Com. v. Scott, E. ( 2022 )

J-S33015-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELIJAH SCOTT :
:
Appellant : No. 1885 EDA 2021
Appeal from the PCRA Order Entered August 18, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0009111-2011.
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 13, 2022
Elijah Scott appeals from the order denying his first timely petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
46. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
On April 8, 2011, at about 1:00 a.m., in the area of 61st and
Christian Streets in Philadelphia, Gary Francis Jr. (“Francis Jr.”)
was shot. Following the shooting, Francis Jr. was taken to a
nearby hospital where he was treated for numerous gunshot
wounds. He spent two months in the hospital recuperating and
suffered permanent injuries.
On the date Francis Jr. was shot, Gary Francis, Sr. (“Francis
Sr.”) was an officer in the Philadelphia Police Department. When
he heard his son had been shot, Francis Sr. went to the hospital.
Francis Sr. was first able to speak with his son approximately one
week later.
J-S33015-22
During a visit by Francis Sr. about two weeks after he was
shot, Francis Jr. teared up and said that “Feek” shot him after
which he gave a description of [Scott] to his father, which included
a detailed description of the tattoos [Scott] had on his face as well
as the motive for the shooting, namely, a dispute over a cellular
telephone and a fight that resulted out of that dispute.
Following his discussion with his son, Francis Sr. called
Philadelphia Police Detective Vincent Parker, a detective assisting
in the investigation of the shooting, and asked him to come to the
hospital. Francis Sr. thereafter gave police a statement
recounting what his son had told him. He also indicated that, after
Francis Jr. was released from the hospital, members of the
Philadelphia District Attorney’s Office assisted in relocating Francis
Jr. outside of Philadelphia where, he still resides.
On April 19, 2011, Francis Jr. gave a statement to Detective
Vincent Parker. During his statement to Detective Parker, Francis
Jr. identified a photograph depicting [Scott], someone he knew
for several years prior to the incident, and stated that it depicted
the person he identified as “Feek.” Francis Jr. also stated that he
believed [Scott] shot him because he and [Scott] had fought about
a week prior to the shooting inside the Hide Away Bar over a cell
phone taken from a bartender named Keecha Davis.
I had just left the Hide Away Bar at Cobb and Catherine.
While I was walking, an older black Cadillac pulled up at 61st
and Christian Street. The guy Feek [Appellant] got out the
front passenger door and asked me to go robbing with them.
I couldn’t see who else was in the car. I told Feek no. And
that’s when Feek pulled out a dark gun and said to me, Take
this with me. Feek shot the gun at me. And I heard the
first shot go by my right ear. I think it grazed my ear. I
started twisting my body so he couldn’t shoot me. But he
shot me in the stomach and chest. He shot at me and then
he got back in the black Cadillac and the car took off. It was
on 61st Street. I dropped my keys and I called the police
from my cell phone. The cops came and took me to the
hospital.
[N.T., 6/29/16, at 63-64].
On August 9, 2011, at [Scott’s] preliminary hearing, Francis
Jr. testified that on the night of the shooting, he was walking on
the street when a black Cadillac pulled up at which time [Scott]
exited it and asked him if he wanted to join in a robbery. When
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Francis Jr. declined, [Scott] put a hand on his shoulder and fired
a handgun numerous times and that he tried but failed to take the
gun from [Scott].
PCRA Court Opinion, 4/3/22, at 3-5 (citations omitted).
Scott’s first trial ended in mistrial after the jury could not reach a verdict.
The PCRA court summarized the pertinent testimony from this proceeding as
follows:
On October 23, 2014, during [Scott’s] first trial, Francis Jr.
testified that he could not identify the person who shot him. He
testified during the first trial that he was shot by someone who
had just emerged from a car wielding what he thought was a dark
.40 caliber semiautomatic handgun.
On cross-examination, Francis Jr. stated, inter alia, that he
had used drugs the night he was shot, the signatures on the pages
of his statement were not his, and that [Scott] was not the man
who shot him. He added that [Scott] had no reason to hurt him
and that he had no reason to hurt [Scott].
Francis Jr. also testified that he did not recall giving his April
19, 2011 statement. When Francis Jr. testified that he could not
recall any of the details of the incident, including who shot him,
the prosecutor impeached him with his prior preliminary hearing
and trial testimony and with the contents of [a] prior statement
he gave police on April 19, 2011. Although Francis Jr. testified
during the first trial that he could not identify the shooter, he did
tell that jury that he was shot by someone who had just emerged
from a car wielding what he thought was a dark .40 caliber
semiautomatic handgun, something which he denied being able to
recall during his second trial. He also testified during the first trial
that he and [Scott] would see each other at the Hide Away Bar[.]
PCRA Court Opinion, 4/3/22, at 5-6 (citations omitted).
The PCRA court then compared Scott’s testimony at his second trial, as
well as additional testimony presented by the Commonwealth as follows:
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[D]uring the second trial [Scott] stated that he never
patronized the Hide Away Bar. He further indicated that he told
both of the prosecutors at both trials that [Scott] was not the
person who shot him.
To further contradict Francis Jr.’s recantation testimony at
the second trial, the Commonwealth presented evidence from
Francis Sr. and Detective Parker. Francis Sr. testified that Francis
Jr., who did not appear as required for [Scott’s] trial the previous
day, called him that night and told him that he was scared to
testify and didn’t want to testify because he did not want to relive
the incident and wanted to get past it. Francis Sr. talked to his
son in detail. Francis Sr. also identified the signatures on his son’s
statement and the photographic array as his son’s signatures.
Detective Parker testified that he interviewed Francis Jr. and
prepared a photographic array after he spoke to the victim’s
father, who relayed certain information to him including the name
“Feek.” Detective Parker testified that, on April 19, 2011, he went
to the hospital where the victim was being treated for his wounds
and took photos of his various wounds during the course of his
interview. He further testified that before [Scott’s] first trial the
victim stated in his presence and that of the prosecutor assigned
to the matter that [Scott] was not the person who shot him but
that everything else in his statement was correct. In the
detective’s experience, recantations are not unusual.
On cross-examination, Detective Parker indicated that his
investigation failed to uncover any evidence corroborating the
victim’s references to a black Cadillac or the caliber of the gun the
victim described. He further testified that a search of two
residences did not result in the seizure of a weapon and that the
victim did not refer to [Scott] by his legal name.
PCRA Court Opinion, 4/3/22, at 6-7 (citations omitted).
Finally, the PCRA court summarized the rest of the defense case as
follows:
As part of his defense, [Scott] presented alibi witnesses.
[Scott] called his mother Ms. Stephanie Sharper as a witness. She
testified that [Scott] had a bedroom in her residence, that he was
at home during the evening when the shooting occurred watching
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his daughter, and as far as she knew he did not leave the
residence.
