Com. v. James, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKIE JAMES :
:
Appellant : No. 776 EDA 2019
Appeal from the PCRA Order Entered March 4, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0013643-2009.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED AUGUST 28, 2020
Rickie James appeals from the order denying his petition filed pursuant
to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the pertinent facts from James’ trial as
follows:
On September 30, 2009, at about 6:27 p.m., Police Officer
Andrew Jackson was in an unmarked police vehicle in the
vicinity of 22nd and Dauphin Streets when he was flagged
down by the [victim]. Officer Jackson testified [the victim]
exited his Chevrolet Impala screaming and pointing towards
his left shoulder; he told Officer Jackson that he had been
shot. Officer Jackson saw the bullet wound and a bit of
blood right below [the victim’s] left ear. Officer Jackson
observed that the driver’s side window of the vehicle was
shot out and there were multiple shots visible on the driver’s
side of the vehicle. [The victim] told Officer Jackson that he
was shot by someone named Rickie, who lived in the area
of 23rd and Norris Streets in a house in front of which a black
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* Retired Senior Judge assigned to the Superior Court.
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Chrysler Pacifica was parked. [The victim] described two
shooters: the first male was Rickie, a black male about 6’2’’
wearing a black hoodie and riding a bike. The second male
was described as a black male wearing a black hoodie and
riding a bike. [The victim’s] children were in the car and
after they were picked up, [he] was taken to Temple
University Hospital by Police Officer Robert Dougherty.
***
[The victim] testified that on September 30, 2009, we was
picking up medicine for the mother of his eight-year old son
at a Rite Aid Pharmacy located at 22nd Street and Lehigh
Avenue. His son, seven-year old daughter and eight-year
old niece were with him in the car. After going to the
playground at 25th and Diamond Streets, they drove to his
son’s mother’s house at 22nd and Diamond Streets. As he
pulled up, he saw two people who started to shoot at him.
He testified that he could not identify either shooter, that he
was just grazed by the shots, and that his window was hit.
[The victim] drove to Dauphin Street and flagged down a
police officer . . . whom he saw in an unmarked vehicle. He
did not recall telling the officer who had shot him. [The
victim] was released from the hospital and was taken to
Northwest Detectives where he gave a statement to
Detective Edward Keppol. [The victim] testified that when
he was interviewed he was under the influence of the drugs
he had received at the hospital.
He further testified that he did not recognize anyone in the
courtroom as the person who shot at him, but in his
statement to police, he stated that two people came towards
his vehicle shooting. . . . [The victim] denied telling police
the information contained in his statement; he testified that
he told the police some of the information in his statement,
but that most of it was false. He stated that the detective
told him whose photos to identify and that he really was not
sure who had shot him, but he was sure it was neither
defendant.
The notes of testimony from the preliminary hearing for
[James] and the notes of testimony from co-defendant
[Lamar] Harding’s preliminary hearing were read to the
jury. [The victim] testified that the notes were inaccurate
and that he did not testify as the notes reflected. He then
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stated he identified [James] as one of the shooters at the
preliminary hearing because he “was pissed off” about an
earlier confrontation with a woman who was in the Rite Aid
parking lot with [James]. [The victim] identified [Harding]
and [James] as the shooters numerous times at each of
their preliminary hearings, but denied at trial knowing who
had shot at him. He insisted that it was neither defendant
and insisted that the court reporter transcribed an
inaccurate report.
Police Officer Robert Dougherty testified that he met Officer
Jackson in the vicinity of 22nd and Dauphin and transported
[the victim] to the hospital. On the way to the hospital, [the
victim] told him that he was possibly shot over an earlier
confrontation over a parking spot at Rite Aid.
***
After he was released from the hospital, [the victim] was
formally interviewed. Detective [Edward] Keppol [testified]
that [the victim] did not appear drowsy or under the
influence of any drugs . . . Detective Keppol read [the
victim’s] statement to the jury and denied telling [him] that
the police had a suspect. Detective Keppol showed [the
victim] a photograph of [James] after [the victim] said that
[James] had shot him.
PCRA Court Opinion, 6/28/19, at 2-3 (citation omitted).
James and Harding were tried together. Based on the above evidence,
on May 13, 2010, a jury convicted James of attempted murder and related
charges. On July 7, 2010, the trial court sentenced James to an aggregate
term of seventeen to thirty-four years of imprisonment on his remaining
convictions. James filed a timely petition for reconsideration.
