Com. v. Peay, J. ( 2018 )

J-S51023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JALIK PEAY :
:
Appellant : No. 1242 EDA 2017
Appeal from the PCRA Order March 22, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014638-2011
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 25, 2018
Appellant Jalik Peay appeals from the order denying his first Post
Conviction Relief Act (“PCRA”)1 petition. He contends the Commonwealth
withheld evidence regarding Aaron Young, a known witness, and, relatedly,
that his trial counsel was ineffective for failing to investigate Young. We
affirm.
We state the background as follows:
Aaron Young allegedly had a dispute with inmate Sean Sullivan
over a [prison cell] block worker job in Curran-Fromhold
Correctional Facility. [On June 21, 2011,] Sullivan passed
“bangers” [(i.e., prison knives)] to [Appellant], Rashawn Edwards,
and Haleem Poole and devised a plan of attack; the plan included
distracting the prison guards so that the perpetrators could invade
cell 15 which housed victims Young and Richard Gyton. Earl Bostic
was nearby watching television in a dayroom when he was
attacked by [Appellant], Rashawn Edwards, and Haleem Poole.
____________________________________________
1 42 Pa.C.S. §§ 9541-9456.
J-S51023-18
Bostic died of multiple stab wounds to the neck, chest, back, and
right arm, one of which partially severed his aorta. Gyton and
Young were seriously injured when they were stabbed in the hand,
head, arm, and stomach by [Appellant], Rashawn Edwards, and
Haleem Poole. The perpetrators used shanks and bangers to carry
out the bloody attacks.
Police officers interviewed Gyton at Hahnemann Hospital at the
time he was being treated for his stab wounds. The officers
memorialized Gyton’s statements in a document, which was later
read into the record at both the preliminary hearing and at [the
jury] trial. In the document, Gyton identified [Appellant],
Rashawn Edwards, and Haleem Poole] as the individuals who
stabbed the inmate-victims. At trial, however, Gyton testified he
did not know who stabbed him, he recanted statements he
allegedly made during a prison assessment that indicated he
needed to be separated in jail from the [Appellant], Rashawn
Edwards, and Haleem Poole because he feared they would harm
him again, and he testified about a letter he sent to [Appellant],
Rashawn Edwards, and Haleem Poole explaining that his “story”
about them committing the crimes had been fabricated.
PCRA Ct. Op. at 2-3 (brackets in original and citation omitted). Young did not
testify.
The jury convicted Appellant of third-degree murder, conspiracy,
possession of an instrument of crime, and using or possessing a prohibited
offensive weapon. The court imposed an aggregate sentence of forty to eighty
years’ imprisonment. Appellant appealed, this Court affirmed on January 21,
2015, and the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on July 23, 2015. Commonwealth v. Peay, 2372 EDA
2013 (Pa. Super. Jan. 21, 2015) (unpublished mem.), appeal denied, 118 A.2d
1108 (Pa. July 23, 2015) (table).
-2-
J-S51023-18
On October 30, 2015, Appellant filed his first pro se PCRA petition. The
court appointed counsel, who filed an amended PCRA petition on October 12,
2016. The amended petition claimed that trial counsel was ineffective by not
investigating Aaron Young, the victim and a potential witness. Am. PCRA Pet.,
10/12/16, at ¶ 10. Young, according to the petition, was not called as a trial
witness, and he would have testified that Appellant “was not the aggressor,
but was there to help protect him from the actual assailants.” Id. (citation
omitted). Appellant also claimed the Commonwealth failed to disclose
exculpatory evidence, specifically that the prosecutor failed to inform him that
Young would have testified favorably for Appellant. Id. at ¶ 12. The petition
attached a typewritten interview of Young by PCRA counsel that was allegedly
signed by Young. Id. at Ex. A. In that statement, Young denied that Appellant
attacked him. Id. It also stated that Young met with a prosecutor, who
allegedly informed him that if Young signed a statement falsely implicating
Appellant, the prosecutor would help Young out with his unrelated case. Id.
The exhibit also included Young’s unsworn declaration essentially reiterating
the same claim. Id. Young died in December of 2016.2
____________________________________________
2 On February 10, 2017, Appellant’s counsel filed a motion to amend the
petition to include the affidavit of Selwyn Young. Mot. to Amend PCRA Pet.,
2/10/17, at ¶ 2. The motion claimed that Young was the victim of an unrelated
murder, and Selwyn would testify at the evidentiary hearing. Id. Attached
to the motion was Selwyn’s affidavit, which essentially averred that Young
informed Selwyn that Appellant was innocent. Id. at Ex. A. The record does
not reflect that the PCRA court granted PCRA counsel’s motion to amend.