[Scott] also called Mr. Jamal Hairston, a friend of his, who
testified that he went to [Scott’s] residence on the night of the
shooting to see [Scott]. According to Mr. Hairston, he went to
[Scott’s] residence to see if [Scott] wanted to go to Atlantic City
with him and some “lady friends”. However, Mr. Hairston did not
speak to [Scott] because [Scott] was sleeping. Hairston stated
that he personally observed [Scott] asleep in his bed.
Id. at 7.
At the conclusion of Scott’s second trial, the jury convicted him of
attempted murder and related charges. On September 15, 2016, the trial
court sentenced Scott to an aggregate term of ten to twenty years of
imprisonment. Scott appealed to this Court. On February 21, 2019, this Court
agreed with Scott’s counsel that the appeal was frivolous pursuant to Anders
v. California, 386 U.S. 738 (1967). We therefore permitted counsel to
withdraw and affirmed Scott’s judgment of sentence. Commonwealth v.
Scott, 209 A.3d 1077 (Pa. Super. 2019) (non-precedential decision). Scott
did not seek further review.
On February 6, 2020, Scott filed a timely pro se PCRA petition, and the
PCRA court appointed counsel. On or about February 24, 2020, Scott retained
current PCRA counsel who was granted several extensions of time to file an
amended petition. On July 3, 2020, Scott filed an amended PCRA petition in
which he raised seven claims of trial counsel’s ineffectiveness. On July 25,
2020, Scott filed a supplemental exhibit that consisted of an affidavit from
Keecha Davis. On December 17, 2020, Scott filed a supplemental affidavit
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from Ms. Davis. On March 22, 2021, the Commonwealth filed a motion to
dismiss. On July 21, 2021, the PCRA court issued a Pa.R.A.P. 907 notice of
its intent to dismiss Scott’s PCRA petition without a hearing. Scott did not file
a response. By order entered August 18, 2021, the PCRA court denied Scott’s
petition. This appeal followed. Both Scott and the PCRA court have complied
with Pa.R.A.P. 1925.
Scott now raises the following seven issues on appeal:
I. Did the PCRA court err in finding, without benefit of a
hearing, that [Scott] was not denied his [right] . . . to
effective assistance of counsel . . . when trial counsel
failed to interview and ensure the attendance of
Keecha Davis, violating his [] rights under the
Confrontation Clause and failed to investigate and
object to the related prosecutorial misconduct?
II. Did the PCRA court err in finding, without benefit of a
hearing, that [Scott] was not denied his [right] . . . to
effective assistance of counsel in that trial counsel
failed to object to the prosecution’s opening and
closing arguments concerning “threats, intimidation
and/or fear” allegedly suffered by [Francis Jr.] which
resulted in [Francis Jr.’s] recantation and on
threats/intimidation to purported courtroom
spectators during the trial proceedings when there
was no such evidence of record?
III. Did the PCRA court err in finding, without benefit of a
hearing, [Scott] was not denied his [right] . . . to
effective assistance of trial [counsel] for opening the
door to and/or failing to properly object to the
Commonwealth’s eliciting impermissible testimony
about witnesses in this and other cases “going
South”?
IV. Did the PCRA court err in finding, without benefit of a
hearing, [Scott] was not denied his [right] . . . to
effective assistance of counsel in that trial counsel
opened the door to and/or failed to object to the
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prosecutor’s questions and comments related to alibi
witnesses[’] failure to speak to police?
V. Did the PCRA court err in finding, without benefit of a
hearing, [Scott] was not denied his [right] . . . to
effective assistance of counsel in that counsel
stipulated to materially incorrect facts, failed to object
to related prejudicial testimony and argued in closing
about related facts not of record?
VI. Did the PCRA court err in finding, without benefit of a
hearing, that [Scott] was not denied his [right to
effective assistance of counsel] when trial counsel
ineffectively failed to object to the prosecution’s use
of Francis Jr.’s unsworn statements to his father and
to Det. Parker while in the hospital to substantively
establish [Scott’s] guilt, and for failing to object to the
[trial court’s] related jury charge?
VII. Did the PCRA court err in finding, without benefit of a
hearing, that [Scott] was not denied his constitutional
right to due process of law and a fair trial have been
violated by the cumulative impact of trial counsel[’s]
ineffectiveness[?]
Scott’s Brief at 4-5.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
In each issue enumerated above, Scott asserts that the PCRA court
erred in failing to hold an evidentiary hearing regarding some of his claims.
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
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genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
In each issue, Scott also challenges the effectiveness of trial counsel.
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish by a preponderance of the evidence
that counsel’s ineffectiveness so undermined the truth determining process
that no reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Id. This requires the petitioner to demonstrate that: (1) the
underlying claim is of arguable merit; (2) counsel had no reasonable strategic
basis for his or her action or inaction; and (3) the petitioner was prejudiced
by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the
petitioner to show "that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different."
Id. A failure to satisfy any prong of the test for ineffectiveness will require
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rejection of the claim. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa.
2010).
Here, the PCRA court has authored a thorough and well-reasoned
opinion pursuant to Rule 1925(a). The Honorable Sierra Thomas Street has
addressed each of Scott’s ineffectiveness claims with proper citation to legal
authorities and citation to the certified record. In addition, she has explained
why an evidentiary hearing was not necessary before disposing of Scott’s
ineffectiveness claims.
We discern no legal errors in Judge Thomas Street’s analysis, and we
find her factual findings and credibility determinations fully supported by our
review of the record. As such, we adopt Judge Thomas Street’s 1925(a)
opinion as our own in affirming the order denying Scott post-conviction relief.
See PCRA Court’s Opinion, 5/3/22, at 10-14 (explaining that absence of Ms.
Davis’s testimony did not deprive Scott of a fair trial, Scott’s related claim of
prosecutorial misconduct in relation to Ms. Davis’s failure to appear also fails);
at 14-17 (concluding that the prosecutor’s statements in her opening and
closing argument were based on facts in evidence); at 17-18 (explaining that
the Commonwealth properly elicited testimony of witnesses “going south” with
or without trial counsel “opening the door”; Scott fails to identify any rule of
evidence that would preclude such testimony); at 18-19 (explaining that
Commonwealth properly cross-examined alibi witness regarding why they did
not go to police with or without trial counsel “opening the door”); at 19-20
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(concluding trial counsel was not ineffective in stipulating to and referencing
in his closing evidence of bullet fragments when such evidence was introduced
as part of a Commonwealth’s exhibit); at 20-21 (concluding on direct appeal
this Court already concluded that the victim’s statements to his father and
Detective Parker were properly admitted as substantive evidence and for
impeachment purposes); and 21-22 (explaining that, because each
ineffectiveness claim was without merit, Scott’s claim of cumulative error is
meritless).1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2022
____________________________________________
1 The parties are directed to attach Judge Thomas Street’s May 3, 2022,
opinion to this memorandum in any future appeal.
