Com. v. Green, J.

J-S52015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAKWAN ARCHIE GREEN, :
:
Appellant : No. 694 MDA 2017
Appeal from the PCRA Order April 10, 2017
in the Court of Common Pleas of Lancaster County,
Criminal Division, No(s): CP-36-CR-0005217-2011
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 12, 2017
Jakwan Archie Green (“Green”), pro se, appeals from the Order
dismissing his Petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court aptly summarized the relevant factual and procedural
history in its Opinion, which we adopt for the purpose of this appeal. See
PCRA Court Opinion, 4/10/17, at 1-6.
The PCRA court dismissed Green’s Amended Petition on April 10, 2017.
Green filed a timely Notice of Appeal.1
On appeal, Green raises the following questions for our review:
I. [Were] trial counsel[] ineffective for failure to investigate and
interview a potential witness[,] which prejudice[d Green’s right]
to a fair trial?
1 The PCRA court did not order Green to file a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal.
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II. [Were] trial and appella[te] counsel[] deficient in [their]
representation for failure to suppress the [Commonwealth]
witness[’s] statement on grounds of inconsistent statements and
hearsay?
III. [Were] trial counsel[] ineffective for failure to obtain an
expert witness to disqualify the [Commonwealth] witness[’s]
ability to stand trial as a witness, where it was said that this
witness suffered from mental disabilities[?]
IV. [Were] trial counsel[] ineffective for failure to raise
prosecutorial misconduct, during trial and direct appeal, where
the [Commonwealth] knowing[ly] used a [perjured], fabricated
statement to gain an arrest and conviction against [Green,]
which violated [Green’s] “due process rights” and the “due
process clause”?
V. [Were] trial counsel[] ineffective for failure to raise and
preserve a claim challenging the insufficiency of the evidence
pursuant to Pa.R.Crim.P. 606(A)(2)[,] (7)[?]
VI. Was the [j]udgment of sentence illegal, due to the extent
that [Green’s] conduct “did not” violate “shared intent[,]” [a]
basic element required in which [Green] was convicted[,] to
sustain a first[-]degree murder and criminal conspiracy
[conviction] on the basis of co-conspirator liability in violation of
the 14th [A]mendment [] of the United States Constitution[,] and
a miscarriage of justice occurred thereto?
VII. Did the [trial court] abuse [its] discretion by rendering a
verdict against the weight of the evidence?
VIII. Did the government official[]s of Lancaster County abuse
their discretion, violating [Green’s] 14th Amendment rights, by
committing a misconduct in office[]?
Brief for Appellant at 5-6 (unnumbered; issues renumbered, some
capitalization omitted).
Our standard of review of a PCRA court’s [dismissal] of a
petition for post[-]conviction relief is well-settled: We must
examine whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is
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free of legal error. The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(citation omitted).
Green’s first five claims challenge the effectiveness of his trial counsel.
The PCRA permits relief when a conviction is the result of “[i]neffective
assistance of counsel which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
It is well-settled that counsel is presumed to have provided
effective representation unless the PCRA petitioner pleads and
proves all of the following: (1) the underlying legal claim is of
arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s
interest; and (3) prejudice, to the effect that there was a
reasonable probability of a different outcome if not for counsel’s
error.
Franklin, 990 A.2d at 797 (citations omitted). “A claim of ineffectiveness
will be denied if the petitioner’s evidence fails to satisfy any one of these
prongs.” Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016)
(citation omitted).
In his first claim, Green argues that his trial counsel were ineffective
for failing to investigate and interview Rebecca Hall (“Hall”), the girlfriend of
Green’s co-defendant, Christopher Lassitter (“Lassitter”), as a potential
witness. See Brief for Appellant at 18-22. According to Green, Hall told the
police about a conversation between Lassiter and co-defendant Oscar
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Martinez (“Martinez”), during which Martinez stated that he “want[ed] to kill
everybody in the house[,]” and Lassiter responded, “Do what you got to do.”
Id. at 19. Green contends that Hall’s testimony would tend to show that
“the gunm[a]n’s intentions were his own.” Id. at 18.
In its Opinion, the PCRA court set forth the relevant law, addressed
Green’s claim, and concluded that it lacks merit. See PCRA Court Opinion,
4/10/17, at 17-19. Because we conclude that the PCRA court’s
determinations are supported by the record and free of legal error, we affirm
on this basis as to Green’s first claim. See id.
We will address Green’s next three issues together, as each one
relates to the testimony of Taria Lowden (“Lowden”). In his second claim,
Green argues that his trial counsel were ineffective for failing to “suppress”
Lowden’s statement to police “on the grounds of inconsistent statement and
hearsay.” Brief for Appellant at 22. Green claims that Lowden’s statement,
which he believes was false, was obtained through intimidation and coercion
by the police. Id. at 22, 23-24. Green asserts that without Lowden’s
testimony, the Commonwealth could not prove that he was involved in the
conspiracy. Id. at 25.
In his third claim, Green avers that his trial counsel were ineffective
for failing to retain an expert witness to disqualify Lowden from testifying at
trial, due to her “mental disabilities.” Id. at 25. Green claims that Lowden
was incompetent to testify because she suffers from bi-polar disorder, and
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because she was intoxicated on the night of the murder. Id. at 26; see
also id. (wherein Green argues that an expert could explain that both bi-
polar disorder and intoxication can affect memory). Green contends that he
was prejudiced because “[i]f[] an expert would have been obtained,
[Lowden] … could have been impeached and eliminated from the record as a
credi[ble] witness….” Id. at 27.
In his fourth claim, Green asserts that his trial counsel were ineffective
for failing to raise a claim of prosecutorial misconduct, based on the use of
purportedly perjured testimony by Lowden. Id. at 29. Green claims that
the prosecutor knew that Lowden provided perjured testimony at trial
because the prosecutor was aware that Hall had made a statement that
contradicted Lowden’s testimony. Id. at 30-31. Green argues that he was
prejudiced because the trial court would have declared a mistrial if his trial
counsel had raised the issue of prosecutorial misconduct. Id. at 31.
In its Opinion, the PCRA court addressed Green’s claims regarding
Lowden’s testimony, and concluded that they lack merit. See PCRA Court
Opinion, 4/10/17, at 20-24. Because we conclude that the PCRA court’s
determinations are supported by the record and free of legal error, we affirm
on this basis as to Green’s second, third, and fourth claims. See id. As an
addendum, we note that Green failed to demonstrate that the outcome of
trial would have been different if not for counsel’s purported errors. See
Franklin, supra; see also Commonwealth v. Charleston, 94 A.3d 1012,
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1026 (Pa. Super. 2014) (stating that “unsupported speculation” does not
establish a reasonable probability that the outcome of trial would have been
different).
In his fifth claim, Green argues that his trial counsel were ineffective
for failing to raise and preserve a challenge to the sufficiency of the
evidence. Brief for Appellant at 27. Green claims that he “never harbored a
weapon, shared intent, malice or a motive to harm or kill anyone in the
victim[’s] household.” Id. at 28.
In its Opinion, the PCRA court set forth the relevant law, addressed
Green’s claim, and concluded that it lacks merit. See PCRA Court Opinion,
4/10/17, at 26-32. We adopt the sound reasoning of the PCRA court as to
Green’s fifth claim. See id.
In his sixth claim, Green argues that his judgment of sentence is illegal
because the Commonwealth did not establish that he shared an intent to
commit first-degree murder, and therefore, he cannot be guilty of the
offense as a co-conspirator. Brief for Appellant at 11-12. Green contends
that the evidence presented at trial showed that the crime “revolved around”
Lassitter, and a recent attack on the mother of Lassitter’s child by “a group
of Latin King females.” Id. at 15. Green asserts that he did not speak with
Lassitter “concerning a plan to commit an unlawful or prohibited act[,] and
there is no evidence that can prove or say otherwise.” Id. Green concedes
that he spoke with the victim’s boyfriend (who had allegedly ordered the
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attack on the mother of Lassitter’s child), but argues that he “went to the
home to defuse any further problem.” Id. Green states that he walked to
the victim’s door with Martinez, but claims that he had no reason to believe
that Martinez intended to commit a criminal act. Id.
