Com. v. Johnson, R.

J-S59018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAHEEM JOHNSON
Appellant No. 954 EDA 2015
Appeal from the PCRA Order March 19, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004848-2002
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 07, 2016
Appellant, Raheem Johnson, appeals from the order entered on March
19, 2015, dismissing his first petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
On direct appeal, a prior panel of this Court recited the facts of this
case, as summarized by the trial court, as follows:
Chester City police responded to a call of shots fired in the
vicinity of 6th and Lloyd Streets on October 29, 2000 in the
early morning hours. Upon arrival, the police observed two
motionless bodies on the ground. Both had gunshot
wounds. The bodies were located close to units 1101 and
1103 of the Dorian Court Apartments in the City of Chester.
Paramedics arrived and observed that one of the victims
was still breathing. This man, Juan Perez, received
emergency care at the scene and was transported to
Crozer-Chester Medical Center. Juan Perez survived several
hours before succumbing to the gunshot wound to his head.
The second individual, Jose Perez, was declared dead at the
scene. Two bullets were recovered, one from each of the
victims. An expert in the field of firearms and tool mark
*Former Justice specially assigned to the Superior Court.
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examination testified that the bullets came from the same
weapon.
The medical examiner testified Jose Perez sustained a single
gunshot wound to the back of his head. The gunshot wound
was the sole cause of his death and a paramedic on the
scene pronounced him dead at 1:21 a.m. on [October] 29,
2000. Juan Perez sustained a single gunshot wound to the
front of his forehead that penetrated his skull. Although
unconscious, Juan Perez remained alive until 8 p.m. on
October 29, 2000. The cause of death was the single
gunshot wound to his forehead.
Several eyewitnesses saw Appellant murder the Perez
brothers. Craig Gibson testified that he lived in the vicinity
of the shooting with his girlfriend. He knew both Appellant
and the Perez brothers before this incident. He saw the
Perez brothers, Appellant, and a few people he knew by
nicknames as he walked toward his girlfriend’s home in the
early morning hours of October 29, 2000. He stopped to
watch the young men engage in ‘play fighting.’ Next, he
saw Appellant point a gun at Juan Perez’s head and fire a
single gunshot into the front of his head. Juan Perez fell to
the ground. Jose Perez went to the ground and hugged his
brother and pleaded with Appellant for his brother’s life
saying, ‘Please don’t shoot my brother. He’s drunk.’
Appellant fired a second shot, this time at Jose. Gibson
testified that after the second shot was fired, Jose landed on
top of his brother. The police found the brothers in this
position when they arrived a few minutes later. Gibson told
the jury that he witnessed Appellant run from the area after
the shooting took place.
Shante Powell testified on behalf of the Commonwealth.
She had known Appellant for seven or eight years before
the killings and she witnessed the events of October 29,
2000. During the evening of October 28, 2000, Powell was
visiting with friends in the Dorian Court Apartments.
Sometime after midnight, she heard people arguing outside
the apartment and looked out the window to investigate the
disturbance. She saw Appellant, two individuals she knew
by nicknames and the Perez brothers. Juan Perez was on
the ground and Appellant stood over him and ‘was just
hollering at him.’ She could not distinguish the words
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uttered by Appellant, but she saw him point a gun at Juan
and fire a single shot. . . . After watching Appellant shoot
Juan, Powell moved away from the window and sat on the
couch. Five or ten seconds after hearing the first gunshot,
she heard a second gunshot. Next, she heard a car drive
away and then looked outside and saw the motionless
bodies of the Perez brothers. Jose Perez had his arm
around his brother Juan. A few seconds later, the doorbell
to the apartment rang and Appellant entered the apartment
and began to change his clothes. Powell observed blood on
Appellant’s clothes and saw him wipe the clothes with
bleach and put them in a bag. Appellant stayed in the
apartment until six o’clock in the morning on the 29 th and
he left the apartment with his clothes in the bag.