-3-
J-S51023-18
The PCRA court held hearings on March 20 and 22, 2017. Andrew
Notaristefano, Esq., the assistant district attorney that prosecuted the case,
testified. According to Notaristefano, Young spoke with the police on June 23,
2011, shortly after the attack, but he did not want to sign a formal written
statement out of a concern that other prisoners would find out. N.T. PCRA
Hr’g, 3/20/17, at 28-29. According to a summary of that interview, Young
stated that Appellant, Sullivan, and Poole entered the cell with weapons and
began stabbing him. Id. at 48. Young also indicated he did not see who
stabbed the decedent. Id. That summary was disclosed to Appellant. Id.
Notaristefano, along with two detectives, again met Young a week prior
to trial. N.T. PCRA Hr’g, 3/20/17, at 16-18; N.T. Trial, 4/29/13, at 11.
Notaristefano elaborated on the meeting as follows:
We brought in Mr. [Aaron] Young. He was extremely
uncooperative and very belligerent. He kept saying he was going
to refuse to testify, he was going to refuse to testify, refuse to
testify [sic]. He would not say why he was going to refuse to
testify. Prior to this trial, I tried two codefendants [i.e., Rashawn
Edwards and Haleem Poole] as a waiver trial in front of Judge
Minehart in, I believe, February. At that time Mr. Young had an
open warrant for his own case. And I had warrant officers looking
for him because I wanted to speak to him to see if I would have
him testify in that trial first because that trial was first in time.
We couldn’t find him. He was gone.
He was found prior to [Appellant’s] trial which was April. The first
thing that he said was, he expressed his displeasure about the
Warrant Unit looking for him; that he skipped the county because
he didn’t want to be found because he didn’t want to testify. Then
when the trial was over, he came back to Philadelphia. He was
mad that the Warrant Unit officers were not looking for him for his
own case. He’s not worried about this, his own case. It was just
this. He said, I’m not testifying in this case, I’m not testifying in
-4-
J-S51023-18
this case [sic]. I asked him why. He refused to say why. And he
was very uncooperative.
We got into a little bit about the case, not much. He did admit to
being a block worker and he said that because the whole thing
was with [Sullivan], he said that he would beat up [Sullivan] or
something like that because he was a boxer. And that [Sullivan]
could never take him with a shank or something like that.
[Sullivan] was the only name that came up that I remember. We
never even got to your client [i.e., Appellant].
It was not a very long meeting in the DA’s office because he was
entirely uncooperative. And I had nothing to Brady[3] him with,
because he didn’t sign a statement so why would I ever call him
or go any further. That was that.
N.T. PCRA Hr’g, 3/20/17, at 37-39. Notaristefano reiterated that Young did
not mention Appellant during this meeting. Id. at 44.4
During the Commonwealth’s cross-examination, Notaristefano testified
that he turned over the Department of Corrections’ (DOC) investigation. Id.
at 49. The investigation, in relevant part, disclosed that the DOC had
interviewed fifty to sixty people about the incident, and Young denied
“knowing anything.” Id. at 50. The Commonwealth concluded its cross-
examination with Notaristefano agreeing he disclosed two contradictory
____________________________________________
3 Brady v. Maryland, 373 U.S. 83 (1963).
4 PCRA counsel also questioned Notaristefano about the testimony of Maureen
Gay, a prison nurse. Id. at 30. Specifically, Appellant’s trial counsel had
asked Gay about what Young said to her on the day of the incident. Id. at
31-32. The Commonwealth successfully objected on the basis of hearsay,
“the proper channel would have been to call Mr. Young not Ms. Gay to get in
hearsay of Mr. [Aaron] Young and that’s why I objected.” Id. at 32. At the
time of trial, Young was still alive.
-5-
J-S51023-18
documents: the DOC interview in which Young denied “knowing anything” and
the June 23, 2011 summary of his unsworn statement to the police inculpating
Appellant. Id. at 50-51.