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Circulated 11/17/2022 10:14 AM
IN THE COURT OF COMMON, PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION-CRIMINAL SECTION-
COMMONWEALTH OF PENNSYLVANIA CP-51 CR-00099.1,-2011
V, 1.885 EDA 2021
ELIJAH SCOTT
—•c
OPINION e
THOMAS STREET, SIERRA, J.
0
The Appellant, Elijah Scott ("Appellant")appeals the Court's Order de'nyi i'gµb c
CJ
petition filed under the PostConviction Relief Act, 42 Pa.C.S.A. §§9541.-9546 (" PIRA"). This
Court submits the following Opinion pursuant to Pa.R.A.P. No, 1925 and recommends that
Appellant's appeal be denied.
1. PROCEDURAL BACKGROUND
Appellant was originally tried by jury on October 27, 2014, and aMistrial was
declared on October 28, 2014. On July 1, 2016, at asubsequent re:trial, a. jury convicted
Appellant of attempted. murder, aggravated assault, carrying afirearm without alicense,
carrying ,.a firearm .on apublic street, and, possessing an instrument of crime. 1 On September
::5, 201.6, the Court sentenced Appellant to an aggregate term of 10 to 20 years
imprisonment. Following the denial of post-sentence motions, Appellant appealed, On
February 21,.2019, the Superior Court affirmed Appellant's judgment of sentence.
1 18 Pa.C.S. H 901(a), 2702(a), 6101(a)(1), 6108 and 907, respectively.
Commonwealth y. Scott, 209 A.3d 1077(Pa. Super. 2019). Appellant did not seek
allocatur.
In his direct appeal, Appellant raised the following claims: (a) trial counsel was
ineffective in failing to move for judgment of acquittal, (b) the evidence was insufficient to
sustain the jury's verdict, (c) the trial court committed reversible error by not sua sponte
vacating the jury's guilty, verdict, (d) anew trial is warranted because the prosecutor
interfered with Scott's right to call Keecha Davis as adefense witness, (
e) the trial court
committed an abuse of discretion by denying amotion for mistrial and an objection after the
prosecutor asked the complainant if he stated. the previous day he was afraid to testify,. and
(f)' the trial court committed an abuse of discretion by overruling objections to inadmissible
hearsay. Scott supra. With the exception of Appellant's right to call Keecha Davis as a
defense witness, the Superior Court denied Appellant's claims on the merits. !
d. Regarding
the defense's right to call Keecha Davis, the Superior Court found that issue was waived. !d.
On February 6, 2020, Appellant.fiied apro se PCRA Petition. On July 3, 2020, current
counsel filed an amended petition, and on July 26, 2020, filed asupplemental exhibit. On
December 17, 2020, counsel filed asupplemental affidavit from "Keecha Davis dated
November 18, 2020. On March 22, 2021, the Commonwealth filed aMotion to Dismiss.
This Court determined that the issues raised in the Amended PCRA were without merit. By
Order of August 18, 2021, the Court formally dismissed the PCRA Petition. On September
16, 2021, Appellant timely filed aNotice of Appeal.
Appellant raises seven claims in his amended petition, allegingthat: (i) trial counsel
was ineffective for failing to ensure the attendance of Keecha Davis and failing to
investigate and. object to the related prosecutorial misconduct; (il) trial counsel was
ineffective for failing to object to the prosecution's opening and closing statements concerning
2
"threats, intimidation and/or fear" allegedly suffered. by the victim which resulted in the
victim's recantation and on threats/intimidation to purported courtroom spectators during
the trial proceedings; (iii) trial counsel was ineffective for opening the door and/or falling
to properly object to the Commonwealth eliciting impermissible testimony about witnesses
going south in this case and other cases; (
iv) trial counsel was ineffective for opening the
door and/or failing to object to the prosecutor's questions and comments related to the
alibi witnesses' failure to speak to police; (v) trial counsel was ineffective for stipulating
to materially incorrect facts, failing to object to related prejudicial testimony, and,
arguing in closing about related facts not of record; (vi) trial counsel was ineffective for
failing to object to the prosecution's use of Francis. Jr.'s unsworn statements to his.father
and Detective Parker while in the hospital and for failing to object to the related jury
charge; and (
vil) cumulative error.
I. FACTS
On April 8, 2011, at about 3.:00 a.m., in the area of 61st and Christian Streets in
Philadelphia, Gary Francis Jr. (" Francis Jr.") was shot. ( N.T. 6/29/16 pgs. 38 and 84.)
Following the shooting, Francis Jr. was taken to anearby hospital where. he was treated for
numerous gunshot wounds. (1d. pgs. 42-46.) He spent two months in the hospital
recuperating and suffered permanent injuries. (1d. pgs. 89-91.)
On the date Francis Jr. was shot, Gary Francis, Sr. (" Francis Sr.") was an officer in the
Philadelphia Police Department. (Id. pg. 254) When he heard. his son had been shot, Francis
Sr. went to the hospital. (
1d, pg. 255.) Francis Sr. was first able to speak to his son
approximately one week later (Id. pg. 256.).
During avisit by Francis Sr. about two weeks after he was shot, Francis Jr. teared up
and said that "Peek" shot him after which.,he gave adescription of Appellant to his father,.
3
which included adetailed description of the tattoos Appellant had on his face as well as
the motive for the shooting, namely, a. dispute over acellular telephone and afight that
resulted out of that dispute. (Id. pgs. 257-68.)
Following his discussion with his son, Francis Sr. called Philadelphia Police
Detective Vincent Parker, adetective assisting in the investigation of the shooting, and
asked him to come to the hospital. (Jd. pg. 259) Francis Sr.. thereafter gave police a
statement recounting what his son had told him. (Id. pg. 262.,) He also indicated that,
after Francis Jr. was released from the hospital, members of the Philadelphia District
Attorney's Office assisted in relocating. Francis Jr. outside of Philadelphia where, he still
resides. (Id. pgs. 271-73.)
On April 19, 2011., Francis Jr. gave astatement to Detective Vincent Parker. During
his statement to Detective Parker, Francis Jr. identified a photograph depicting Appellant,
someone he knew for several years prior to the incident, and stated that it depicted the
person he identified as "Peek." (
Id. pgs. 57-66, 70.) Francis Jr. also stated that he believed
Appellant shot him because he and Appellant had fought about aweek,prior to the shooting
inside the. Hide Away Bar over acell phone taken from a bartender named Keecha Davis.
