Com. v. Walker Shabazz, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KHALIL WALKER SHABAZZ :
:
Appellant : No. 2236 EDA 2020
Appeal from the PCRA Order Entered November 5, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008582-2013
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 11, 2022
Khalil Walker Shabazz appeals from the order dismissing his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). He contends the
PCRA court erred in finding that evidence of Philadelphia Police Detective
Ronald Dove’s corruption did not call the validity of Shabazz’s conviction for
third-degree murder into question. We affirm.
After an investigation, Philadelphia police arrested Shabazz and charged
him with the third-degree murder of Jerry Edwards. Prior to trial, Shabazz filed
a motion for discovery of the personnel and disciplinary files of Detective
Dove. Dove had recently made news after being arrested for helping his
girlfriend flee the city and attempting to influence the investigation of the
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* Former Justice specially assigned to the Superior Court.
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murder of Cesar Vera, where Dove’s girlfriend was the primary suspect.
Shabazz asserted these files were relevant because Detective Dove had been
involved at several points in the investigation of Jerry Edwards’s death.
The trial court held a hearing and subsequently denied the motion.
Shabazz proceeded to a bench trial, where the trial court found Shabazz guilty
of third-degree murder, possessing an instrument of crime, carrying a firearm
without a license, and carrying a firearm on public streets or property in
Philadelphia. Shabazz filed a timely direct appeal to this Court challenging,
among other things, the trial court’s denial of his request for Detective Dove’s
personnel and disciplinary files.
A panel of this Court affirmed Shabazz’s judgment of sentence. On April
24, 2018, the Supreme Court of Pennsylvania denied Shabazz’s petition for
allowance of appeal.
On July 22, 2019, Shabazz filed the instant, timely, first PCRA petition.1
In his petition, Shabazz claimed that he had discovered more evidence of
misconduct by Detective Dove:
a. Committed misconduct while investigating the July 2010
shoot[ing] death of Leslie Delzingaro;
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1 Shabazz’s judgment of sentence became final on July 23, 2018, 90 days
after April 24, 2018, when his right to seek review in the Supreme Court of
the United States expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating a judgment
becomes final at the expiration of time for seeking review in the Supreme
Court of the United States); U.S.Sup.Ct.R. 13(1) (stating that a petition for
writ of certiorari must be filed within 90 days of the date of the judgment). To
be timely, he had to file his PCRA petition before July 23, 2019. See 42
Pa.C.S.A. § 9545(b)(1).
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b. Withheld additional suspects in the May 2012 murder of
Melanie Colon; and
c. [W]as fired for, and convicted of his misconduct in the
September 2013 murder of Cesar Vera.
PCRA Petition, 7/22/19, at 5. It was Shabazz’s position that he was
entitled to relief on the basis of this “after-discovered evidence.” The
Commonwealth filed a motion to dismiss the PCRA petition, and Shabazz
filed a response to the Commonwealth’s motion. After reviewing these
documents, the PCRA court dismissed Shabazz’s PCRA petition without
a hearing, noting that the issues raised in the petition were without
merit and had been previously litigated. Shabazz then filed this timely
appeal.
On appeal, Shabazz argues that his petition raised sufficient allegations
to require a hearing before the petition could be dismissed on the merits.
Specifically, he contends that evidence of Detective Dove’s “habit, pattern,
and practice of manipulating and withholding evidence” is sufficient to
establish his right to a new trial. Appellant’s Brief, at 10.
We review the order dismissing Shabazz’s PCRA petition to examine
whether the PCRA court’s determinations are supported by the record and the
court’s decision is free of legal error. See Commonwealth v. Shaw, 217
A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the
factual findings of the PCRA court and will not disturb those findings unless
they have no support in the record, we apply a de novo standard of review to
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the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147
A.3d 915, 919 (Pa. Super. 2016).
Further, the PCRA court was not required to hold an evidentiary hearing
prior to dismissing Shabazz’s petition. See Shaw, 217 A.3d at 269. A PCRA
court can decline to hold a hearing if there is “no genuine issue concerning
any material fact, the petitioner is not entitled to PCRA relief, and no purpose
would be served by any further proceedings.” Id. When faced with a claim
that a PCRA court erred in failing to hold a hearing, we examine each
challenged issue to determine whether the PCRA court erred in its conclusion
that there were no genuine issues of material fact in controversy. See
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
To establish a right to relief on his theory of “after-discovered evidence,”
Shabazz was required to demonstrate the evidence at issue:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citation omitted).
The “after-discovered” evidence test is conjunctive, meaning that a failure to
establish one prong is a failure of the entire test. See id. Moreover, “after-
discovered evidence” requires the petitioner to prove all four prongs by a
preponderance of the evidence. Commonwealth v. Foreman, 55 A.3d 532,
537 (Pa. Super. 2012).