Although Green states that his judgment of sentence is illegal, his
argument challenges the sufficiency of the evidence supporting his
conviction.2 A challenge to the sufficiency of the evidence is not a
cognizable claim under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2); see also
Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005) (rejecting a
sufficiency claim that was raised on PCRA appeal without an ineffective
assistance of counsel analysis because it is not cognizable under the PCRA);
Commonwealth v. Bell, 706 A.2d 855, 861 (Pa. Super. 1998) (holding that
sufficiency claims are not cognizable under the PCRA). Moreover, even if we
could consider the merits of Green’s claim, we would conclude that the
evidence presented at trial was sufficient to support his conviction, based
upon the reasons set forth by the PCRA court. See PCRA Court Opinion,
4/10/17, at 26-32. Accordingly, Green is not entitled to relief on this claim.
In his seventh claim, Green contends that the trial court abused its
discretion by rendering a verdict against the weight of the evidence. Brief
2 Even if Green had properly challenged the legality of his sentence, we
would conclude that the trial court did not impose an illegal sentence. In
fact, Green, who was an adult at the time of the murder, received a
mandatory sentence for the crime of first-degree murder. See 18 Pa.C.S.A.
§ 1102(a)(1).
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for Appellant at 31. Green argues that the trial court overlooked testimony
that would prove that he did not share an intent to commit an unlawful act.
Id. at 32-33. Green also challenges the credibility of Lowden’s testimony.
Id. at 33.
A challenge to the weight of the evidence is not a cognizable claim
under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2). Moreover, Green could
have raised a challenge to the weight of the evidence on direct review but
failed to do so, and therefore, his claim is waived. See 42 Pa.C.S.A.
§ 9544(b) (providing that, under the PCRA, “an issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state post[-]conviction proceeding.”);
see also Commonwealth v. Rush, 838 A.2d 651, 660 (Pa. 2003) (stating
that “[a]t the collateral review stage, allegations of trial court error are
waived, since they were not raised at the first opportunity for review.”).
Therefore, Green is not entitled to relief on his seventh claim.3
In his eighth claim, Green asserts that government officials in
Lancaster County (i.e., the District Attorney and detectives) abused their
3 Even if we could consider Green’s claim, which asks us to re-weigh the
evidence and assess the credibility of the witnesses presented at trial, we
would agree with the PCRA court’s conclusion that a challenge to the weight
of the evidence would be without merit. See PCRA Court Opinion, 4/10/17,
at 32-33; see also Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa.
Super. 2015) (stating that “[t]he weight of the evidence is exclusively for
the finder of fact, who is free to believe all, none or some of the evidence
and to determine the credibility of the witnesses.” (citation and brackets
omitted)).
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discretion by pursuing a case against him based on corruption, prejudice and
racism. Brief for Appellant at 34-35. Additionally, Green continues his
arguments that there was insufficient evidence to support his convictions,
and that Hall should have been called as a witness to contradict Lowden’s
testimony and establish that Green was not part of the conspiracy. Id. at
38-39.
Green’s claim does not fall within one of the categories of errors for
which the PCRA provides a remedy. See 42 Pa.C.S.A. § 9543(a)(2).
Moreover, Green’s claim is waived because he could have raised this issue
on direct appeal but failed to do so. See 42 Pa.C.S.A. § 9544(b); see also
Commonwealth v. Abdul-Salaam, 808 A.2d 558, 560 (Pa. 2001). Thus,
Green is not entitled to relief on his final claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2017
-9-
Circulated 09/13/2017 04:03 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEAL TH OF PENNSYLVANIA
v.
c:
No. 5217 - 2011
JAKWAN ARCHIE GREEN
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Before the Court are Jakwan Archie Green's original and amended pre
petitions filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-46. For the reasons set forth below, these petitions will be dismissed without a
hearing.1
I. Procedural Background
The relevant facts and the procedural history of this case may be summarized as
follows. On April 16, 2011, at approximately 12:52 a.m., Green, Oscar Martinez, and
Christopher Lassitter participated in the murder of Diana Spencer at her residence in
the City of Lancaster. Martinez would later admit to shooting the victim multiple times
when she answered Green's knock on the door. Lassitter provided the loaded gun and
the get-away car. All three co-conspirators were arrested and charged with first-degree
'Under Rule 907 of the Pennsylvania Rules of Criminal Procedure, a PCRA court may
dispose of post conviction collateral relief petitions without a hearing if it is satisfied after
reviewing the materials submitted that no genuine issues of material fact exist and that the
petitioner is not entitled to post conviction relief.
murder and criminal conspiracy to commit murder.2 Thereafter, the Commonwealth
gave notice of its intent to seek the death penalty.3
Green filed an omnibus pre-trial motion on July 13, 2012, seeking, inter alia, to
suppress video and audio recordings taken from a security camera used by a business
located near the residence where the killing in this case occurred. Green argued that
the taping of the conversation between him and co-defendant Martinez immediately
before the shooting violated Pennsylvania's Wiretapping and Electronic Surveillance
Control Act, 18 Pa.C.S.A. § 5701 et seq. After an evidentiary hearing, an order was
entered granting the suppression of the audio recording of oral communications
between the two individuals seen on the video. I further denied suppression of the
video portion of the recording, as well as portions of the audio recording that contained
sounds other than oral communications.
In exchange for the Commonwealth's withdrawal of the death penalty as a
sentencing option, Green waived his right to a jury trial." After a bench trial, Green was
found guilty of both charges on January 10, 2013. He was sentenced on February 28,
2013, to the mandatory sentence of life in prison without parole for the first-degree
218
Pa.C.S.A. § 2501(a) and 18 Pa.C.S.A.§ 903(a)(1 ), respectively.
3The
aggravating circumstance the Commonwealth identified at that time was that "in
the commission of the offense the defendant knowingly created a grave risk of death to another
person in addition to the victim of the offense." 42 Pa.C.S.A. § 9711 (d)(7). The Commonwealth
had evidence that an adult female, Crystal Zook, was within feet of the victim in this case when
she was shot and killed. In addition to Ms. Zook, there was evidence that at least two young
children and two adults were in the house at the time of the shooting.
4Co-defendant
Martinez, No. 2587-2011, entered a plea of guilty to first-degree murder
in exchange for the Commonwealth withdrawing the death penalty. Co-defendant Lassitter, No.
2583-2011, entered a plea of guilty in exchange for the Commonwealth reducing the first-
degree murder charge to third-degree murder.
2
murder conviction, and a concurrent sentence of 20 to 40 years' incarceration for the
criminal conspiracy conviction. Green was represented at trial and sentencing by Cory
J. Miller, Esquire, and Christopher P. Lyden, Esquire.
A timely notice of appeal to the Superior Court of Pennsylvania was filed on
February 28, 2013.5 See No. 440 MDA 2013. On November 15, 2013, a three-judge
panel of the Superior Court affirmed the conviction and judgment of sentence in an
unpublished memorandum. See Commonwealth v. Green, 91 A.3d 1286 (Table) (Pa.
Super. 2013); see also Commonwealth v. Green, 2013 WL 11250357 (Memo. Op.)
(Pa. Super. 2013). The Pennsylvania Supreme Court denied allowance of appeal in
the matter on October 7, 2014.6 See Commonwealth v. Green, 627 Pa. 770, 101 A.3d
785 (Table) (Pa. Oct. 7, 2013); see also No. 197 MAL 2014. Green was represented
on appeal by Attorney Lyden.
Between November 21, 2014 and June 4, 2015, Green filed four prose requests
for transcripts for purposes of filing a petition for post conviction relief. Each request
5Green
furnished a statement of errors complained of on appeal which raised just one
issue: whether the court erred in failing to suppress the video portion of the surveillance
recording depicting Green speaking to a co-defendant immediately before the killing.
6While
the petition for allowance of appeal was pending before the Supreme Court,
Green commenced a civil action by filing, pro se, a "petition for writ of habeas corpus ad
subjiciendum," challenging this Court's subject matter jurisdiction in the criminal homicide
matter. Green requested the dismissal of his case and his immediate release from custody.
Because the PCRA encompasses all common law and statutory remedies for obtaining post
conviction collateral relief, including habeas corpus, Green's petition was deemed a petition
filed pursuant to the PCRA. See 42 Pa.C.S.A. § 9542; 42 Pa.C.S.A. § 6503; Commonwealth
v. Turner, 622 Pa. 318, 80 A.3d 754, 770 (2013). Given the fact that Green's petition for
allowance of appeal was pending before the Supreme Court, the PCRA petition was dismissed
as premature. See Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000)
(holding that when an appeal is pending a post conviction petition cannot be filed until the
resolution of the pending appeal "by the highest state court in which review is sought.").