On October 13, 2010, the trial court held a hearing on the motion, at
which James’ mother testified regarding a letter purportedly written by
Harding. She testified that Harding allegedly “stated in the letter that he is
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the actual person that shot [the victim] and not [James].” N.T., 10/13/10, at
5. The Commonwealth argued that nothing in the letter was relevant to the
post-sentence motion, but the letter could be the basis for a “PCRA after
discovered evidence” claim. N.T., 10/13/10, at 8. In addition, the prosecutor
commented that he read the letter and “nothing indicated [James] is innocent,
it just indicates [Harding] is guilty of more crimes than he was found guilty
of.” Id.1 For his part, James’ trial counsel stated he agreed that the letter
allegedly written by Harding would be appropriately considered under the
PCRA. Id. at 9. Finally, the prosecutor stated that “with regards to the
authentication of this letter, it could have [been] written by [James.]” Id.
Trial counsel then confirmed that he received an original copy of the letter
from James’ mother. Id. Although the letter was marked as a defense exhibit,
it was not admitted into evidence. Ultimately, the trial court denied James’
post-sentence motion.
Trial counsel filed a timely appeal on James’ behalf but later was
permitted to withdraw, and the trial court appointed new counsel. In an
unpublished memorandum filed on October 18, 2011, this Court rejected
James’ challenge to the sufficiency of the evidence supporting his convictions,
as well as his claim challenging the discretionary aspects of his sentence.
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1 The jury convicted Harding of only aggravated assault, and the trial court
sentenced him to an aggregate term of three-and-one-half to ten years in
prison and a consecutive five-year probationary term. See Commonwealth
v. Harding, 37 A.3d 1235 (Pa. Super. 2011)(unpublished memorandum).
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Commonwealth v. James, 37 A.3d 1235 (Pa. Super. 2011). Although James
claimed that he was entitled to a new trial based upon after-discovered
evidence in the form of Harding’s letter, we found this claim waived because
the letter did not appear in the certified record. James, unpublished
memorandum at 15-16. In a footnote, however, we noted that “our review
of the document attached to [James’] brief reveals that nowhere therein does
[Harding] state he was solely responsible for shooting [the victim].” Id. at
16 n.7. Our Supreme Court denied James’ petition for allowance of appeal on
February 1, 2012. Commonwealth v. James, 37 A.3d 1194 (Pa. 2012).
On March 28, 2013, James filed a pro se PCRA petition, and the PCRA
court appointed counsel. Thereafter, PCRA counsel filed a petition to withdraw
and a “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc). According to PCRA counsel, James’ PCRA petition was untimely
and alleged not time-bar exception. The PCRA court agreed and, following a
Pa.R.Crim.P. 907 notice, the PCRA court dismissed the petition as untimely.
James filed a timely appeal to this Court in which he asserted that his
PCRA petition was timely. After reviewing the record, we determined that the
PCRA court erred in concluding James had not filed a petition for permission
to appeal to our Supreme Court. See Commonwealth v. James, 190 A.3d
721 (Pa. Super. 2018) (unpublished memorandum). This Court therefore
reversed the PCRA court’s order denying relief and remanded for the
appointment of new counsel. Id.-5-
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Following remand, the PCRA court appointed current counsel, who filed
an amended petition in which he claimed he was entitled to a new trial based
upon after-discovered evidence, as well as a layered claim of ineffectiveness
due to prior counsel’s failure to ensure Harding’s letter appeared in the
certified record. On February 4, 2019, the Commonwealth filed a motion to
dismiss the amended petition. The next day, the PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without merit.
James filed a response. By order entered March 4, 2019, the PCRA court
dismissed James’ amended PCRA petition. This timely appeal followed.
Although the PCRA court did not require James to comply with Pa.R.A.P. 1925,
the PCRA court filed a Rule 1925(a) opinion.
James raises the following issue on appeal:
Did the [PCRA court] err in refusing to grant [James] an
evidentiary hearing regarding the question of whether [he]
was involved with the shooting of the victim, involving the
testimony of [Harding] and the letter he sent to [James’]
family at the end of trial?
James’ Brief at 1.
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).
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The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
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 his issue, James argues that the PCRA court abused its discretion in
dismissing his PCRA without first affording him a hearing based on the content
of Harding’s letter. James summarizes his argument in support of his issue
as follows:
There is enough of an evidentiary cause for [the PCRA
court] to have granted [James] an evidentiary hearing,
primarily based upon the testimony of eyewitness and co-
defendant, [Harding] who has communicated by means of a
letter to [James’] family that he has knowledge of the fact
that [James] was not the shooter of [the victim] of this
incident. Therefore, the [PCRA] court needs to conduct an
evidentiary hearing so that [Harding’s] testimony can be
certified and included with the record to be considered by
this Honorable Court so that it can equitably determine
whether this case can be remanded back to the [PCRA] court
for a new trial or a new sentencing.
