim is warranted.
In addition, Appellant argues that he is entitled to a new trial as the
prosecutor suggested in closing argument that Appellant had a propensity to
handle firearms. The relevant comments are as follows:
[Prosecutor:] You also got to hear a little bit about this
defendant’s family, that he is D’Bo’s brother. D’Bo also uses
guns, also shoots at people, and also hangs around the same
neighborhood. So what do we know about that? That he may be
more familiar because his brother is familiar with guns.
[Defense Counsel:] Objection.
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N.T. 6/25/13, at 79-80. The trial court immediately sustained the objection,
stating, “I don’t recall evidence of what actually happened, who was arrested
and charged but I think the evidence was that the charge was dropped so I’ll
sustain the objection.” Id. at 80.
Defense counsel did not make a more specific objection or request any
further action on the part of the trial court, allowing the prosecutor to
continue with her closing argument. As Appellant did not specifically request
a mistrial or a curative instruction, his argument is waived on appeal.
Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa. Super. 2013) (noting
that “[e]ven where a defendant objects to specific conduct, the failure to
request a remedy such as a mistrial or curative instruction is sufficient to
constitute waiver”).
Appellant also claims in a one-sentence argument that the prosecutor
improperly offered her personal opinion that the written statements Fowler
and Graham gave to police were the truth. Appellant failed to preserve this
claim for appeal as he did not object to the prosecutor’s statement at trial
and raises this argument for the first time on appeal. See Pa.R.A.P. 302(a)
(stating “issues not raised in trial court are waived and cannot be raised for
first time on appeal”). Accordingly, we find this argument waived.
In his fifth claim of error, Appellant argues that the trial court
erroneously instructed the jury as to the concept of reasonable doubt. The
trial court acknowledges it misspoke when it made the following statement:
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[s]o to summarize, it is the Commonwealth that has the burden
of proof and must proof [sic] the defendant guilty beyond a
reasonable doubt. If the defendant has met that burden, then
the defendant is no longer presumed to be innocent and you
should find him guilty. On the other hand, if the Commonwealth
has not met that burden, then you must find him not guilty.
N.T., 6/25/13, at 91 (emphasis added).
As Appellant concedes, this argument is also waived as Appellant did
not object to the instruction before the trial court, who could have easily
corrected the misstatement before the jury. Moreover, any confusion
caused by this remark would have caused minimal prejudice as the trial
court repeatedly emphasized in its instructions at the beginning and
conclusion of the trial that the Commonwealth had the burden of proving
Appellant guilty beyond a reasonable doubt. As a result, we decline to
review this claim further.
Lastly, Appellant claims this Court should remand to the trial court for
a hearing on after-discovered evidence. Appellant offers two newspaper
articles concerning possible misconduct on the part of Philadelphia Police
Detectives Ronald Dove and James Pitts, who took the statements of Brown
and Fowler, who later recanted at trial in this case. One article from the
Philadelphia Inquirer, dated November 21, 2013, reports that Detective
Dove was suspended from his duties pending an internal investigation into
allegations that Dove covering up homicides connected to his girlfriend, Erica
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Sanchez.3 The other article from the Philadelphia Daily News, dated
November 6, 2013, discusses three unrelated criminal cases where
defendants claimed that Detective Pitts employed aggressive interrogation
tactics to coerce them into giving false statements.
To warrant a new trial based on after-discovered evidence, the
appellant must show that the evidence “(1) could not have been obtained
prior to trial by exercising reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach a
witness's credibility; and (4) would likely result in a different verdict.”
Commonwealth v. Castro, 625 Pa. 582, 588, 93 A.3d 818, 821 (2014)
(quoting Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292
(2008)). In addition, “the proposed new evidence must be producible and
admissible.” Commonwealth v. Chamberlain, 612 Pa. 107, 164, 30 A.3d
381, 414 (2011) (citation omitted).
We acknowledge that in Castro, our Supreme Court held that
allegations in a newspaper article “do not constitute evidence” and thus,
were not sufficient to support a motion for an evidentiary hearing or a new
trial. The Supreme Court specifically stated:
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3
See Mike Newall and Aubrey Whelan, “Homicide detective under
investigation to be fired,” Philadelphia Inquirer, Nov. 10, 2013; Mensah M.
Dean, “Same 2 Cops Built 3 Murder Cases that Fell Apart,” Philadelphia
Daily News, Nov. 6, 2013.
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[a]llegations in the media, whether true or false, are no more
evidence than allegations in any other out-of-court situation.
Nothing in these allegations even read in the broadest sense,
can be described as “evidence,” and references to the officer
being under investigation for misconduct contains no information
regarding what evidence existed to substantiate this averment.
One cannot glean from these bald allegations what evidence of
misconduct appellee intended to produce at the hearing.
Castro, 625 Pa. at 595, 93 A.3d at 825. As “an evidentiary hearing is not
meant to function as a fishing expedition for any possible evidence that may
support some speculative claim,” the Supreme Court concluded that Castro
“needed to do more than present an article pointing to allegations that if
true have the potential to aid his cause; he needed to clearly articulate in his
motion what evidence he would present to meet the test.” Id. at 598-99,
93 A.3d at 828.
With respect to the allegations regarding Detective Dove, Appellant
solely relies on the newspaper article reporting on Dove’s possible
misconduct and does not articulate what evidence he would present at the
evidentiary hearing on remand. In accordance with Castro, the article
concerning Detective Dove does not constitute after-discovered evidence
that entitles Appellant to a new trial.
With respect to Appellant’s allegations that Detective Pitts coerced
Fowler into making a false identification, Appellant referenced the
aforementioned newspaper article and argues that he would subpoena the
testimony of three individuals, Nafis Pinkney, Shaquille Rainey, and Unique
Drayton, all of whom claimed that Detective Pitts used aggressive and
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violent tactics to pressure them into making false statements in murder
investigations.
However, even assuming such testimony is producible and admissible
at an evidentiary hearing, these statements would solely be used to impeach
Detective Pitts’s credibility. The proposed witnesses, if available to testify,
would allege that Detective Pitts committed misconduct in coercing their
statements in other murder cases, but none of the witnesses can provide
any new evidence concerning his conduct in this case. As such, Appellant
has not shown that he is entitled to a new trial by presenting after-
discovered evidence that will not be used solely to impeach a witness's
credibility as required by Castro. Id. at 588, 93 A.3d at 821. Accordingly,
we deny Appellant’s motion for an evidentiary hearing on his proposed after-
discovered evidence.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2016
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