Com. v. Brenner, I.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
IAN CHRISTOPHER BRENNER :
:
Appellant : No. 610 MDA 2020
Appeal from the PCRA Order Entered March 23, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002170-2006
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED MAY 18, 2021
Ian Christopher Brenner appeals from the order that denied his Post
Conviction Relief Act (“PCRA”) petition. Upon careful review, we affirm.
On October 9, 2005, Appellant himself was the victim of a shooting.
Appellant was struck in the leg and arm. N.T. Jury Trial, 8/6/14, at 23. At
the hospital, Appellant refused to provide the name of the friend who had
driven him to the hospital and stated that he did not know who shot him. Id.
at 24-25. After he left the hospital, Appellant declined to respond to officers
when they attempted to speak further with him about the incident and the
case was closed. Id. at 34. A few days prior to the subsequent retaliatory
shooting that led to the convictions underlying this appeal, Apollonia Snyder
overheard Appellant talking on a cellphone, stating that “he was going to pop
Supreme when he seen him.” Id. at 42. During the conversation, Appellant
was handling a firearm in his lap. Id.
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Ten days later, at 9:30 p.m. on October 19, 2005, shots were fired
outside of Allison’s Bar in the City of York, resulting in the death of Anna
Witter, who was struck by a ricocheting bullet. Anthony Zawadzinki and
Alfonzo King were also shot, but survived. Alfonzo King had been standing
near Jeffrey Mable a/k/a “Supreme,” the person who was the shooter’s
apparent target. All of the victims were shot with the same firearm, which
was never recovered.
Police responded quickly, detaining multiple potential eyewitnesses on
scene and in the immediate vicinity. Daniek Burns identified the shooter as
Appellant, the target of the first shot as Supreme, and gave a description of
the shooter’s appearance. See N.T. Jury Trial, 8/5/14, at 402, 418, 437
(identifying Appellant, describing his outfit as a hoodie with the hood up, white
tee shirt underneath, blue jeans, and black shoes, and explaining that the
shooter aimed at Supreme first). Other witnesses provided similar
descriptions, but did not identify the shooter. See N.T. Jury Trial, 8/5/14, at
246 (Alfonzo King describing the shooter as tall, stocky, and wearing a dark
hoodie); see also N.T. Jury Trial, 8/6/14, at 89-90 (explaining that while the
lighting was good, Tina Ashley could not identify the shooter because he wore
a gray hoodie with the hood up and had a dark complexion, but she was
certain that the shooter was not Appellant); id. at 124-25 (Alicia Brittner
describing the shooter as wearing jeans and a hoodie over the head, but that
it was too dark to see who the shooter was); id. at 179-80 (Lloyd Valcarcel
stating that the shooter was wearing a black hoodie with the hood up, white
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t-shirt, blue jeans, and black shoes. However, he could not identify the
shooter because he did not get a good look at him, like Daniek Burns did); id.
at 225 (Supreme explaining that he only had a second or two to look before
he dropped to the ground and feigned death, but the shooter was wearing a
big black hoodie with the hood up). While being interviewed on the scene,
Tina Ashley pointed in Supreme’s general direction and yelled “he knows who
was shooting. They were shooting at him.” N.T. Jury Trial, 8/4/14, at 141.
A warrant was issued for Appellant’s arrest, and six days after the
shooting, he turned himself in. Upon arrest, Appellant’s black Jordan
sneakers, belt, and blue jeans were taken from him and submitted for forensic
testing. See N.T. Jury Trial, 8/5/14, at 356. The black hoodie that Appellant
was wearing when arrested was later separately submitted for forensic
testing. Id. at 295, 319-20. All of the items taken from Appellant matched
some of the eyewitness accounts of what the shooter was wearing and tested
either consistently with or positive for gunshot residue. Id. at 301, 325-30.
Appellant’s belt had by far the highest concentration of gunshot residue of all
the items that were submitted, and the inside had markings consistent with
“something rubbing up against it on a regular basis”. Id. at 297, 325-26.
A federal grand jury proceeding was initiated against Appellant. N.T.
Jury Trial, 9/13/06, at 41-57. However, before the grand jury had finished
hearing testimony, the United States Attorney’s Office decided that “the first
jury to hear this case should be a jury from the court of common pleas of York
where the homicide allegedly took place.” N.T. Jury Trial, 9/13/06, at 46.
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Accordingly, the inquiry was concluded and Appellant proceeded to a jury trial
in the York County Court of Common Pleas.
At the trial, the Commonwealth presented Charles Maner, who testified
that Appellant discussed the shooting with him while they were housed
together in the York County Prison. See N.T. Jury Trial, 9/12/06, at 209-12.
According to Maner, Appellant accidentally shot a woman and felt bad about
it, because he had intended to hit the person who had shot him earlier that
month. Id. at 212-14. The defense countered with Tawanna Chavis, who
testified that Appellant was at her house the entire night of the shooting. See
N.T. Jury Trial, 9/14/06, at 135.
The jury convicted Appellant of the first-degree murder of Anna Witter,
aggravated assault—serious bodily injury of Alfonso King, aggravated
assault—bodily injury with a deadly weapon of Anthony Zawadzinski, and the
attempted homicide of Jeffrey Mable. See N.T. Jury Trial, 9/14/16, at 120.
In total, Appellant was sentenced to serve life imprisonment without the
possibility of parole (“LWOP”), plus a consecutive term of five to ten years.
On direct appeal, we affirmed Appellant’s judgment of sentence and our
Supreme Court denied his petition for allowance of appeal. Commonwealth
v. Brenner, 998 A.2d 998 (Pa.Super. 2010) (unpublished memorandum),
appeal denied, 13 A.3d 474 (Pa. 2010).
Appellant filed a timely, counseled PCRA petition. During the PCRA
proceedings, Appellant was represented by Joseph Sembrot, Esquire. After
two evidentiary hearings, at which PCRA counsel called former Assistant
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District Attorney (“ADA”) Bill Graff, trial counsel Mark Keenheel, Charles
Maner’s trial counsel, two character witnesses, his private investigator,
Appellant, and multiple fact witnesses, the PCRA court denied his petition. An
appeal followed, wherein Appellant reiterated the many allegations of
ineffective assistance of counsel and asserted that the Commonwealth had
committed a Brady1 violation by failing to disclose alleged consideration
afforded to Charles Maner in exchange for his testimony against Appellant.
We reversed the PCRA court order, vacated Appellant’s convictions, and
remanded for a new trial after finding that trial counsel was ineffective when
he failed to discuss the possibility of calling character witnesses with Appellant
pre-trial. See Commonwealth v. Brenner, 81 A.3d 1010 (Pa.Super. 2013)
(unpublished memorandum). Due to the resolution of this issue, we did not
reach the Brady issue or the other remaining issues. Appellant filed a petition
for allowance of appeal, which was denied. See Commonwealth v.
Brenner, 80 A.3d 774 (Pa. 2013).
Upon remand in a new trial court, Appellant proceeded with pre-trial
motions, including an omnibus pretrial motion seeking to suppress the
photographic identification of Appellant by Daniek Burns as unduly suggestive.
After a hearing and submission of a brief on the remaining issues, the trial
court denied Appellant’s omnibus pretrial motion. Appellant also filed a motion
in limine attempting to preclude the Commonwealth from admitting the prior
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1 Brady v. Maryland, 373 U.S. 83 (1963).
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testimony of now-deceased, and therefore unavailable, Daniek Burns. The
Commonwealth countered that Attorney Keenheel was not found ineffective
due to any alleged deficiencies in his handling of Burns. Since Appellant had
a full and fair opportunity for cross examination while represented by counsel,
the Commonwealth maintained that Daniek Burns’s prior testimony should be
admitted. The trial court agreed, denying Appellant’s motion in limine.
Appellant proceeded to his second jury trial in August of 2014. Attorney
Sembrot continued to represent Appellant. At re-trial, the Commonwealth
admitted and placed before the jury the prior trial testimony of Daniek Burns,
Anthony Zawadinski, and Detective Troy Cromer. Unlike the first trial, the
Commonwealth did not call Charles Maner or an Assistant United States
Attorney to explain the federal grand jury proceeding that preceded the filing
of these charges in state court. Appellant did not present an alibi defense or
any character witnesses. Instead, he called three fact witnesses in an attempt
to discredit Daniek Burns’s identification of Appellant as the shooter. The
witnesses testified that the conditions did not allow for an accurate
identification of the shooter, beyond basic descriptors. At the conclusion of
the second trial, Appellant was again convicted of first-degree murder,
attempted murder, aggravated assault—serious bodily injury, and aggravated
assault—deadly weapon.
The trial court imposed a sentence of LWOP plus a consecutive five to
ten years of imprisonment, which was the same sentence that Appellant
received after his first trial. A direct appeal followed, wherein Appellant raised
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eleven claims of trial court error which fell into three categories: weight of
the evidence, sufficiency of the evidence, and evidentiary challenges. We
affirmed Appellant’s judgment of sentence and our Supreme Court denied his
petition for allowance of appeal. See Commonwealth v. Brenner, 156 A.3d
347 (Pa.Super. 2016) (unpublished memorandum), appeal denied, 165 A.3d
897 (Pa. 2017).
Appellant submitted a timely counseled PCRA petition raising sixteen
allegations of ineffective assistance of Attorney Sembrot, who was original
PCRA and re-trial counsel. The PCRA court held two days of evidentiary
hearings, during which PCRA counsel called Nathanial “Man” Williams, an
expert witness on eyewitness identification, Attorney Sembrot, Appellant, and
Yolanda Dorman. Appellant submitted a substantial post-hearing brief, which
the PCRA court closely scrutinized before issuing an order and opinion denying
the petition. This timely appeal followed. Both Appellant and the PCRA court
complied with the mandates of Pa.R.A.P. 1925, and thus, this appeal is ready
for our disposition.
Appellant raises the following issues for our review:
1. Whether counsel was ineffective in neglecting to present
evidence which would have demonstrated that a full and fair
opportunity to cross-examine Daniek Burns did not occur?
2. Whether counsel was ineffective in failing to present expert
testimony on the fallability [sic] of eyewitness identifications
where counsel could not cross-examine the key eyewitness?
3. Whether counsel was ineffective in failing to object to the
admission of gun shot residue evidence, which violated
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[Appellant’s] confrontation clause rights under the federal
and Pennsylvania constitutions?
4. Whether counsel was ineffective for failing to adequately
cross-examine Detective Fetrow?
5. Whether counsel was ineffective in declining to present
evidence that [Appellant] had legally purchased firearms,
was licensed to carry a firearm, and that another sweatshirt
not alleged to have been used in the crime had the same
alleged gun-shot residue particles as other clothing
introduced, which would have demonstrated legitimate
reasons for gun-shot residue being on his belt?
6. Whether counsel was ineffective in neglecting to investigate,
interview, and present witnesses that [sic] would have
directly undermined Apollonia Snyder Johnson’s testimony?
7. Whether counsel was ineffective in failing to object to
myriad instances of prosecutorial misconduct during closing
arguments, including calling [Appellant] as “cold a killer as
there exists”?
8. Whether counsel was ineffective in failing to question Tina
Ashley and call Officer Randy Searfoss regarding statements
Ms. Ashley made at the scene that the Commonwealth
misleadingly used to imply that the shooter’s target was
Jeffrey Mable?
9. Whether counsel was ineffective in failing to introduce
photographs demonstrating the poor lighting conditions at
the scene?