Brian Doukas testified on behalf of the Commonwealth and
told the jury that he spoke to Appellant in August or
September 2002 while they were inmates at Chester County
Prison. Appellant admitted to Doukas that he murdered two
brothers with a gun near an apartment building. Appellant
made the admission shortly after his arraignment on the
murder charges. When he returned to the Chester County
Prison, he asked Doukas if he knew of a good criminal
defense attorney, one who handles homicide cases. This
inquiry led to a discussion about the facts of the homicides.
Appellant told Doukas about a confrontation involving the
victims and some friends which occurred earlier in the
evening of the murders. Later that evening[,] Appellant
admitted that he shot one of the brothers involved in the
confrontation and then shot the second brother because he
was a witness. When asked to explain the reason for the
shooting, Appellant explained that ‘nobody messed with him
and his crew or him and his, his boys.’ Appellant also
admitted that after the shooting, he left the scene and
police never recovered the gun.
* * *
The day after the murders, Appellant met with his girlfriend
Crystal Horsey, and admitted to her that he killed the Perez
brothers because they ‘underestimated him.’
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Commonwealth v. Johnson, 919 A.2d 972 (Pa. Super. 2007) (unpublished
memorandum) at 3-5, citing Trial Court Opinion, 6/19/2006, at 2-5.
On October 1, 2004, a jury convicted Appellant of two counts each of
first-degree murder, aggravated assault, and recklessly endangering another
person (REAP) and one count of possession of an instrument of crime (PIC).1
The jury was unable to reach a unanimous decision regarding Appellant’s
sentence. As a result, the trial court imposed consecutive terms of
life-imprisonment for the murder convictions. The trial court also imposed a
consecutive term of one to five years’ incarceration for PIC, but no additional
penalty for the aggravated assault and REAP convictions. On January 17,
2007, this Court affirmed Appellant’s judgment of sentence. Id. On August
10, 2007, our Supreme Court denied further review. Commonwealth v.
Johnson, 929 A.2d 644 (Pa. 2007).
On January 28, 2008, Appellant filed a timely pro se PCRA petition.
The PCRA court appointed counsel for Appellant. Counsel sought to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
On January 20, 2009, the PCRA court denied appointed counsel’s petition to
withdraw and directed him to file an amended PCRA petition. Counsel,
however, filed a second Turner/Finley petition to withdraw from
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1
18 Pa.C.S.A. §§ 2502(a), 2702, 2705, and 907, respectively.
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representation. By order entered on December 29, 2009, the PCRA court
dismissed Appellant’s PCRA petition. Thereafter, Appellant filed a timely pro
se notice of appeal. On June 11, 2013, this Court vacated the PCRA court’s
order denying relief and remanded the case for further proceedings.
Appellant obtained new PCRA counsel and she subsequently filed an
amended PCRA petition on Appellant’s behalf. On October 10, 2014, the
PCRA court held an evidentiary hearing on the amended PCRA petition. On
March 19, 2015, the PCRA court denied Appellant relief. This timely pro se
appeal resulted.2
On appeal, Appellant raises the following pro se issues for our review:
I. The Commonwealth violated Appellant’s Fifth, Sixth,
and Fourteenth Amendment right[s] by intentionally
failing to disclose the existence of an
arrangement/agreement made to [a] key
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2
On April 1, 2015, Appellant filed a timely pro se notice of appeal despite
his continued representation by counsel. The PCRA court ordered Appellant
to file a concise statement pursuant to Pa.R.A.P. 1925(b). Appellant
complied timely pro se. The PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on July 15, 2015. Thereafter, by per curiam order
entered on August 27, 2015, this Court directed the PCRA court to conduct
an on-the-record determination as to whether Appellant wished to proceed
pro se and whether Appellant's waiver of counsel was knowing, intelligent
and voluntary pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998). On October 2, 2015, following a hearing, the PCRA court entered an
order permitting PCRA counsel to withdraw and allowing Appellant to
represent himself and proceed pro se. We may now address Appellant’s
claims. See Commonwealth v. Figueroa, 29 A.3d 1177, 1183 (Pa. Super.
2011) (following a remand for a Grazier hearing, if an appellant waives his
right to counsel before both the PCRA court and this Court, we may address
the merits of Appellant's remaining PCRA claims).
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Commonwealth witness in exchange for his
cooperation and testimony inculpating Appellant.
