Com. v. Johnson, A.

J. S03028/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
AMINA JOHNSON, : No. 1138 EDA 2015
:
Appellant :
Appeal from the PCRA Order, March 23, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0806702-2005
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 15, 2016
Amina Johnson appeals from the order of March 23, 2015, dismissing
her first petition for post-conviction collateral relief.1 After careful review,
we affirm.
The PCRA court has summarized the history of this case as follows:
On May 17, 2005, at approximately
10:00 P.M., Philadelphia Police Officer
Joseph Paraschak responded to a radio call of a
person shot at 19 West Duval Street in the City and
County of Philadelphia. When Officer Paraschak
arrived on location he observed a large group of
people on the front lawn and porch of 19 West Duval
Street. He was met by Michele Long (Michele), a
resident of the property and an off duty Philadelphia
Police Officer. Michele was very distressed and was
requesting assistance for her brother who was inside
the house. Officer Paraschak observed evidence that
a shooting had occurred at the location. When
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S03028/16
Officer Paraschak went inside 19 West Duval Street,
he observed an African American male, later
identified as Kenneth Baptiste, Jr. (Kenneth), on the
floor, unresponsive, bleeding from the head. He also
observed a female, later identified as Ebony Long
(Ebony), who had been shot in the arm.
Officer Paraschak called for an ambulance. After
securing the scene, he observed approximately
21 shell casings in the street, a fragment on the
pathway leading to the house, and a brown revolver
holster on a chair on the porch.
Officer Ryan Teaford, who also responded to
the radio call, arrived within two minutes of
Officer Paraschak. Officer Teaford was directed to
the house by Ebony who requested assistance for
her brother. Officer Teaford observed that Ebony
was bleeding from her arm. When he entered
19 West Duval Street, he observed Kenneth on the
floor bleeding and unresponsive. Officer Teaford
accompanied Kenneth and his attending medics as
he was evacuated to Einstein Hospital by ambulance.
Kenneth never regained consciousness and was
pronounced dead at 2:20 P.M. on May 18, 2005.
Ebony was transported to the same hospital in a
separate ambulance. Officer Teaford interviewed
Ebony at the hospital and she told Officer Teaford
that she fought with Appellant earlier near Woodlawn
and McMahon Streets. Ebony described a male
wearing a red hat and blue jeans, and Appellant’s
sisters as persons who she observed on Duval Street
during the shooting.
Officer Stephen Arbiz also responded to the
initial radio call. On scene, he was approached by
Michele who was Ebony’s sister. Michele was
pleading for help for her brother. She told
Officer Arbiz that Appellant’s boyfriend,
Gregory Price (Gregory), was present during the
shooting. Officer Arbiz ascertained the name and
address of Gregory’s mother as well as Appellant’s
address and that the suspects were traveling in a
black Yukon.
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At approximately 10:30 P.M. on May 17, 2005,
Officer Warren Smith responded to a radio call to go
to Crosson Street to meet a complainant in reference
to an assault and was met there by Appellant.
Appellant told Officer Smith that she had been
assaulted on Duval Street approximately forty-five
minutes to an hour earlier by a group of males and
females. One of the females she recognized was
Ebony who she related was a woman who formerly
had a relationship with her baby’s father.
Officer Smith noted a few lumps on her forehead
after Appellant told him that a male punched her
several times. Appellant indicated that she had gone
to Duval Street with the intention of fighting Ebony.
When she arrived, Ebony’s sister, Michele, lifted her
shirt revealing a black handgun tucked into her
pants. Michele said no one was to enter the fight
besides the two women or else she would shoot.
Appellant did not mention the shooting at 19 West
Duval Street when speaking with Officer Smith.
Officer Smith asked her what the name of her baby’s
father was and where he lived, but Appellant feigned
ignorance. Officer Smith wrote an incident report
characterizing the information as a domestic issue
and advised Appellant to seek a protection order.