10. Whether counsel was ineffective in declining to file a pre-
trial motion to bar re-trial based on double jeopardy under
the Pennsylvania and federal constitutions, due to egregious
prosecutorial misconduct related to Commonwealth witness
Charles Maner?
11. Based on all of the aforementioned claims, the cumulative
errors in this matter were so significant that they deprived
[Appellant] of a fair trial in violation of his due process rights
and his state and federal constitutional right to a fair trial.
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Appellant’s brief at 10-11.2
We begin with the pertinent legal principles. Our “review is limited to
the findings of the PCRA court and the evidence of record” and we do not
“disturb a PCRA court’s ruling if it is supported by evidence of record and is
free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183
(Pa.Super. 2012). “We grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have no support in
the record. However, we afford no such deference to its legal conclusions.”
Id. “[W]here the petitioner raises questions of law, our standard of review is
de novo and our scope of review is plenary.” Id. When examining a mixed
question of law and fact, the level of deference afforded to the PCRA court is
analyzed on an issue-by issue basis. See Commonwealth v. Martin, 5 A.3d
177, 197 (Pa. 2010). “The more fact intensive the determination, the more
deference a reviewing court should afford that conclusion.” Id.; see e.g.
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2 We cannot overemphasize the importance of focused appellate advocacy.
Experienced advocates find that selecting the few most important issues
presents the greatest likelihood of success. See Jones v. Barnes, 463 U.S.
745, 751-52 (1983) (“Experienced advocates since time beyond memory have
emphasized the importance of winnowing out weaker arguments on appeal
and focusing on one central issue if possible, or at most on a few key issues.”);
Commonwealth v. Robinson, 864 A.2d 460, 480 (Pa. 2004) (“Legal
contentions, like the currency, depreciate through over-issue.”);
Commonwealth v. Ellis, 626 A.2d 1137, 1140-41 (Pa. 1993) (“Appellate
advocacy is measured by effectiveness, not loquaciousness.”). See also
RUGGERO J. ALDISERT, J. WINNING ON APPEAL: BETTER BRIEFS AND ORAL
ARGUMENT, 129 (2d ed. 2003) (“When I read an appellant’s brief that
contains more than six points, a presumption arises that there is no merit to
any of them.” (emphasis in original)).
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Commonwealth v. Cox, 983 A.2d 666, 689 (Pa. 2009) (concluding that the
PCRA court did not commit an abuse of discretion when it rejected appellant’s
IAC claim for failure to object to a prosecutor’s closing argument since the
remark constituted a fair response to trial counsel’s closing argument).
Finally, we “may affirm a PCRA court’s decision on any grounds if the record
supports it.” Id.
Appellant alleges many claims of ineffective assistance of counsel
(“IAC”). In reviewing IAC claims, counsel is presumed to be effective, and a
PCRA petitioner bears the burden of proving otherwise. See Commonwealth
v. Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so, a petitioner must
plead and prove that: (1) the legal claim underlying his ineffectiveness claim
has arguable merit; (2) counsel’s decision to act (or not) lacked a reasonable
basis designed to effectuate the petitioner’s interests; and (3) prejudice
resulted. Id. The failure to establish any of the three prongs is fatal to the
claim. Id. at 113.
Where a petitioner asserts a layered IAC claim, he must plead and prove
each prong of the three-prong ineffectiveness test for each of the attorneys
involved. Commonwealth v. Chmiel, 30 A.3d 1111, 1128 (Pa. 2011). As
we have explained:
Layered claims of ineffectiveness are not wholly distinct from the
underlying claims, because proof of the underlying claim is an
essential element of the derivative ineffectiveness claim . . . . In
determining a layered claim of ineffectiveness, the critical inquiry
is whether the first attorney that the defendant asserts was
ineffective did, in fact, render ineffective assistance of counsel. If
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that attorney was effective, then subsequent counsel cannot be
deemed ineffective for failing to raise the underlying issue.
Rykard, supra at 1190 (citations and quotations omitted).
With these principles in mind, we address Appellant’s IAC claims
seriatim.
I. Confrontation Clause: Prior Trial Testimony
In Appellant’s first layered IAC claim, Appellant attacks the admission
of Daniek Burns’s prior trial testimony as a violation of the confrontation
clause. He alleges that Attorney Keenheel’s3 ineffectiveness denied him a full
and fair opportunity for cross-examination, and that Attorney Sembrot4 was
ineffective for not seeking to exclude this testimony from Appellant’s re-trial
on that basis. Specifically, Appellant alleges that Attorney Keenheel’s failure
to question Daniek Burns about an incident where he was allegedly stopped
for possession of a small amount of drugs, fled the scene, and was never
charged, denied him of a fair and full cross-examination of Daniek Burns. This
incident was discussed by Detective Fetrow during the federal grand jury
proceeding as a possible reason why Daniek Burns may have absconded.
While Detective Fetrow speculated that the reason for flight was Burns’s fear
that “he would be next” for identifying Appellant, the detective also opined
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3 Attorney Keenheel was Appellant’s counsel at his first trial.
4Attorney Sembrot was Appellant’s counsel at his first PCRA proceeding and
subsequent re-trial.
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that Burns’s fear of potential criminal prosecution could have also played a
role in the decision. See N.T. Grand Jury Proceeding, 2/15/06, at 20. The
Commonwealth provided Appellant with the transcript prior to the first trial,
and Attorney Keenheel referenced the proceeding in his opening statement.
Whether the trial court’s admission of Daniek Burns’s prior trial
testimony violated Appellant’s constitutional right to confront the witnesses
against him is a question of law, as to which our review is de novo and plenary.
See Commonwealth v. Mitchell, 152 A.3d 355, 358 (Pa.Super. 2016).
Generally, an unavailable witness’s prior recorded testimony is admissible at
trial, and will not offend the right of confrontation, where the defendant had
counsel and a “full and fair opportunity” to cross-examine that witness at the
prior proceeding. Commonwealth v. Bazemore, 614 A.2d 684, 687 (Pa.
1992). Relying on Commonwealth v. Mangini, 425 A.2d 734 (Pa. 1981),
Appellant contends that Attorney Keenheel was ineffective in his cross-
examination of Burns and therefore, Appellant was denied his right to full and
fair cross-examination at the re-trial. Therefore, he contends that his right to
confrontation has been violated. For the following reason, we disagree.
In Mangini, a new trial was granted after original trial counsel was
declared ineffective due to his failure to request a competency hearing for a
key Commonwealth witness. Prior to the retrial, a competency hearing was
held and the Commonwealth’s key witness was found incompetent. At the
second trial, the trial court allowed the Commonwealth to admit the now-
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unavailable witness’s prior trial testimony over defense objection. Mangini
was re-convicted. On appeal, Mangini argued that prior counsel’s
ineffectiveness in failing to ask for a competency hearing had tainted the key
witness’s prior testimony, so that its later admission violated the confrontation
clause. Our Supreme Court agreed, and reversed the admittance of the prior
trial testimony. In doing so, the Mangini Court explained that the use of “the
very testimony which has been indelibly stamped with prior counsel’s
ineffectiveness [was] offensive to our sense of justice and the notion of fair
play.” Id. at 738. However, the Court also cautioned against construing its
holding too broadly, explaining that:
our holding today is not a per se rule requiring the exclusion of
any testimony from a prior trial wherein trial counsel had been
ineffective. All of the factual variables of each case must be
examined to determine if the ineffectiveness so tainted the
testimony sought to be introduced as to affect its reliability or to
otherwise render its subsequent use unfair.
Id. at 739.
Here, Attorney Keenheel was found ineffective solely for failing to
consult with Appellant about whether he wished to call character witnesses.
However, Attorney Sembrot did not allege and Attorney Keenheel was never
found to be ineffective due to any alleged deficiencies in his handling of Daniek
Burns, a fact witness. Therefore, Mangini is distinguishable from this case
because there was no prior IAC ruling on the issue that would have
necessitated exclusion. As Mangini found, simply because trial counsel was
ineffective in one area does not necessarily taint his entire representation of
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Appellant. Therefore, Appellant cannot rely solely on the previous
ineffectiveness finding to prove his claim of Attorney Keenheel’s
ineffectiveness. Instead, he must plead and prove that Attorney Keenheel
was ineffective in his cross-examination of Daniek Burns on these newly
asserted grounds.
Since Appellant did not challenge Attorney Keenheel’s cross-
examination of Daniek Burns in his first PCRA petition, this allegation is waived
unless he proves that Attorney Keenheel was ineffective in his cross-
examination and that Attorney Sembrot was ineffective for failing to raise it.
See Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (“A PCRA
claim is waived if the petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, or on appeal or in a prior [PCRA]
proceeding”); see also Commonwealth v. Dennis, 950 A.2d 945, 954 (Pa.
2008) (“Where claims of trial counsel ineffectiveness . . . could previously
have been litigated . . . the only way a petitioner can successfully mount a
challenge to the effectiveness of counsel is to assert a “layered” claim of
ineffectiveness”).
Here, Appellant has failed to establish that Attorney Keenheel was
ineffective in his cross-examination of Daniek Burns. While Appellant called
Attorney Sembrot5 at the PCRA hearing and questioned him regarding his trial
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5 PCRA counsel Attorney Sembrat also served as re-trial counsel.
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strategy with regard to this claim, Appellant did not attempt to introduce the
testimony of Attorney Keenheel. Attorney Sembrat cannot be found
ineffective for failing to pursue this confrontation clause claim, unless Attorney
Keenheel was first ineffective in his handling of Daniek Burns’s cross-
examination. See Commonwealth v. Reaves, 923 A.2d 1119, 1127-28 (Pa.
2007) (explaining that to prevail upon a layered IAC claim a petitioner must
present argument on the three prongs of the IAC test as to each relevant layer
of representation). By not calling Attorney Keenheel at the evidentiary
hearing at issue herein, Attorney Keenheel was never given the opportunity
to explain his strategy, or lack of it, to permit us to determine whether counsel
had a reasonable basis designed to effectuate Appellant’s interests.
The burden of production and persuasion of a PCRA petition rests
squarely on the petitioner’s shoulders. See Commonwealth v. Jones, 596
A.2d 885, 888-89 (Pa.Super. 1991). In the absence of any evidence as to
what original trial counsel’s strategy may have been, we cannot find that the
PCRA court abused its discretion in denying relief on this issue. Jones, supra
at 888-89 (declining to find the reasonable basis prong satisfied after
Appellant failed to call the alleged ineffective attorney as a witness at his PCRA
hearing). Accordingly, this deficiency is fatal to his ineffectiveness allegations
surrounding Daniek Burns’s cross-examination.
Since Appellant has failed to persuade us that a confrontation clause
violation occurred, the trial court did not err when it admitted the prior
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testimony of Daniek Burns at the retrial. Further, since Appellant has failed
to establish that Attorney Keenheel’s cross-examination of Burns was
constitutionally ineffective, Attorney Sembrot cannot be held ineffective for
waiving this claim by failing to pursue it in Appellant’s original PCRA petition.
See Commonwealth v. Spotz, 896 A.2d 1191, 1214 (Pa. 2006) (“[C]ounsel
will not be deemed ineffective for failing to raise a meritless claim[.]”).
Accordingly, Appellant’s first claim fails.
II. Eyewitness Expert Testimony
In his second IAC claim, Appellant asserts that Attorney Sembrot as re-
trial counsel was ineffective for failing to call an expert in eyewitness
identification at his re-trial. While it had long been the law of Pennsylvania
that such expert testimony was not admissible, the law changed shortly before
Appellant’s re-trial, allowing for such an expert. See Commonwealth v.