(Id, pgs. 72-73.) In that statement, Francis Jr. told police the following:
Ihad just left the. Hide Away Bar at Cobb and Catherine. While Iwas walking,
an older black Cadillac pulled up at 61st and older black Cadillac pulled up
at 61st and Christian Street. The guy Feek [Appellant] got out the front
passenger door and asked me to go robbing with them.] couldn't see who
else was in the car.. Itold Peek no. And that's when Peek pulled out adark
gun and said to me, Take this with me. Feek shot the gun at me. And Iheard
the first shot go by my right ear. Ithink it grazed my ear.1 started twisting my
body so he couldn't shoot me. But he shot me in the stomach and chest. He
shot at me and then he got back in the black Cadillac and the car took. off.
It was on 61st Street. Idropped my keys and Icalled the police from my
cell phone. The cops came and took me to the hospital.
(N.T. 6/29/16,.63-64); (see Francis Jr.'s Apri119 , 201.1 statement).
4
On August 9, 2011, at Appellant's preliminary hearing, Francis Jr. testified that on
the night of the shooting, he. Was walking on the street when a black. Cadillac pulled up
at which time Appellant exited it and asked him if he wanted to join in arobbery. (Id. pg.
85.) When Francis Jr. declined, Appellant put ahand. on his shoulder and fired a . handgun
numerous times and that he tried but failed to take the gun from Appellant. (!d. pg. 87.)
On October 23, 2014, during Appellant's first trial, Francis Jr. testified that he could
not identify the person who shot him. He testified during the first trial that he was shot by
someone who had just emerged from acar wielding what he thought was adark .40
caliber semiautomatic handgun. (see Mistria,l.N.T.10/23/14, 47-122).
On cross-examination, Francis Jr.. stated, inter alla, that he had used drugs the
night he was shot, the signatures on the pages of his statement were not his, and that
Appellant was not the man who shot. him. (Id. pgs. 160,165, and 167.) He added that
Appellant had no reason to hurt him and that he had no reason to hurt Appellant. (Id. pg.
179.)
Francis Jr. also testified that he did not recall. giving his April 19, 2011 statement.
(Id. pgs. 49-50 and 57.) When Francis Jr. testified that he could not recall any of the. details
.of the incident, including who shot him, the prosecutor impeached him with his prior
preliminary hearing and trial testimony and with the contents of prior statement he gave
police on April 19, 2011. (Id. pgs. 53-77.) Although Francis Jr. testified duringthe first trial
that he could not identifythe shooter, he did tell that jury that he was shot by someone who
had just. emerged from acar wielding what he thought was adark .40 caliber
semiautomatic handgun, something which he denied being able to recall during his second
trial. (Id. pgs. 38, 41, 75, and 141.) He also testified during the firsttrial that he and
5
Appellant would see each other atthe Hide Away Bar however;during the second trial he
stated that he never patronized the Hide Away Bar. (
Id. pg. 82.) He further indicated that
he told both of the prosecutors at both trials that Appellant was not the person who shot
him. (Id. pgs. 119-23.)
To further contradict Francis Jr.'s recantation testimony at the second trial, the
Commonwealth presented evidence from Francis Sr. and Detective Parker. (Id. pgs. 253-
304 and 6/30/16 pgs. 14-131.) Francis Sr. testified that Francis Jr., who did not appear as
required for Appellant's trial the previous day, called him that night and told him that he was
scared to testify and didn't want to testify because he did not want to relive the incident and
wanted to get past it. ( N.T. 6/29/16 pg. 274.) Francis Sr. talked to his son in detail. (1d.)
Francis Sr. also identified the signatures on his son's statement and the photographic
array as his son's signatures. (Id. pgs. 275-76.)
Detective Parker testified that he interviewed Francis Jr. and prepared a
photographic .array after he spoke to the victim's father, who relayed certain information to
him including the name "Feek." ( N.T. 6/30/16 pgs. 21:24.) Detective Parker testified that,
on April 19, 2011, he went to the hospital where the victim was being treated for his
wounds and took photos of his various wounds during the course of his interview. (Id. pgs.
28-34.) He further testified that before Appellant's first trial the victim stated in his
presence and that of the prosecutor assigned to the matter that Appellant was not the
person who shot him but that everything else in his statement was correct. (Id. pg. 46.) In
the detective's experience, recantations are not unusual. (Id. pgs. 47-54.)
On cross-examination, Detective Parker indicated that his investigation failed to
uncover any evidence corroborating the victim's references to ablack Cadillac or the caliber
of the gun the victim described. (Id. pg. 68.) He further testified that asearch of two
6
residences did not result in the seizure of aweapon and that the victim did not refer to
Appellant by his legal name. (Id, pgs. 68-78, 95-96.)
As part of his defense, Appellant presented alibi witnesses. Appellant called
his mother Ms. Stephanie Sharper as awitness. (N.T. 6/30/36 pgs. 203-71.)She testified
that Appellant had a bedroom in her residence, that he was at home during the evening
when the shooting occurred watching his daughter, and as far as she knew he did not leave
the residence. (1d. pgs. 208, 210-1,7.)
Appellant also called Mr.Jamal Hairston, afriend of his, who testified that he went
to Appellant's residence on the night of the shooting to see Appellant. (Id. pgs. 271-274.)
According to Mr. Hairston, he went to Appellant's residence to see if Appellant. wanted to
go to Atlantic City with him and some "lady friends." (Id. pg..274.) However, Mr. Hairston did
not speak to Appellant because Appellant was sleeping. Hairston stated that he
personally observed Appellant asleep in his bed. (1d. pg. 275.)
III. ISSUES RAISED ON APPEAL.
The Appellant's Rule 1925(b) Statement states, verbatim, that:
1. The PCRA Court erred. in finding, without benefit of ahearing, that Petitioner was
not denied his rights under Article 1 § 9of the Constitution of the Commonwealth
of Pennsylvania and the Sixth and Fourteenth Amendments to the Constitution of
the United States of America to effective assistance of counsel and when trial
counsel failed to interview and ensure the attendance of Keecha Davis, violating
his Petitioner's rights under the Confrontation. Clause and failed to investigate
and object to the related prosecutorial misconduct.
2. The PCRA Court erred in finding, without benefit of ahearing, that Petitioner was
not denied his rights under Article 1§9 of the Constitution of the Commonwealth
of Pennsylvania and the Sixth and Fourteenth Amendments to the Constitution of
the United States of America to effective assistance of counsel in that trial
counsel failed to object to the prosecution's opening and closing arguments
concerning "threats, intimidation and/or fear allegedly suffered by the victim
which resulted in the victim's recantation and on threats/intimidation to
7
purported courtroom spectators during the trial proceedings when there was no
such evidence of record.
3. The PCRA Court erred in finding, without benefit of ahearing, that Petitioner was
not denied his rights under Article 1 §9of the Constitution of the Commonwealth
of Pennsylvania and the Sixth and Fourteenth Amendments to the Constitution of
the United States of America to effective assistance of trial (sic.) for opening the
doorto and/or failing to properly object to the Commonwealth's eliciting
impermissible testimony about witnesses in this and other cases "going.South."