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Here, the PCRA court focused on the third and fourth prongs of the test.
The court noted that Shabazz had previously litigated his claim that Detective
Dove’s misconduct was relevant in this prosecution. See Opinion on Appeal,
2/4/2020, at 8. It had reviewed these claims prior to trial and concluded that
Shabazz had failed to establish any relevance to the issues in his prosecution.
See id.We acknowledge that Shabazz has produced more evidence of Detective
Dove’s misconduct than he had before trial. However, even with this new
evidence, Shabazz cannot establish sufficient relevance to this case. While
“relevance” is not an explicit requirement of the after-discovered evidence
test, it is clearly implied in the test’s final requirement that the evidence would
likely cause a different result after a re-trial. For example, Shabazz could have
recently learned that the Omicron variant of the Covid-19 virus can infect
vaccinated people. However, this fact clearly would have no relevance to his
trial and could not possibly cause a different result in a re-trial.
Similarly, even though it is clear by now that Detective Dove had
integrity issues, Shabazz has still failed to demonstrate any likelihood that
Dove improperly influenced this investigation. Shabazz has not alleged any
motive like the motive to protect Dove’s girlfriend in the Vera investigation.
Further, the evidence cited by Shabazz all involves Dove attempting to shield
possible acquaintances from prosecution instead of creating evidence to
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falsely accuse someone. Perhaps most importantly, Detective Dove did not
testify at Shabazz’s trial.
Despite this, Shabazz contends the after-discovered evidence
establishes that Detective Dove had a habit of “manipulating and withholding
exculpatory evidence[.]” Appellant’s Brief, at 14. “Evidence of his misconduct
would have raised an inference that the evidence that he collected and
produced is suspect, at best.” Id., at 13. Shabazz contends that as evidence
of Detective Dove’s “habit, pattern and practice[,]” this evidence is admissible
under Pa.R.E. 406. Id., at 9-10.
Initially, we note that contrary to Shabazz’s assertion, this argument,
without more, is simply a long-winded way of saying he would use the
evidence to impeach Commonwealth witnesses. Impeachment is an attack on
a witness’s credibility. See Pa.R.E. 607(a). Shabazz’s arguments are only
relevant to the credibility of Detective Dove and the detectives that were
associated with him during his brief involvement in the investigation. As a
result, this argument would fail both the third and fourth prong of the after-
discovered evidence test.
Admittedly, Detective Dove did not testify in this case. But the
unsupported claim that Detective Dove withheld exculpatory evidence could
be used for no other purpose than to impeach the other detectives who did
testify. Further, as the Commonwealth notes, Detective Dove’s involvement
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in this investigation was minimal and in all relevant respects, corroborated
first-hand by other detectives:
The Commonwealth did not call Detective Dove at trial in this case
as he was not a necessary witness. His role in the investigation of
this case was limited to being present, with other detectives, when
two witnesses gave statements, and preparing two search
warrants that defendant himself conceded did not yield any
evidence. (N.T. 3/4/15, 5; N.T. 11/13/15, 170, 175-179).
Commonwealth’s Brief, at 12-3.
Shabazz counters by arguing that Detective Dove’s misconduct is
relevant to the inculpatory statement made by Shabazz’s brother, Sameer, to
detectives. See Appellant’s Brief, at 13-4. Shortly after the murder, Sameer
gave a statement to detectives, indicating that Shabazz had shot Edwards
while they were arguing about Shabazz’s car. At trial, Sameer stated that he
did not recall making that statement and alleged that Detective Dove and
Detective Donald Marano had mistreated him during his interview. See N.T.,
Non-Jury Trial, 11/13/15, at 90-4. However, two years earlier, Sameer only
testified that Detective Marano had been “disrespectful” towards him during
the interview. N.T., Preservation Hearing, 7/30/13, at 31-2. He did not
highlight any malfeasance by Detective Dove.
Furthermore, none of the evidence cited by Shabazz sheds any light on
Detective Dove’s conduct while interviewing people during an investigation.
Instead, the evidence shows that Detective Dove hid information from his
fellow detectives and misdirected them during investigations. None of the
evidence is therefore directly relevant to the conditions of Sameer’s interview.
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Under these circumstances, we cannot conclude that evidence of
Detective Dove’s malfeasance in totally unrelated cases would have affected
the weight the trial court gave to Sameer’s recorded statement, let alone the
verdict. See Foreman, 55 A.3d at 537-8. As Shabazz has failed to establish
that evidence of Detective Dove’s prior malfeasance and subsequent discipline
would have compelled a different verdict, we affirm.
Order affirmed.
President Judge Emeritus Stevens joins the memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2022
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