Walker, 92 A.3d 766 (Pa. 2014).
In Walker, our Supreme Court recognized the potential advantages of
expert testimony in the eyewitness arena and held that such testimony was
no longer per se inadmissible. Id. at 792-93. In reaching this conclusion, the
Walker Court expressly rejected reliance upon cross-examination and closing
argument alone as sufficient to convey the relevant eyewitness factors to the
jury. Id. at 786. Henceforth, expert eyewitness testimony would be
admissible, at the discretion of the trial court, in cases where the
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Commonwealth’s proof of identity was solely or primarily dependent upon
eyewitness testimony. Id. at 787-88.
We agree with the PCRA court that the testimony of an expert on
eyewitness misidentifications would have been admissible. See PCRA Court
Opinion, 3/19/20, at 23. The Commonwealth’s primary evidence identifying
Appellant as the shooter came from Daniek Burns’s eyewitness identification.
Accordingly, the Commonwealth introduced photographs of the scene, and
asked officers who responded to the scene, as well as an emergency
management specialist for the City of York, to testify about the favorable
lighting conditions present in an attempt to buttress Daniek Burns’s
identification. In contrast at re-trial, the defense aggressively sought to
discredit Daniek Burns’s identification in opening and closing statements,
through use of the prior cross-examination of Daniek Burns, and by calling
three eyewitnesses. The three eyewitnesses were standing near Daniek Burns
at the time that the shooting started. All three witnesses testified that they
were unable to make an accurate identification of the shooter.
At the PCRA hearing, Dr. Dery Strange was qualified as an expert in
eyewitness identification and testified that eyewitness misidentification is
responsible in seventy to seventy-five percent of cases where DNA has
exonerated people. See N.T. PCRA Hearing, 7/2/18, at 19-20. The amount
of time needed to identify another person accurately is greatly influenced by
the quality of lighting and distance. Id. at 22-24. She went on to describe
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accepted measures for distance and lighting conditions necessary to make an
accurate identification and opined that, based on her review of scene
photographs and witness testimony, the conditions here fell below acceptable
thresholds. Id. at 25. She also testified to other factors that can impact the
validity of an identification, such as drug use, wearing a head covering, or
“weapon focus,” wherein crime victims focus exclusively on the weapon
present instead of other forensically useful information. Id. at 27-31. Dr.
Strange also described a study in which the results indicated that mis-
recognition of familiar faces is much more likely under bad lighting conditions
or shorter durations of time. Id. at 35-37.
After observing the witnesses at the trial and the PCRA hearing, the
PCRA court held that Dr. Dery Strange’s testimony would have been
admissible at trial.6 See PCRA Opinion, 3/19/20, at 23-24. Additionally, the
court found that Attorney Sembrat had no reasonable basis for failing to seek
the admission of this type of evidence. Id. However, the PCRA court still
denied the claim due to a lack of prejudice, finding “no meaningful probability,
nor even any real possibility of a different verdict resulting from a presentation
of Dr. Strange’s proffered testimony.” Id. at 25. We find no basis to disturb
the court’s finding.
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6 The Honorable Michael E. Bortner served as the re-trial and PCRA judge.
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While Attorney Sembrot made no attempt to call an expert on
eyewitness testimony, unlike in Walker, he also did not rely solely on cross-
examination and closing argument to convey the relevant eyewitness factors
to the jury. Attorney Sembrot also sought to discredit Daniek Burns’s
identification of Appellant through the testimony of three eyewitnesses who
were standing near Daniek Burns at the time of the shooting. Each testified
that he could not see the shooter clearly due to the hoodie partially covering
his head and various combinations of light, distance, and timing constraints.
One of the witnesses even stated that he spoke with Daniek Burns after the
shooting and Burns stated that he was not able to identify the shooter. See
N.T. Jury Trial, 8/6/14, at 130-31. Finally, Attorney Sembrot argued that
Burns’s identification was not believable in closing argument.
Further, Burns’s identification of Appellant was not the only evidence of
his guilt. The Commonwealth presented evidence of Appellant’s motive to
shoot Supreme, i.e., his belief that Supreme was responsible for the shooting
where he was injured ten days earlier than the shooting in question. See N.T.
Jury Trial, 8/6/14, at 21-57. In support of this theory, the Commonwealth
submitted the testimony of Apollonia Snyder, who overheard Appellant
threating to “pop” Supreme while stroking a firearm, along with the officer
who attempted to interview Appellant about the earlier shooting with limited
success. Id. Witnesses from the scene also identified Supreme as the target.
See N.T. Jury Trial, 8/4/14, at 141-42; N.T. Jury Trial, 8/5/14, at 257; id. at
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437. Finally, Appellant’s clothing tested positive for gunshot residue and the
inside of his belt contained markings consistent with a gun holster. See N.T.
Jury Trial, 8/5/14, at 297; id. at 325-26. Thus, in light of the other testimony
adduced, we find no abuse of discretion in the PCRA court’s determination that
Appellant was not prejudiced by the absence of expert testimony on
eyewitness identification.
III. Confrontation Clause: Gunshot Residue Experts
In his third claim, Appellant alleges that Attorney Sembrot was
ineffective at the re-trial for failing to object to the admission of A.J.
Schwoebel’s expert report, Allison Murtha’s expert testimony, and Ms.
Murtha’s expert report regarding gunshot residue found on Appellant’s
clothing. The following legal principles pertain to our review.
Whether Appellant’s rights under the confrontation clause were violated
by the admission and use of the gunshot residue reports and testimony from
Ms. Murtha is a question of law, for which our standard of review is de novo
and our scope of review is plenary. See Commonwealth v. Brown, 185
A.3d 316, 409 (Pa. 2018) (plurality). The United States Supreme Court has
held that forensic reports are testimonial in nature when their “primary
purpose” is to establish or prove past events for purposes of proof at a criminal
trial. See Davis v. Washington, 547 U.S. 813, 822 (2006). Therefore, the
right to confrontation is violated when a testimonial forensic report is offered
into evidence without the analyst’s corroborating testimony. See Brown,
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supra at 417-18 (holding that an autopsy report was testimonial in nature,
so the report could only be introduced into evidence without its author’s
testimony if the author was “unavailable” and defendant “had a prior
opportunity to cross-examine” him).
A.J. Schwoebel was the former manager and director of the forensic
laboratory for the R.J. Lee Group. See N.T. Jury Trial, 8/5/14, at 307, 323-
24. After the particle extraction samples were taken from each article and
submitted for testing, A.J. Schwoebel analyzed the results and generated a
report. Id. at 321-22. A.J. Schwoebel did not testify at the first trial and was
unavailable to testify at the second one. Id. at 336. Ms. Murtha held Mr.
Schwoebel’s previous position as of the date of the second jury trial. Id. at
307. Accordingly, Ms. Murtha took the results from Mr. Schwoebel’s reports
and re-analyzed them in accordance with the current standard operating
procedures, memorializing her findings in a supplemental report. Ms. Murtha
testified at trial, and both her report and Mr. Schwoebel’s report were admitted
as evidence. Id. at 307-54.
The PCRA court found that A.J. Schwoebel’s report should not have been
admitted into evidence because its primary purpose was testimonial in nature,
Mr. Schwoebel was unavailable for trial, and he did not testify previously. See
PCRA Opinion, 3/19/20, at 91. However, Appellant was not prejudiced by this
error, since the report was cumulative of Ms. Murtha’s testimony and expert
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report, which admission did not violate the confrontation clause. Id. at 90-
94. We agree.
As the PCRA court accurately observed, the gunshot residue report
prepared by Mr. Schwoebel was testimonial in nature, Mr. Schwoebel did not
testify at the previous trial, and he was unavailable to testify at Appellant’s
second trial. Therefore, Appellant never had the opportunity to cross-examine
him and the admission of his report into evidence was error. See Bullcoming
v. New Mexico, 564 U.S. 647, 655 (2011) (holding that the admission of a
missing analysist’s report through a “surrogate” analysist who merely
introduced the findings of the missing analyst violated the confrontation
clause). However, his report was cumulative of Ms. Murtha’s testimony.
Therefore, the impact of this error necessarily depends on our resolution of
Appellant’s allegations concerning the admissibility of Ms. Murtha’s testimony
and expert report.
The High Court has held that the testimony of a surrogate analyst who
merely “parrots” the original unavailable analyst’s testimony is insufficient to
vindicate the right to confrontation, since such testimony cannot expose any
errors in the testing process employed by the analyst who authored the report.
See Bullcoming, supra at 662. Our Supreme Court interpreted the
Bullcoming holding to mean that the confrontation clause is not implicated
where a surrogate analyst renders an “independent opinion” interpreting the
results. See Brown, supra at 420-22. Additionally, it previously considered
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what constitutes an “independent opinion” that satisfies the confrontation
clause. See Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013).
The Yohe Court addressed whether the admission of a toxicology report
in a driving under the influence (“DUI”) case violated a defendant’s rights
under the confrontation clause. After the defendant’s blood sample was tested
three times by several analysts from one lab, a toxicologist received the raw
data, analyzed the three tests, and arrived at a blood alcohol concentration
(“BAC”) result, which the toxicologist set forth in a report. The toxicologist
signed the report, certifying its content and his own role in reviewing the data
and ensuring its accuracy. At the defendant’s trial, the BAC result was
admitted into evidence through the toxicologist’s expert testimony. The
defendant objected that his right to confrontation was violated because the
specific lab technicians who performed the tests did not testify. His objection
was overruled.
On appeal, our Supreme Court found that the lab report was testimonial
and that the toxicologist had not performed any of the tests. However, our
Court nevertheless held that the defendant’s confrontation clause rights were
not violated. While the toxicologist relied on raw data produced by lab
technicians in reaching an expert opinion, he was the only individual who
engaged in the critical comparative analysis of the results of the testing, which
was needed in order to generate a BAC. Id. at 539-40 (“[The toxicologist]
was at the top of the inferential chain, and utilized the data that preceded his
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analysis in reaching his conclusion.”). The Court highlighted the toxicologist’s
unique role. As the lab supervisor, he was generally familiar with standard
procedures and able to identify any deviations from his procedure or any
problems with a particular lab technician. Accordingly, he was able to evaluate
the entire record and was the proper object of the defendant’s right to
confrontation.
Here, like the toxicologist in Yohe, Mr. Schwoebel and Ms. Murtha do
not appear to have played any role in extracting the particle samples from the
articles and submitting them for testing. See N.T. Jury Trial, 8/5/14, at 321.
Instead, Mr. Schwoebel took the raw data from the testing and analyzed it in
accordance with the standard operating procedures that were in place at the
time. Id. Ms. Murtha then reviewed Mr. Schwoebel’s report to ensure that
everything was done according to those standard operating procedures,
before taking the data and applying it under the updated format applicable at
the time of the re-trial, which caused her to reach a different and independent
conclusion. Id. at 324-25. Ms. Murtha also testified that she had performed
approximately 600 to 700 of these types of analyses, had been a member of
the forensic science department since 2008, was mentored by Mr. Schwoebel,
and had been the manager of the forensic science department since Mr.
Schwoebel retired. Like the toxicologist in Yohe, she was familiar with
standard operating procedures and able to identify deviations from those
procedures. After Mr. Schwoebel’s departure, Ms. Murtha was the only
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individual available who had engaged in a critical analysis of the results of the
tests performed. Therefore, in line with the Yohe analysis, Ms. Murtha was
the witness at the top of the inferential chain whom Appellant had the right to
confront. Thus, the admission of Ms. Murtha’s testimony and expert report
did not violate the confrontation clause.