The ensuing homicide investigation into
Kenneth’s death revealed that there had been an
ongoing feud between Appellant and Ebony
surrounding their relationship with Gregory. Ebony
testified that she had begun what she believed to be
an exclusive relationship with Gregory about three
years prior to the incident. She first came in contact
with Appellant in February 2003. Appellant and
three or four of her girlfriends confronted Ebony
regarding Gregory. Appellant informed Ebony that
Gregory was her boyfriend and that Ebony should
stay away from him or else there would be a fight.
During this incident, Appellant was very angry and
aggressive. Ebony confronted Gregory about the
incident that night, but Gregory told Ebony that
Appellant was lying. Gregory said that he would
speak with Appellant and would instruct her to leave
Ebony alone. Following this incident, Appellant and
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her friends would call Ebony’s cell phone and make
snide remarks or hang up. Ebony told Gregory about
the calls and he said he would speak with Appellant
again and reiterated that he was not in a relationship
with Appellant. Later, Gregory told Ebony that
Appellant was pregnant with his child. Ebony broke
up with Gregory thereafter.
In late 2003 or early 2004, Gregory, Appellant
and another woman came into Ebony’s workplace at
the King of Prussia Mall. Ebony observed that
Appellant was pregnant. Appellant and the other
woman were laughing and pointing at Ebony.
Appellant remarked to Ebony that she had Gregory
now; she was pregnant with his child. Gregory did
not say anything.
Ebony saw Appellant again, while Appellant
was pregnant, at a neighborhood restaurant where
Ebony had stopped to get food before going to work.
Appellant and three or four female friends followed
Ebony out of the restaurant and accused Ebony of
talking about Appellant. Appellant watched as one of
her female friends shoved Ebony and another tripped
Ebony although Ebony did not fall. Ebony walked
away and called her parent to pick her up.
Ebony continued to have contact with Gregory
after realizing that Appellant was pregnant although
Gregory told her that he chose to be with Appellant
and his child. During the first week of May 2005,
Ebony and Gregory had a chance encounter at the
gas station located at Germantown and Washington
Lane. Gregory was driving a black Yukon that
belonged to his cousin, Raphael Hill (Raphael).
Gregory and Ebony spoke for about five minutes
before parting company. Appellant later called
Ebony warning her to stay away from Gregory.
On May 17, 2005, Ebony dropped her nephew
off at 5th and Lindley Streets, and was taking her
mother to a seafood store that was located three to
four blocks from Appellant’s house when she
observed Appellant leaning against a car on Crosson
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Street. Ebony’s car contained her mother
Rene Baptiste (Rene), her brother, Kenneth, her
cousin Remmia, and her two year old niece.
Appellant, who was with an unidentified male and
female, upon observing Ebony’s car drive by,
became angry and yelled down the street at Ebony,
asking if she had come to fight her. Ebony stopped
her car near Crosson and Woodlawn Streets, exited
the vehicle, walked back toward Appellant, and the
two began to fight. The unidentified male ran back
toward the Appellant’s home and the unidentified
female entered the fight. The female hit Ebony,
pulled her hair, and kicked her in the back while
Ebony was on top of Appellant. Appellant was trying
to push Ebony off. The fight stopped when Ebony’s
mother and brother came and broke up the fight.
Rene pulled Ebony off of Appellant, and Kenneth
pulled the unidentified female off of Ebony and then
took Ebony to the car. Appellant and the female told
Kenneth that he would die for laying hands on them.
Appellant also screamed Ebony’s name. Gregory
was not present at the fight.
The fight took place at approximately
8:30 P.M. and it took about ten minutes for Ebony
and everyone in the car to get to 19 West Duval
Street. Shortly after she arrived home, Ebony
received a phone call from Gregory, berating her
about the fight and threatening her should she
return. Ebony replied that it had been a fair fight
and hung up. Gregory called back to yell at her and
finally threatened that the next time he saw her,
“It’s a wrap.”