3
was denied, as there was no pending proceeding that would entitle Green to the relief
he requested.7 On June 15, 2015, Green filed a prose "Petition for Writ of Mandamus"
to the Supreme Court of Pennsylvania, which was deemed to be a timely Notice of
Appeal from the last order of June 4, 2015, denying Green's request for transcripts.
On September 18, 2015,8 Green filed, prose, a timely9 petition for post
conviction collateral relief challenging the effectiveness of his trial and appellate
counsel. This petition was stayed pending Green's appeal to the Superior Court of
Pennsylvania from my Order of June 4, 2015, denying Green's prose request for
transcripts. On October 14, 2015, that appeal was dismissed by the Superior Court.
Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure,
Dennis C. Dougherty, Esquire, was appointed to represent Green on his collateral
7
A trial court is not required to comply with a defendant's request for transcripts in order
to pursue relief in a post conviction proceeding where no such action is pending. See
Commonwealthv. Crider, 735 A.2d 730 (Pa. Super. 1999); Commonwealthv. Martin, 705
A.2d 1337 (Pa. Super. 1998); Commonwealth v. Ballem, 482 A.2d 1322 (Pa. Super. 1984).
8The
pleading is deemed filed on the date of mailing, September 18, 2016, rather than
the date of docketing, September 21, 2016, pursuant to the "prisoner mailbox rule." See
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) ("Under the prisoner
mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison
authorities for mailing.").
9 For purposes of the PCRA, "a judgment becomes final at the conclusion of direct
review, including discretionary review in the Supreme Court of the United States ... or at the
expiration of time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3). Here, Green's petition for
allowance of appeal was denied by the Pennsylvania Supreme Court on October 7, 2014. As
Green did not file a petition for writ of certiorari with the United States Supreme Court, his
judgment of sentence became final on January 5, 2015, when the period for filing a petition
expired. See U.S. Sup.Ct. Rule 13, 28 U.S.C.A. (providing "[a] petition for writ of certiorari
seeking review of a judgment of a lower state court that is subject to discretionary review by the
state court of last resort is timely when filed with the Clerk within 90 days after entry of the order
denying discretionary review."). Accordingly, pursuant to section 9545(b), Green had one year
from January 5, 2015, in which to file a timely PCRA petition. Green filed the instant petition on
September 18, 2015; therefore, the petition is timely.
4
claims and was granted leave to file an amended petition. After a conscientious review
of the entire record, and after having engaged the services of a private investigator to
locate and interview witnesses in this matter, PCRA counsel concluded that the petition
did not present any issues of arguable merit and was frivolous as a matter of law.
Accordingly, a "no merit" letter" and petition to withdraw as counsel were submitted on
May 23, 2016.
After reviewing the pro se petition and counsel's "no merit" letter, I found that
there were no disputed issues of fact, Green was not entitled to relief, and no purpose
would be served by any further proceedings. Therefore, pursuant to Pa.R.Crim.P.
907(1), I filed a notice of my intention to dismiss the petition without a hearing on May
24, 2016. Green was given 30 days to file an amended petition or to otherwise respond
to the Rule 907 Notice. After receiving an extension of time, Green filed amended
PCRA petitions on June 16, 2016, July 12, 2016, July 20, 2016, and August 4, 2016.
Green also requested copies of the suppression, trial and sentencing transcripts for
purposes of further responding to the Rule 907 Notice. I granted that request on
August 22, 2016, and gave Green an additional 60 days to supplement his Rule 907
response after review of the transcripts. A memorandum of law in support of the prior
amended PCRA petitions was filed by Green on August 29, 2016.
Green also petitioned for an order "compel[ling) P.C.R.A. counsel to forward a
complete copy of discovery" consisting of "nearly 5,000 pages" to aid him in his prose
10This
was filed pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
(1988), Commonwealthv. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988), and its progeny.
5
response. This petition was denied by Order entered on February 27, 2017.11
II. Discussion
Green claims he received ineffective assistance of counsel because his
attorneys: (1) advised him to waive his preliminary hearing; (2) failed to file a writ of
habeas corpus to challenge the sufficiency of the evidence to establish a prima facie
case of murder of the first degree; (3) failed to challenge the aggravating circumstance
cited by the Commonwealth in support of the death penalty; (4) failed to file a motion for
recusal because I took a co-defendant's guilty plea and ruled on Green's suppression
motion; (5) failed to negotiate a plea agreement with the Commonwealth; (6) failed to
investigate, interview, subpoena and call several witnesses; (7) failed to impeach
Commonwealth witness Taria Lowden; (8) failed to move to "suppress" the testimony of
11Green
already had in his possession scores of pages of discovery as evidenced by the
attachments to his supplemental PCRA petitions. ( See, for example, June 16, 2016 Response
to Rule 907 Notice, Exs. A (Rebecca Hall statement) and B (police supplemental report of Taria
Lowden statement); Memorandum of Law in Support of Amended PCRA Petitions, Exs. A, B, C,
H, 11, 0.) Green's trial counsel received all of the Commonwealth's discovery. Moreover, PCRA
counsel reviewed extensive volumes of discovery. (See PCRA Counsel's No-Merit Letter at 1.)
Green's request failed to demonstrate any exceptional circumstances to support the production
of the same thousands of pages of discovery reviewed by his trial and PCRA attorneys. Rather,
in his petition, Green requested "nearly 5,000 pages" of discovery contained in trial counsel's
file "to prove a violating [sic] of his constitutional rights to effective representation and a fair
trial," and to expose "exculpatory evidence that trial counsel(s) failed to produce at trial, which
negated the petitioner of being aware of any crime, that was formulated before his arrival to the
area in which the crime occurred." (See Petition to Compel of September 26, 2016, at 1lil 1-2.)
Green, however, failed to identify specific documents or items to support his claims. Thus,
Green appeared to wish to embark on an impermissible "fishing expedition" based on bald
assertions and conclusory allegations. See Commonwealth v. Chhea, 2015 WL 6957265 *4
(Pa. Super. June 23, 2015). This Court saw no reason to believe that the requested documents
would show that Green was entitled to relief. Rather, the available documents in the court
record, along with PCRA counsel's "no merit" letter, amply support the conclusion that Green's
post conviction collateral claims must be dismissed as meritless.
6
Ms. Lowden due to her incompetency and bias; (9) failed to engage an expert witness
to disqualify Ms. Lowden from testifying due to her "mental issues/disabilities"; (10)
failed to raise prosecutorial misconduct for using the perjured testimony of Ms. Lowden;
(11) failed to introduce exculpatory evidence at trial; (12) failed to raise abuse of
discretion by the Court for sentencing him to life without parole; (13) failed to challenge
the life without parole sentence under Millerv. Alabama, 567 U.S. 460 (2012), and
Graham v. Florida, 560 U.S. 48 (2010); and (14) failed to challenge the sufficiency and
the weight of the evidence on appeal. ( See Original 2015 PCRA Petition, June 16,
2016 Response to Rule 907 Notice, July 12, 2016 Amended PCRA Petition, and July
20, 2016 Supplemental PCRA Petition.)
In order to prevail on a claim of ineffective assistance of counsel made in the
post conviction context, a defendant must overcome the presumption that counsel is
effective by establishing by a preponderance of the evidence that: (1) the underlying
claim has arguable merit; (2) trial counsel had no reasonable basis for proceeding as
he did; and (3) the defendant suffered prejudice. See 42 Pa.C.S.A. § 9543(a)(2)(ii);
Commonwealth v. Spotz, 616 Pa. 164, 187, 47 A.3d 63, 76 (2012) (citing
Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975-76 (1987)). The
client has the burden of establishing counsel's ineffectiveness because counsel is
presumptively effective. Id.
With respect to whether counsel's acts or omission were reasonable, defense
counsel is accorded broad discretion to determine tactics and strategy.
Commonwealth v. Fowler, 447 Pa. Super. 534, 670 A.2d 1153 (1996), aff'd 550 Pa.
7
152, 703 A.2d 1027 (1997). The applicable test is not whether alternative strategies
were more reasonable, employing a "hindsight" evaluation of the record, but whether
counsel's decision had any reasonable basis to advance the interests of the defendant.
Commonwealth v. Chmiel, 612 Pa. 333, 361, 30 A.3d 1111, 1127 (2011). The
appellate courts will conclude that counsel's chosen strategy lacked a reasonable basis
only if the defendant proves that "an alternative not chosen offered a potential for
success substantially greater than the course actually pursued." Commonwealth v.
Williams, 587 Pa. 304, 312, 899 A.2d 1060, 1064 (2006) (citation omitted). Counsel
cannot be ineffective for failure to pursue and preserve a meritless issue.