Appellant argues that Ms. Murtha could not have produced an
independent report because she relied on information contained in Mr.
Schwoebel’s report in order to generate her own findings. See Appellant’s
brief at 58-62. Appellant fails to account for the distinction between results
and opinions. The results are raw data concerning the chemicals found on the
tested specimens, whereas opinions are formed from an analyst’s
interpretation of the raw data. This distinction is best exemplified by the fact
that Ms. Murtha reached a different opinion than Mr. Schwoebel. While Ms.
Murtha’s report necessarily incorporates the results of the testing conducted
by Mr. Schwoebel, it does not contain anyone’s opinion but her own.
Therefore, in contrast to Bullcoming, Ms. Murtha’s report did not simply
“parrot” the prior analysis of Mr. Schwoebel. See Yohe, supra at 390.
Mr. Schwoebel’s report was inadmissible absent Mr. Schwoebel’s
testimony. However, even without the report, Pa.R.E. 703 and 705 would still
have permitted the type of expert opinion testimony given by Ms. Murtha. The
rules allow expert opinion testimony based in part on otherwise inadmissible
facts and data contained in a report upon which experts in the field would
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reasonably rely in forming an opinion. See also Commonwealth v. Ali, 10
A.3d 282, 306 (Pa. 2010) (“[A] medical expert who did not perform the
autopsy may testify as to cause of death as long as the testifying expert is
qualified and sufficiently informed[.]”) (citation omitted).
Ultimately, Ms. Murtha’s testimony was admissible because she formed
an independent conclusion and testified to that conclusion based on her review
of both inadmissible facts and data contained in Mr. Schwoebel’s report. Since
Ms. Murtha synthesized that information, formed an independent opinion, and
was available to be cross-examined regarding the basis of that opinion, we
conclude there was no confrontation clause violation with respect to her
opinion regarding the presence of gunshot residue on Appellant’s clothing.
Further, we determine that any error that arose from Ms. Murtha revealing
Mr. Schwoebel’s opinion, or the Commonwealth admitting Mr. Schwoebel’s
report as an exhibit, was harmless beyond a reasonable doubt because her
own independent opinion testimony satisfied the confrontation clause.
With the preceding in mind, we turn to the IAC analysis. Since Ms.
Murtha’s testimony did not violate the confrontation clause, Appellant’s
ineffectiveness claim based on Attorney Sembrot’s7 failure to object to the
admission lacks arguable merit. Since Mr. Schwoebel’s report was cumulative
of Ms. Murtha’s testimony, Appellant was not prejudiced by counsel’s failure
____________________________________________
7 Attorney Sembrot was Appellant’s counsel at the re-trial.
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to object to its admission or the references to it throughout Ms. Murtha’s
testimony. Accordingly, Appellant’s claim was properly denied.
IV. Cross-Examination of Detective Fetrow
Appellant’s fourth claim contains three subparts. Appellant alleges that
Attorney Sembrot was ineffective for failing to cross-examine Detective
Fetrow regarding: (1) Daniek Burns’s drug stop and flight from apprehension,
(2) Tina Ashley’s knowledge about whether Supreme was the shooter’s
intended target, and (3) the time lapse between Appellant’s arrest and the
seizure of his sweatshirt. See Appellant’s brief at 73-75. We address each
argument individually below.
Detective Fetrow was the lead detective assigned to Appellant’s case
and he testified at Appellant’s federal grand jury proceeding. See N.T. Grand
Jury Proceeding, 2/15/06, at 20. At that proceeding, he was questioned about
Daniek Burns and where he was currently located. Detective Fetrow
responded that he was “on the run right now. He’s scared. At the time he
was scared. He didn’t want to be next is one of the things he told us. I don’t
know all his reasons.” Id. He went on to opine that an additional possibility
existed for why Burns had fled, explaining: “I know there was another incident
involving Daniek and some of our patrol officers and a small amount of drugs.
When they found the drugs, Daniek took off running and I haven’t seen him
since. Neither has anybody else.” Id. Ultimately, he was not sure if Burns’s
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reason for running was the possibility of getting in trouble for a criminal charge
or his fear of Appellant. Id.
At re-trial, Detective Fetrow testified and was cross-examined multiple
times. See N.T. Jury Trial, 8/4/14, at 135-47; N.T. Jury Trial, 8/5/14, at 293-
306; id. at 355-58. However, he was never asked about his grand jury
testimony by either the Commonwealth or Attorney Sembrot. Appellant
alleges that Attorney Sembrot was ineffective for failing to cross-examine
Detective Fetrow about Burns’s uncharged criminal conduct. See Appellant’s
brief at 73. Appellant further argues that he was prejudiced by this omission
because the incident implied that the Commonwealth would treat Burns
favorably due to his identification testimony. Id. The PCRA court agreed that
this claim had arguable merit and that counsel admitted to having no
reasonable basis for this omission at the PCRA hearing. See PCRA Opinion,
3/19/20, at 37-38. However, the court denied the claim because it found that
there was no prejudice suffered. Id. at 38-39. We find no abuse of discretion.
First, Daniek Burns was questioned extensively regarding his criminal
history, so the jury was aware of his potential motive to lie in that regard.
Despite only being seventeen years old at the time of his testimony, Burns
admitted to being a “career criminal,” and told the jury about his prior criminal
convictions and charges in New York and York County. See N.T. Jury Trial,
8/5/14, at 390-410. While he testified that he had not received anything in
exchange for his testimony, Burns conceded that the night of the shooting he
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had been smoking marijuana and wearing a bulletproof vest. Id. at 397, 405,
410. Despite the vest, marijuana, and active warrants for his arrest, Burns
was not arrested that night. Id. at 430. Instead, the officers allowed Burns
to leave with a family member after he finished giving his statement
identifying Appellant as the shooter. Id. at 397, 405-06. Burns fled the York
area, but was later picked up on a material witness warrant. Id. at 408. At
the time of his testimony, Burns was serving a sentence at Rikers Island
Prison, an adult facility, because of a drugs charge. See N.T. Jury Trial,
8/5/14, at 390.
Second, even Appellant concedes that the alleged uncharged drug
incident occurred after Burns had already identified Appellant as the shooter
and Appellant had been arrested. See Appellant’s brief at 34. Therefore, it
could not have played a role in Burns’s motivation to make an earlier
identification.
Finally, the questioning of Detective Fetrow about the uncharged
criminal conduct occurred in the context of explaining why Daniek Burns fled
the area. The main reason Detective Fetrow thought that Daniek Burns fled
was his fear of retribution, i.e., that “he would be next” because he identified
Appellant. N.T. Grand Jury Proceeding, 2/15/06, at 20. Therefore, if Attorney
Sembrot had questioned Detective Fetrow about the uncharged conduct, the
jury could have also heard about Daniek Burns’s fear of retribution from
Appellant. Such testimony could have hurt Appellant. Since Appellant has
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failed to convince us that he suffered prejudice, his first sub-claim merits no
relief.
Next, Appellant alleges that Attorney Sembrot was ineffective for not
cross-examining Detective Fetrow about the validity of Tina Ashley’s excited
utterance in which she identified Supreme as the shooter’s intended target.
See Appellant’s brief at 73. At re-trial, Detective Fetrow testified that when
he arrived on scene, Tina Ashley was very emotional and loud. See N.T. Jury
Trial, 8/4/14, at 140. While she was talking to Officer Randy Searfoss,
Detective Fetrow heard her yell, “He knows who was shooting. They were
shooting at him.” Id. at 141. As she yelled, he noticed that she was directing
her comments at two males that were walking down the street, Jeffrey
“Supreme” Mable and Valentine Bonilla, but then she specifically referred to
one by the name “Supreme,” and pointed him out. Id. After overhearing this
exchange, Detective Fetrow detained Supreme and Bonilla, keeping them
separate until he could interview each of them at the station. Id. at 141-42.
At the first trial, Tina Ashley testified that she did not know if Supreme was
the shooter’s target, only that the shooter appeared to be aiming for
Supreme’s group. See N.T. Jury Trial, 9/13/06, at 132. Testimony about this
excited utterance was omitted at the retrial.
The PCRA court explained its reasoning for not believing that this
omission amounted to ineffective assistance of counsel as follows:
The potential targeting of Mr. Mable is but one fact in the
trial and not a determinative one. The use of a firearm to target
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someone is sufficient to undergird transferred intent for a first-
degree murder charge. There is evidence of [Appellant’s] intent
to target Mr. Mable, via Apollonia Snyder’s testimony that
[Appellant] stated he was going to kill Mr. Mable. And there is
evidence of [Appellant’s] motive to target Mr. Mable, via
testimony that [Appellant] was evasive regarding who shot him
prior to the murder of Ms. Witter. Detective Fetrow’s testimony
merely supplied Ms. Ashley’s excited utterance that Mr. Mable,
amongst others, knew they were being shot at. Detective Fetrow
seems to have narrowed Ms. Ashley’s identification of targets
down to just one; however, the other evidence of the trial points
to [Appellant] having motive and intent regarding Mr. Mable. We
do not believe arguable merit has been sufficiently made out.
We look at whether retrial counsel’s actions lacked any
reasonable basis. The alternative strategy offered is that retrial
counsel should have cross-examined Detective Fetrow and
ferreted out this inconsistency between his report and Ms. Ashley’s
prior statements and Detective Fetrow’s certainty at trial. We
cannot find a substantially greater chance of success had this
strategy been pursued. Mr. Mable was, at the very least, identified
as a possible target by Ms. Ashley. [Appellant] matched some
descriptions of the shooter in stature and in the clothing worn by
the shooter and, seemingly, by [Appellant] at the time of his
arrest. [Appellant’s] clothes were covered in gunshot residue and
its components. We do not believe that there was a substantially
greater chance of success if this line of questioning had been
pursued. A similar analysis persists for the third prong, which is
prejudice. There was too much other evidence indicating
[Appellant] to have been the shooter for this supposed error by
retrial counsel to have been determinative. It is therefore denied.
PCRA Opinion, 3/19/20 at 40-41.
Our review reveals that the PCRA court’s findings are supported by the
record and not the result of any abuse of discretion. Notably, Supreme
testified at the re-trial that he did not know who the shooter’s intended target
was. See N.T. Jury Trial, 8/6/14, at 232-33. Therefore, the probative value
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of Tina Ashley’s excited utterance was reduced considerably by his testimony.
Accordingly, no relief is due on the second sub-part of Appellant’s fourth claim.
Finally, Appellant challenges counsel’s effectiveness for not parsing out
a passing comment by Detective Fetrow that the sweatshirt was not seized at
the same time as Mr. Brenner’s other items. See Appellant’s brief at 75.
Since Appellant’s sweatshirt was taken from the York County prison at a later
time, Appellant argues that this increased the probability of contamination and
Attorney Sembrot was ineffective for not pointing this out. Id. The PCRA
court did not find this allegation persuasive, explaining:
We cannot find a substantially greater chance of success had
the jury been aware of the conclusions drawn in the proffered
articles. The jury was already aware from the testimony of the
GSR expert, Ms. Allison Murtha, that there was very little evidence
of GSR on the sweatshirt in question. Rather, the majority of the
GSR located on [Appellant’s] clothing was found on items that
were seized almost immediately upon [Appellant] surrendering to
authorities. Detective Fetrow testified to the continual use of latex
gloves to handle these articles of clothing, which acted as a
safeguard to contamination. The GSR on items aside from the
sweatshirt militates towards [Appellant] being a shooter – even if
this is not conclusive when one considers lawful means of GSR
being deposited. It is noteworthy that Ms. Murtha testified to the
very high levels of GSR and related particulate on [the belt] as
compared to the many other thousands [of articles] she has tested
in her career. The low levels of GSR – indicated particles on
[Appellant’s] hoodie comport with Ms. Murtha’s testimony that
particulate loss can occur with increased motion and temporal
delays from deposit to collection. We do not see that the articles
supplied by the defense would have swayed a jurying regarding
GSR evidence. The [Appellant] was covered in GSR and
associated particles on all items of clothing save the sweatshirt.
