Com. v. Harmon, S.

J-S09045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT HARMON :
:
Appellant : No. 1132 EDA 2020
Appeal from the PCRA Order Entered February 27, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013137-2009
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: APRIL 23, 2021
Scott Harmon (“Harmon”) appeals from the Order denying his first
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 described the factual background underlying
Harmon’s convictions, which we adopt herein. See Commonwealth v.
Harmon, 83 A.3d 1074 (Pa. Super. 2013) (unpublished memorandum at 1-
3). Relevant to the instant appeal, in the early morning hours of April 19,
2008, Timothy Haines (“Haines”) was driving in his gold Chevrolet Monte Carlo
in the vicinity of Marvine and Tioga Streets in Philadelphia, Pennsylvania.
Haines circled the block two or three times, until Harmon approached the
vehicle. Harmon then fired several shots into the vehicle with an automatic
weapon, killing Haines. Harmon was arrested several months later, and
charged with first-degree murder, carrying a firearm without a license,
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carrying a firearm on the public streets of Philadelphia, and possession of an
instrument of crime.1
Harmon proceeded to a bench trial on July 21, 2011.2 At trial,
eyewitness Michael Johnson (“Johnson”) testified that he was near the corner
of Marvine and Tioga Streets on the night of the shooting. Johnson observed
Haines’s car circling the block several times, and witnessed Harmon approach
Haines’s vehicle and begin shooting into it before fleeing the scene. Oliver
Travers (“Travers”) provided a police statement shortly after the shooting that
identified Harmon as the shooter. At trial, however, Travers testified that he
did not witness the shooting and did not remember providing his statement to
police.
Regina Pepples (“Pepples”) testified that at the time of the shooting, she
had known Harmon, whom she knew as “Troy,” for two weeks. Pepples
testified that she had been driving around with Harmon in his Cadillac, and
observed him place an automatic handgun under the seat of the Cadillac. She
testified that two hours before the shooting, Harmon parked the Cadillac and
removed the gun. Pepples and Harmon then drove away in another vehicle,
a Chevrolet Lumina. Pepples testified that they parked the Lumina on Marvine
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1
18 Pa.C.S.A. §§ 2502(a), 6106, 6108, 907.
2
Harmon was initially represented by the Defender Association of
Philadelphia. After Harmon’s preliminary hearing, but prior to trial, Harmon
retained Allan Sagot, Esquire (“trial counsel”), who represented Harmon at
trial.
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Street, where Pepples first saw Haines’s Monte Carlo. Pepples recognized
Haines, as she had seen Haines talking to Harmon about money that was owed
to Haines by Joseph Farris (“Farris”). Pepples stayed in the Lumina, and
observed Harmon, Farris, Travers, and Johnson talking to each other at the
corner of Marvine and Tioga Streets. Pepples observed Haines approach in
the Monte Carlo. Pepples saw Haines pull his car over and talk to Harmon,
and then she saw Harmon pull out a gun and start shooting at the Monte Carlo.
Harmon testified in his defense that Johnson had actually been the
person who shot Haines. Harmon testified that on the night of the shooting,
he parked his car near the corner of Marvine and Tioga Streets, and went to
his grandmother’s house for transmission fluid. As he was standing on the
porch of his grandmother’s house, Harmon saw Haines drive around the block
two times. Harmon testified that he heard gunshots, and observed Travers
and Johnson firing at Haines’s vehicle. Harmon testified that he was not
shooting or in possession of a gun; he did not know Pepples; he has never
used the name “Troy;” and he never drove a Chevrolet Lumina, only a silver
Cadillac.
Farris testified that he was with Harmon at a bar on the night of the
shooting. Farris testified that he drove with Harmon, in separate vehicles,
back to the vicinity of Marvine and Tioga Streets, where he parked while
Harmon went to his grandmother’s house to retrieve some mail. At that point,
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Farris saw Haines’s car approach the corner, and Farris heard several
gunshots, but did not see the shooter.