II. Appellant was denied his right[s] under Article 1 § 9
of the Constitution of the Commonwealth of
Pennsylvania and the Sixth Amendment to the
Constitution of the United States of America to
effective assistance of counsel in that counsel: (a)
failed to object to the prosecutor speaking on facts
outside of the record and suggesting he [knew]
something the jury [did not] and (b) failed to object
to the prosecutor’s improper and prejudicial closing
argument.
III. Appellant was denied his right[s] under Article 1 § 9
of the Constitution of the Commonwealth of
Pennsylvania and the Sixth Amendment to the
Constitution of the United States of America to
effective assistance of counsel in that counsel failed to
obtain and use available evidence to impeach key
Commonwealth witnesses.
IV. Appellant was denied his right[s] under Article 1 § 9
of the Constitution of the Commonwealth of
Pennsylvania and the Sixth Amendment to the
Constitution of the United States of America to
effective assistance of counsel in that trial and
[appellate] counsel failed to properly preserve and
raise a meritorious [appellate challenge to] the trial
court[’s abuse of discretion] in failing to grant
Appellant a 24[-]hour continuance to retain private
counsel of [Appellant’s] choice.
Appellant’s Brief at 3 (complete capitalization omitted).
Our standard of review over the denial of a PCRA petition is
well-settled. “As a general proposition, we review a denial of PCRA relief to
determine whether the findings of the PCRA court are supported by the
record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79,
86–87 (Pa. Super. 2016) (citation and brackets omitted). “A PCRA court's
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credibility findings are to be accorded great deference, and where supported
by the record, such determinations are binding on a reviewing court. Id.In his first issue presented, Appellant contends the Commonwealth
failed to disclose a deal it had with Craig Gibson, wherein Gibson agreed to
testify for the Commonwealth against Appellant in exchange for favorable
sentencing treatment in five open cases (for narcotics delivery and simple
assault) that were pending against Gibson at the time of Appellant’s trial.
Id. at 12-13. Appellant avers Gibson was facing a maximum of 34 years of
incarceration, but only received a county sentence of less than one year of
imprisonment. Id. at 14. Accordingly, Appellant argues the Commonwealth
violated Brady v. Maryland, 373 U.S. 83 (1963) “by intentionally
suppressing the existence, nature and scope of the deal [Gibson] received.”
Id. at 7. At the PCRA evidentiary hearing, Appellant presented the notes of
testimony from Gibson’s sentencing hearing. From those notes of
testimony, Appellant relies on the prosecutor’s statements that Gibson “lived
up to his arrangement with the Commonwealth” and “urg[ed]” the
sentencing judge to give “consideration” for Gibson’s testimony in
Appellant’s case as “a pivotal factor[.]” Id. at 14, citing N.T. Gibson’s
Sentencing Hearing, 10/12/2004, at 10-12. Appellant asserts that “[i]f
there was in fact no [a]rrangement as the [PCRA] court concluded, [t]hen it
was impossible for Gibson to have lived up to the something that didn’t
exist.” Id. at 15.
Our Supreme Court previously determined:
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Under Brady, the prosecution's failure to divulge
exculpatory evidence is a violation of a defendant's
Fourteenth Amendment due process rights. “[T]o establish a
Brady violation, a defendant is required to demonstrate
that exculpatory or impeaching evidence, favorable to the
defense, was suppressed by the prosecution, to the
prejudice of the defendant.” Commonwealth v. Gibson,
951 A.2d 1110, 1126 (Pa. 2008).
The burden of proof is on the defendant to demonstrate that
the Commonwealth withheld or suppressed evidence. The
United States Supreme Court has held, “[T]he prosecutor is
not required to deliver his entire file to defense counsel, but
only to disclose evidence favorable to the accused that, if
suppressed, would deprive the defendant of a fair trial.”
United States v. Bagley, 473 U.S. 667, 675 (1985)
(footnote omitted).