See PCRA Opinion, 3/19/20, at 42.
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We agree with the PCRA court’s apt analysis. Appellant’s shoes, belt,
and sneakers, which contained the probative GSR evidence, were collected
within minutes of his being taken into custody. See N.T. Jury Trial, 8/5/14,
at 356. However, even with this evidence, the jury was made aware that
contamination was an issue because Appellant was not arrested until six days
after the shooting. Id. at 293. Ms. Murtha testified that gunshot residue can
easily dissipate from clothing by simply moving around, sweating, or even
exposing it to wind. Id. at 334. Therefore, the jury was well-aware of the
potential contamination issues present for even the most probative of the gun
shot residue evidence. The sweatshirt, which the jury was aware was collected
later than the other items, did not have any three-component gunshot residue
on it. Id. at 330. Therefore, its main relevance was not the presence of
particles consistent with gunshot residue, but that it matched the one worn
by the shooter according to some of the eyewitness descriptions. Thus, it is
not likely that the outcome would have changed if Detective Fetrow had been
cross-examined about the exact time and location that the sweatshirt was
seized, and no relief is due.
V. Failure to Present Legitimate Reason for Gun-Shot Residue
In his fifth claim, Appellant alleges that Attorney Sembrot was
ineffective for declining to present evidence that would have shown legitimate
reasons for the gunshot residue found on his clothing at re-trial, namely: that
Appellant had legally purchased firearms in the past, that Appellant was
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licensed to carry a firearm, and that Appellant owned clothing with gunshot
residue on it that was not alleged to have been involved. See Appellant’s brief
at 78. Appellant argues that because these pieces of evidence would have
provided the jury with an alternate and legitimate explanation for why there
was gunshot residue on his belt, shoes, and clothing, he was prejudiced by its
omission. Id. at 80. The PCRA court disagreed, finding Attorney Sembrot’s
testimony at the PCRA hearing credible and persuasive evidence of a
reasonable trial strategy. See PCRA Opinion, 3/19/20, at 44-45. The PCRA
court’s findings are supported by the record.
“In determining whether counsel’s action was reasonable, we do not
question whether there were other more logical courses of action which
counsel could have pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis.” Commonwealth v. Washington, 927
A.2d 586, 594 (Pa. 2007) (citations omitted). At the PCRA hearing, Attorney
Sembrot testified that he was aware that Appellant had a license to carry and
legally owned firearms. See N.T., 8/27/18, at 73. While he discussed the
possibility of presenting this evidence to the jury with Appellant, he ultimately
took the position that “[he] didn’t want to put a gun in [his] client’s hands for
the jury to consider that fact. I wanted to distance my client from any gun.”
Id. at 74. Attorney Sembrot explained that because he could see the evidence
“cutting both ways” and could not anticipate how the jury would have accepted
such evidence, he chose to omit it. Id. Since Attorney Sembrot’s decision
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was based upon a reasonable strategy to effectuate Appellant’s interests, this
claim fails.
VI. Failure to Contradict Apollonia Snyder’s Testimony
In Appellant’s sixth claim, he alleges that Attorney Sembrot was
ineffective for failing to present two witnesses whom he alleges would have
contradicted Apollonia Snyder’s re-trial testimony. See Appellant’s brief at
84-85. At re-trial, Apollonia Snyder testified that, a couple of days before the
shooting, she was bar hopping with Appellant, who had been a friend of hers
since high school. See N.T. Jury Trial, 8/6/14, at 40-41. One of the bars they
went to that day was called “Cheers.” Id. While they were driving between
bars, Appellant made a phone call. Id. at 42. Accordingly to Ms. Snyder,
Appellant told the person on the other end of the line, someone whom he
referred to as “Man,” that he was going to “pop Supreme when he seen him,”
using “a very aggressive tone.” Id. at 42, 51. While he was talking to “Man,”
Appellant was also playing with a gun in his lap. Id. at 42. She testified that
no one else was in the car with them when this conversation occurred. Id. at
46.
At the PCRA hearing, Appellant called two witnesses who he claimed
would have contradicted Snyder’s testimony. Nathaniel “Man” Williams
testified that he knew Appellant and would have been willing to testify at
Appellant’s re-trial, but that he did not have Appellant’s phone number and
never had a conversation with him about shooting Supreme. See N.T. PCRA
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Hearing, 7/2/18, at 9-13. Yolanda Dorman testified that she knew both
Appellant and Apollonia Snyder and that she would have been willing to testify
at Appellant’s re-trial. See N.T. PCRA Hearing, 8/27/18, at 46-47. Around
the time that the alleged bar hopping happened, she was a frequent patron of
Cheers bar. Id. However, she never saw Appellant and Apollonia Snyder at
Cheers or any other bar together. Id. In fact, she was unsure whether
Appellant and Ms. Snyder knew each other. Id.
The PCRA court found that, while there was arguable merit to Appellant’s
claims, he did not demonstrate prejudice by either witness’s absence. First,
the PCRA court did not find credible Man’s testimony that he was friends with
Appellant but did not have a cell phone and never spoke with Appellant on the
phone. See PCRA Court Opinion, 3/19/20, at 47. Therefore, this testimony
would not have impacted the credibility of Apollonia Snyder’s testimony. Id.
Next, the PCRA court found that the probative value of Ms. Dorman’s
testimony was questionable, since she did not seem to possess knowledge as
to whether Appellant and Ms. Snyder were even acquaintances. Id. In light
of the totality of the other evidence, and the fact that Attorney Sembrot found
other ways to challenge Ms. Snyder’s credibility on cross-examination, the
PCRA court concluded that no relief was due. Id. at 49-50.
Since the PCRA court sits as the fact finder at the PCRA hearing, we
grant great deference to its credibility findings where, as here, they are
supported by the record. See Commonwealth v. Johnson, 966 A.2d 523,
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532 (Pa. 2009) (“Our standard of review in PCRA appeals is limited to
determining whether the findings of the PCRA court are supported by the
record and free from legal error.”). Even if believed, the proposed testimony
of these witnesses would not necessarily preclude the jury from also finding
Ms. Snyder’s testimony credible. Appellant could have been speaking on the
phone to someone else that he referred to as “Man” and they could have been
at the “Cheers” bar when Ms. Dorman was not present.
Additionally, Attorney Sembrot found another way to challenge the
credibility of Ms. Snyder’s testimony. Counsel pointed out that, despite her
alleged concern regarding Appellant’s statements, she did not reach out to the
police with this information. See N.T. Jury Trial, 8/6/14, at 47. Instead, she
waited until the authorities contacted her, which was at a time when she was
serving probation. Id. at 48. Although she testified that she did not receive
any favorable treatment for her involvement in this case, she did admit to
working as an informant for the police at the time that she provided this
information about Appellant. Id. at 53. Accordingly, the PCRA court did not
abuse its discretion when it concluded that Appellant had failed to prove that
he was prejudiced by counsel’s failure to call these two witnesses at trial.
VII. Prosecutorial Misconduct
In his seventh issue, Appellant asserts that Attorney Sembrot was
ineffective in failing to object to prosecutorial misconduct after the prosecutor
made “multiple intentional comments that were not consistent with inferences
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from the record” in his closing remarks to the jury. See Appellant’s brief at
90. Appellant’s eight allegations of misconduct, that he alleges Attorney
Sembrot was ineffective for failing to object to, encompass the following
statements made by the prosecutor during his closing argument: (1)
“[Apollonia Snyder’s] facing a guy who’s now on trial for a murder that she
knows did it;” (2) “nor is there any indication from [Apollonia Snyder] that in
any way Detective Fetrow, when he called, even mentioned the name of
[Appellant]. This was from her;” (3) Tina Ashley was “sitting on her porch
stoop watching Jeffrey Mable dodge bullets;” (4) Tina Ashley saw Daniek
Burns running past her after the second shot; (5) Ms. Ashley had Anna Witter
between herself and the shooter; (6) Ms. Ashley “claims she doesn’t know,
doesn’t know [Appellant], but did you see her waving and smiling to him when
we were up at sidebar with the judge?”; (7) “then there’s Lloyd Valcarcel.
What do you say about Lloyd Valcarcel? The man who couldn’t tell the truth
if his life depended on it;” and (8) “[Appellant]’s conduct was the direct cause
of the death of three innocent people . . . [Appellant] is about as cold a killer
as there exists.” Appellant’s brief at 90-95.
The following principles guide our review:
[A] claim of ineffective assistance grounded in trial counsel’s
failure to object to a prosecutor’s conduct may succeed when the
petitioner demonstrates that the prosecutor’s actions violated a
constitutionally or statutorily protected right, such as the Fifth
Amendment privilege against compulsory self-incrimination or the
Sixth Amendment right to a fair trial, or a constitutional interest
such as due process. To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to
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result in the denial of the defendant’s right to a fair trial. The
touchstone is fairness of the trial, not the culpability of the
prosecutor. Finally, not every intemperate or improper remark
mandates the granting of a new trial; reversible error occurs only
when the unavoidable effect of the challenged comments would
prejudice the jurors and form in their minds a fixed bias and
hostility toward the defendant such that the jurors could not weigh
the evidence and render a true verdict.
Commonwealth v. Koehler, 36 A.3d 121, 144 (Pa. 2012). With respect to
the range of permissible comments in closing arguments, this Court has
stated:
It is axiomatic that during closing arguments the
prosecution is limited to making comments based upon the
evidence and fair deductions and inferences therefrom. Indeed,
given the critical role that the Commonwealth plays in the
administration of justice, a prosecutor has been historically
prohibited from expressing a personal belief regarding a
defendant’s guilt or innocence or the veracity of the defendant or
the credibility of his witnesses.
However, because trials are necessarily adversarial
proceedings, prosecutors are entitled to present their arguments
with reasonable latitude. Moreover, it is well settled that
defendants are entitled to a fair trial, not a perfect one. Thus, a
prosecutor’s remarks do not constitute reversible error unless
their unavoidable effect [was] to prejudice the jury, forming in
their minds fixed bias and hostility toward the defendant so that
they could not weigh the evidence objectively and render a true
verdict.
Commonwealth v. Ligon, 206 A.3d 515, 519-20 (Pa.Super. 2019) (citations
and internal quotation marks omitted). As discussed infra, none of the
prosecutor’s statements preluded the jury from weighing the evidence
objectively.
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First, Appellant asserts that the prosecutor improperly characterized Ms.
Snyder as being nervous on the stand because “she’s facing a guy who’s now
on trial for a murder that she knows did it.” N.T. Jury Trial, 8/7/14, at 338.
The trial court found no merit to this allegation. See PCRA Opinion, 3/19/20,
at 59. Instead, it determined that this was a fair inference from Ms. Snyder’s
testimony. Id. at 59. We agree. Ms. Snyder testified that she overheard
Appellant make a threat upon Supreme’s life in a “very aggressive tone” while
manipulating a gun. N.T. Jury Trial, 8/7/14, at 42. She later came forward
with this information “because it was the right thing to do.” Id. at 45.
