Com. v. Golden, K. ( 2021 )

J-A15044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIREE GOLDEN :
:
Appellant : No. 1696 EDA 2020
Appeal from the PCRA Order Entered October 26, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010170-2009
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 17, 2021
Kiree Golden (“Golden”) appeals from the Order dismissing his Petition
for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42
Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously summarized the relevant factual history as
follows:
During the evening of February 5, 2008, Kuame Burkett
(“Burkett”) was shot and killed. Burkett was with a number of
friends outside of a corner store located at the intersection of
Brown and 16th Streets in Philadelphia when Golden and two other
men, Iyube Bundy and Mathew Bundy, approached the corner.
Burkett, who had been horsing around with one of his friends, ran
a short distance down the block and sat on a set of steps. Shortly
thereafter, Golden approached Burkett, shot him multiple times
and fled. As Golden fled, Iyube Bundy approached Burkett, also
shot him multiple times[,] and fled in the same direction as
Golden. Burkett was shot in his head, chest, lower back[,] and
right thigh. He died from these gunshot wounds.
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Golden, Iyube Bundy and Mathew Bundy were tried together
before a jury in June 2012. Golden was found guilty of [first-
degree murder, conspiracy to commit murder, and carrying
firearms on public streets in Philadelphia. See 18 Pa.C.S.A.
§§ 2502(a), 903, 6108]. He was subsequently sentenced to life
imprisonment for the first-degree murder conviction, and no
further penalty was imposed for the remaining convictions.
Golden filed post-sentence [M]otions, which the trial court denied.
…
Commonwealth v. Golden, 87 A.3d 895 (Pa. Super. 2013) (unpublished
memorandum at 1-2). This Court affirmed Golden’s judgment of sentence,
and the Pennsylvania Supreme Court denied allowance of appeal. See id.,appeal denied, 89 A.3d 1283 (Pa. 2014).
On April 22, 2015, Golden, pro se, filed the instant timely PCRA Petition.
The PCRA court appointed Golden counsel. Following several continuances,
PCRA counsel filed an Amended PCRA Petition on April 19, 2018, raising a
claim of after-discovered evidence. Specifically, Golden points to the
discovery of criminal offenses committed by Philadelphia Police Detective
Ronald Dove (“Detective Dove”), who was involved in the investigation of
Golden’s case. In support of this claim, counsel attached to the Amended
PCRA Petition several newspaper articles concerning Detective Dove’s
involvement following a homicide committed by Detective Dove’s girlfriend,
and his subsequent guilty plea.1 Golden requested an evidentiary hearing to
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1 In April 2017, Detective Dove pled guilty to several crimes relating to
hindering prosecution and tampering with evidence in the investigation of his
girlfriend.
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develop evidence that Detective Dove improperly had influenced witnesses to
provide false testimony at trial. The Commonwealth filed a Response,
asserting that Golden’s claim concerning Detective Dove was unsupported and
undeveloped. Following appropriate Notice, the PCRA court dismissed
Golden’s case without a hearing.
PCRA counsel failed to file an appeal on Golden’s behalf. Accordingly,
Golden sought, and the PCRA court granted, permission to file an appeal, nunc
pro tunc. On July 23, 2019, Golden filed a pro se Motion for appointment of
counsel, but the PCRA court did not rule on the Motion. The PCRA court
appointed Golden counsel, and on August 27, 2020, again granted Golden
permission to file an appeal, nunc pro tunc. This appeal followed.
Golden raises the following issue for our review:
Did the PCRA [c]ourt err and/or abuse its discretion when it denied
and dismissed [Golden’s P]etition filed under the PCRA without a
hearing, where [Golden] presented a meritorious claim that a new
trial is warranted based upon newly discovered and available
evidence?
Brief for Appellant at 5.
Golden claims that Detective Dove was convicted of numerous crimen
falsi offenses, relating to obstruction of an unrelated homicide investigation.
Id. at 23. Golden argues that
[a] central piece of the Commonwealth’s case in the matter sub
judice was a written statement prepared by Detective Dove[,]
which asserted that Duane Freeman [(“Freeman”)] witnessed the
murder at issue and identified [Golden] as the shooter. At trial,
Freeman testified that he did not see the shooting, did not identify
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[Golden] as the shooter, and did not sign the documents prepared
by Detective Dove inculpating [Golden].