Commonwealth v. Rivera, 631 Pa. 67, 108 A.3d 779, 789 (2014).
To establish the prejudice prong, the defendant must show that there is a
reasonable probability that the outcome of the proceedings would have been different
but for counsel's ineffectiveness. Chmiel, 612 Pa. at 362-63, 30 A.3d at 1127-28. "We
stress that boilerplate allegations and bald assertions of no reasonable basis and/or
ensuing prejudice cannot satisfy a defendant's burden to prove that counsel was
ineffective." Id. (quoting Commonwealth v. Paddy, 609 Pa. 272, 292, 15 A.3d 431,
443 (2011)). Where a petitioner has not met the prejudice prong of the ineffectiveness
standard, the claim may be dismissed on that basis alone without a determination of
whether the arguable merit and client's interest prongs have been met.
Commonwealth v. Wright, 599 Pa. 270, 320-21, 961 A.2d 119, 148-49 (2008);
Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1227 (2005).
8
A. Waiver of Preliminary Hearing and Failure to File Habeas Corpus
Motion
Green first maintains that counsel was ineffective for waiving his preliminary
hearing and for not filing a habeas corpus motion to test whether the Commonwealth
could present a prima facie case.12 Specifically, Green argues counsel should have
challenged the Commonwealth's case which he contends was based upon "inconsistent
statements given by a biased witness." (See Memorandum of Law in Support of
Amended PCRA Petitions at 5.) Green suggests that had counsel not waived the
preliminary hearing and challenged the evidence the magisterial district court would
have dismissed the charges.
Our Superior Court has held that waiving a preliminary hearing is not
ineffectiveness of counsel when the defendant is later convicted at trial, stating:
The absence of a preliminary hearing, however, did not so impair the
truth determining process as to require that appellant be discharged.
Here, the case was tried and the evidence was submitted to the court
which, as trier of the facts, found not only that the Commonwealth had
established a prima facie case of guilt but that appellant's guilt had
been proved beyond a reasonable doubt. Any deficiency in the
preliminary hearing procedure, therefore, was harmless. Because the
truth determining process was not impaired by counsel's alleged
ineffectiveness, the P.C.R.A. court did not err when it dismissed
appellant's petition for post conviction relief. Appellant failed to show
that he had been prejudiced by counsel's failure to assert post-trial
the absence of a pre-trial preliminary hearing.
12While
there is no federal or state constitutional right to a preliminary hearing,
Commonwealth v. Jacobs, 433 Pa. Super. 411, 415, 640 A.2d 1326, 1327 (1994), defendants
have a constitutional right to counsel at a preliminary hearing since it is considered a "critical
stage" of the criminal proceedings. Coleman v. Alabama, 399 U.S. 1, 7 (1970). Thus,
defendants do have a constitutional right to effective counsel at the preliminary hearing stage of
the proceedings. See Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 417-18,
581 A.2d 172, 174 (1990).
9
Commonwealth v. Lyons, 390 Pa. Super. 464, 568 A.2d 1266, 1268 (1989) (citations
omitted). See also Commonwealth v. Stultz, 114 A.3d 865, 881 (Pa. Super. 2015).
Thus, once a defendant is tried and convicted, it is clear that prima facie evidence was
introduced and, therefore, the defendant cannot establish actual prejudice if no
preliminary hearing was held. See also Commonwealth v. Sanchez, 623 Pa. 253, 82
A.3d 943, 984 (2013) (in the direct appeal context, our Supreme Court concluded that
"once a defendant has gone to trial and has been found guilty of the crime or crimes
charged, any defect in the preliminary hearing is rendered immaterial.").
Here, Green was convicted of first-degree murder and criminal conspiracy to
commit murder following a bench trial. That judgment of sentence was affirmed by the
Superior Court. Therefore, any ineffectiveness from waiving the preliminary hearing or
failing to file a habeas corpus motion did not prejudice Green.
Moreover, Green's complaints regarding his waived preliminary hearing and the
prima facie case against him rest on assertions that Taria Lowden could have been
impeached based on prior inconsistent statements and bias. Credibility determinations,
however, are not made at a preliminary hearing. Commonwealth v. Landis, 48 A.3d
432, 444 (Pa. Super. 2012) (en bane). See also Barber v. Page, 390 U.S. 719, 725
(1968) (removing credibility as an issue at a preliminary hearing and limiting defense
actions to negating the existence of a prima facie case conforms to the fact that a
preliminary hearing is a much less searching exploration into the merits of the case);
Liciaga v. Courtof Common Pleas of Lehigh County, 523 Pa. 258, 262, 566 A.2d
246, 248 (1989) (magistrate is precluded from considering the credibility of a witness
10
who is called upon to testify during the preliminary hearing); Commonwealth v. Tyler,
402 Pa. Super. 429, 433, 587 A.2d 326, 328 (1991) (credibility is not an issue at a
preliminary hearing). Thus, impeachment evidence is immaterial for purposes of a
preliminary hearing and pre-trial habeas corpus motion. Consequently, counsel cannot
be found ineffective for waiving the preliminary hearing or failing to file a habeas corpus
motion.
B. Aggravating Circumstance in Support of Death Penalty
Next, Green argues counsel was ineffective for failing to challenge the
aggravating circumstance cited by the Commonwealth in support of the death penalty.
As noted above, the Commonwealth first filed a notice of its intention to seek the death
penalty against all three co-defendants pursuant to 42 Pa.C.S.A. § 9711, and then filed
a notice of its intent to consolidate the three capital cases for purposes of trial. On July
20, 2012, co-defendant Lassitter filed a pretrial motion seeking to bar the
Commonwealth from relying upon Section 9711 (d)(7) on the grounds that the
Commonwealth's evidence was insufficient as a matter of law to establish this particular
circumstance due to a lack of verifiable facts.13 I addressed my reasons for denying
Lassitter's motion to quash the aggravator in an opinion filed on November 5, 2012, and
13 "1t is well-established that the Commonwealth has no pre-trial burden of proving an
aggravating factor." Commonwealthv. Buck, 551 Pa. 184, 191, 709 A.2d 892, 896 (1998).
However, a defendant may file a pretrial motion to challenge the aggravating circumstances in
case of a prosecutor's purposeful abuse where the aggravating circumstance is not based on
verifiable facts. Id. In determining the propriety of the defendant's motion, the trial court will
consider whether "the case is properly designated as capital, not whether each aggravating
factor alleged is supported by evidence." Id. It is the defendant's burden to make the
appropriate showing. Id. at 192, 709 A.2d at 896.
11
restate them here for purposes of Green's ineffective assistance claim, as they relate
equally to Green.
Section 9711 (d)(7) of the death penalty statute provides that an aggravating
circumstance warranting the imposition of the death penalty includes any first-degree
murder during which "the defendant knowingly created a grave risk of death to another
person in addition to the victim of the offense." 42 Pa.C.S.A. § 9711 (d)(7). Although
Lassitter conceded that the evidence in this case indicated that there were other people
in proximity to the victim when she was fired upon five times, he argued that such
persons were not in "such proximity as to be in jeopardy of suffering real harm," citing
Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893 (2002). Our Supreme
Court held in Drumheller that
the grave risk of death aggravator applies to situations where the
defendant in the course of killing his particular victim acts in a manner
which endangers the lives of others close in proximity to the intended
or actual victim. Sufficient evidence to support the application of the
aggravating circumstance of creating a grave risk of harm to persons
other than the murder victim, has been found by this Court in those
instances where the other persons are in close proximityto the
decedent at the time of the murder, and due to that proximity are
in jeopardyof sufferingreal harm.
Id. at 144, 808 A.2d at 909 (emphasis in original) (citations and internal quotations
omitted). Our Supreme Court has also held "the grave risk of death aggravator applies
where there is potential for an errant, ricochet, or pass-through bullet; the endangered
bystander need not be in the direct line of fire to be in grave risk of death."
Commonwealth v. Brown, 605 Pa. 103, 116, 987 A.2d 699, 707 (2009) (citing
Commonwealth v. Wright, 599 Pa. 270, 316, 961 A.2d 119, 146 (2008)).
12
The Commonwealth presented evidence that an adult female, Crystal Zook, was
within feet of the victim in this case when she was shot and killed. In addition to Ms.
Zook, there was evidence that at least two young children and two adults were in the
house at the time of the shooting.14 Clearly, there was a "nexus connect[ing] other
persons in close proximity to the intended or actual victim to the zone of danger created
by the defendant's actions in killing the victim." Brown, supra at 116, 987 A.2d at 707
(citing Commonwealthv. Paolello, 542 Pa. 47, 82, 665 A.2d 439, 457 (1995)). The
potential for an errant, ricochet, or pass-through bullet existed in this case, thus, placing
at least five persons within the zone of danger.