* * *
“To satisfy the prejudice inquiry, the evidence suppressed
must have been material to guilt or punishment.” Gibson,
951 A.2d at 1126–1127. […M]ateriality extends to evidence
affecting the credibility of witnesses, rather than merely to
purely exculpatory evidence. See Giglio v. United States,
405 U.S. 150, (1972) (“When the ‘reliability of a given
witness may well be determinative of guilt or innocence,’
nondisclosure of evidence affecting credibility falls within
this general rule.”). Moreover, [our Supreme Court has]
held that the protection of Brady extends to the
defendant's ability to investigate alternate defense theories
and to formulate trial strategy. See Commonwealth v.
Green, 640 A.2d 1242, 1245 (Pa. 1994) (holding that
courts must “consider any adverse effect that the
prosecutor's failure to disclose might have had on not only
the presentation of the defense at trial, but the preparation
of the defense as well.”). “[F]avorable evidence is material,
and constitutional error results from its suppression by the
government, if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley,
514 U.S. 419, (1995) (internal quotation marks omitted).
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As to Brady claims advanced under the PCRA, a defendant
must demonstrate that the alleged Brady violation “so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.”
See Commonwealth v. Copenhefer, 719 A.2d 242, 259
(Pa. 1998). […T]he United States Supreme Court has held
that “[t]he mere possibility that an item of undisclosed
information might have helped the defense, or might have
affected the outcome of the trial, does not establish
‘materiality’ in the constitutional sense.” United States v.
Agurs, 427 U.S. 97, 109–110 (1976).
Commonwealth v. Cam Ly, 980 A.2d 61, 75–76 (Pa. 2009).
At the PCRA hearing, Appellant conceded that defense counsel told
Appellant of a deal between the Commonwealth and Gibson for Gibson’s trial
testimony against Appellant. N.T., 10/10/2014, at 70. Appellant testified
that defense counsel did not give him specifics of that deal. Id. Trial
counsel for Appellant testified that he had only one conversation with the
Commonwealth wherein the prosecutor agreed that he “would advise [the
sentencing judge] of Mr. Gibson’s cooperation [] during [Appellant’s] trial.”
Id. at 9. At Appellant’s trial, Gibson testified that the prosecutor would
appear on his behalf at his sentencing hearing to tell the sentencing judge
about his cooperation in Appellant’s trial. N.T., 9/28/2004, at 56-57.
However, Gibson also testified that there were no promises regarding the
actual sentence to be imposed upon him and, ultimately, his sentencing
judge would decide upon a term of imprisonment. N.T., 9/27/2004, at 211.
The Commonwealth, in its closing argument, stated that it would tell the
sentencing judge in Gibson’s cases that he was cooperative, but that the
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ultimate sentence Gibson was to receive was to be decided by the judge.
N.T., 9/30/2004, at 39.
Upon review of the notes of testimony from Gibson’s sentencing
hearing, the prosecutor stated, in full:
Thank you, Your Honor. Your Honor, I just finished a
prosecution of the case of Commonwealth v. [R]aheem
Johnson, at 4848 of ’02. This was a double homicide
occurring in October of 2000. It actually took two years for
detectives involved to amass sufficient evidence to make an
arrest. The defendant in that case, Your Honor, was quite a
formidable, I’ll say had quite the reputation in Chester. And
it wasn’t actually until he was arrested on an unrelated
case, did the case actually break. The case broke, in part,
and substantially in part, because of a statement given by
[] Mr. Gibson. He was cooperative at that time, for I’ll say
consideration that a period he was entitled to. But certainly
disproportionate to the risk that he put himself at by virtue
of his statement and his cooperation with the
Commonwealth back in September of 2002. As a result of
that statement and another statement the Commonwealth
received – in fact, we received numerous statements once
the defendant in that case was incarcerated on other
charges. Mr. Gibson came forward, other people came
forward, an arrest was eventually made. But when the case
came to trial, Your Honor, we had three witnesses who were
present at the scene who were going to testify. One of the
witnesses was actually under a material witness warrant.