4. The PCRA Court erred in finding, without benefit of ahearing, that Petitioner was
not denied his rights under Article 1 §9 of the Constitution of the Commonwealth
of Pennsylvania and the Sixth and Fourteenth Amendments to the Constitution of
the United States of America to effective assistance of counsel. in that trial
counsel opened the door to and/or failed to object to the prosecutor's questions
and comments related to alibi witnesses (sic.) failure.to speak to police.
5. The: PCRA Court erred in finding, without benefit of ahearing, that Petitioner was.
not denied his rights under Article 1 §9of the Constitution of the Commonwealth
of Pennsylvania and the Sixth and Fourteenth Amendments to the: Constitution of
the United States of America to effective assistance of counsel in that trial
counsel stipulated to materially incorrect facts, failed to object to related
prejudicial testimony and argued in closing about related facts not of record.
6. The PCRA Court. erred in finding, without benefit of ahearing, that Petitioner was
not denied his rights under Article 1 §9of the Constitution of the Commonwealth
of Pennsylvania and the Sixth and Fourteenth Amendments to the Constitution of
the United States of America when trial counsel ineffectively failed to object to the
prosecution's use of Francis Jr.'s unsworn statements to his father and to Det.
Parker while in the hospital to substantively establish Petitioner's guilt, and for
failing to object to the Court's related jury charge.
7. The PCRA Court erred in finding, without benefit of ahearing, that Petitioner was
not denied his constitutional right to due process of law and afair trial have been
violated by the cumulative impact of trial counsels' ineffectiveness in violation of
the Sixth Amendment.
IV. DISCUSSION
Appellant appeals from the PCRA court's dismissal. of his petition for relief filed
pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. In reviewing the
denial of PCRA relief, areviewing court examines whether the PCRA court's determination
"is supported by the record and free from legal error." Commonwealth v. Rainey, 928 A.2d
215, 223 (Pa. 2007). The PCRA court's findings will not be disturbed unless there is no
8
support for the findings in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa. Super. 2014).
To be eligible for PCRA relief, an appellant must establish, by apreponderance of the,
evidence, that his conviction or sentence resulted from one or more of the enumerated
errors in 42 Pa.C.S.A. § 9543(a)(2), his claims have not been previously.litigated or waived,.
and "the failure to litigate the issue prior to or during trial... or on direct appeal could.not
have been the. result of any rational, strategic, or tactical decision by counsel." ld..§
9543(a)(3)-(4). An issue is previously litigated if the "highest appellate court in which
[appellant] could have had review as amatter of right has ruled on the merits of the issue."
42 Pa.C.S.A. §9544(a)(2). Further, an issue is waived if appellant "could have raised it but
failed to do so before trial, at trial,... on appeal or in aprior state postconviction proceeding."
Id. §9544(b).
Moreover, there is a"
presumption that counsel rendered effective assistance."
Commonwealth v. Dennis, 609 Pa. 442,450 (Pa. 2011). "To obtain relief on aclaim of
ineffective assistance of counsel, apetitioner must rebut that presumption and demonstrate
that counsel's performance was deficient, and that such performance prejudiced him." Id.Appellant " must show, by apreponderance of the evidence, ineffective assistance of
counsel which, in the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have taken
place." Commonwealth v, Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007)(citation omitted).
The burden is on the defendant to prove all three of the following prongs: "( 1) the
underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for
his or her action or inaction; and (3) butfor the errors and omissions of counsel, there is a'
reasonable probability that the outcome of the proceedings would have been different." Id.
9
(citation omitted); see also Commonwealth v. Daniels, 963 A.2d 409, 419 (
Pa. 2009) ("A
failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of
ineffectiveness." (citation omitted)). Moreover, "the right to an evidentiary hearing on apost-
.conviction petition is not absolute. It is within the PCRA court's discretion to decline to hold a
hearing if the petitioner's claim is patently frivolous and has no support either in the record
or other evidence." Commonwealth v.. Jordan, 772 A.2d 1011., 1014 (
Pa. Super: 2001).
Applyingthese standards to the presentcase, Appellant is notentitledto relief on anyof
his seven claims.
A. Appellant's claim of trial counsel's ineffective far failing to ensure the
attendance of Keecha Davis and failing to object to alleged prosecutorial
misconduct is meritiess.
Based upon Keecha Davis' most recent affidavit, her proffered testimony does not
establish areasonable probability that, but for her failure to testify, the outcome of the trial
would have been different. Turetskysupra. Ms. Davis did not witness the shooting. (
See
Davis' April 20, 2011, statement to police; Mistrial testimony N.T. 10/23/14, 113-46; May
30, 20.1.7 affidavit; July 17, 2020 affidavit, and. November 18, 2020 affidavit.) However,
Appellant argues that Ms. Davis' testimony was necessary to negate the Commonwealth's
claim that afight between Appellant and Francis Jr. over her cellular telephone was the
Appellant's motive for the shooting. (
See Amended Motion for Post Conviction Relief.)
Moreover, Appellant claims that Ms. Davis'testimony could have been used to impeach
Francis, Jr. regarding " his motive to lie and outside influences on his testimony." (!d.)
In order to prevail on an ineffectiveness claim for failure to call a witness, a
Appellant must show (1) the witness existed; (2) the witness was available to testify; (3)
counsel knew of, or should have known of, the existence of the witness; (4) the witness
was willing to testify; and (5) the absence of the witness's testimony was so prejudicial as
1.0
to have denied the Appellant afair trial. Commonwealth v. Sneed, 45 A.3d 1096, 1108-
09 (Pa. 2012). Thus, an Appellant must show that the testimony would have been helpful to
his defense. Commonwealth v Auker, 681 A.2d 1305, 1319 (Pa. 1996). Here, Appellant
cannot establish that "the absence of the witness's testimony was so prejudicial as to
have denied the Appellant afair trial." Sneed.
Here, the absence of the Ms. Davis' testimony was not so prejudicial as to have
denied the Appellant afair trial. In her April 20, 2011 statement, Ms. Davis stated she was
working at the Cobb's Creek Inn on. the. night of Thursday, April 7, 2011. ,(See Ms. Davis'
April 20, 2011 statement.) Ms. Davis told police that Appellant was not at the bar that night
because of an incident that occurred on April 4, 2011. On April 4, 2011, Appellant took her
phone off the bar. (1d.) Appellant returned to the bar and told Ms. Davis. that he sold the
phone to Francis Jr (1d.) Then Ms. Davis and Appellant walked to meet Francis Jr. (1d.) When
they met, Appellant and Francis Jr. "got into words and they were going back and fourth, (
Id.)
Ms. Davis "flagged down police" who stopped Appellant.and Francis Jr." (1d.) Police told: Ms.