In light of these facts, I found that Lassitter failed to satisfy his burden of proving
the absence of any evidence supporting the proffered aggravating circumstance. At a
minimum, "evidence exist[ed) to create a factual dispute regarding whether the
aggravating factor(s) exist[ed]." Buck, supra at 192, 709 A.2d at 896. Accordingly, I
ruled no abuse of discretion by the prosecutor was evident, and I dismissed Lassitter's
motion to quash the aggravator. This ruling applied equally to Lassitter's two co-
defendants, Green and Martinez. Accordingly, Green's trial counsel will not be ruled
ineffective for having failed to file a redundant, baseless motion to quash the
aggravator.
14The
Commonwealth had evidence there were two children and one adult on the first
floor within feet of the victim at the time she was murdered, in addition to another child and
adult on the second floor of the home. ( See Commonwealth Response to Motion to Quash at
,m 7-8.)
13
C. Motion for Recusal
Green further submits that his trial attorneys were ineffective for failing to file a
motion for my recusal because I accepted a co-defendant's guilty plea and presided
over Green's suppression motion. Our Supreme Court has discussed the standards
governing recusal, as follows:
A trial judge should recuse himself whenever he has any doubt as to
his ability to preside impartially in a criminal case or whenever he
believes his impartiality can be reasonably questioned. It is presumed
that the judge has the ability to determine whether he will be able to
rule impartially and without prejudice, and his assessment is personal,
unreviewable, and final.
Additionally, it is the burden of the party requesting recusal to produce
evidence establishing bias, prejudice or unfairness which raises a
substantial doubt as to the jurist's ability to preside impartially.
Commonwealth v. Tedford, 598 Pa. 639, 730-31, 960 A.2d 1, 55-56 (2008) (citations
and quotations omitted).
Moreover, "the mere participation by the trial judge in an earlier stage of the
proceedings does not provide a per se basis for requiring recusal of the trial judge."
Commonwealth v. Postie, 110 A.3d 1034, 1038 (Pa. Super. 2015) (quoting
Commonwealth v. Lott, 398 Pa. Super. 573, 581 A.2d 612, 615 (1990)). The Superior
Court in Lott noted:
[W]hile it may be the better practice to have a different judge
preside over trial than preside over pre-trial proceedings, such a
practice is not constitutionally required and has not been made
the basis for setting aside a verdict reached in an otherwise
proper trial. This principle appears to be based on the prevailing
view that judicial fact-finders are capable of disregarding
prejudicial evidence.
Id. See also Commonwealth v. Corbin, 447 Pa. 463, 291 A.2d 307 (1972) (it is not
14
improper for the suppression judge to preside in a non-jury trial). Therefore, the failure
of trial counsel to request my recusal as trial judge was not per se, without more,
ineffective representation.
Here, Green could not have met his burden of demonstrating partiality, bias, or
an abuse of discretion had a motion for recusal been filed by trial counsel. Green now
asserts that as the suppression judge I became "a bias[ed] and prejudice[d] fact finder"
by reason of having listened to the wiretap evidence, some of which I suppressed.
(Memorandum of Law in Support of Amended PCRA Petitions at 13.) Such evidence,
however, was not so prejudicial that I would have been unable to render an impartial
verdict. Our Superior Court is "of the view that the trial judge has by training and
experience developed instincts that permit the entry of determinations based solely
upon relevant, admissible evidence and unaffected by irrelevant, inadmissible or
prejudicial developments." See Commonwealth v. Lewis, 314 Pa. Super. 298, 307,
460 A.2d 1149, 1153 (1983) (citing Corbin, supra).
In the instant case, I was capable of rendering a fair decision regardless of what I
heard at Green's suppression hearing or at co-defendant Martinez's guilty plea. I did
not have any bias or prejudice towards Green that prevented me from rendering a fair
and impartial verdict. Therefore, trial counsel was not ineffective by reason of a failure
to request recusal.
Additionally, Green's decision to proceed to a bench trial with the suppression
judge was freely and knowingly made. After the election to proceed without a jury, I
conducted a very thorough and lengthy colloquy with Green and his attorneys. (Notes
of Testimony (N.T.), Trial at 4-24.) The record clearly indicates that Green expressly
15
agreed to waive his right to a jury trial and to have his case heard by me. See Corbin,
supra (defendant who in response to judge's inquiries in connection with waiver of jury,
expressly agreed that trial judge could hear his motion to suppress evidence, waived
objection to same judge's hearing motion and presiding at trial on merits). Thus, this
issue lacks merit.
D. Negotiation of a Plea Agreement
Green submits counsel's performance was deficient for having failed to negotiate
a plea agreement with the Commonwealth. Specifically, Green asserts:
Both counsel(s) knew the petitioner was innocent of the crime(s)
alleged and counsel(s) knew through discovery that existed
evidence were available to negate shared intent. With this
knowledge they ignored a plea negotiation to have the charges
reduced to a more approach charge that constituted the
petitioner actions.
(Memorandum of Law in Support of Amended PCRA Petitions at 53 (verbatim).) Green
cites no legal authority to support his proposition that effective representation requires
an attempt to negotiate a plea agreement. To the contrary, our Superior Court has
noted "[t]here is no caselaw which requires grant of a new trial due to counsel's failure
to negotiate a guilty plea." Commonwealth v. Lassen, 442 Pa. Super. 326, 659 A.2d
999, 1013 (1995).
Furthermore, the record is devoid of any reference to Green being willing to enter
a guilty plea to any offense or to the prosecution being willing to offer any plea
agreement to Green. Although a defendant is entitled to effective representation in
connection with the negotiation of a plea, "there is no constitutional right to plea
16
bargain, since the prosecutor need not do so if he prefers to go to trial."
Commonwealth v. Stinnett, 356 Pa. Super. 83, 514 A.2d 154 (1986) (quoting
Weatherford v. Bursey, 429 U.S. 545, 561 (1977)). Accordingly, Green's claim is
without merit.
E. Failure to Investigate, Interview, Subpoena and Call Certain
Witnesses
Next, Green claims his attorney was ineffective for failing to call certain
witnesses at trial. The standards governing a challenge to trial counsel's assistance for
not calling a witness are well settled by the Supreme Court of Pennsylvania:
When raising a claim of ineffectiveness for the failure to call a potential
witness, a petitioner satisfies the performance and prejudice requirements
of the Strickland[ 15] test by establishing that: (1) the witness existed; (2)
the witness was available to testify for the defense; (3) counsel knew of,
or should have known of, the existence of the witness; (4) the witness
was willing to testify for the defense; and (5) the absence of the testimony
of the witness was so prejudicial as to have denied the defendant a fair
trial. ... To demonstrate Strickland prejudice, a petitioner must show
how the uncalled witnesses' testimony would have been beneficial under
the circumstances of the case. . . . Thus, counsel will not be found
ineffective for failing to call a witness unless the petitioner can show that
the witness's testimony would have been helpful to the defense. . . . A
failure to call a witness is not per se ineffective assistance of counsel for
such decision usually involves matters of trial strategy.
Commonwealth v. Sneed, 616 Pa. 1, 22-23, 45 A.3d 1096, 1108-09 (2012) (citations
and internal quotations omitted; footnote added). Without providing specific facts to
demonstrate the proposed witnesses' availability and willingness to testify, and that the
"ln Stricklandv. Washington, 466 U.S. 668, 687-88 (1984), the United States
Supreme Court adopted a two-part test for assessing claims of counsel's ineffectiveness: the
defendant must prove that (1) counsel's representation "fell below an objective standard of
reasonableness," and (2) the defendant was prejudiced by counsel's errors.
17
testimony would have been helpful to Green's case, Green fails to state a claim for
relief.
In his original petition, Green claims trial counsel failed to call the following
witnesses at his trial: (1) Rebecca Hall; (2) Natasha Sweigart; (3) Oscar Martinez; and
(4) Elliot Olmeda-Torres, Jr. I begin by noting that merely identifying the witnesses by
name and stating that Petitioner thinks they would have contributed to his case does
not meet the required burden of proof set forth by our Supreme Court. Likewise,
claiming that trial counsel could have compelled the appearance of the witnesses
through a subpoena, does not prove that the witness was available to testify for the
defense or that the witness was willing to testify for the defense. Moreover, even if
Green is able to meet his burden that the witnesses were available and willing to testify,
he must further prove that the proffered testimony would have changed the outcome of
the trial.