He was on bail, and we expected him to appear at trial
because he was on a monthly status call, and he appeared
with his attorney each month. However at the time of trial,
he was a failure to appear. There is a warrant outstanding
for him at the present time. I intend to prosecute him, or
at least get, get him on a contempt action when he’s
eventually arrested. But Mr. Gibson, in the
Commonwealth’s opinion not only lived up to his
arrangement with the Commonwealth to testify, and testify
truthfully. But he was not intimidated at the time of trial
b[y] people who came into the courtroom. And at one point
the courtroom had a substantial number of people, friends
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of [Appellant]. Who I found to be there for one purpose,
and one purpose only, and that was to intimidate [Mr.
Gibson]. Because after he testified, they left. He wasn’t
intimidated. He was – he held true to his statement. And,
for that reason, Your Honor, the Commonwealth is
suggesting to the [c]ourt that he was a pivotal factor in that
prosecution, and he should [get] consideration for that.
And we would urge you to do so, Your Honor. Thank you.
N.T., 10/12/2004, at 10-11 (original brackets omitted).
We conclude there is no merit to Appellant’s first claim. At Appellant’s
trial, Gibson testified that the Commonwealth agreed to tell Gibson’s
sentencing court about his cooperation in this matter, but would not
recommend a specific sentence. Thereafter, at Gibson’s sentencing hearing,
the prosecutor told the judge that Gibson cooperated with the
Commonwealth in Appellant’s case, highlighting the adversity Gibson faced
in doing so, and asked the judge to consider that factor when imposing
Gibson’s sentence. The Commonwealth, however, did not suggest a specific
sentence. The Commonwealth did not recommend a mitigated or reduced
sentence for Gibson. Appellant conceded that he knew Gibson agreed to
testify for the Commonwealth prior to trial and that Gibson’s potential for
bias was placed before the jury. Hence, there is no indication that the
Commonwealth suppressed any evidence. Thus, Appellant has not shown
that the truth-determining process was undermined or that no reliable
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adjudication of guilt or innocence could have taken place. Accordingly, there
is no merit to Appellant’s first claim.3
Appellant’s next three claims allege that trial counsel was ineffective.
We review ineffective assistance of counsel claims under the following
standard:
We begin with the presumption that counsel rendered
effective assistance. To obtain relief on a claim of ineffective
assistance of counsel, a petitioner must rebut that
presumption and demonstrate that counsel's performance
was deficient, and that such performance prejudiced him.
* * *
Specifically, a petitioner must show: (1) the underlying
claim is of arguable merit; (2) no reasonable basis existed
for counsel's action or inaction; and (3) counsel's error
caused prejudice such that there is a reasonable probability
that the result of the proceeding would have been different
absent such error.
A claim of ineffectiveness will be denied if the defendant's
evidence fails to meet any one of these prongs.
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3
To the extent that Appellant argues that Gibson’s sentencing hearing
transcripts constitute newly discovered evidence under the PCRA, he is not
entitled to relief on that basis either. A petitioner may be eligible for PCRA
relief if he pleads and proves that his conviction or sentence resulted from
“[t]he unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the
trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). Here,
however, Gibson received a sentence wholly consistent with the agreement
offered by the Commonwealth. Thus, the notes from Gibson’s sentencing
hearing do not prove there was previously unavailable, exculpatory evidence
that would have changed the outcome of Appellant’s trial.
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Commonwealth v. Oliver, 128 A.3d 1275, 1284 (Pa. Super. 2015)
(internal citations and quotations omitted).
In his second issue presented, Appellant claims trial counsel failed to
object to the prosecutor’s closing argument when the Commonwealth
alluded to facts outside of the record and personally vouched for the truthful
character of the Commonwealth’s witnesses. Appellant’s Brief at 18-24.
More specifically, Appellant claims the prosecutor “suggested that the
witnesses wouldn’t risk testifying unless it was the truth” and submitted that
Appellant caused fear among the witnesses. Id. at 18-19. In turn,
Appellant avers there was no trial evidence to support the PCRA court’s
determination that “[t]he violent and hardened lifestyle that came along with
living in the witnesses’ community was established during trial as a part of
the record.” Id. at 19, citing PCRA Court Opinion, 7/15/2015, at 7.
Appellant also claims the prosecutor “spoke on facts outside the record,”
when the Commonwealth stated, in closing, that although Doukas’
recollection of the date on which his conversation with Appellant in prison
took place “was wrong by a month,” Doukas “wasn’t wrong about the
conversation.” Id. at 20.