Id.
Golden contends that information regarding Detective Dove’s crimes
was not available at the time of Golden’s trial, because Detective Dove had
engaged in efforts to conceal his crimes, and the related grand jury
proceedings were concealed from the public. Id. at 31-32. Golden contends
that “the proffered evidence directly undermines a cornerstone piece of
evidence[,]” because the Commonwealth presented evidence from only three
individuals, including Freeman, who had identified Golden as a shooter. Id.
at 32-33. Golden points to alleged credibility concerns regarding the other
two witnesses. Id. at 33-36. Golden asserts that Freeman’s written
statement, prepared by Detective Dove, provided that Freeman knew Burkett
and the three defendants prior to the shooting, and that Freeman identified
Golden as the shooter. Id. at 36. However, Golden asserts, Freeman
recanted his written statement during trial, testifying that he did not witness
the shooting, and the signature appearing on the photo array to identify
Golden did not belong to Freeman. Id. at 36-37. Golden also claims that the
Commonwealth introduced evidence that Freeman had been convicted of
drug-related felonies, and argues as follows:
[T]he jury was left to decide between the exculpatory testimony
from a convicted drug dealer, or the written statement prepared
by a homicide detective. Had the jury been presented with
evidence that the homicide detective himself had pled guilty to a
litany of misdemeanors and felonies which involve dishonesty,
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there is a reasonable probability that their decision of which
version to accept would have changed.
Id. at 37. Further, Golden claims that evidence of Detective Dove’s criminal
activities would not solely be used for impeachment purposes. Id. at 38.
Rather, Golden asserts that such evidence corroborates Freeman’s testimony
that the written statement prepared by Detective Dove was inaccurate. Id.
at 39.
In reviewing the denial of PCRA relief, we adhere to the following
standard:
Our standard of review in a PCRA appeal requires us to determine
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. The scope of our review is limited to the findings of the
PCRA court and the evidence of record, which we view in the light
most favorable to the party who prevailed before that court. …
The PCRA court’s factual findings and credibility determinations,
when supported by the record, are binding upon this Court.
However, we review the PCRA court’s legal conclusions de novo.
Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citations
omitted).
To obtain relief on an after-discovered evidence claim, a defendant
must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the 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.
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citation
omitted).
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In his Amended PCRA Petition, Golden merely attached newspaper
articles concerning Detective Dove’s guilty plea stemming from helping his
girlfriend escape prosecution. See Commonwealth v. Brown, 134 A.3d
1097, 1108 (Pa. Super. 2016) (stating that “allegations in a newspaper article
do not constitute evidence….” (quotation marks omitted)). Golden did not
otherwise identify evidence he would produce at an evidentiary hearing in
support of his claim, nor did he specifically allege that Detective Dove
committed misconduct in this case. See id. at 1109 (rejecting the appellant’s
after-discovered evidence claim, which similarly relied on the allegations
against Detective Dove, because the appellant relied solely on newspaper
articles and did not “articulate what evidence he would present at the
evidentiary hearing”).
Additionally, Detective Dove did not testify at Golden’s trial. 2
Nevertheless, Golden suggests that, if presented with evidence of Detective
Dove’s misconduct, “it is nearly certain that at least one juror would have
accepted Freeman’s sworn in-court testimony over [Detective] Dove’s written
version of an oral statement that Freeman denied making.” Brief for Appellant
at 37-38. In these circumstances, Golden has failed to establish that such
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2 Indeed, it appears that Detective Dove’s only involvement in this case was
conducting the interview of Freeman, along with another detective, and typing
Freeman’s statement as he spoke. See N.T., 6/21/12, at 31 (wherein
Philadelphia Police Detective Thorsten Lucke testified that he and Detective
Dove hadinterviewed Freeman, and Detective Dove had recorded the
questions and answers verbatim).
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evidence would not be used solely for impeachment purposes. Further,
because there is no evidence that Detective Dove acted inappropriately in this
case (in which he had only minimal involvement), Golden failed to establish
that the introduction of evidence concerning Detective Dove’s convictions
would lead to a different result. Accordingly, Golden is not entitled to relief
on his claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2021
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