Accordingly, the record supports the PCRA court’s conclusion that the
prosecutor’s comment regarding Ms. Snyder’s fear and belief that Appellant
committed the crime was a reasonable inference from the evidence adduced
at trial. See PCRA Opinion, 3/19/20, at 59. Therefore, Attorney Sembrot was
not ineffective for failing to object to it.
Second, Appellant alleges that the prosecutor misrepresented the record
when he claimed that Ms. Snyder volunteered Appellant’s name to Detective
Fetrow. See Appellant’s brief at 90-91. Appellant asserts that this was error
because at the first trial, Ms. Snyder testified that Detective Fetrow called her
to discuss her involvement with gang activity and, at that time, asked her if
she knew Appellant. Id. citing to N.T. Jury Trial, 9/13/06, at 80-81. Ms.
Snyder responded that she did know Appellant and then brought up the
shooting in which she believed Appellant was involved. Id.
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The PCRA court agreed that the prosecutor’s remark was a
misstatement of Ms. Snyder’s testimony at the re-trial, in which she did not
discuss whether it was Detective Fetrow or herself who had initially brought
up Appellant’s name. Counsel did not object to it. However, the court found
that Appellant was not prejudiced by this misstatement because the court
cautioned the jury right before closing arguments were delivered that
counsel’s arguments should only be considered to the extent that the
inferences counsel asked them to draw were supported by the evidence. See
PCRA Court Opinion, 3/19/20, at 61; N.T. Jury Trial, 8/7/14, at 307-08. The
jury is presumed to follow the trial court’s instructions. See Commonwealth
v. Cash, 137 A.3d 1262, 1280 (Pa. 2016). Moreover, the court determined
that the prosecutor’s remark was fair response to Attorney Sembrot’s closing
argument, wherein he questioned Ms. Snyder’s credibility, reasoning that
“Apollonia never came forward, okay, never.” N.T. Jury Trial, 8/7/14, at 319.
The record supports the PCRA court’s conclusion. Simply put, “not every
intemperate or uncalled for remark by the prosecutor requires a new trial.”
Commonwealth v. D’Amato, 526 A.2d 300, 309 (Pa. 1987). This fleeting
remark is plainly not the type of intentional misrepresentation that Appellant
claims. See Appellant’s brief at 90-91. Further, Appellant has not explained
how this remark had the unavoidable effect of prejudicing the jury such that
the jury could no longer render a fair verdict, particularly in light of the court’s
directive to disregard remarks that are not supported by the evidence.
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Accordingly, we discern no abuse of discretion in the trial court’s conclusion
that Appellant was not prejudiced by counsel’s failure to object to it.
Appellant’s third, fourth, and fifth sub-claims allege various
misstatements by the prosecutor regarding what Tina Ashley did or did not
see during the shooting. See Appellant’s brief at 91 (citing N.T. Jury Trial,
8/7/14, at 347). Attorney Sembrot did not object to any of these comments.
The PCRA court aptly summarized why the first of these three claims lacked
arguable merit as follows:
Appellant complains that the ADA described Ms. Ashley as
watching Mr. Mable dodge bullets and duck. The defense opines
that this is inconsistent with Ms. Ashley’s testimony that she was
pulled inside of her building after the first shot. This claim is
inconsistent with the later claim that the shooter stopped shooting
as his six-shooter was out of bullets. This is so because Ms. Ashley
indicated that she heard the first shot, entered her building, and
then, as she claimed to have heard three shots total, she heard
two more shots. Thus, by [Appellant’s] own reckoning, Ms.
Ashley’s memories were faulty or one could infer that she was
outside for more shots than she testified to, which would have
allowed an inference of her watching Supreme dodge bullets or
ducking. It was for the jury to determine what the facts were and
who was credible. [Appellant] is engaging in the very sort of
absolutist characterization of evidence that the Commonwealth
did in its closing. This is what litigants in an adversarial system
do. They characterize evidence and it is a competitive and heated
process.
PCRA Court Opinion, 3/19/20, at 64. The PCRA court went on to conclude
that the defense claim that the prosecutor’s insinuation that Ms. Ashley’s
excited utterance meant that Supreme was the intended target was also
meritless because it, too, was properly derived from Detective Fetrow’s
testimony. Id. at 65. Finally, the PCRA court concluded that the prosecutor’s
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remark that Ms. Ashley saw Daniek Burns flee the scene was also a permissible
inference from the record. Id. at 66.
The PCRA court’s conclusions are supported by the record. What Ms.
Ashley did or did not see, how she was positioned in relation to the shooter
and Anna Witter, how quickly she fled inside her house, and at what point in
the shooting Daniek Burns fled were all contested points at re-trial. Ms. Ashley
testified that she saw Daniek Burns there that night. Id. at 97. She also
made conflicting statements about what she saw, the quality of the lighting,
and her ability to describe the physical features of the shooter. Id. at 87-91.
However, while she could not identify the actual shooter, she was certain that
it was not Appellant. Id. at 93-94. As the re-trial court noted, it was for the
jury to determine the witness’s credibility based on the evidence presented.
Accordingly, we discern no abuse of discretion in the PCRA court’s resolution
of Appellant’s third, fourth, and fifth sub-claims as lacking arguable merit
because they were all fair inferences from the evidence adduced at trial.
Accordingly, Attorney Sembrot was not ineffective for failing to object to any
of them.
In his sixth sub-claim, Appellant asserts that Attorney Sembrot was
ineffective for failing to object to “another egregious instance of prosecutorial
overreach,” which was when the prosecutor claimed that Ms. Ashley acted like
she did not know Appellant, but later waved to him from the witness stand
while the attorneys were at sidebar. See Appellant’s brief at 94. The remark
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conflicts with Ms. Ashley’s general testimony that she had known Appellant
for sixteen years. See N.T. Jury Trial, 8/6/14, at 93. However, upon closer
examination of Ms. Ashley’s re-trial testimony, the PCRA court concluded that
the prosecutor’s statement was still a fair inference from her testimony
indicating that they were not closely acquainted. See PCRA Court Opinion,
3/19/20, at 70 (citing id. (explaining that she knew Appellant in the sense
that she would sometimes see him on the back patio of their building)). Ms.
Ashley, by detailing that she knew Appellant from seeing him occasionally
around her apartment complex, plainly implied that she was only a casual
acquaintance. This level of familiarity is consistent with the prosecutor’s
closing argument. Thus, we agree with the PCRA court that no relief is due.
In his seventh sub-claim, Appellant attacks the prosecutor’s
characterization of Lloyd Valcarcel as follows:
Then there’s Lloyd Valcarcel. What do you say about Lloyd
Valcarcel? The man who couldn’t tell the truth if his life depended
on it. Yes, yesterday he definitively said it wasn’t [Appellant].
Yet, in his handwritten statement, he said, “I don’t know if he
knew about it, let alone did it.” And in the same statement to the
defense, he says, “Well, when I gave the shoe ID, I then named
the color of my shoe because I was being smart, due to the fact
that he was trying to place a drug sell [sic] on me,” meaning
Detective Fetrow. He wasn’t even being interviewed by Detective
Fetrow, but by Detective Nadzom, who got pulled out of bed and
knew nothing about this case. Fetrow wasn’t even in the room.
There’s no other way to put it, ladies and gentlemen he’s lying.
N.T. Jury Trial, 8/7/14, at 348. See also Appellant’s brief at 94-95. Appellant
asserts that the prosecutor improperly expressed his personal belief about the
falsity of Lloyd Valcarcel’s testimony. Id. at 95.
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The PCRA court disagreed. When viewed in its proper context, the court
concluded that the prosecutor “merely highlighted what the jury knew
already[,]” namely, that “Mr. Valcarcel had either lied when he wrote his
statement that he could not say whether [Appellant] was the shooter or when
Mr. Valcarcel testified that [Appellant] was not the shooter.” PCRA Opinion,
3/19/20, at 73. The PCRA court cited relevant case law and concluded that
the prosecutor’s comments were neither “unfair nor unduly prejudicial.” Id.
Again, the well-reasoned conclusion of the PCRA court was supported by the
record and consistent with relevant precedent. Id. (citing Commonwealth
v. Carpenter, 515 A.2d 531, 536 (Pa. 1987)). Accordingly, we discern no
abuse of discretion and Appellant’s seventh sub-claim fails.
In his final allegation of prosecutorial misconduct, Appellant attacks the
prosecutor’s characterization of him as “about as cold a killer as there exists.”
Appellant’s brief at 95 (citing N.T. Jury Trial, 8/7/14, at 354). Appellant relies
heavily on factually distinguishing his case from Commonwealth v. Clancy,
192 A.3d 44 (Pa. 2018), in order to support his contention that the statement
was impermissible. Appellant’s brief at 98. However, like the PCRA court, we
find Appellant’s argument unpersuasive.
The murder in Clancy arose out of a street fight where the defendant
shot and killed an unarmed man. Id. at 47. The Commonwealth charged the
defendant with criminal homicide and, at trial, the defendant did not dispute
that he killed the victim. Instead, he argued that he lacked the necessary
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intent to kill because he acted in the heat of passion, discharging his firearm
accidentally. Id. at 48, 65. In a PCRA petition, Clancy unsuccessfully
challenged his trial counsel’s ineffectiveness for failing to object to the
prosecutor’s closing remarks, which characterized him as a “dangerous man”
and a “cold blooded killer.” Id. at 47.
Our Supreme Court affirmed the denial of PCRA relief, finding that the
term “cold blooded murder” directly related to the premeditation element of
the crime charged. Id. at 66-67. Therefore, the Clancy Court concluded that
the prosecution’s use of the term “cold blooded killer” “constituted permissible
(if aggressive) oratorical flair.” Id. at 67. The High Court went on to find that
the prosecutor’s statement was also a fair response to Appellant’s heat of
passion defense. Our Supreme Court thereafter instructed courts faced with
similar issues that:
Prosecutorial remarks do not constitute permissible oratorical flair
simply because they are based upon the underlying facts of the
case or because they relate to an underlying element of the crime.
Both requirements must be met. To fulfill his duty as an advocate,
a prosecutor has numerous tools in his arsenal. Recourse to
inappropriate invective is not one of them.
Id. at 68.
In the instant case, the prosecutor’s characterization of Appellant as “as
cold a killer as there exists,” when viewed in its proper context, is tethered to
the premeditation element of the crime charged, first-degree murder, and the
evidence adduced at trial. In closing, the prosecutor stated the following:
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Certainly, when you kill or harm three people, [Appellant]’s
conduct was the direct cause of the death of three innocent people
at the time he had the specific intent to kill, you don’t get a free
pass just because you’re a bad shot. [Appellant] is about as cold
a killer as there exists. He used a deadly weapon that evening.
The court will tell you that you can infer, based on that alone, that
he had the specific intention to kill. He wantonly fired into a crowd
of people on a busy York City street, multiple shots. What does
that say about his intention, his specific intention? And he did so
with callous disregard for anyone’s safety for his own personal
vengeance. He is guilty of murder in the first degree. Thank you.
N.T. Jury Trial, 8/7/14, at 354.