Davis that she would have to file acomplaint so she walked back to the bar with Appellant
and tried to get into afight with him. (1d,) Appellant called the police on Ms. Davis, so she got
into acab and left. (
Id.) Ms. Davis did not see and was not aware ofany physical altercations
between Appellant and Francis Jr, (
1d.)
At Appellant's first trial, Ms. Davis testimony was consistent with her April 20, 2011,
statement.
.Appellant attached as an exhibit an Affidavit from Keecha Davis dated May 30, 2017,
to his July 3, 2020 Amended Petition. (See Keecha Davis. Affidavit dated May 30, 2017.) In
that affidavit, Ms. Davis stated that the prosecutor did not text her to notify her to return. to
court because the trial was over. (1d.)
11
On July 25, 2020, Appellant filed another affidavit from Ms. Davis dated July 17,
2020. (See Keecha Davis Affidavit dated July 25, 2020.) In that affidavit, Ms..Davis states
that no "fight or physical altercation happened between" Appellant and Francis Jr. (1d.) She
also stated that, while at court in the witness room on June 29, 2016, Francis Jr, told her
that he feels bad because Appellant is innocent, and no one believes him. (1d.) Francis Jr.
also told her that his dad made him do this. (1d.) Ms. Davis further stated that, when she
returned to court on June 30, 2016, the prosecutor told her that the trial was over and that
she could leave. (
1d.) She stated that, if notified, she would have come to court. (1d.)
On December 17, 2020, Appellant filed another supplemental affidavit of Ms.. Davis
dated November 18, 2020. (See Keecha Davis Affidavit dated July 25, 2020.) In that
affidavit, Ms. Davis stated that she saw Francis Jr. in the bar the night he was shot. (1d.) Ms.
Davis does not know what time he left. (
1d.) Ms. Davis stated that she heard gunshots
between 1:00 and 2:00 a.m. (!d.) However, she does not know what happened. (1d.)
In her July 25, 2020.statement, Ms. Davis further stated that she spoke to Detective
Parker and told him about the incident with Appellant, Francis Jr., and her cellular
telephone. (1d.). She also asserted that Francis Jr. was high on.Xanax. (1d.) Moreover, she
stated that she is not aware of Appellant or Francis.Jr. ever fighting. (1d.) Furthermore, she
stated that she told Det. Parker that she did notthink Appellant shot Francis Jr. because
Appellant is not a "tough guy." (1d.)
In that affidavit, Ms. Davis also stated that, duringthetrial while sitting outside on a
bench, Francis Jr, told her that he was going to " make things right." (1d:) She thought Francis
Jr. meant that Appellant was not the shooter.. (1d.) The next day, when she was supposed to
go to court, she received atelephone call from afemale who told her that she was not.
needed. (1d.)
12
Ms. Davis' proffered testimony does not challenge the Commonwealth's contention
regarding motive. In her statement to police, Ms. Davis said that the Appellant and Francis
Jr. got into an argument afew days before the shooting over her cellular telephone that
Appellant stole off the bar. (See Davis' April 20, 2011 statement.) In that statement she said
the argument was not physical. (1d.) However, there was some type of altercation between
Appellant and Francis Jr. over her cellular telephone that caused her to flag down police.
(See Ms. Davis' April 20, 2011 statement.) Even if the altercation was. not physical, the
prosecution could still argue it was motive. Moreover, motive was not relevant to Appellant's
alibi defense especially in light of the factthat, at trial, Francis Jr. did not identify him.as the
shooter..
Appellant also claims that Ms. Davis' testimony could have been used to impeach
Francis, Jr. regarding " his motive to lie and outside influences on his testimony." (See
Amended Motion for Post Conviction Relief.) However, Francis Jr. testified that he knows
Appellant and that Appellant did not shoot him because Appellant would not do something
like that. ( N.T. 6/29/16 pgs. 123-24.) Francis Jr. further stated that he was not going to
send an " innocent man to jail." (Id. pg. 124.) Moreover, Francis Jr.'s veracity was already at
issue. Because Francis Jr. did not identify Appellant at trial, the Commonwealth relied upon
Francis Jr.'s prior statements to identify Appellant. (1d, pgs. 57-78.) Francis Jr. testified that
the signature on the statement was not his. (Id. pg. 160.) He also testified that the
statement was not in his handwriting and he was not given an,opportunity to read over the
statement. (Id. pg. 163.) Additionally, Francis Jr. had tubes in him, as depicted by the
pictures Det. Parker took, and was on medication on the date of the statement. (Id. pg. 159.)
Furthermore, the jury was aware that, on the night of the shooting, Francis :Jr. had been
drinking, taking "syrup" and thirty (30) Xanax. (N.T. 6/29/2016, pg. 150-53.) Under these
13
circumstances, the absence of Ms. Davis' testimony did not deprive Appellant of the right to
afair trial. 2
Because the absence of Ms. Davis' testimony did not deprive Appellant of the right to
afair trial, trial counsel was not ineffective for failing to object to the alleged prosecutorial
misconduct. In. assessing a. claim that counsel was ineffective for not objecting to alleged
prosecutorial misconduct, courts assess whether Due Process was violated- whether the
misconduct was significant enough to result in the denial of the Appellant's right to afair
trial. Commonwealth v. Hanible, 30 A.3d 426 (Pa. 2011) !d. at 685 (
quoting Greer v. Miller,
483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 ( 1987) (internal quotation marks
omitted)). "
The touchstone is fairness of the trial, not the culpability of the prosecutor." Id.Consideration of claims of prosecutorial misconduct is centered.on whetherthe Appellant
was deprived of afair trial, not a perfect trial. Commonwealth v. Hairston, 84 A.3d 657(20.14). In reviewing claims of prosecutorial misconduct, appellate courts focus on whether
the Appellantwas deprived of afair trial, nota perfecttrial. Commonwealth v. LaCava, 666
A.2d 221 ( Pa. 1995). Accordingly, the alleged prosecutorial misconduct is not relevant
because Appellant was not deprived of afair trial.
B. Appellant's claim that trial counsel was Ineffective for failing to object to
the prosecution's opening and closing statements concerning "threats,
intimidation and/or fear" allegedly suffered by the victim Is meritless.
Appellant next claims that trial counsel was Ineffective for failing to object to the
prosecution's opening and closing statements concerning fear allegedly suffered by Francis
Jr. and on intimidation. (Amended Petition, 16). Appellant claims that the remarks were
highly prejudicial, designed to inflame the passions against Appellant, and were not based
zMoreover, any statements Francis Jr. may have made to Ms. Davis while waiting to testify at Appellants
second trial would not have been discovered by trial counsel had he interviewed her prior to trial.
14
upon facts of record. (Id., 18). However, the prosecutor's statements were based upon facts
of record and were therefore appropriate.