Here, PCRA counsel retained a private investigator, Dick Jeffries, to assist in
finding these individuals and in attempting to obtain statements from them. Mr. Jeffries
was successful in locating Rebecca Hall. (See No Merit Letter at 6.) Ms. Hall, however,
was unable to state whether Green was present at Mill Street prior to the shooting
because she stated she was heavily on drugs at the time and had no clear recollection
of the events.16 She did state that Christopher Lassitter and another man, whose name
she could not remember, talked about and planned the murder together. (Id.)
"tn his statement to the police, Green confirmed that Ms. Hall was "drugged up on
whatever she was using and just sitting there [in the basement] in her own little world." (N.T.,
Trial at 449.)
18
In Ms. Hall's statement to the police on April 21, 2011, she puts Green at Mill
Street. ( See Memorandum of Law in Support of Amended PCRA Petitions, Exhibit "H"
at 2.) In that statement, Ms. Hall told police that Green was called and told to bring a
gun over to the Mill Street address "cause the plan was to kill 8-Boy [Diana Spencer's
boyfriend] and Dianna [sic]." (Id. at 5.) She then states that Green did not bring the
gun. (Id.; see a/so Id. at 14-15.) When asked by the police as to who she felt was
responsible for participating in the murder, Ms. Hall identified "ICK" and "Shine." (Id. at
8.) Ms. Hall identified Green in a photo array as the man she knew as "ICK." (Id. at 9.)
Given Ms. Hall's statement to the police that she felt Green was responsible for
the murder of Diana Spencer, it would appear that trial counsel had a strategic reason
for not calling Ms. Hall at trial. During her interview with Mr. Jeffries, Ms. Hall neither
recanted her statement nor said anything that was contrary to her April 21, 2011,
statement to police. Thus, Green is unable to establish that Ms. Hall's testimony would
have changed the outcome of the trial.
Natasha Sweigart was the next witness whom Green claims his trial attorney
failed to investigate and call at trial. Mr. Jeffries was unable to locate this witness.
PCRA counsel reviewed Ms. Sweigart's statement to the police and determined that
"[n]othing in her statement appears to hurt or help [Green]." (See No Merit Letter at 7.)
Thus, it would appear that trial counsel's failure to call her as a defense witness at trial
did not prejudice Green.
Green further claims that trial counsel was ineffective for failing to call Oscar
Martinez, his co-defendant, to testify on his behalf. Mr. Martinez was subpoenaed to
testify at trial. Because Martinez was represented by counsel, Green's attorneys were
19
not able to speak to him prior to trial without permission from his attorney. Therefore,
they could not know what Martinez's testimony might be at trial, if, in fact, he testified
and did not invoke his 5th Amendment privilege against self-incrimination. Under these
circumstances, it would appear that trial counsel had a strategic reason for not calling
Martinez as a defense witness.
The final proposed defense witness was Elliot Olmeda-Torres, Jr.17 In his
statement to the police, Olmeda-Torres stated that Green said, "I was banging on the
door." To which, Martinez added: "I saw the curtain moving and I just shot through the
door and let off the whole clip." Lassitter, known to Olmeda-Torres only as "B", then
stated: "Good job, you guys make me proud." (See No Merit Letter at 8.) This police
statement by Olmeda-Torres suggests that his testimony would not have helped
Green's case and may, in fact, have hurt his defense.
Under the circumstances of this case, trial counsel will not be found ineffective
for failing to call the four witnesses identified by Green because Green has failed to
show that the witnesses were available and willing to testify for the defense, and that
the absence of the testimony of the witnesses was so prejudicial as to have denied
Green a fair trial. Accordingly, this claim must fail.
F. Testimony of CommonwealthWitness Taria Lowden
Green initially asserts that Ms. Lowden changed her testimony during the trial,
and that counsel failed to use Ms. Lowden's prior statements against her at trial and the
This individual was identified at trial as Elliott Almeda Torrez, and by his street name,
17
"Goblin". (N.T., Trial at 571.)
20
fact that she was originally charged with a crime. A review of the record reveals that
Attorney Lyden did extensively cross examine Ms. Lowden on her prior interviews with
the police. (N.T., Trial at 200-09.) Additionally, Attorney Lyden cross examined Ms.
Lowden about her substance abuse and alcohol use, her prior crimes of dishonesty,
and her motive to lie. (Id. at 192-99.) Trial counsel also specifically called a defense
witness, Elroy Johnson, to testify to Ms. Lowden's reputation in the community for lying.
(Id. at 586.) This evidence establishes that trial counsel did attempt to impeach this
Commonwealth witness.
Green further argues that trial counsel was ineffective for having failed to file a
motion seeking to "suppress" Ms. Lowden's testimony based on her bias against Green.
Green misperceives the purpose of a suppression motion, which is to vindicate a
defendant's right to be free from unreasonable searches and seizures. See
Pa.R.Crim.P. 581 (A). See also Commonwealth v. Bracey, 501 Pa. 356, 365, 461
A.2d 775, 779 (1983). A witness's alleged bias may be the subject of cross
examination, but suppression is not an available remedy to prevent an allegedly biased
witness from testifying.
Next, Green submits that counsel's performance was deficient for having failed
to engage an expert witness to disqualify Ms. Lowden from testifying due to her "mental
issues/disabilities." As a general matter, the Pennsylvania Rules of Evidence presume
all persons are competent to be a witness. Specifically, Rule 601 provides, in pertinent
part:
(a) General Rule. Every person is competent to be a witness except
as otherwise provided by statute or in these Rules.
21
(b) Disqualification for Specific Defects. A person is incompetent to
testify if the Court finds that because of a mental condition or
immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving
accurately;
(2) is unable to express ... herself so as to be understood either
directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.
Pa.RE. 601.
In Commonwealth v. Boich, 982 A.2d 102 (Pa. Super. 2009) (en bane), the
Superior Court reversed the trial court and held the defendant did not show a
compelling need existed for an involuntary psychiatric examination of the victim witness'
competence to testify. Id. at 104. The Boich Court opined that Rule 601
is expressly intended to preserve existing Pennsylvania law. In
general, the testimony of any person, regardless of [her] mental
condition, is competent evidence, unless it contributes nothing at all
because the victim is wholly untrustworthy. Thus, in Pennsylvania,
[a witness is] presumed competent to testify, and it is incumbent
upon the party challenging the testimony to establish incompetence.
Above all, given the general presumption of competency of all
witnesses, a court ought not to order a competency investigation,
unless the court has actually observed the witness testify and still
has doubts about the witness' competency.
Claims that a witness' memory has been corrupted by insanity,
mental retardation, hypnosis, or taint go to the competency of that
witness to testify. The capacity to remember and the ability to testify
truthfully about the matter remembered are components of
testimonial competency. The party alleging a witness is incompetent
to testify must prove that contention by clear and convincing evidence.
Id. at 109-10 (internal citations, footnote and quotations omitted). A court, therefore,
ought not to order an involuntary psychiatric examination of a witness unless the record
unequivocally demonstrates a compelling need for examination. Id. at 110.
22
The basis of Green's contention that Ms. Lowden should have been
psychiatrically examined is that (1) this witness told the police during her interview that
she is "disabled" and "takes medication" (Memorandum of Law in Support of Amended
PCRA Petitions, Ex. "A" (Lowden Supplemental Police Report)), and (2) Ms. Lowden's
mother told the police her daughter is bipolar. (Id., Ex. 11 (McClendon Supplemental
Police Report).) Green contends a symptom of bipolar disorder is "an impaired
memory," which was demonstrated by Ms. Lowden's contradictory statements to the
police. (Id. at 57-58; see also Id. at 39-40.) Green is merging the concepts of
competency and credibility. Contradictory statements are subject to cross examination
and do not unequivocally demonstrate a compelling need for a psychological or
psychiatric examination.
Incompetency does not follow from the fact that a witness is insane or mentally
ill. Commonwealthv. Counterman, 553 Pa. 370, 393, 719 A.2d 284, 295 (1998).
Thus, a diagnosis of bipolar disorder alone does not present a compelling need for a
court-ordered, involuntary psychiatric examination.
The privacy implications of a compelled psychiatric examination
are significant. . . . The presumption of witness competency is
necessary to effectuate the fundamental policies underlying both
the constitutional right to privacy and the statutory psychiatrist-
patient privilege. Thus, a court-ordered, involuntary psychiatric
or psychological examination should never be the starting point
for a competency evaluation.