During re-direct examination, Notaristefano reiterated that at the
meeting shortly before trial, Young was uncooperative and did not ask him
about Appellant. Id. at 51. Notaristefano acknowledged he did not notify
defense counsel about that last meeting and Young’s lack of cooperation. Id.
at 52. We add that Notaristefano testified that as a matter of course, he would
have provided the criminal history of Young and any other witness to
Appellant. Id. at 23.
Appellant’s trial counsel also testified at the hearing. Trial counsel
stated he had no recollection of Young, including whether he asked Young
about his statements and whether he discussed Young’s potential testimony
with the prosecutor. N.T. PCRA Hr’g, 3/22/17, at 8-11. Young’s DOC
statement was in the file. Id. at 8. Appellant did not present Selwyn as a
witness.
Although not part of the record sent to this Court, the docket reflects
that the PCRA court dismissed Appellant’s petition on March 22, 2017.
Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b)
statement.
Appellant raises the following issues:
1. Whether the PCRA court erred as a matter of law and abused
its discretion when it denied Appellant’s sought-after PCRA relief
-6-
J-S51023-18
asking for a new trial because of trial counsel’s failure to
investigate Aaron Young as a witness.
2. Whether the PCRA court erred as a matter of law and abused
its discretion when it denied Appellant’s sought-after PCRA relief
asking for a new trial because the prosecution failed to produce
exculpatory evidence pursuant to Brady, namely, information from
Aaron Young provided to the prosecution shortly before trial and
the fact that Aaron Young had a new, pending criminal matter
against him.
Appellant’s Brief at 4.
We summarize Appellant’s arguments for both of his issues, as they are
interrelated.5 In Appellant’s view, the Commonwealth engaged in pervasive
suppression at all levels. Id. at 10. Specifically, according to Appellant, the
police and the prosecutor heard Young’s statement and elected to conceal it.
Id. at 10-11. Relatedly, Appellant argues that trial counsel was ineffective by
failing to investigate Young. Id. at 12-13. In Appellant’s view, it was per se
unreasonable for his trial counsel to not investigate Young. Id. at 13.
Appellant opines that Young was available as a witness, Young’s prior written
statements were provided to trial counsel prior to trial, and Young’s criminal
history was a matter of public record. Id.
Our standard of review 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
____________________________________________
5 We note that although Appellant raised two issues, he only presented one
argument, which violates Pa.R.A.P. 2119(a). See Pa.R.A.P. 2119(a) (“The
argument shall be divided into as many parts as there are questions to be
argued”).
-7-
J-S51023-18
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).
It is well-settled that
[t]o establish a Brady violation, [the defendant] must
demonstrate: (1) the prosecution concealed evidence; (2) the
evidence was either exculpatory[6] or impeachment evidence
favorable to him; and (3) he was prejudiced. To establish
prejudice, [the defendant] must demonstrate a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.
Impeachment evidence, which goes to the credibility of a primary
witness against the accused, is critical evidence and it is material
to the case whether that evidence is merely a promise or an
understanding between the prosecution and the witness. . . .
Finally, we note there is no Brady violation when [the defendant]
knew or, with reasonable diligence, could have uncovered the
evidence in question.
____________________________________________
6 “Exculpatory evidence is that which extrinsically tends to establish
defendant’s innocence of the crimes charged.” Commonwealth v. Lambert,
765 A.2d 306, 325 n.15 (Pa. Super. 2000) (citation omitted); accord
Commonwealth v. Redmond, 577 A.2d 547, 552 (Pa. Super. 1990)
(“Exculpatory evidence includes material that goes to the heart of the
defendant’s guilt or innocence as well as that which might well alter the jury’s
judgment of the credibility of a crucial prosecution witness.” (internal
quotation marks and citation omitted)).
-8-
J-S51023-18
Commonwealth v. Treiber, 121 A.3d 435, 460-61 (Pa. 2015) (internal
quotation marks, brackets, and citations omitted).
In Commonwealth v. Wholaver, 177 A.3d 136 (Pa. 2018), the
Pennsylvania Supreme Court elaborated on the prejudice prong:
[F]avorable 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. In determining if a reasonable
probability of a different outcome has been demonstrated, the
question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence. The mere possibility
that an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does not
establish materiality in the constitutional sense.
Id. at 158-59 (quotation marks, brackets, and citations omitted).