When the car arrived home, Rene told her
daughter, Michele, about the fight. Michele had been
asleep on the third floor, but was awakened when
she heard Rene arguing with Ebony. Michele came
downstairs and Rene told her that Ebony had been in
a fight. Michele, Kenneth, and Rene were outside on
the porch at that point. Ebony was standing on the
porch telling Michele what happened, when two
vehicles came speeding down Duval Street, a black
Yukon, driven by Gregory, and a silver Grand Am.
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Ebony recognized the Yukon as the one Gregory
drove on previous occasions. When the vehicles
stopped in front of 23-25 West Duval, Ebony saw
four males and about six females. The occupants
exited the vehicles and began walking up the street
towards 19 West Duval while screaming. Ebony also
recognized Appellant, Appellant’s two sisters and the
girl that was at the fight earlier. Ebony went inside
her house, grabbed a bat and came back out.
Appellant was on the sidewalk in front of Ebony’s
house at the time. Gregory was standing next to
Appellant and one of the males, later identified as
Raphael, in front of 21 West Duval. When Appellant
pointed Ebony and Kenneth out, members of
Appellant’s group opened fire. Rene tried to run
inside the house and Gregory yelled, “Bitches, don’t
run now.” Ebony observed Gregory shoot first
followed by Raphael and an unidentified male.
Michele observed the Yukon go down the street
before the shooting began. She heard Rene say, “he
has something in his hand,” right before she heard
gunshots. Michele then went towards the walkway
that separated her house from the neighbor’s and
laid flat on the step. Kenneth was still standing on
the step. Although Michele had her off duty firearm,
she did not return fire because she was unable to
accurately observe the shooters. Michele grabbed
Kenneth’s arm and told him to get down. After the
shooting stopped, Kenneth got up and said he was
shot. He had blood on his face and fell to the
ground. Michele and other family members carried
him to the floor inside the home while they
attempted to stabilize his injuries.
Abdul Torrence (Abdul), a cousin of Ebony and
Michele, also testified at trial. Abdul testified that,
on May 17, 2005, he and his wife, Karen, came to
Philadelphia to visit with family and to retrieve
documents. At the time, he was under the
supervision of the New York penal system, but did
not notify his probation officer that he was going to
Philadelphia in violation of the terms of his
supervision. Additionally, he possessed a firearm
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against the terms of his supervision. Upon arrival in
Philadelphia, Abdul and his wife visited his
grandmother, Georgia Torrence, and then went to
Ebony’s house at 19 West Duval Street. Abdul
accompanied Ebony, Karen, Rene, and Abdul’s
daughter when they went to the store and witnessed
the fight between Appellant and Ebony. He testified
that Ebony and Appellant were fighting and fell to
the ground. Other people then tried to break the
fight up. Abdul observed additional males and
females running towards the fight. He described the
situation as chaotic with people yelling and trying to
intervene. He did not observe Kenneth hit anyone.
Abdul, Ebony, Karen, Rene, Kenneth, and Abdul’s
daughter then left the area and returned to Duval
Street.
Upon arriving back at 19 West Duval Street
after the incident, Abdul walked down Duval Street
to his car which was parked about five houses down
from Germantown Avenue. Abdul testified that he
was standing outside smoking a cigarette when he
noticed a little gray car, tailgating a black truck,
drive past him. Upon seeing this, he retrieved a
revolver from his car, put it on his hip and walked
back to the house located at 19 West Duval Street.
As he was about to enter the house, he saw the two
vehicles again with the truck traveling in the rear.
Abdul walked off the porch and onto the front lawn.