Boich, 982 A.2d at 110 (citations and quotation marks omitted). As a result, "a trial
court does not have an obligation to order an investigation of a witness's competency
unless the court has some doubt on the issue from having observed the witness."
23
Counterman, supra at 393, 719 A.2d at 295 (citing Commonwealth v. Jennings, 446,
Pa. 294, 304, 285 A.2d 143, 149 (1971), and Commonwealth v. Smith, 414 Pa.
Super. 208, 606 A.2d 939, 943 (1992)). Here, based on my observation of the witness,
I had no doubt as to her competency. Therefore, any request by defense counsel for
such an involuntary mental health examination of Ms. Lowden would have been denied.
Finally, Green contends his trial counsel failed to raise prosecutorial misconduct
for the Commonwealth's use of purportedly perjured testimony by Ms. Lowden. The
record reveals a point in the trial where the Assistant District Attorney attempted to
introduce a prior inconsistent statement of Ms. Lowden's for substantive purposes.
(N.T., Trial at 172.) Both counsel for Green objected and argued against the admission
of that statement at trial for substantive purposes. Accordingly, this issue is wholly
without merit, as are the three previous claims regarding Ms. Lowden's testimony.
G. ExculpatoryEvidence
Green maintains that trial counsel failed to introduce exculpatory evidence at trial
which would have "negated" the charges of murder and criminal conspiracy and
"suggested a lesser offense." (Memorandum of Law in Support of Amended PCRA
Petitions at 49.) The purported exculpatory evidence identified by Green is the police
statement of Rebecca Hall. As noted above, in her April 21, 2011 statement to the
police, Ms. Hall said that Green was called and told to bring a gun over to the Mill Street
house "cause the plan was to kill B-Boy [Diana Spencer's boyfriend] and Dianna [sic]."
(Id., Exhibit "H" at 5.) Ms. Hall further named "ICK" (whom she identified in a photo
array as Green) and "Shine" as the individuals responsible for the murder. (Id. at 8.)
24
Exculpatory evidence is evidence that extrinsically tends to establish that a
defendant is innocent of the crimes charged. Commonwealth v. Hicks, 270 Pa.
Super. 546, 550, 411 A.2d 1220, 1222 (1979). The police statement of Ms. Hall had no
exculpatory value in that it does not exclude Green as one of the participants in Ms.
Spencer's murder. Had this statement been used at trial, I suggest it would have
strengthened the Commonwealth's case and further established Green's culpability.
Thus, this claim of ineffective assistance of counsel lacks merit.
H. Sentence of Life Without Parole
Green contends counsel was ineffective for failing to raise a claim of abuse of
discretion by the court for the sentence of life without parole. The sentence of life
without parole is a mandatory sentence for an individual who is convicted of first-degree
homicide.18 18 Pa.C.S.A. § 1102(a). If counsel had challenged this sentence as an
abuse of discretion it would have been rejected by the Superior Court as frivolous as a
matter of law. Therefore, this claim is meritless.
18Green
argues that his sentence is only mandatory "for an individual with a prior
homicide conviction." (See June 16, 2016 Response to Rule 907 Notice at 5.) Otherwise, "[t]he
only way to find a first time defendant guilty of first degree murder with a sentence of life without
parole [] [i]s if that person is responsible for the death of an unborn child or law enforcement
officer." (Id.) This argument must be rejected in light of the clear statutory pronouncement on
sentencing of first degree homicide offenders:
(a) First degree.-
( 1) Except as provided under section 1102.1 (relating to sentence of persons
under the age of 18 for murder, murder of an unborn child and murder of a
law enforcement officer), a person who has been convicted of a murder of
the first degree or of murder of a law enforcement officer of the first degree
shall be sentenced to death or to a term of life imprisonment in accordance
with 42 Pa.C.S. § 9711 (relating to sentencing procedure for murder of the
first degree).
18 Pa.C.S.A. § 1102.
25
In a related claim, Green argues counsel was deficient for not challenging the life
without parole sentence under Miller, supra, and Graham, supra. In Miller, the United
States Supreme Court held that the Eighth Amendment prohibits a mandatory sentence
of life without parole for those under the age of 18. 567 U.S. at-, 132 S. Ct. at 2469.
In Graham, the Court ruled that the Eighth Amendment prohibits a sentence of life
without possibility of parole for juveniles convicted of non-homicide offenses. 560 U.S.
at 62. Here, it is undisputed that Green was 21 years old, or three years beyond the
age of majority, at the time the murder occurred. Therefore, these United States
Supreme Court cases addressing the constitutional rights of juveniles do not apply, and
Green was subject to a sentence of life without parole. This issue, therefore, lacks
merit.
I. Sufficiencyand Weightof the Evidence
Green claims the evidence presented at trial was insufficient to support his
convictions for murder and conspiracy to commit murder, and that his trial counsel's
failure to make that argument on direct appeal was constitutionally defective. The
standard to apply in reviewing the sufficiency of evidence is whether, viewing all the
evidence admitted at trial in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact finder to find every element of the crime beyond a
reasonable doubt. Commonwealth v. Vandivner, 599 Pa. 617, 627, 962 A.2d 1170,
1176 (2009); Commonwealth v. Mccurdy,943 A.2d 299, 301-02 (Pa. Super. 2008).
"Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the
26
evidence is so weak and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances." Commonwealth v. Taylor, 831 A.2d
661, 663 (Pa. Super. 2003). Moreover, "[t]he Commonwealth may sustain its burden by
proving the crime's elements with evidence which is entirely circumstantial and the trier
of fact, who determines credibility of witnesses and the weight to give the evidence
produced, is free to believe all, part, or none of the evidence." Commonwealth v.
Riley, 811 A.2d 610, 614 (Pa. Super. 2002) (quoting Commonwealth v. Brown, 701
A.2d 252, 254 (Pa. Super. 1997)).
In this case, Green was convicted of first-degree murder and criminal conspiracy
to commit murder.
There are three elements of first-degree murder: (i) a human being
was unlawfully killed; (2) the defendant was responsible for the killing;
and (3) the defendant acted with malice and a specific intent to kill.
18 Pa.C.S. § 2502(a); Commonwealth v. Houser, 610 Pa. 264,
18 A.3d 1128, 1133 (2011). As set forth in the third element, first-
degree murder is an intentional killing, l.e., a 'willful, deliberate and
premeditated killing.' 18 Pa.C.S. § 2502(a) and (d). Premeditation
and deliberation exist whenever the assailant possesses the
conscious purpose to bring about death. The law does not require
a lengthy period of premeditation; indeed, the design to kill can be
formulated in a fraction of a second. Specific intent to kill as well as
malice can be inferred from the use of a deadly weapon upon a
vital part of the victim's body. Whether the accused had formed the
specific intent to kill is a question of fact to be determined by the jury.
Commonwealth v. Jordan, 619 Pa. 513, 522, 65 A.3d 318, 323 (2013) (citations and
internal quotation marks omitted).
To prove conspiracy, "the trier of fact must find that: (1) the defendant intended
to commit or aid in the commission of the criminal act; (2) the defendant entered into an
agreement with another ... to engage in the crime; and (3) the defendant or one or
27
more of the other co-conspirators committed an overt act in furtherance of the agreed
upon crime." Commonwealth v. Montalvo, 598 Pa. 263, 275-75, 956 A.2d 926, 932
(2008) (quoting Commonwealth v. Murphy, 577 Pa. 275, 844 A.2d 1228, 1238
(2004)). "Finally, each member of a conspiracy to commit homicide can be convicted of
first-degree murder regardless of who inflicted the fatal wound." Id. (citing
Commonwealth v. Wayne, 553 Pa. 614, 623, 720 A.2d 456, 460 (1998)). Application
of these concepts to the facts presented at trial requires this Court to reject Green's
ineffective assistance claim based upon counsel's failure to challenge the sufficiency of
the evidence on appeal as to his convictions for murder and criminal conspiracy.
The evidence, viewed in the light most favorable to the Commonwealth as the
verdict winner, was sufficient to sustain Green's convictions for first-degree murder in
the killing of Diana Spencer, and for conspiracy to commit such offense. With respect
to first-degree murder, Green does not dispute that Ms. Spencer's death was a
homicide, as the evidence plainly established that she died from multiple gun shot
wounds. Instead, Green only challenges the second and third elements of first-degree
murder, i.e., whether he was responsible for Ms. Spencer's death, and whether he had
the specific intent to kill.