This Court has previously determined:
It is well[-]settled that a prosecutor has considerable
latitude during closing arguments and his arguments are
fair if they are supported by the evidence or use inferences
that can reasonably be derived from the evidence. Further,
prosecutorial misconduct does not take place unless the
unavoidable effect of the comments at issue was to
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prejudice the jurors by forming in their minds a fixed bias
and hostility toward the defendant, thus impeding their
ability to weigh the evidence objectively and render a true
verdict.
In determining whether the prosecutor engaged in
misconduct, we must keep in mind that comments made by
a prosecutor must be examined within the context of
defense counsel's conduct. It is well[-]settled that the
prosecutor may fairly respond to points made in the defense
closing. Moreover, prosecutorial misconduct will not be
found where comments were based on the evidence or
proper inferences therefrom or were only oratorical flair.
* * *
It is settled that it is improper for a prosecutor to express a
personal belief as to the credibility of the defendant or other
witnesses. However, the prosecutor may comment on the
credibility of witnesses. Further, a prosecutor is allowed to
respond to defense arguments with logical force and vigor.
If defense counsel has attacked the credibility of witnesses
in closing, the prosecutor may present argument addressing
the witnesses' credibility.
Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (internal
citations and quotations omitted).
Upon review of the notes of testimony from trial, we conclude that the
prosecutor’s comments were fair response to trial counsel’s closing
argument. During closing argument, defense counsel attacked the credibility
of the Commonwealth’s witnesses. See generally N.T., 9/30/2004, at 17-
28; see also id., at 28 (“[D]id the demeanor of Crystal Horzee, Brian
Doukas, Craig Gibson, and Shante Powell, did that instill a whole lot of
confidence within you that they were being truthful during the course of this
trial? I suggest not, ladies and gentlemen.”). Additionally, at trial, counsel
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for Appellant questioned Doukas at length regarding the timing of the prison
conversation between the two men, suggesting they were either not
imprisoned at the same time or housed in different, secured sections of the
prison. Defense counsel highlighted this again during closing argument. Id.
at 25-26. In response, the Commonwealth gave record-supported reasons
to rebut these assertions. We agree with the PCRA court that the
Commonwealth did not engage in prosecutorial misconduct. Accordingly,
there is no merit to Appellant’s claim that trial counsel was ineffective for
failing to object to the Commonwealth’s closing remarks.
In his third allegation, Appellant claims trial counsel was ineffective for
failing to obtain evidence to impeach Gibson, Doukas, and Powell. We will
examine the argument regarding each witness individually.
First, we examine Appellant’s ineffective assistance of counsel claim in
relation to Gibson. At trial, Gibson claimed he saw Appellant every day for a
year and one-half starting in 1998. Appellant’s Brief at 24. Appellant
argues “[a s]entence status sheet from the [D]epartment of [C]orrections
[…] proves Appellant turned himself into custody” during that time period.
Id. “Thus, an investigation would have disclosed that it was impossible for
Gibson to have seen Appellant every day for a year and [one-]half before
the murders which would have directly contradicted Gibson’s testimony[.]”
Id. at 25 (internal quotations omitted).
The PCRA court determined:
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Gibson’s answer was meant to reflect that he knew
[Appellant] and frequently saw [Appellant] in their
neighborhood. This does not take away from the credibility
of the witness. These matters are inconsequential to the
outcome of this case, and are therefore, meritless claims of
ineffective assistance of counsel.
PCRA Court Opinion, 7/15/2015, at 8. Upon review, we agree. Defense
counsel questioned Gibson at length about his relationship with Appellant in
connection with whether Gibson could identify Appellant. Gibson also
testified that he knew Appellant, from growing up in Chester, for “[t]en, 12
years, 13 maybe.” N.T., 9/27/2004, at 189. Appellant has not plead and
proven that the outcome of his trial would have been different had trial
counsel impeached Gibson with evidence of Appellant’s incarceration in the
years preceding the murders.