He observed five to seven people, males and
females, exit the car and one male exit the
passenger’s side of the truck. He did not see the
driver of the truck. As these individuals approached
the house, Abdul yelled for his family to get inside
the house. He then concealed himself by a bush
located in front of the house and observed Gregory
standing with an unidentified male. After hearing a
gunshot, Abdul took out his gun and fired toward
Gregory and the male who was on the sidewalk,
aiming his gun towards the porch of 19 West Duval
Street. Gregory and the unidentified male retreated
while continuing to fire. Abdul then observed a third
shooter come diagonally across from the area of
26-28 Duval Street. Abdul fired the remaining
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rounds in his revolver. Moments later, the shooting
stopped. Abdul placed his gun in his pocket and ran
up the steps of 19 West Duval to assess the
situation. With police arriving, Abdul became
concerned about possible probation violation issues
so he left to change clothing and disposed of the
firearm in the river. He also went to the hospital to
check on the condition of his cousin.
On July 5, 2005, Officer Cherie Klinger and her
partner Officer McKenna were in the area of 21st and
Spencer Streets when they stopped a Pontiac Grand
Prix, operated by Gregory, for motor vehicle
violations. Officer Klinger noticed an empty gun
holster, in an upright position, between Gregory and
the edge of his seat. Officer Klinger checked the
area around Gregory and recovered a [.]9mm Smith
& Wesson firearm, loaded with 15 live rounds, from
the pouch behind the passenger’s seat. Gregory told
Officers that he did not have a permit to carry a
weapon and he was subsequently arrested. The gun,
bullets and holster were placed on a property receipt
and submitted to the Firearms Identification Unit
(FlU) for analysis. Officer Robert Stott of the FlU
analyzed the ballistic evidence recovered from the
shooting at Duval Street and also compared the
ballistic evidence with the firearm recovered from
the car stop. Officer Stott found that the firearm
found in Gregory’s car was the gun that fired the
.9mm FCC’s [(fired cartridge casings)] found at
Duval Street.
Appellant was subsequently arrested and
charged with murder and conspiracy in the death of
Kenneth and attempted murder, aggravated assault
and conspiracy in the shooting of Ebony. On July 5,
2007, Appellant was convicted of third degree
murder, attempted murder, aggravated assault and
two counts of conspiracy and was sentenced to
8-16 years[’] incarceration.
PCRA court opinion, 6/17/15 at 1-8.
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Post-sentence motions were denied, and on October 21, 2010, this
court affirmed the judgment of sentence. Commonwealth v. Johnson,
No. 52 EDA 2008, unpublished memorandum (Pa.Super. filed 10/21/10).
Our supreme court denied allowance of appeal on March 15, 2011.
Commonwealth v. Johnson, No. 660 EAL 2010 (per curiam). On
May 27, 2011, appellant filed a timely pro se PCRA petition. Counsel was
appointed and filed an amended petition on her behalf. On March 23, 2015,
following Rule 9072 notice, appellant’s petition was dismissed without a
hearing.3 A timely notice of appeal was filed on April 17, 2015. On April 21,
2015, appellant was ordered to file a concise statement of errors complained
of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A.; appellant complied on May 12, 2015, and the PCRA court has
filed a Rule 1925(a) opinion.
Appellant has raised the following issue for this court’s review:
I. Did the PCRA Court err when it dismissed the
Defendant’s Amended PCRA Petition without a
Hearing and all where the Defendant properly
pled and would have been able to prove that
she was entitled to PCRA relief?
Appellant’s brief at 3.
Initially, we recite our standard of review:
2
Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A.
3
As explained by the PCRA court, the proceedings were continued several
times, including at appellant’s request, to locate and investigate potential
witnesses. (PCRA court opinion, 6/17/15 at 9.)
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This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super.2001). It is within the PCRA court’s
discretion to decline to hold a hearing if the
petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. Id.It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,
1239-1240 (Pa.Super. 2004).
Appellant raises two claims of counsel ineffectiveness. First, appellant
argues that trial counsel was ineffective for failing to request a corrupt and
polluted source instruction with regard to Abdul Torrence (“Abdul”). Second,
appellant argues that appellate counsel was ineffective for failing to raise a
challenge to the sufficiency of the evidence to support her conviction for
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conspiracy to commit murder. For the reasons discussed infra, we find that
neither contention has arguable merit.