James’ Brief at 6.
To address this claim, we first note the test applied to after-discovered
evidence under the PCRA. When discussing the test in the context of a PCRA
appeal, our Supreme Court summarized:
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[W]e have viewed this analysis in criminal cases as
comprising four distinct requirements, each of which, if
unproven by the petitioner, is fatal to the request for a new
trial. As stated, the four-part test requires the petitioner to
demonstrate the new evidence: (1) could not have been
obtained prior to the conclusion of trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in a
different verdict if a new trial were granted. The test applies
with full force to claims arising under Section 9543(a)(2)(vi)
of the PCRA. In addition, we have held the proposed new
evidence must be producible and admissible.
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).
Credibility determinations are an integral part of determining whether a PCRA
petitioner has presented after-discovered evidence that would entitle him to
a new trial. See, e.g., Small, 189 A.3d at 978-79 (remanding for the PCRA
court to make relevant credibility determinations). We have stated, prior to
granting a new trial based on after-discovered evidence, “a court must assess
whether the alleged after-discovered evidence is of such a nature and
character that it would likely compel a different verdict if a new trial is
granted.” Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super.
2010). “In making this determination, a court should consider the integrity of
the alleged after-discovered evidence, the motive of those offering the
evidence, and the overall strength of the evidence supporting the conviction.”
Id.Here, the PCRA court explained that it denied James’ amended PCRA
petition without a hearing for several reasons:
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First, [James] fails to proffer a signed certification from
Harding indicating that he did, in fact, write the letter or that
he would testify at an evidentiary hearing. Without such a
certification, the claim must fail.
Moreover, [James’] claim fails because Harding’s letter
does not contain, as [James] alleges, the assertion that
[James] was not the person [who] shot the victim[.] In the
letter, Harding is addressing a person by the name of
“Rakim.” The contents of the letter are largely Harding
accusing Rakim’s mother of telling people that Harding had
snitched on [James]. In the letter, Harding insists that he
never “ratted” on [James] and further threatens to kill
Rakim and his mother when Harding gets out of jail. At one
point in the letter, Harding acknowledges that he shot an
unnamed “boy”, but nothing in the letter established that
Harding is referring to [the victim].
Simply, nothing in Harding’s letter exculpates [James].
At no point does Harding’s letter state that [James] did not
shoot [the victim]. The evidence presented at trial
established that both [James] and Harding shot at [the
victim]. Therefore, even if Harding was referring to the
shooting of [the victim], admitting that he shot the victim
does not contradict the evidence presented at trial.
PCRA Court Opinion, 6/28/19, at 7 (citations omitted). In addition, the PCRA
court noted this Court’s statement on direct appeal, see supra, that nowhere
in the letter does Harding state that he was solely responsible for shooting the
victim. Id.
Our review of the record supports the PCRA court’s conclusions.
Initially, we note that James’ claim fails because Harding did not sign a witness
certification in which he acknowledges he authored the letter in question and
was willing to testify at a PCRA hearing. See 42 Pa.C.S.A. 9545(d)(1)(i)
(providing, “Where a petitioner requests an evidentiary hearing, the petition
shall include a certification signed by each intended witness stating the
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witness’s name . . . and substance of testimony and shall include any
documents material to that witness’s testimony”); see also Pa.R.Crim.P.
902(A)(15)(providing that a request for an evidentiary hearing shall include
witness certifications). Indeed, nowhere in this amended petition does James
even aver that Harding was willing to testify regarding the contents of the
letter.
In addition, to the extent we can read the handwritten letter, we agree
with the PCRA court that, even if properly authenticated, the letter in no way
exculpates James. This is especially true given, the “overall strength of the
evidence supporting [James’] conviction.” Padillas, supra. Although he
recanted the identification at trial, in his initial statements to police, and in
preliminary hearing testimony, the victim identified James—a person he
knew—as one of the shooters. In addition, ballistic evidence established that
a bullet fragment recovered from the victim’s car was fired from the same
handgun police found on James when they arrested him less than two weeks
after the shooting. See N.T., 5/12/10, at 110-17.
In sum, because the PCRA court did not err in concluding that the letter
allegedly written by Harding was not of such a nature and character that it
would compel a different result, Small, supra, James’ issue fails, and we
affirm the PCRA court’s order denying him post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/20
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