Next, we examine Appellant’s claim that counsel was ineffective for
failing to impeach Doukas. Appellant argues “[t]he alleged admission [to
Doukas] was made immediately after Appellant returned to prison on
September 13, 2002, after being arraigned on murder charges.” Appellant’s
Brief at 26. Appellant claims he introduced evidence of the physical layout
of the prison that “[p]roved it was impossible for Appellant and Doukas to
have had physical access to each other on the day Doukas very firmly and
specifically testified the alleged admission [was] made.” Id.
At trial, Doukas testified “he was pretty sure” he had a conversation
with Appellant in prison on “either August 9 or August 10” 2002. N.T.,
9/28/2004, at 340, 346. Martin Bennethum, the legal records supervisor at
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Chester County Prison, testified that Appellant was not incarcerated at that
prison until August 27, 2002, making it impossible for the two men to have
had a conversation in early August 2002. N.T., 9/29/2004, at 69-71.
Doukas, however, also testified that the conversation took place on the “day
[Appellant was] arraigned on double homicide charges.” Id. at 322. The
parties stipulated that Appellant was arraigned on September 13, 2002.
N.T., 10/10/2014, at 18. Both men were housed in the same prison block
(H-block) from August 29, 2002 until September 10, 2002. N.T.,
9/29/2004, at 70. They were also in the same cellblock (K-block) from
October 15, 2002 until November 4, 2002. Id. at 74. At the PCRA hearing,
trial counsel testified that his strategy was to impeach Doukas based upon
his inconsistencies in giving different dates on which the conversation may
have taken place. N.T., 10/10/2014, at 20-21. Trial counsel further
testified that Appellant told him it would be difficult, but not impossible, for
the two men to have had a conversation when they were in different
cellblocks. Id. A prison official confirmed this fact. Id. at 103. Because
the conversation could have taken place when the men were in different
cellblocks, counsel confined his efforts to impeach Doukas by highlighting
the inconsistencies in his testimony, including Doukas’ belief that the
conversation took place on September 13, 2002. Id. at 28-32.
The PCRA court determined that trial counsel impeached Doukas by
showing the conversation could not have taken place in August 2002,
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because Appellant had not yet been incarcerated in Chester County. PCRA
Court Opinion, 7/15/2015, at 8-9. We agree. Moreover, at trial, trial
counsel questioned Doukas regarding his extensive criminal history in an
attempt to impeach his credibility. N.T., 9/28/2004, at 333-337. We have
previously determined that counsel cannot be deemed ineffective for failing
to impeach a witness in a particular way, where counsel has impeached the
witness by other means. See Commonwealth v. Solano, 129 A.3d 1156,
1175 (Pa. 2015) (trial counsel did not provide ineffective assistance by
failing to impeach witnesses with evidence of certain prior convictions where
counsel attempted to impeach witnesses by other means on
cross-examination and the Commonwealth had already brought to the jury's
attention that those witnesses had criminal histories); see also
Commonwealth v. Dennis, 715 A.2d 404, 408–409 (Pa. 1998) (holding
counsel not ineffective for failing to impeach witness in one particular way,
where counsel impeached witness in other ways). Hence, we deem this
aspect of Appellant’s third claim meritless.
Next, Appellant claims trial counsel was ineffective for failing to
impeach Powell. Appellant claims Powell was “a vengeful ex-girlfriend”
despite Powell’s testimony at trial “that her mother and Appellant’s mother
held [themselves] out to be cousins.” Appellant’s Brief at 31-32. Appellant
claims counsel was ineffective for failing to question Powell about their
relationship because she had a bias to lie about Appellant at trial. Id.- 18 -
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Upon review of the trial transcript, Powell testified that her mother
and Appellant’s mother claimed they were cousins. N.T., 9/28/2004, at 172.