The law presumes counsel has rendered effective
assistance. Commonwealth v. Gonzalez, 858
A.2d 1219, 1222 (Pa.Super.2004), appeal denied,
582 Pa. 695, 871 A.2d 189 (2005). To establish a
claim of ineffective assistance of counsel, Appellant
must demonstrate (1) the underlying claim is of
arguable merit; (2) counsel’s action or inaction
lacked any reasonable basis designed to effectuate
Appellant’s interest; and (3) but for the errors and
omissions of counsel, there is a reasonable
probability that the outcome of the proceedings
would have been different. Commonwealth v.
Johnson, 868 A.2d 1278, 1281 (Pa.Super.2005),
appeal denied, 583 Pa. 680, 877 A.2d 460 (2005)
(internal citations omitted); Gonzalez, supra. The
failure to satisfy any prong of the test for
ineffectiveness will cause the claim to fail.
Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651(2003). “The threshold inquiry in ineffectiveness
claims is whether the issue/argument/tactic which
counsel has foregone and which forms the basis for
the assertion of ineffectiveness is of arguable
merit. . . .” Commonwealth v. Pierce, 537 Pa.
514, 524, 645 A.2d 189, 194 (1994). “Counsel
cannot be found ineffective for failing to pursue a
baseless or meritless claim.” Commonwealth v.
Poplawski, 852 A.2d 323, 327 (Pa.Super.2004).
Commonwealth v. Taylor, 933 A.2d 1035, 1041-1042 (Pa.Super. 2007),
appeal denied, 951 A.2d 1163 (Pa. 2008).
Appellant argues trial counsel was ineffective for failing to request a
corrupt-source instruction in connection with Abdul’s testimony. She
maintains she was entitled to a corrupt-source charge because there was
sufficient evidence to present a question to the jury concerning whether
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Abdul was an accomplice. Appellant argues that Abdul willingly participated
in a shoot-out on a public street. (Appellant’s brief at 9-10.) According to
appellant, by firing his weapon, Abdul encouraged others to return fire. (Id.
at 10.) Appellant contends that regardless of which side he was on, Abdul’s
criminal conduct warranted the corrupt and polluted source instruction. (Id.
at 9-10.) We disagree.
“[I]t ‘is well established that, in any case in which an
accomplice implicates the defendant, the [judge]
should instruct the jury that the accomplice is a
corrupt and polluted source whose testimony should
be considered with caution.’” Commonwealth v.
Hanible, 612 Pa. 183, 30 A.3d 426, 462 (2011)
(citation omitted). A corrupt-source instruction is
warranted where sufficient evidence is presented as
to whether the witness is an accomplice.
Commonwealth v. Williams, 557 Pa. 207, 732
A.2d 1167, 1181 (1999). An individual is an
accomplice if, with intent to promote or facilitate the
commission of the offense, he solicits, aids, agrees,
or attempts to aid another person in planning or
committing the offense. 18 Pa.C.S. § 306(c)(1).
Commonwealth v. Treiber, 121 A.3d 435, 459 (Pa. 2015).
Instantly, Abdul was not appellant’s accomplice. He was hiding behind
a bush as appellant and her cohorts approached the house. Abdul did not
retrieve his weapon until shots were fired. As the PCRA court states, “In the
case at hand, Abdul was a relative of the decedent and was never charged
as an accomplice. He was at the scene of the crime, but was on the
receiving end of the gunfire directed at the decedent and Ebony.” (PCRA
court opinion, 6/17/15 at 15 (citations to the transcript omitted).) There
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was no evidence presented at trial from which the jury could have
reasonably inferred Abdul was appellant’s accomplice. There was no
evidence he took part in appellant’s crimes. Because appellant was not
entitled to a corrupt-source instruction, her ineffectiveness claim fails for
lack of arguable merit.