We also note that it is “well established that where the Commonwealth
has in its possession pretrial statements of its witnesses which have been
reduced to writing and relate to the witness’ testimony at trial, it must, if
requested, furnish copies of these statements to the defense.”
Commonwealth v. Brinkley, 480 A.2d 980, 984 (Pa. 1984) (citation
omitted). Such “statements made by a witness prior to trial are subject to
disclosure only when they are signed, adopted or otherwise shown to be
substantially verbatim statements of that witness.” Id. (citations omitted).
To warrant relief based on an ineffectiveness claim, a petitioner must
show that such ineffectiveness “in the circumstances of the particular case, so
-9-
J-S51023-18
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Jones, 912
A.2d 268, 278 (Pa. 2006); accord 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is
presumed to have rendered effective assistance. Commonwealth v. Weiss,
81 A.3d 767, 783 (Pa. 2013). To overcome the presumption, the defendant
has to satisfy the performance and prejudice test set forth in Strickland v.
Washington, 466 U.S. 668 (1984). The Pennsylvania Supreme Court has
applied the Strickland test by examining three elements, specifically whether
(1) the underlying claim has arguable merit; (2) no reasonable basis existed
for counsel’s action or failure to act; and (3) the petitioner has shown that he
suffered prejudice as a result of counsel’s lapse, i.e., that there is a reasonable
probability that the result of the proceeding would have been different.
Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 2012). If a claim
fails under any necessary element of the Strickland test, the court may
proceed to that element first. Bennett, 57 A.3d at 1195-96. Counsel will not
be deemed ineffective for failing to raise a meritless claim. Jones, 912 A.2d
at 278.
When raising a failure to call a potential witness claim, the PCRA
petitioner satisfies the performance and prejudice requirements of
the Strickland test by establishing that:
(1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have
known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have
denied the defendant a fair trial.
- 10 -
J-S51023-18
To demonstrate Strickland prejudice, the PCRA petitioner must
show how the uncalled witnesses’ testimony would have been
beneficial under the circumstances of the case. Commonwealth
v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1134 (2008); see also
Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 546
(2005) (“Trial counsel’s failure to call a particular witness does not
constitute ineffective assistance without some showing that the
absent witness’ testimony would have been beneficial or helpful in
establishing the asserted defense.”).
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (internal
quotation marks and one citation omitted).
In the case at hand, there was no statement by Young as a result of the
meeting with Notaristefano a week before trial. Because there was no
statement, the Commonwealth could not turn it over. See Brinkley, 480
A.2d at 984. But even if the Commonwealth should have disclosed that
particular meeting with Young, there was no evidence of exculpatory or
impeachment material. See N.T. PCRA Hr’g, 3/20/17, at 37-39. Indeed,
Young never even mentioned Appellant. See id. at 44.
Regardless, even if Young’s uncooperative stance and “statements” at
that meeting could possibly be construed as favorable or impeachment
evidence, Appellant has not established their materiality. Specifically,
Appellant has not demonstrated that without such evidence, he did not receive
a fair trial. See Wholaver, 177 A.3d at 158-59; Bennett, 57 A.3d at 1195-
96. It is not entirely evident how knowledge of Young’s lack of cooperation
- 11 -
J-S51023-18
would have helped Appellant at trial, let alone undermined the verdict. See
Wholaver, 177 A.3d at 158-59.7
Although Appellant similarly claims that trial counsel was ineffective by
not investigating Young, Appellant has not, and cannot, demonstrate that the
absence of Young’s testimony denied him a fair trial. See Johnson, 966 A.2d
at 536. Young was unwavering in his decision not to testify at Appellant’s trial
and at the trial of Appellant’s co-defendants several months beforehand. See
N.T. PCRA Hr’g, 3/20/17, at 37-39. Further, Young left Philadelphia to avoid
being compelled to testify and only returned because he thought Appellant’s
trial was over. See id. Therefore, Appellant has failed to establish that Young
was willing to testify, which is a required element of a potential witness claim.
See Johnson, 966 A.2d at 536. Because Appellant similarly failed to establish
the merits of his Brady violation, see Treiber, 121 A.3d at 460-61, we
conclude the PCRA court’s order is free of legal error and affirm the order
below. See Ford, 44 A.3d at 1194.
Order affirmed.
____________________________________________
7 As noted above, Gyton incriminated Appellant, although he recanted at trial.
- 12 -
J-S51023-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/18
- 13 -