A conviction for first-degree murder requires malice, which can be
demonstrated by evidence of “wickedness of disposition, hardness of heart,
wanton conduct, cruelty, recklessness of consequences and a mind regardless
of social duty.” Commonwealth v. Hall, 701 A.2d 190, 200 (Pa. 1997)
(holding that the statements that “the only thing colder than the grave of [the
victim] is this guy’s heart” and that “he walked out coolly, calmly, and
collected” were permissible to demonstrate malice). Throughout the trial the
Commonwealth alleged that, acting in revenge for an earlier shooting,
Appellant decided to open fire on a crowded street, aiming at one person, but
instead hitting three innocent victims, killing one of them. Appellant’s
misidentification defense centered on discrediting the one eyewitness who
identified him as the shooter, showing that the GSR evidence was
contaminated, and disproving the Commonwealth’s motive for the shooting
with Jeffrey Mable’s testimony that he did not have a dispute with Appellant.
The prosecutor’s remark was merely suggesting the conclusion that the jury
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should reach based upon the evidence, namely that the Commonwealth had
established the necessary mens rea required to convict Appellant of first-
degree murder of a bystander.
Appellant counters that his case is distinguishable from Clancy because
he pursued a mistaken-identity defense, instead of Clancy’s heat of passion
defense. See Appellant’s brief at 98. While discussing fair response in the
context of closing argument, the Clancy Court considered the relevance of
Clancy’s heat of passion defense. In doing so, the court commented that “it
may not be proper to refer to a defendant as a “cold blooded killer” where the
defense argument does not warrant that reference. For example, where the
defense in first-degree murder trial is mistaken identity, rather than heat of
passion, the term “cold blooded killer” may not be appropriate.” Clancy,
supra at 68.
Although this is a mistaken identity case, not a heat of passion defense,
we cannot agree with Appellant’s rote, self-serving interpretation of the
Clancy decision. Our Supreme Court did not forbid the use of the term “cold
blooded killer” in a mistaken identity case, but rather stated that it might not
be proper. Id. In order to determine the propriety of such a label, the Clancy
Court instructed future courts to inquire whether that phrase was based upon
underlying facts and related to an underlying element of the crime. If so, then
such a remark was permissible. The particular defense asserted, while
relevant to the Court’s analysis, was not outcome determinative.
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In light of the foregoing, we conclude that the prosecutor’s use of the
term “as cold a killer as there exists” constituted an isolated use of oratorical
flair that does not require reversal in the particular factual and elemental
context presented here. The evidence outlining Appellant’s actions supported
the statement, which helped explain the necessary mens rea where the
murder victim was not the intended target. The PCRA court did not err when
it concluded that Appellant’s ineffectiveness claim lacked merit, since the
prosecutor’s closing argument was not impermissible, and thus Attorney
Sembrot was not ineffective for failing to object.
VIII. Tina Ashley and Officer Randy Searfoss
In his eighth claim, Appellant asserts that Attorney Sembrot was
ineffective for failing to question Tina Ashley and call Officer Randy Searfoss
to testify about an excited utterance Ms. Ashley made at the crime scene.
See Appellant’s brief at 103-107.
At the first trial, Tina Ashley was asked about the excited utterance and
she clarified that she was actually referring to the group of four men, which
included Supreme, as the shooter’s target. See N.T. Jury Trial, 9/13/06, at
131-32. She did not intend to single out Supreme as the shooter’s only target.
Id. At the re-trial, Tina Ashley was not asked about her excited utterance.
Instead, Detective Fetrow provided the sole testimony regarding Tina Ashley’s
excited utterance. He testified that, while at the crime scene, he overheard
Tina Ashley yell at Officer Searfoss, and in the direction of Jeffrey “Supreme”
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Mable and Valentine Bonilla, that “He knows who was shooting. They were
shooting at him.” N.T. Jury Trial, 8/4/14, at 141. He then explained that she
named Supreme and pointed at him as the target of her frustration. Id.
The PCRA court found that this claim had arguable merit, as Appellant
had identified a conflict between Detective Fetrow’s testimony at the re-trial
and Tina Ashley’s testimony at the first trial, which Attorney Sembrot did not
bring to the jury’s attention. See PCRA Opinion, 3/19/20, at 50. However,
the PCRA court did not find that Appellant suffered prejudice from this
discrepancy, reasoning:
We cannot find that [Appellant] suffered prejudice. Even if a jury
found that Ms. Ashley had not identified Supreme as the shooter’s
target, the Commonwealth still would have had Daniek Burns’[s]
identification of [Appellant] as the shooter. And, though
weakened, the jury still would have had the ability to infer motive
based upon the earlier shooting of [Appellant] and his statements
threatening Supreme’s life. In spite of the supposed error,
[Appellant’s] clothes and accessories were still covered in GSR and
its components. To our mind, the jury would likely still conclude
that [Appellant] was the shooter, that [Appellant] intended to
murder Supreme, or someone in the group of four that included
Supreme, and that this intent transferred to the victim, Ms. Witter.
We cannot conclude that there was any reasonable probability of
a different outcome save retrial counsel’s supposed error in failing
to re-elicit the exact meaning of Ms. Ashley’s excited utterance.
Not relief is due for this claim.
Id. at 51-52.
We discern no abuse of discretion in the PCRA court’s analysis. Given
that Tina Ashley’s excited utterance went to motive, not the shooter’s
identification, and was not the only evidence of motive, we cannot see how
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exposing this discrepancy would have altered the outcome of Appellant’s case.
Accordingly, no relief is due on the first sub-part of Appellant’s seventh claim.
Next, Appellant argues that Attorney Sembrot should have called Officer
Searfoss to testify about a supplemental report he authored, wherein he
indicated that Tina Ashley told him that the shooter was aiming at a group of
four men which included Supreme. See Appellant’s brief at 73-74. Officer
Searfoss testified consistently with the contents of his report at the first trial,
corroborating Tina Ashley’s testimony. See N.T. Jury Trial, 9/12/06, at 184.
The PCRA court found that this claim lacked arguable merit, explaining:
Turning to our test for ineffectiveness, we do not believe
that there is arguable merit as Ms. Ashley clearly contradicted
herself when she variously claimed to Officer Searfoss, at the time
that he took the initial report, that she did not get a good look at
the shooter and, at the retrial, that the shooter could not have
been [Appellant] who[m] she had known for years . . . . Had
retrial counsel called Officer Searfoss and re-elicited the requested
testimony, it would have necessarily undercut the credibility of
Ms. Ashley who was called as a defense witness at the retrial to
state, in part, that the shooter could not have been [Appellant].
The defense would surely counter that the jury would have a right
to pick and choose testimony from the various witnesses. We
would not find this persuasive and so we do not believe that there
is any arguable merit to this claim.
PCRA Court Opinion, 3/19/20, at 52-53.
The record supports the PCRA court’s conclusion. Furthermore,
testimony from Officer Searfoss or defense witness Tina Ashley suggesting
that the four individuals knew the identity of the shooter, not just Supreme,
could have actually harmed Appellant as Daniek Burns was one of the four
individuals with Supreme that night. A defense witness indirectly asserting
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that Daniek Burns knew the shooter’s identity, if believed by the jury, could
have bolstered Burns’s eyewitness identification of Appellant as the shooter to
Appellant’s detriment. Accordingly, we agree that Appellant’s second sub-
claim merits no relief.
VIV. IAC Failure to Introduce Photographs
In his ninth claim, Appellant alleges that Attorney Sembrot was
ineffective for failing to introduce photographs demonstrating poor lighting
conditions at the scene during the re-trial. See Appellant’s brief at 109. While
Appellant concedes that the jury saw several photographs of the scene, he
nonetheless argues that further photographs were required to demonstrate
accurately how poor the lighting conditions actually were. Id.
The PCRA court found that this claim failed all three prongs of the
ineffectiveness test since the jury saw photos of the scene and heard differing
accounts of the lighting from various witnesses. See PCRA Court Opinion,
3/19/21, at 55. While there were additional photographs that could have been
shown, the PCRA court examined them and concluded that they were
cumulative of the ones already introduced at trial. Id. at 55-56. In fact, the
PCRA court did not agree that the unintroduced photographs actually
demonstrated poor lighting. Id. at 56.
The record supports the PCRA court’s conclusion that additional
photographs of the crime scene would not have altered the outcome of trial.
The lighting conditions were a heavily contested point. Almost every person
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who testified that they were present at the scene that night, whether
eyewitness or officer, was questioned about his or her perception of the
lighting conditions. The Commonwealth admitted photographs of the scene
and the majority of the witnesses testified that the lighting conditions were
good. See N.T. Jury Trial, 8/4/14, at 151-52 (Detective Scott Hose testifying
that he photographed the scene without any additional light sources because
it was clear and mild outside and the block was “very well lit”); N.T. Jury Trial,
8/5/14, at 217-25 (emergency management specialist testifying about the
location of traffic lights, street lights, and building lights present at the crime
scene); id. at 248 (Alfonzo King testifying that there was a light above the
shooter when he was shooting); id. at 418 (Daniek Burns testifying that he
saw the shooter when he came under a street light on the corner of Newton
Street); N.T. Jury Trial 8/6/14, at 88-89 (Tina Ashley testifying that there was
a light pole that illuminated the shooter as he came out of the alleyway, a
light across the street, and a light up the street towards the corner).
Only two defense witnesses testified to the contrary—that the lighting
conditions were poor. See N.T. Jury Trial, 8/6/14, at 179 (Lloyd Valcarcel
could not identify the shooter, in part, because it was dark outside); id. at
226 (Jeffrey Mable testifying that there was a light across the street from the
shooter, but he could not identify the shooter because it was not that bright).
Given the extensive attention that the lighting conditions received and the
admission of multiple crime scene photographs demonstrating those
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conditions, we concur that additional photographs would have been
unnecessarily cumulative. Accordingly, we find that the PCRA court did not
err when it denied this claim.
X. Double Jeopardy: Charles Maner
In his tenth allegation of error, Appellant argues that former first ADA
Bill Graff engaged in “egregious prosecutorial misconduct,” such that a re-trial
should have been prohibited on double jeopardy grounds. Appellant’s brief at
112. Purportedly, there was an agreement between ADA Graff and Charles
Maner that if Maner testified against Appellant, he would not be sentenced on
two pending felony drug cases. Id. at 114. Since ADA Graff never revealed
the existence of this agreement to Attorney Keenheel, ADA Graff committed
an “outrageous Brady violation” and Attorney Sembrot was ineffective when
he failed to file a pretrial motion to bar retrial on double jeopardy grounds.
Id. at 119. The PCRA court disagreed, finding that a double jeopardy motion
on these grounds would not have succeeded since there was no evidence that
such an agreement existed. See PCRA Court Opinion, date at 80.
“An appeal grounded in double jeopardy raises a question of
constitutional law. This court’s scope of review in making a determination on
a question of law is, as always, plenary. As with all questions of law, the
appellate standard of review is de novo.” Commonwealth v. Vargas, 947
A.2d 777, 780 (Pa.Super. 2008) (internal citations omitted). If the factual
findings of the PCRA court impact its double jeopardy ruling, we apply a
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deferential standard to review those assessments. Commonwealth v.
Wood, 803 A.2d 217, 220 (Pa.Super. 2002).
Prosecutorial misconduct can implicate the double jeopardy clause. In
assessing such a claim, we are guided by the following:
The Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and Article 1, § 10 of the Pennsylvania
Constitution protect a defendant from repeated criminal
prosecutions for the same offense. Ordinarily, the law permits
retrial when the defendant successfully moves for mistrial. If,
however, the prosecution engages in certain forms of intentional
misconduct, the Double Jeopardy Clause bars retrial. Article I, §
10, which our Supreme Court has construed more broadly than its
federal counterpart, bars retrial not only when prosecutorial
misconduct is intended to provoke the defendant into moving for
a mistrial, but also when the conduct of the prosecutor is
intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial. An error by a prosecutor does not
deprive the defendant of a fair trial. However, where the
prosecutor’s conduct changes from mere error to intentionally
subverting the court process, then a fair trial is denied.