.Appellant raised this issue on direct appeal. There, Appellant complained that "the
trial court committed an abuse of discretion by denying amotion for mistrial and an
objection after the prosecutor asked the complainant if he stated the previous day he was
afraid to testify." Commonwealth v Scott, No. 524 EDA 2017 ( Pa. Super, filed February 21,
.2019) (unpublished memorandum). The Superior Court found that "the prosecutor's
question had agood faith basis, did not accuse [Appellant] of threatening [Francis Jr.], and
the question was appropriate redirect examination." !d. The Superior Court held that this
issue was "frivolous." !d.
Moreover, Appellant did not seek allocatur. Accordingly, Appellant had the highest
appellate court in which he could have review as amatter of right rule on the merits of this
issue. 42 Pa.C.S.A. §9544(a)(2). Thus, under the PCRA, Appellant is precluded from post-
conviction relief regarding this issue because it was previously litigated. and the PCRA court
is without jurisdiction to consider its merits. See !d. Appellant's attempt to repackage this
argument that the Superior Court previously rejected fails. Commonwealth v. Padden, 783
A.2d 299,.312 (
Pa. Super. 2001) (
failed claims do not attain merit "simply by presenting
[them] under the guise of ineffective assistance of counsel").
Nevertheless, the prosecutions statements were based upon:facts of record. Francis
Sr. testified that his son, Francis Jr. Was not living in his normal apartment and that he had
the help of the witness protection from the District Attorney's Office to arrange to have
Francis Jr. moved and living in a different location out of the state (N.T. 6/29/16, 272).
Francis Sr. also testified that he spoke to his son the night prior to testifying in which Francis
Jr. told his father that he was "scared" (Id., 273-274).
15
Aprosecutor is entitled to explain to the jury why adefense is incredible based on the
evidence. See Commonwealth v. Jones, 668 A.2d 491, 514 (Pa. 1995) ("prosecutorial
misconduct will not be found where comments were based on the evidence or proper
inferences therefrom or were only oratorical flair"). Under such circumstances, counsel is
not ineffective for declining:to object. See Commonwealth v. Miller, 664 A.2d 1,310,
1324 ( Pa. 1995) (because the prosecutor's comments were not improper, counsel was
not ineffective forfailing to object). Because trials are adversary proceedings, the
prosecution, like the defense, must be allowed reasonable latitude in advocating its case to
the jury. Id. Accordingly, prosecutors are entitled to refer to the evidence, to argue all
reasonable inferences from that evidence, and to present theirarguments with logical. force,
vigor and"oratorical flair." Commonwealth v. Rolllns, 738 A.2d 435,445 ( Pa. 1999). The
prejudicial effect of aprosecutor's statements are considered in the context in which
they were made. Commonwealth v. Cox, 728 A.2d 923, 932 (Pa. 1999);
Commonwealth v. Brown, 911 A.2d 576, 580 ( Pa. Super. 2006) ("closing 'argument' is
just that: argument").
Additionally, this Court instructed the jury that closing arguments "do not
constitute evidence," and further instructed the jury:
When counsel makes closing arguments what they typically do is review the
evidence with you and ask you to draw certain inferences from that evidence.
That can be very helpful to you in evaluating this case. Ido need you to keep
in mind, however, that you are not bound by counsel's recollection of the
evidence, nor are you bound by counsel's perspective of what the evidence in
this case shows. It is your recollection of the evidence and your recollection
alone which must guide your deliberations in this case. In addition, you're not.
limited, in your consideration of the evidence, to that particular evidence that
counsel decides to review with you. You may, if you chose, consider any of
the evidence in the case during the trial that you believe to be material to
the. issues that you have to resolve. Now, to the extent that the arguments
made by counsel are properly based upon the evidence and appeal to your
16
reason and common sense and judgment, then. you may consider them in your
deliberations.
(N.T. 7/1/16, 6-7.)
These instructions, which the jury is presumed to follow, cured any potential prejudice. See
Commonwealth v. Stokes, 839 A.2d 226,244 (Pa. 2003) (trial court's instruction that a
prosecutor's comments do not constitute evidence removed any prejudice, as the jury is
presumed to follow the court's instructions; counsel was not ineffective for failing to object);
Commonwealth v. Baez, 720 A.2d 711, 735 (Pa. 1998) (Appellant not prejudiced, as the
jury is presumed to follow the trial court's instructions").
Based upon the evidence in this case, the prosecutor's opening and closing remarks
were not improper and therefore trial counsel cannot be deemed ineffective for failing to
object. Commonwealth v. Staton, 120 A.3d 277,293 (Pa..2015) ("counsel cannot be
deemed ineffective for failing to lodge ameritless objection). Furthermore, any prejudice by
such remarks was cured by the jury instruction. See Stokes.
C. Appellant's claim that trial counsel was ineffective for "opening the door to
and/or failing to properly object"to the Commonwealth eliciting
impermissible testimony about witnesses "going south" in this case and
other cases is meritless.
Appellant claims that trial counsel was ineffective for opening the door and/or failing
to properly object to the Commonwealth eliciting impermissible testimony about. witnesses
in this case and other cases."going south" (Amended Petition, 26). Specifically, Appellant
claims that trial counsel opened the door to the " highly prejudicial testimony" from Francis
Sr. and Detective Parker regarding their voucher for the reliability of unsworn statements to
support the "improper and unsupported" inference that Francis Jr. changed his testimony
out of fear for his safety (Id., 26-27). Further, Appellant argues that trial counsel was
ineffective for not objecting to "statistical evidence" regarding south witnesses from
:.7
Detective Parker and Assistant District Attorney ("ADA") Brett Furber(Id., 28-34). However,
because this evidence was properly admitted, with or without "counsel opening the
door," Appellant's claim is meritless.
"The admissibility of evidence is amatter for the discretion of the trial court and a
ruling thereon will be reversed on appeal only upon ashowing that the trial court committed
an abuse of discretion. An abuse of discretion may not be found merely because an
appellate court might have reached adifferent conclusion, but requires aresult of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support. so as to be
clearly erroneous." Commonwealth v. Johnson, 615, Pa. 354 at 372, 42 A.3d 101.7 at
1027 (Pa. 201.2) (citations omitted.)
Here, Appellant complains that this evidence was " highly prejudicial," but does not
identify any rule of evidence by which this testimony should have been precluded. (See:
Amended Motion for Post-Conviction Relief.) Moreover, the problems of witness
intimidation in Philadelphia are well-known and well-publicized. Here, Detective Parker's
and ADA Furber's testimony regarding their experience with witnesses %going south was
appropriate and relevant due to the evidence of Francis Jr.'s fear at trial as cited above.
Thus, trial counsel was not ineffective for failing to object to admissible evidence.
Commonwealth v. Reid, 99 A.3d 470, 504 ( Pa. 2014) ("trial counsel cannot be deemed
ineffective for failing to raise ameritless objection").