At the conclusion of trial, the trial court found Harmon guilty of the
above-referenced offenses. At the start of Harmon’s sentencing hearing on
December 20, 2011, Harmon made an oral Motion for extraordinary relief,
requesting a new trial based upon after-discovered evidence. The trial court
denied Harmon’s Motion, and sentenced Harmon to serve an aggregate
sentence of life in prison without the possibility of parole. Harmon filed post-
sentence Motions and a Motion to reconsider the denial of his Motion for
extraordinary relief, which the trial court denied. This Court affirmed
Harmon’s judgment of sentence, and the Pennsylvania Supreme Court denied
allowance of appeal. See Harmon, 83 A.3d 1074 (Pa. Super. 2013)
(unpublished memorandum), appeal denied, 89 A.3d 660 (Pa. 2014).
On September 15, 2014, Harmon filed the instant, timely PCRA Petition.
On March 5, 2018, following several changes in PCRA counsel, Harmon’s
instant counsel entered her appearance and filed an Amended PCRA Petition.
On February 5, 2019, Harmon filed a counseled Supplemental Amended PCRA
Petition. The Commonwealth filed a Motion to dismiss Harmon’s PCRA
Petition, after which Harmon filed another counseled Supplemental Amended
PCRA Petition. The Commonwealth filed another Motion to dismiss the
Petition, to which Harmon filed a Response. The Commonwealth thereafter
filed a Letter in Brief.
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The PCRA court held an evidentiary hearing on February 25 and 26,
2020. At the hearing, Pepples recanted her trial testimony, claiming that she
had only implicated Harmon to police after she felt pressured to do so in her
interview. Additionally, the PCRA court heard testimony from Farris, a friend
of Pepples, and multiple police officers and detectives who had investigated
the shooting.3 At the conclusion of the hearing, the PCRA court denied
Harmon’s Petition. Harmon filed a timely Notice of Appeal, and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal.
Harmon raises the following issues for our review:
Is [Harmon] entitled to a new trial due to (1) trial counsel’s
ineffectiveness in failing to secure and use impeachment evidence
on the main prosecution witness; failing to correct the court’s
misstatement at trial as to how long after the shooting the main
inculpatory witness accused [] Harmon; and failing to secure a
critical defense witness’s pre-trial interview and prepare the
witness to explain the same; and/or (2) due to the recantation by
the main prosecution witness?
Brief for Appellant at 4.
We review an order [denying] a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This 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. We grant great deference to the factual
findings of the PCRA court and will not disturb those findings
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3
Additionally, we note that trial counsel was purportedly contacted in
anticipation for the PCRA hearing, but did not testify, as he indicated that he
had no recollection of the 2011 trial.
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unless they have no support in the record. However, we afford no
such deference to its legal conclusions. Further, where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
In his first issue, Harmon makes several distinct claims relating to the
ineffective assistance of his trial counsel, which we will address separately.
To prevail on a claim of ineffective assistance of counsel under the PCRA, a
petitioner must plead and prove, 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.” 42
Pa.C.S.A. § 9543(a)(2)(ii). Specifically,
[t]o be entitled to relief on an ineffectiveness claim, a PCRA
petitioner must establish: (1) the underlying claim has arguable
merit; (2) no reasonable basis existed for counsel’s action or
failure to act; and (3) he suffered prejudice as a result of counsel’s
error, with prejudice measured by whether there is a reasonable
probability the result of the proceeding would have been different.
Commonwealth v. Chmiel, ... 30 A.3d 1111, 1127 (Pa. 2011)
(employing ineffective assistance of counsel test from
Commonwealth v. Pierce, ... 527 A.2d 973, 975-76 (Pa.
1987)). Counsel is presumed to have rendered effective
assistance. Additionally, counsel cannot be deemed ineffective for
failing to raise a meritless claim. Finally, because a PCRA
petitioner must establish all the Pierce prongs to be entitled to
relief, we are not required to analyze the elements of an
ineffectiveness claim in any specific order; thus, if a claim fails
under any required element, we may dismiss the claim on that
basis.
Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015) (footnote and
some citations omitted).
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In his first ineffectiveness claim, Harmon argues that his trial counsel
was ineffective in failing to properly investigate Pepples and impeach her
testimony at trial. Brief for Appellant at 25-32. Harmon points to several
ways in which trial counsel should have impeached Pepples, including David
Farris’s work records, which he asserts would have impeached Pepples’s
testimony regarding the Chevrolet Lumina; Pepples’s identification of Joseph
Farris as “Joseph Cook;” and Pepples’s testimony that she knew Harmon as
“Troy.” Id. at 28-31. Harmon additionally asserts that the PCRA court
misstated several facts regarding Pepples’s testimony in its Opinion, and as a
result, the PCRA court’s credibility findings should be entitled to no deference.
Id. at 31-32.
In its Opinion, the PCRA court addressed Harmon’s argument as follows:
[Harmon]’s claim is based on a misinterpretation of the
testimony. Pepples testified only that she was inside of a Chevy
Lumina that [Harmon] was driving at the time of the shooting.
She stated that she and [Harmon] were originally in a Cadillac and
then switched to a Chevy Lumina. Pepples did not testify that the
Chevy Lumina belonged to David Farris. It was the [d]efense
witness, [] Farris, who testified that his brother David drove a
Chevy Lumina. N.T., 7/19/[]11[,] at 54. Therefore, trial counsel
had no reason to impeach Pepples with David Farris’s work records
because Pepples never claimed to be in David Farris’s Chevy
Lumina.
***
Although Travers and Pepples identified a photograph of
Joseph Cook in their police statements, the evidence presented at
trial made clear that the identification was an error and that only
one “Joe” was present on the night of the shooting: [] Farris.
Defense witness, [] Farris himself testified that he was the “Joey”
that [] Johnson had referred to in his testimony. …
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[Harmon] himself testified that [] Pepples misidentified []
Farris as Joseph Cook in the photo and that [] Farris was the “Joe”
on the scene. [N.T., 7/20/11,] at 125, 144. Moreover, Travers
identified David Farris as “Joe’s” younger brother in his statement
to police. This was not a case of mistaken identity; all of the
witnesses knew each other. It was clear to the court during the
trial that the misidentification was an error which was
inconsequential. Therefore, this issue has no merit.
PCRA Court Opinion, 8/11/20, at 21, 23. We agree with the sound analysis of
the PCRA court, and affirm on this basis, with the following addendum.
Regarding the Chevrolet Lumina, Pepples confirmed at Harmon’s PCRA
hearing that her statement to police reflected that the Chevy Lumina was
champagne in color, and not the green Chevy Lumina which purportedly
belonged to David Farris. N.T., 2/25/20, at 141. Our review also discloses
that, although Pepples testified that she knew Harmon as “Troy,” Pepples
nevertheless testified that she knew that Harmon’s real name was “Scott.”
N.T., 7/19/11, at 36. Pepples also identified Harmon at trial. See id. at 37-
38. Additionally, Harmon testified that he never went by the name “Troy;”
Johnson testified that he only knew Harmon as “Scott;” and Travers testified
that Harmon did not go by any other name. See N.T., 7/18/11, at 78, 103-
04; N.T., 7/20/11, at 188-89. As a result, Pepples’s consistent identification
of Harmon, by whatever name, in addition to testimony which clearly called
into question whether Harmon went by the name “Troy,” indicates that
Harmon did not suffer prejudice by trial counsel’s failure to impeach Pepples
in this regard. See Commonwealth v. Lesko, 15 A.3d 345, 394 (Pa. 2011)
(concluding that counsel was not ineffective when “[a]dditional cross-
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examination by counsel would have accomplished little”). Accordingly, trial
counsel had no arguable basis to impeach Pepples’s testimony; Harmon has
not demonstrated that he suffered prejudice; and we can grant Harmon no
relief on this claim. See Treiber, supra.