As the evidence clearly established that co-defendant Martinez was the actual
shooter in this case, Green's liability is as an accomplice. "It is well established that a
defendant, who was not a principal actor in committing the crime, may nevertheless be
liable for the crime if he was an accomplice of a principal actor." Commonwealth v.
Murphy, 577 Pa. 275, 285, 844 A.2d 1228, 1234 (2004) (citing 18 Pa.C.S.A. § 306, and
28
Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688, 690 (1978) (the actor and his
accomplice share equal responsibility for commission of a criminal act)). A person is
deemed an accomplice of a principal if he acts with the intent of promoting or facilitating
the commission of an offense and agrees, aids or attempts to aid such other person in
either planning or committing that offense. See 18 Pa.C.S.A. § 306; Commonwealth
v. Spotz, 552 Pa. 499, 512, 716 A.2d 580, 585 (1998). Accordingly, two prongs must
be satisfied for a defendant to be found guilty as an "accomplice." First, there must be
evidence that the defendant intended to aid or promote the underlying offense.
Second, there must be evidence that the defendant actively participated in the crime by
soliciting, aiding, or agreeing to aid the principal. Murphy, supra at 286, 844 A.2d at
1234. "Both requirements may be established wholly by circumstantial evidence. Only
the least degree of concert or collusion in the commission of the offense is sufficient to
sustain a finding of responsibility as an accomplice. No agreement is required, only
aid." Commonwealth v. Kimbrough,872 A.2d 1244, 1251 (Pa. Super. 2005). With
regard to the amount of aid, it need not be substantial so long as it was offered to the
principal to assist him in committing or attempting to commit the crime. Murphy, supra.
"[A] shared criminal intent between the principal and his accomplice may be inferred
from a defendant's words or conduct or from the attendant circumstances." Spotz,
supra at 511, 716 A.2d at 586.
Green asserts that the evidence presented at trial was insufficient because it
failed to prove that he shared the requisite state of mind with his co-conspirator who
shot and killed Ms. Spencer. At trial, Green challenged the existence of a conspiracy to
29
commit murder and the Commonwealth's contention that he understood that a killing
was planned. The defense theory of the case was that Green, on behalf of his friend
Lassitter, also known as "B" (N.T., Trial at 133), went to the residence of Diana Spencer
to speak to her and her boyfriend, Francisco Camacho, in order to "broker peace" and
to settle a dispute between the respective parties.19 (N.T., Trial at 611.) Defense
counsel argued there was no evidence Green agreed to participate in a murder or a
crime of any kind. (Id. at 613.) Rather, Green merely agreed to knock on Ms.
Spencer's door in hopes of conversing with her or her boyfriend. But Martinez "decided
to do something completely different, completely independent of what Mr. Green was
doing, what Mr. Green understood the plan to be." (Id. at 614.) Green claimed not to
know that when Ms. Spencer answered the door, Martinez would pull out a firearm and
shoot her at point blank range. (Id.)
The Commonwealth presented the following evidence to refute Green's defense.
Taria Lowden testified that she was with Green, whom she identified at trial as "ICK"
("Insane Grip Killer") (N.T., Trial at 168-69), and Martinez (whom she knew only as
"Shine" (see Id. at 133)), on the night of Ms. Spencer's murder. (Id. at 153.) She stated
that Green and Martinez both left the vehicle in which she was a passenger somewhere
near Ruby Street. (Id. at 158, 185.) Ms. Lowden testified that both Green and Martinez
later returned to the car and had red bandanas around their necks that were not there
19The
residents of 26 Old Dorwart Street were associated with a group known as "the
Latin Kings" (N.T., Trial at 127-29, 146, 148), and Green and his co-defendants, who gathered
at 322 Mill Street, were affiliated with a group known as "the Bloods." (Id. at 132-34, 145, 178-
80.) Lassitter's girlfriend, also a member of "the Bloods", had apparently been assaulted earlier
in the day by members of the Latin Kings, while she was holding Lassitter's son in her arms.
(See Id. at 132-33, 158, 176, 513-14.)
30
before." (Id. at 159, 185.) She added that Green was "calm" but Martinez was "sweaty
and shaky". (Id.) Ms. Lowden observed Martinez handling a gun in the back seat, and
later heard Lassitter say "they just shot some bitch on Dorwart." (Id. at 160, 165.)
After the shooting, all those in the car went down into the basement at 322 Mill
Street. (N.T., Trial at 166-68.) Ms. Lowden testified that Green said, "I didn't think
[Martinez] was going to do it. I knocked on the door." (Id. at 169.) She stated that
Green told the group he thought he might have to do "it," implying he would have to
shoot the gun through the door, because Green did not think Martinez would be able to
do it. (Id. at 174-75.) Ms. Lowden described Lassitter's attitude in the basement as
celebratory after the murder. (Id. at 170, 175.)
The Commonwealth proved that Lassitter solicited Martinez and Green to
retaliate against Ms. Spencer and Camacho for the attack on the mother of Lassitter's
son. The evidence revealed that Green, Martinez and Lassitter cooperated together in
driving to Ms. Spencer's home. It was Green whose knock on the door was clearly
designed to bring Ms. Spencer and/or Camacho to them. Ms. Lowden's testimony
established that Green had knowledge that Martinez was going to fire the gun into the
door. Moreover, Green stated that he was prepared to shoot the gun had Martinez not
been able to do it.21 This boasting statement constitutes an admission of complicity in
20The
color red was worn by the Bloods, while the colors black and yellow were
associated with the Latin Kings. (N.T., Trial at 128, 132-33, 185-86.)
21Green's
insistence that he did not know weapons were involved when this
confrontation with the Latin Kings was being planned in the basement of the Mill Street house
(N.T., Trial at 400-01) is inconsistent with his statement to the police, in which he said that when
Lassitter asked about a gun just hours before the shooting, Green told him he did not have one
but that he "could probably find a way to get [him] one." (Id. at 287.) Later in the interview,
Green admitted that he did own a gun and that others knew about it. (Id. at 356.)
31
the murder.
Viewed in the light most favorable to the Commonwealth, the prosecution
presented evidence to support a finding that Green's willing and conscious participation
was, at a minimum, with the intent of promoting or facilitating the commission of Ms.
Spencer's murder. This clearly satisfied the statutory elements of first-degree murder,
and the evidence was sufficient to sustain the conviction.
These facts further established that Green acted with the requisite mens rea to
establish the first element of conspiracy: that Green intended to aid in the commission
of the murder. Further, as stated above, Green and Martinez were heard discussing
the shooting, and both were seen together before and after the crime,22 thereby
supporting the existence of a conspiratorial agreement. Finally, as the object of the
conspiratorial agreement was ultimately satisfied with the death of Ms. Spencer, it was
clearly established that an overt act was committed in furtherance of the crime.
Raising a claim on appeal that the evidence was insufficient to support the
convictions for murder and conspiracy to commit murder would have been frivolous and
would have offered Green no relief. Accordingly, this ineffectiveness claim is without
merit.
Green also contends that even if the evidence was sufficient to support a finding
of first-degree murder, the verdict was against the weight of the evidence and counsel
was deficient for not challenged it on appeal. Green's position is unpersuasive in that it
22The
video recording seized from a nearby business shows Green and Martinez
conversing immediately before the shooting at Ms. Spencer's residence. (See N.T., Trial at 262-
63; see also Commonwealth Ex. 18.) This fact also raises a reasonable inference that these
two men were finalizing the details of some joint criminal activity.
32
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
v. No. 5217 - 2011
JAKWAN ARCHIE GREEN
ORDER
AND NOW, this 10th day of April, 2017, upon consideration of Jakwan Archie Green's
original and amended pro se petitions for post conviction collateral relief, it is hereby ORDERED
that said petitions are DENIED without a hearing.
Further, the May 23, 2016, no-merit letter of Petitioner's court-appointed attorney, Dennis
C. Dougherty, Esquire, a copy of which was attached to this Court's Rule 907 Notice filed on May
24, 2016, states that the prose petition is lacking in merit as a matter of law, a conclusion with
which I agree after my independent review of the record. Accordingly, Mr. Dougherty is granted
leave to withdraw as counsel.
Pursuant to Pa.R.Crim.P. 907(4), this Court advises Petitioner that he has the right to
appeal from this Order. Petitioner shall have 30 days from the date of this final Order to appeal to
the Superior Court of Pennsylvania. Failure to appeal within 30 days will result in the loss of
appellate rights.
It is further ORDERED that Petitioner shall have the right, if indigent, to appeal in forma
pauperis.
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