D. Appellant's claim#hat trial counsel was ineffective for openingthe door/failing
to object.to the prosecutor's questions and comments related to alibi
witnesses' failure to speak to policels meritless.
Appellant claims that trial counsel was ineffective for opening the door and/or failing
to object to the prosecutor's questions and comments related to alibi witnesses' failure to
speak to police (Amended Petition, 35). Specifically, Appellant claims that defense
18
counsel's question "[n]ow, you did not talk to an investigator from the police, is that
correct?" opened the door to the following cross-examination of witnesses Stephanie
Sharper and Jamal Hairston (id., 35-38). Further, Appellant claims that trial counsel should
have raised the "proper objection" when the questions were asked (ld., 38).
However, the reason(s) alibi witnesses did not provide police statements is:proper
cross-examination. In Commonwealth v. Rayner, 153.A.3d 1049 ( Pa. Super 2016), the
Superior Court held that aprosecutor did not commit prosecutorial misconduct during his
closing argument when he questioned the reliability of alibi witnesses who chose not to
speak to police on behalf of their loved one prior to trial. Here, for the jury to evaluate the
alibi witnesses' testimony, .it was important for the jury to hear why Appellant's mother and
friend did not provide astatement or even speak with police following Appellant's arrest.
Accordingly, this line of questioning was proper cross-examination of an alibi witness. Thus,
trial counsel was not ineffective for not making afrivolous objection to permissible cross-
examination. Commonwealth v. Gwynn, 943 A.2d 940, 948 ( Pa. 2008) (
counsel will not be
deemed ineffective for failing to raise abaseless. objection).
E. Appellant's claim that his trial counsel was ineffective for stipulating to
"materlally incorrect facts," failed to object to related prejudicial testimony,
and argued In closing about related facts not of record is. meritless.
Appellant claims that trial counsel was ineffective for stipulating to materially
incorrect facts, failing to object to related prejudicial testimony, and arguing in closing
about related facts not of record (Amended Petition, 40). Specifically, Appellant claims that
trial counsel was ineffective for erroneously referencing in his closing bulletfragments
recovered and not objecting to the Commonwealth's reference to bullet fragments,
19
arguingthat this was not evidence of record. (
ld.)s Appellant's claim ignores the fact that
there were four fragments found at the scene, which was apparent from the crime scene
sketch marked as Commonwealth exhibit C-12 at trial and referenced by defense counsel
during his cross-examination of Detective Parker (N.T. 6/30/16, 90-91; trial exhibit C-
12). Thus, because Appellant is mistaken, trial counsel was not ineffective for failingto
make the"appropriate" objection. Commonwealth v. Gwynn, 943 A.2d 940, 948 ( Pa. 2008)
(counsel will not be deemed ineffective for failing to raise abaseless objection).
F. Appellant's claim that his trial counsel was ineffective for failing to object to
the prosecution's use of Francis Jr.'s unsworn statements to his father and to
Detective Parker while in the hospital to establish Appellant's guilt and for
failing to object to the Court's related jury charge Is without merit.
In his direct appeal, Appellant complained that evidence was " insufficient to.sustain
the jury's verdict because it was predicated solely on hearsay consisting of the out of court
statements of [Francis Jr.] and because the Commonwealth failed to corroborate what was
contained in [Francis Jr.'s] out of court statements." Scott supra. Moreover, Appellant
complained. that "the verdict was based upon evidence recanted by the complainant." Id.
The Superior Court found that "[t]his claim overlooks well settled case law and our Rules. of
Evidence." Id. The Superior Court: held that "[ajfter the victim's recantation at trial, pursuant
to Pa.R.E. 803.1(1) and [
Commonwealth v. Brown, 52 A.3d 1139, :1168 (Pa. 2012)]
[Francis Jr.'s] written statement that was signed and adopted by him, and the victim's
preliminary hearing testimony, were admissible as substantive evidence and established the
elements of the crimes with,which [Appellant] was charged." Id. Appellant's attempt to
repackage an argument that the Superior Court previously rejected fails. Commonwealth
3Additionally, defendant complains that the Commonwealth did not produce any keys from the crime
scene (Amended Petition, 42-43). The keys found at the scene belonged to Gary Jr. as explained in his
statement to police and were not pertinent to the issues at trial or exculpatory.
20
v Padden, 783 A.2d 299, 312 (Pa. Super. 2001.) (failed claims do not attain merit "simply
by presenting [
them] under the guise of ineffective assistance. of counsel").
As the Superior Court held in Appellant's direct appeal, this Court properly admitted
the victim's prior inconsistent statements for impeachment and substantive purposes.
Scottsupra. The victim recanted the majority of his prior statements to police following
the shooting and at Appellant's preliminary hearing and was cross-examined at length
regarding those prior inconsistent statements. Because the written statement was
contemporaneously recorded and signed by the victim, and the victim gave preliminary
hearing testimony under oath, the Commonwealth was permitted to introducethe statement
and testimony not only to impeach the witness, but also to prove the truth of the matter
asserted. Accordingly, this Court properly allowed the jury to consider the substantive
information in those statements. See, e.g., Commonwealth v. Collins, 957 A.2d 237, 260-
62 ( Pa. 2008) (finding that trial court properly admitted witness's prior statement to police
and preliminary hearing testimony where witness testified attrial that he had lied to police
and at preliminary hearing).
Because the admission of Francis Jr.'s statement and the corresponding instruction
were both proper, trial counsel cannot be deemed ineffective for failing to lodge objections
to either.. Commonwealth v. Reld, 99 A.3d 470, 504 (Pa. 2014) ("trial counsel cannot be
deemed ineffective for failing to raise a meritless objection").
G. Appellant's claim of cumulative error is meritless.
Appellant believes that he is entitled to relief based on the cumulative effect of the
purported errors raised and cited above (Amended Petition, 58). This claim has long'been
rejected by the Pennsylvania Supreme Court..
21
It. is well-settled that " no number of failed claims may collectively warrant. relief if
they fail to do so individually." See Commonwealth v. Tedford, 960 A.2d 1, 56 (
Pa. 2008)
("this Court has repeatedly held that'no number of failed claims may collectively warrant
relief if they fail to do so individually."'); Commonwealth V. Washington, 927 A.2d 586,
617 (
Pa. 2007) (same); Commonwealth v. Lopez, 854 A.2d 465, 472 (Pa. 2004)
(recognizing that "no number of failed claims may collectively attain merit if they could
not do so individually"); Commonwealth v. Bryant, 855 A.2d 726, 751 ( Pa. 2004) (where
there were no errors warranting relief in the Appellant's PCRA petition, his allegation of
cumulative errors failed).
V. CONCLUSION
For the reasons set forth in the foregoing Opinion, the Court recommends that its
judgment be affirmed.
BY THE a6URT:
DATE:
MAS STREET; SIERRA J.
22