However, when asked, “Do you know that? What level of cousin?[,]” Powell
responded, “No.” Id. The PCRA court determined these statements were
“not meant to assert that the witness and [Appellant] were actually cousins,
but Ms. Powell had known [Appellant] for a number of years and was able to
identify him on sight.” PCRA Court Opinion, 7/15/2015, at 7-8. The PCRA
court further concluded that “Powell’s credibility with the jury would not
have been affected by whether or not she was actually related to
[Appellant].” Id. at 8. We agree. See Commonwealth v. Copenhefer,
719 A.2d 242, 254 (Pa. 1998)(a petitioner fails to demonstrate that counsel
was unreasonable for declining to pursue a minor inconsistency or that he
was prejudiced thereby). Moreover, defense counsel questioned Powell
extensively about the timing of her statement to police. She denied being
present until two years after the murders and made a statement to police
only after her arrest for assault and other related charges. N.T., 9/28/2004,
at 248-251. Defense counsel also questioned Powell about her criminal
record. Hence, for these additional reasons, counsel cannot be deemed
ineffective because he sought to impeach Powell by other means. See
Solano and Dennis, supra. Accordingly, based on the foregoing reasons,
Appellant’s third claim asserting trial counsel’s ineffectiveness for failing to
impeach Gibson, Doukas, and Powell must fail.
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Finally, Appellant claims ineffective assistance of counsel for failing to
argue on direct appeal that the trial court abused its discretion when it
denied Appellant’s request for a continuance. Appellant’s Brief at 35. He
claims the continuance was necessary “to permit Appellant, who had just
unexpectedly obtained funds from family members, to retain private
counsel, after Appellant [continually] complained about [appointed]
counsel[’s] representation.” Id.
We previously determined:
It is clear that a person charged with a crime has a
constitutional right to the assistance of counsel which
includes the right to a reasonable opportunity to obtain
counsel of his or her own choice. That right, however, is
not absolute. As we stated []:
The desirability of permitting a defendant additional
time to obtain private counsel of his choice must be
weighed against the public need for the efficient and
effective administration of justice. The matter of
continuance is traditionally one within the discretion
of the trial judge, and no prophylactic rule exists for
determining when a denial of a continuance amounts
to a violation of due process. Each case must be
decided by balancing the competing interests, giving
due regard to the facts presented. It is not every
denial of a request for more time that violates due
process even if the party fails to offer evidence or is
compelled to defend without counsel. Contrariwise, a
myopic insistence upon expeditiousness in the face
of a justifiable request for delay can render the right
to defend with counsel an empty formality. There are
no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process.
The answer must be found in the circumstances
present in every case, particularly in the reasons
presented to the trial judge at the time the request is
denied.
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Commonwealth v. Boettcher, 459 A.2d 806, 809–810 (Pa. Super. 1983)
(internal citations, quotations, and original brackets omitted) (finding no
abuse of discretion where defendant had been represented by the same
public defender since arrest and had never indicated that she wished to
retain private counsel until the date of trial and where defendant never
claimed to be dissatisfied with the public defender's representation). “[T]his
Court has repeatedly condemned the practice of waiting until the day of trial
to request a continuance for the purpose of obtaining a new attorney.”
Commonwealth v. Antidormi, 84 A.3d 736, 746 (Pa. Super. 2014)
(internal quotations omitted), citing Boettcher, 459 A.2d at 810.
In this case, the PCRA court determined Appellant “waited until the
day of trial [...] to request a continuance to obtain private counsel[.]” PCRA
Court Opinion, 7/15/2015, at 9. It further concluded that trial counsel was
prepared for trial and Appellant was satisfied with his court-appointed
representation. Id. Moreover, Appellant at one point suggested that
appointed-counsel could serve as his private counsel. Id. Upon review, we
agree that a continuance was properly denied. Appellant recognized that a
private attorney was not going to be ready to commence trial. N.T.,
9/14/2004, at 6. Appellant did not fault appointed counsel’s representation,
but felt he “would be more comfortable coming into trial with a paid lawyer
that’s working on my behalf and [knowing] my family’s paying for it.” Id. at
7. Appointed counsel also testified that despite their differences in trial
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strategy, counsel explained to Appellant “ultimately it [wa]s his decision” on
how they proceeded. Id. Here, the trial court weighed the competing
interests between obtaining counsel of Appellant’s choice and judicial delay.
We discern no abuse of discretion and, therefore, no derivative
ineffectiveness claim. Appellant’s last claim lacks merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2016
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