Commonwealth v. Graham, 109 A.3d 733, 736 (Pa.Super. 2015) (cleaned
up). Thus, where a defendant alleges prosecutorial misconduct as a basis for
double jeopardy protection, the critical inquiry concerns the nature of the
alleged misconduct. Commonwealth v. Minnis, 83 A.3d 1047, 1052
(Pa.Super. 2014). Dismissal of the charges is only appropriate where the
actions of the Commonwealth are “egregious” and it is “demonstrable [that]
prejudice will be suffered by the defendant if the charges are not dismissed.”
Commonwealth v. Adams, 177 A.3d 359, 372 (Pa.Super. 2017). See also
Commonwealth v. Wilson, 147 A.3d 7, 13 (Pa.Super. 2016) (“[D]ismissal
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of charges is an extreme sanction that should be imposed sparingly and only
in cases of blatant prosecutorial misconduct.”).
Charles Maner testified to the following at Appellant’s first trial.
Appellant approached him in the York County prison and told him that he felt
bad about accidentally shooting a woman. See N.T. Jury Trial, 9/12/06, at
205, 209-11. Appellant explained that he was aiming at a man who had
previously shot him and that the woman was hit by a stray bullet. Id.
Appellant stated that he would get away with the crime if no one identified
him as the shooter. Id. at 219.
After the jailhouse conversation, Maner contacted a state trooper he had
worked with in the past, who passed along the information to ADA Graff. Id.
at 238. While out on bail, Maner spoke with ADA Graff before leaving for
Florida, where he was arrested and began serving a sentence for drug
possession. Id. at 218. At trial, Maner testified that although he had not yet
been sentenced on his pending forgery conviction, he had not been promised
anything in exchange for his testimony and expected to serve time on that
case once he finished his sentence in Florida. Id. at 218-221. On cross-
examination, Maner agreed that he had many prior convictions for his
“dealings with drugs over the years and up to the present,” and that he had
provided information to the police in the past on other individuals who were
involved with drug charges. Id. at 238-40, 250-51.
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During Appellant’s first PCRA proceeding, Attorney Sembrot discovered
the existence of two felony convictions for possession with intent to deliver to
which Maner had pled guilty prior to the shooting in this case. At the time of
Appellant’s first trial, however, Maner had not yet been sentenced on those
crimes. Attorney Sembrot’s investigations revealed that Maner was, in fact,
never sentenced at either case. Based on the foregoing, Attorney Sembrot
concluded that an agreement must have been reached between the
Commonwealth and Maner to avoid sentencing in these cases and counsel
raised a Brady violation in Appellant’s PCRA petition for the Commonwealth’s
failure to disclose the existence of this alleged plea agreement.
At the subsequent evidentiary hearing, former first ADA Graff testified
that he was aware that Charles Maner had two felony drug cases pending
when he testified at Appellant’s first trial and that Maner had pled guilty in
exchange for a sentence that would be “no worse than a county sentence.”
N.T. PCRA Hearing, 4/13/12, at 10-15. However, the reason for the plea
negotiated sentence was that Maner was an informant who “was setting up
drug dealers all over the place, and we expected him to continue to do that.”
Id. at 18. ADA Graff explained that he never turned over the plea agreement
to Attorney Keenheel because it was negotiated and entered into four months
before the shooting happened, so he did not think that its existence was
relevant to Appellant’s case. Id. at 15-19.
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ADA Graff conceded that Maner was never sentenced, but denied that
this inaction was the result of an agreement in Appellant’s case. Id. at 41,
93. Instead, he explained that Maner was not sentenced because he fled to
Florida upon his release on bail. Id. at 37. A bench warrant was issued for
his arrest, but Maner was mistakenly transported from Florida to testify
against Appellant only at a grand jury proceeding in 2006. Id. While he was
here for the grand jury proceeding, the Commonwealth tried to serve the
outstanding warrants for the drug sentencing cases. Id. at 37-39. However,
attempts were unsuccessful because they did not use the Interstate Compact
Act properly.8 Id.; see also Order, 9/6/06 (vacating the service of the
warrants without prejudice to be reissued in the future).
ADA Graff left the district attorney’s office in 2009 and was unsure why
Maner was never brought back for sentencing on the outstanding drug cases.
Id. While he had no specific recollection of what happened, he agreed that
he probably did not pursue Maner once he finished serving his sentence in
Florida because he had assisted with the prosecution of Appellant. Id. at 90-
94. Therefore, ADA Graff thought he would “pay him his dues” by ignoring
the pending charges. Id. The original PCRA court found ADA Graff’s
testimony credible and denied Appellant’s Brady claim on the grounds that
____________________________________________
8A person who is summoned from out-of-state to appear before the court on
another matter cannot have outstanding warrants served upon him. See 42
Pa.C.S. § 5979.
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Appellant had not proven that Maner was offered a deal in exchange for his
testimony. See PCRA Court Opinion, 6/26/12, at 15-16.
Almost two years later, and before the start of Appellant’s re-trial,
Charles Maner appeared for sentencing on the pending drug charges. At
Maner’s sentencing hearing, ADA Graff reiterated the decision-making process
he testified to at Appellant’s PCRA hearing, explaining that the delay in
sentencing was due to his intention to “let [the cases] disappear and go away”
after Maner testified against Appellant. See N.T. Sentencing Hearing,
4/22/14, at 19. While the plea agreement was based on information Maner
provided on other drug dealers, after he testified against Appellant, ADA Graff
decided on his own that he wanted to show Maner his appreciation by making
these two cases go away. Id. at 17. Maner also testified at the hearing,
consistent with the testimony of ADA Graff, that he was not offered anything
in exchange for his testimony against Appellant. It was only after his
testimony was completed, and he inquired about his pending drug cases, that
ADA Graff told him to return to Florida and not worry about the cases. The
sentencing court found that an agreement between the Commonwealth and
Maner was entered into after he testified against Appellant, and dismissed the
charges with prejudice. Id. at 41-43.
Based upon our review of the certified record in this matter, we discern
no error on the part of the PCRA court in concluding that Appellant failed to
prove the existence of an agreement between the Commonwealth and Charles
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Maner in exchange for his testimony against Appellant. To the extent that
any tacit or express agreements between Maner and ADA Graff existed, they
preceded the commission of Appellant’s crimes and were related to Maner’s
activity as a confidential informant in unrelated drug cases. There is support
in the record for that position based on ADA Graff’s testimony at two separate
hearings, which the original PCRA court and a separate sentencing court
deemed credible. Appellant counters that he is entitled to relief because
Commonwealth v. Smith, 615 A.3d 321 (Pa. 1992), presents a contrary
result in a “scenario [that] is identical to the facts herein.” Appellant’s brief
112-13.
In Smith, the defendant was convicted of murdering a woman and her
children, but was granted a new trial based upon the erroneous admission of
hearsay. After the award of the new trial, Smith discovered that the
Commonwealth deliberately withheld material exculpatory evidence.
Specifically, the prosecutor intentionally did not inform the defendant about a
plea agreement that it reached with its chief witness, who had actually lied on
the witness stand when he denied that the Commonwealth had promised him
favorable treatment in return for his testimony. Furthermore, the district
attorney deliberately withheld physical evidence that he knew was exculpatory
to the defendant because it supported the defendant’s theory of the case.
Indeed, when a police officer testified about the existence of the evidence, the
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prosecutor presented testimony from other police witnesses suggesting that
the first officer was fabricating his testimony.
The Smith Court characterized the actions of the district attorney as
egregious and clearly undertaken in bad faith. It discharged the defendant
and ruled that “the double jeopardy clause bars retrial following intentional
prosecutorial misconduct designed to secure a conviction through the
concealment of exculpatory evidence.” Id. at 322. It concluded that, when
the record demonstrates the presence of “prosecutorial misconduct
undertaken in bad faith to prejudice or harass the defendant,” as opposed to
“prosecutorial error,” double jeopardy prevents a second trial because there
is a “breakdown of the integrity of the judicial proceeding[.]” Id. at 324.
Under Smith, discharge is warranted only when “the conduct of the
prosecutor is intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial.” Id. at 325.
In this case, the prosecution’s actions did not come close to the type of
clearly egregious misconduct that occurred in Smith. Unlike in Smith, no
agreement existed between the Commonwealth and Charles Maner for his
testimony. Therefore, the Commonwealth did not suborn perjury when it
allowed Maner to testify that he had not been offered anything in exchange
for his testimony. The only agreement that existed was negotiated and
entered into before Appellant committed his crimes. Regardless of whether
the Commonwealth should have informed defense counsel of the existence of
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this prior agreement, this “prosecutorial error” was not directly linked to
Appellant’s case. Therefore, it did not amount to a breakdown in the judicial
proceeding. While the jury was not aware of the specific parameters of this
plea agreement, the jury was told about Maner’s extensive criminal history
and cooperation with the Commonwealth in the past. Since a double jeopardy
motion would have been unsuccessful, counsel was not ineffective for failing
to file one. See Commonwealth v. Spotz, 896 A.2d at 1191, 1222 (Pa.
2006). Accordingly, Appellant’s tenth claim is without merit.
XI. Cumulative prejudice
In his final allegation of error, Appellant raises a cumulative prejudice
claim, contending that all of the alleged instances of ineffectiveness asserted
in his brief, when viewed together, render an even stronger case that he
should be granted a new trial. See Appellant’s brief at 120-25. The PCRA
court denied Appellant’s claim of cumulative effect based on its findings that
none of Appellant’s individual claims warranted relief. See PCRA Opinion at
97.
Our Supreme Court has recognized that “no number of failed
[ineffectiveness] claims may collectively warrant relief if they fail to do so
individually.” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)
(quoting Commonwealth v. Washington, 927 A.2d 586, 617 (Pa. 2007)).
However, our Supreme Court has clarified that this principle applies to claims
that fail because of a lack of merit or arguable merit. Commonwealth v.
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Sattazahn, 952 A.2d 640, 671 (Pa. 2008). When the failure of individual
claims is grounded in lack of prejudice, then “[the] cumulative prejudice from
individual claims may be properly assessed in the aggregate.”
Commonwealth v. Hutchinson, 25 A.3d 277, 319 (Pa. 2011).
We have affirmed the denial of Appellant’s first, third, fifth, seventh,
ninth, and tenth claims based on a lack of merit or a finding that Appellant’s
attorney had a reasonable basis for his inaction. Therefore, there is no basis
for a claim of cumulative error with regard to these claims. With regard to
the few claims that we concluded were properly denied based on a lack of
prejudice, we are satisfied that prejudice is lacking on a collective basis
relative to those claims as well. These claims involved the absence of expert
testimony on eyewitness identification, the allegedly inadequate cross-
examination of Detective Fetrow, choice of impeachment for Apollonia Snyder,
and the failure to clarify to whom Tina Ashley was referring when she identified
the shooter’s target. These claims are factually and legally independent,
except for the ones referring to Tina Ashley’s excited utterance. We previously
concluded that Tina Ashley’s excited utterance was but a small piece of the
evidence used to convict Appellant, and that further examination of it could
have actually bolstered Daniek Burns’s eyewitness identification. Viewing
these two issues together does not alter our view that the alleged
ineffectiveness did not change the outcome of the trial.
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Having reviewed all of Appellant’s issues and concluding that none
warrant relief, we affirm the order of the PCRA court denying Appellant’s
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/18/2021
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