Next, appellant argues that appellate counsel was ineffective for failing
to challenge the sufficiency of the evidence to support her conviction of
criminal conspiracy to commit murder.4 According to appellant, she was
merely present at the scene. (Appellant’s brief at 14.) Appellant argues
that although she and Ebony had a history of animosity, there was no
evidence that she knew anyone was armed or incited anyone to open fire on
the decedent and his family. (Id. at 13-14.) Appellant argues that the
Commonwealth failed to prove a conspiratorial agreement to commit
murder; rather, appellant contends that, “[she] wanted to have a simple
fistfight while others, on their own, decided to engage in an open air, Wild
West type of shoot out.” (Id. at 15.)
Appellant’s initial challenge to the sufficiency of
the evidence requires that we view the evidence, and
4
On direct appeal, appellant argued that the evidence was insufficient to
convict her of third-degree murder. Johnson, supra at *10. However,
because she did not challenge the conviction for conspiracy, we found she
waived that challenge and was, therefore, necessarily guilty of the
underlying crime of third-degree murder. Id. at *12, citing
Commonwealth v. McCall, 911 A.2d 992, 997 (Pa.Super. 2006) (even
where a conspirator did not act as a principal in committing the underlying
crime, she is still criminally liable for the actions of her co-conspirators)
(additional citation omitted).
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all reasonable inferences to be drawn therefrom, in
the light most favorable to the Commonwealth in
deciding whether the evidence was sufficient to
establish each element of the crimes beyond a
reasonable doubt. Commonwealth v. McNair, 529
Pa. 368, 371, 603 A.2d 1014 (1992).
Moreover, “‘[w]hen conflicts and discrepancies
arise, it is within the province of the jury to
determine the weight to be given to each [witness’s]
testimony and to believe all, part, or none of the
evidence as [it] deems appropriate.’”
Commonwealth v. Wright, 722 A.2d 157, 161
(Pa.Super.1998) (quoting Commonwealth v.
Verdekal, 351 Pa.Super. 412, 506 A.2d 415, 419
(1986)).
To convict an accused of third degree murder,
the Commonwealth must prove that the accused
killed another person with malice. Commonwealth
v. Hardy, 918 A.2d 766, 774 (Pa.Super.2007).
The elements of third degree
murder, as developed by case law, are a
killing done with legal malice but without
specific intent to kill required in first
degree murder. Malice is the essential
element of third degree murder, and is
the distinguishing factor between murder
and manslaughter.
Commonwealth v. Cruz–Centeno, 447 Pa.Super.
98, 668 A.2d 536, 539 (1995), allocatur denied,
544 Pa. 653, 676 A.2d 1195 (1996).
Malice under the law “comprehends not only a
particular ill-will, but every case where there is
wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless
of social duty, although a particular person may not
be intending to be injured.” Commonwealth v.
Thomas, 527 Pa. 511, 514, 594 A.2d 300 (1991).
“Malice may be inferred from the ‘attending
circumstances of the act resulting in death.’”
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Commonwealth v. Lee, 426 Pa.Super. 345, 626
A.2d 1238, 1241 (1993) (quoting Commonwealth
v. Gardner, 490 Pa. 421, 424, 416 A.2d 1007(1980)). Otherwise stated, malice may be found
where the defendant has consciously disregarded an
unjustified and extremely high risk that her conduct
might cause death or serious injury to another.
Commonwealth v. Young, 494 Pa. 224, 228, 431
A.2d 230 (1981).
To convict of criminal conspiracy, the evidence
must establish that the defendant entered an
agreement with another person to commit or aid in
the commission of an unlawful act, that the
conspirators acted with a shared criminal intent, and
that an overt act was done in furtherance of the
conspiracy. 18 Pa.C.S.A. § 903; Commonwealth v.
Johnson, 719 A.2d 778, 784 (Pa.Super.1998),
allocatur denied, 559 Pa. 689, 739 A.2d 1056(1999). “An explicit or formal agreement to commit
crimes can seldom, if ever, be proved and it need
not be, for proof of a criminal partnership is almost
invariably extracted from the circumstances that
attend its activities.” Commonwealth v.
Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173,
1177 (1994). “An agreement sufficient to establish a
conspiracy can be inferred from a variety of
circumstances including, but not limited to, the
relation between the parties, knowledge of and
participation in the crime, and the circumstances and
conduct of the parties surrounding the criminal
episode.” Commonwealth v. Rivera, 432
Pa.Super. 88, 637 A.2d 997, 998 (1994) (en
banc)[.]
Once a conspiracy is established, the actions of
each co-conspirator may be imputed to the other
conspirators. In this regard, “[t]he law in
Pennsylvania is settled that each conspirator is
criminally responsible for the actions of his
co-conspirator, provided that the actions are
accomplished in furtherance of the common design.”
Commonwealth v. Baskerville, 452 Pa.Super. 82,
681 A.2d 195, 201 (1996). Furthermore,
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Where the existence of a
conspiracy is established, the law
imposes upon a conspirator full
responsibility for the natural and
probable consequences of acts
committed by his fellow conspirator or
conspirators if such acts are done in
pursuance of the common design or
purpose of the conspiracy. Such
responsibility attaches even though such
conspirator was not physically present
when the acts were committed by his
fellow conspirator or conspirators and
extends even to a homicide which is a
contingency of the natural and probable
execution of the conspiracy, even though
such homicide is not specifically
contemplated by the parties.
Commonwealth v. Eiland, 450 Pa. 566, 570-71,
301 A.2d 651 (1973).
Commonwealth v. Geiger, 944 A.2d 85, 90-91 (Pa.Super. 2008), appeal
denied, 964 A.2d 1 (Pa. 2009).
Instantly, the Commonwealth established that appellant and Ebony
had a long history of animosity revolving around their relationship with
Gregory. Ebony had been dating Gregory, who was also the father of
appellant’s child. During one incident while appellant was pregnant,
appellant’s friends confronted Ebony at a restaurant and physically attacked
her while appellant stood by and watched. On May 17, 2005, the night of
the shooting, appellant and Ebony were fighting and had to be physically
separated. Appellant and an unidentified female companion were yelling at
Kenneth and threatening him due to his interference.
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Shortly thereafter, Ebony received a phone call from Gregory,
threatening that when he saw her again, “it’s a wrap.” When appellant and
her cohorts, including Gregory, arrived at 19 West Duval Street, they were
yelling and screaming. As appellant got closer to the front porch, she
pointed out Kenneth and Ebony to the rest of the group. Kenneth, the
decedent, sustained a fatal gunshot to the head; Ebony was shot in the arm.
Police recovered 21 FCC’s from the scene including seven that were fired
from the .9mm Smith & Wesson recovered from Gregory’s vehicle.
Johnson, supra at *9, citing trial court opinion, 9/17/09 at 1-14. Appellant
and her cohorts left the scene together. Later, when appellant made the
report to police, she did not mention the shooting at 19 West Duval Street
and told police that she did not know the baby’s father’s name or where he
lived.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, it was overwhelmingly sufficient to support appellant’s
conviction of criminal conspiracy to commit third-degree murder. Appellant
was more than merely present at the scene of the shooting. As the PCRA
court states, “The overarching context of the events was the long running
dispute between Ebony and Appellant that involved both verbal and physical
confrontations stemming from their mutual relationship with Gregory.”
(PCRA court opinion, 6/17/15 at 13.) As the underlying issue lacks arguable
merit and would not have been successful on direct appeal, appellate
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counsel cannot be held ineffective for failing to have raised it. This claim
fails.5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2016
5
In her Rule 1925(b) statement, appellant also alleged that trial counsel
was ineffective for failing to call certain witnesses. (Docket #24.) However,
as the PCRA court observes, despite being provided with funds for an
investigator, appellant’s final amended PCRA petition does not identify any
potential witnesses. (PCRA court opinion, 6/17/15 at 15.) Apparently,
appellant has abandoned this argument on appeal.
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