In his second ineffectiveness claim, Harmon argues that trial counsel
was ineffective for failing to object to, or correct, the statements made by the
prosecution and the trial court regarding the timing of Pepples’s police
statement after the shooting. Brief for Appellant at 32-33. Harmon asserts
that the trial court and the prosecution repeatedly referred to Pepples as
having given her statement to police on the night of the shooting, April 19,
2008, when, in reality, Pepples provided her statement the next day, on April
20, 2008. Id. According to Harmon, the trial court rejected Harmon’s theory
that Pepples and Johnson coordinated their statements to police on the
grounds that Pepples provided her statement on the night of the shooting,
rather than the day after. Id. at 33. Accordingly, Harmon asserts that trial
counsel was ineffective in failing to correct, or object to, the trial court’s
statement in rendering its guilty verdict. Id.
In its Opinion, the PCRA court addressed Harmon’s argument as follows:
By way of background, when pronouncing the verdict, the
trial court mentioned that Pepples[’s] statement was given at 5:55
a.m., less than three hours after the murder, when it was
addressing the defense argument that Pepples was not at the
scene and was recruited to give a statement and told what to say.
The court noted the absurdity of the argument and gave as one
example the closeness in time of Pepples’[s] statement to the
murder. While it is true that the statement was actually given
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fifteen hours[4] after the murder and that counsel did not correct
the time, the timing of the statement was merely stated as one
example of the absurdity of the argument and not dispositive. The
most incredulous part of the argument was that [] Pepples was
not there, did not know [Harmon], and was pulled from out of
nowhere and either recruited or coerced into making a statement
by other witnesses or [Haines]’s family. Specifically, [Harmon]
argues the failure to object to the time of the statement
constituted ineffectiveness because the correct time supported the
contention that [] Johnson (who gave a statement to police the
day prior) had time after he left the homicide unit to coach Pepples
on what to say to detectives in her statement. This is merely a
bald assertion and fails for several reasons.
First, Johnson testified that he did not see Pepples at the
crime scene. Secondly, there were additional details in Pepples’[s]
statement and testimony from that of Johnson. For example,
Pepples identified a photograph of [Harmon] (and [Harmon]
himself at trial) as “Troy.” Pepples is the only witness who refers
to [Harmon] as “Troy.” Additionally, Pepples testified that
[Harmon] followed [Haines]’s car and continued to shoot into the
vehicle as the car rolled. Johnson did not testify that [Harmon]
moved with [Haines]’s car. Pepples[’s] statement about [Harmon]
following [Haines]’s car as he shot was later corroborated by the
pattern of [fired cartridge casings] in the crime scene photos.
Therefore, the timing of Pepples[’s] statement was not a
material fact which influenced the verdict. Consequently,
[Harmon] was not prejudiced by counsel’s failure to object.
PCRA Court Opinion, 8/11/20, at 21-22 (footnote added).
The record supports the sound conclusion of the PCRA court, and we
affirm on the basis of its Opinion, regarding Harmon’s second claim.
Additionally, our review discloses that trial counsel extensively cross-
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4
We note that Pepples’s statement to police was approximately twenty-seven
hours after the shooting, not fifteen, as stated by the PCRA court. However,
such a discrepancy in the timing does not impact the PCRA court’s sound
analysis of the underlying issue presented by Harmon in his Petition.
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examined Pepples, which revealed that Pepples provided her statement to
police on the afternoon following the shooting. See N.T., 7/19/11, at 50-51.
Because Harmon has not demonstrated that he was prejudiced by counsel’s
failure to object to the prosecution’s and trial court’s misstatement of the
timing that Pepples provided her statement to police, we cannot grant him
relief on this claim. See Treiber, supra.
In his third ineffectiveness claim, Harmon argues that trial counsel was
ineffective in failing to secure a prior statement made by Farris, a defense
witness. Brief for Appellant at 33-41. Harmon asserts that had trial counsel
secured Farris’s prior statement, he would have been able to adequately
prepare Farris for trial, or counsel could have asked Farris anticipatory
questions in his direct examination, to blunt the Commonwealth’s cross-
examination. Id. at 33-36. Harmon asserts that the PCRA court incorrectly
relied on defense counsel’s choice to call Farris as an indication that defense
counsel knew the facts to which Farris would testify, when in fact, defense
counsel had lacked the proper materials to make that determination. Id. at
36-41. Ultimately, Harmon claims that the Commonwealth’s cross-
examination damaged Farris’s credibility, and that Harmon suffered prejudice
as a result. Id. at 35-36.
At trial, Farris testified that he did not personally observe the shooting,
as he had ducked down in his car when he heard gunshots. N.T., 7/20/11, at
18-20. On cross-examination, the Commonwealth attempted to impeach
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Farris’s testimony with a statement that he had provided to the Defender
Association of Philadelphia, wherein he identified Johnson and Travers as the
shooters. Id. at 27-29. Harmon’s trial counsel responded that he did not
have a copy of the statement, as it had not been provided to him in the file
from the Defender Association. Id. at 28-29. After being presented with the
statement, Farris testified that he did not intend for his statement to reflect
what he actually saw; rather, he intended to convey what he was hearing from
people in the neighborhood about who had committed the shooting. Id. at
37, 45. At several points during cross-examination, Farris reaffirmed that he
did not witness the shooting; he did not know who had committed the
shooting; and his statement to the investigator was not true to the extent that
it indicated that he personally had witnessed the shooting. Id. at 37, 38-39,
44-45, 47-48, 49-50, 51-53. On redirect, trial counsel asked Farris the
following:
Q. Did the investigator ask you if what you knew about the case
or what you saw about the case?
A. He asked me what did I hear, what did I know.
Q. That is what you answered in the statement that the District
Attorney presented to you?
A. Yeah, that’s all.
Id. at 66-67.
At the PCRA hearing, Farris testified as follows:
Q. So, if [Harmon’s] attorney had talked to you before you
testified, would you have said anything different than what you
said when you testified?
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A. I mean I probably would have been more stern with my
answers instead of saying, like all the I guesses. I probably could
have clarified it as far as what the written statement, how you
said there was inconsistencies, maybe if he would have went over
them, I’m not sure.
Q. But the inconsistencies are the inconsistencies, right? What
would have changed?
A. I would have told him a lot of the stuff in there wasn’t like –
when I took the stand, I didn’t learn until I was on the stand the
Judge was like I can’t say what I actually didn’t see. I didn’t know
anything about that or anything like that. I guess as far as
handling myself on the stand and clarifying things, I don’t know.
I probably would have been better suited to answer them, I guess.
N.T., 2/25/20, at 33-34.
In light of the foregoing, we conclude that Harmon was not prejudiced
by trial counsel not having Farris’s prior statement before trial. Despite the
prosecution impeaching Farris’s trial testimony with the prior statement,
Farris’s own testimony at the PCRA hearing confirms that he would have
merely been “more stern” with his answers; he would have been less
equivocal; and he felt he would have been “better suited to answer” for the
inconsistencies. Id. Notably, Farris does not implicate Harmon as the shooter
in either Farris’s trial testimony or in his prior statement; rather, he testified
at trial that he did not see the shooter, and in his prior statement he implicated
Johnson and Travers. Moreover, trial counsel attempted to rehabilitate
Farris’s testimony in his redirect examination, by reiterating that Farris’s
statement to investigators was intended to relay what Farris was hearing
about the shooting, even if it was recorded as Farris’s personal observations.
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See N.T., 7/20/11, at 66-67. Accordingly, because Harmon has not
established that trial counsel’s acquisition and review of Farris’s prior
statement would have impacted the trial court’s verdict, we can grant Harmon
no relief on this claim. See Treiber, supra.
In his final issue, Harmon argues that the PCRA court erred by failing to
credit Pepples’s recantation testimony during the PCRA hearing. Brief for
Appellant at 41-44. Harmon points to two separate instances in which he
asserts that the PCRA court erred: (1) the PCRA court’s statement that
Pepples’s recantation was not credible because she recanted suddenly, in the
middle of her testimony at the PCRA hearing, when Pepples had only
confirmed that the transcript of her prior testimony was accurate; and (2) the
PCRA court’s statement that Pepples provided her statement to police fifteen
hours after the shooting, when it actually took place twenty-seven hours after
the shooting. Id. at 41-42. Further, Harmon asserts that Pepples’s trial
testimony was directly contradicted by physical evidence, which bolsters the
credibility of her recantation. Id. at 43-45.
The factual findings of a post-conviction court, which hears evidence and
passes on the credibility of witnesses, should be given deference. See
Commonwealth v. Spotz, 84 A.3d 294, 312, 319 (Pa. 2014). Our Supreme
Court has acknowledged that
[r]ecantation testimony is extremely unreliable. When the
recantation involves an admission of perjury, it is the least reliable
form of proof. The [PCRA] court has the responsibility of judging
the credibility of the recantation. Unless the [PCRA] court is
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satisfied that the recantation is true, it should deny a new trial.
An appellate court may not disturb the [PCRA] court’s
determination absent a clear abuse of discretion.
Commonwealth v. Henry, 706 A.2d 313, 321 (Pa. 1997) (internal citations
omitted).
In its Opinion, the PCRA court addressed this issue as follows:
The [PCRA c]ourt found Pepples[’s] recantation at the PCRA
hearing to be incredible. Pepples testified that she did not want
to testify against [Harmon] at the original trial nor at the PCRA
hearing. After initially confirming her original statement to police
and trial testimony, Pepples suddenly decided to recant midway
through her testimony and state that she wasn’t present for the
murder and that the detectives fed her all of the information
contained in her statement. N.T., 2/25/[]20[,] at 144-54.
Not only was the timing and manner of Pepples[’s]
recantation incredible, but her testimony, that she went along with
whatever the detectives told her to say, was belied by her trial
testimony. While testifying at trial, Pepples corrected details in
her police statement which she believed to be incorrect. While
being read her statement to detectives the following exchanges
occurred:
BY A[ssistant] D[istrict] A[ttorney (“ADA”)] SAX:
Q. The question, do you know what money they were
talking about, A, answer, Troy owed Tim money.
A. No, I didn’t tell the detective that. I told him that
Joe owed Tim money. I never said Troy owed him
money.
N.T., 7/19/[]11[,] at 46.
BY ADA SAX:
Q. Troy stopped and was talking to Tim and Troy said
come down the street to pick up his money.
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A. I never said he was talking to Troy. I never said
that.
Q. So if it says here –
A. When I read it, I asked the man to change it. He
told me to initial it.
Q. But there are no changes or initials on here.
A. That is what I was getting ready to tell you but you
came inside the courtroom.
Q. So everything else is correct?
A. Yes, everything else is correct but that.
Q. So Troy said come down the street to pick up his
money, that didn’t happen?
A. No.
Id. at 47.
These actions by Pepples at trial directly contradict her later
statement that she went along with whatever the police told her
to say and that she was not present at the scene. The [PCRA]
court did not err in denying relief based on the recantation
evidence[,] as it was incredible.
PCRA Court Opinion, 8/11/20, at 31-32.
Upon our review of the record, we discern no abuse of discretion in the
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PCRA court’s credibility determination. See Spotz, supra; Small, supra.5
Because Pepples’s recantation was not credible, we can grant Harmon no relief
on this claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/21
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5
We note that, in addition to the reasons that the PCRA court found Pepples’s
recantation to be incredible as specified in its Opinion, we note that Pepples’s
testimony at the PCRA hearing was contradicted by other witnesses who
testified at the hearing, including an investigator with the Philadelphia District
Attorney’s Office, who testified that Pepples had provided information in a
2019 interview that was consistent with her trial testimony. See N.T.,
2/26/20, at 50-72.
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