Com. v. Ransome, J.

J-S49037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERRY RANSOME :
:
Appellant : No. 291 EDA 2019
Appeal from the PCRA Order Entered December 20, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006515-2007
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 04, 2019
Appellant Jerry Ransome appeals the order of the Court of Common
Pleas of Philadelphia County denying Appellant’s petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Appellant claims that
his trial counsel was ineffective for failing to object to the admission of prior
bad act evidence and suggests that he is entitled to a new trial based on after-
discovered evidence. After careful review, we affirm.
The trial court previously summarized the factual background and
procedural history of this case as follows:
[Appellant] and three co-defendants, Eric Gales, Isaiah Ransome,
and Sean Gordine were each arrested and charged with murder
and related offenses in connection with a robbery and shooting in
the Frankford section of Philadelphia on October 3, 2006. During
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* Former Justice specially assigned to the Superior Court.
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the course of the robbery, [Appellant] fired shots at each of the
four victims, robbing all and killing one.
The defendants were jointly tried by a jury before the Honorable
Carolyn Engle Temin.1,2 On June 13, 2008, the jury returned a
partial verdict finding all four defendants not guilty of first degree
murder, but deadlocking on the remaining charges. …
On December 14, 2012, at the conclusion of the second jury trial,
the jury found [Appellant] guilty of second degree murder, three
counts of robbery (F-1), three counts of aggravated assault (F-1),
criminal conspiracy, possession of an instrument of crime (PIC)
and violating §§ 6106 and 6108 of the Uniform Firearms Act.
On June 21, 2013, following a lengthy hearing, [the Honorable
Benjamin Lerner] sentenced [Appellant] to thirty-five (35) years
to life imprisonment on the second degree murder bill and
concurrent prison terms of five (5) to ten (10) years on the
robbery and conspiracy bills [] and two-and-a-half (2½) to five
(5) years on the § 6106 bill. The court also imposed a prison term
of five (5) to ten (10) years for each aggravated assault bill (these
sentences were ordered to run concurrently to each other but
consecutively to the murder). No further penalty was imposed on
the remaining bills. [Appellant’s] total aggregate sentence was
forty (40) years to life.
Trial Court Opinion (T.C.O.), 8/7/15, at 1-2. Appellant filed a post-sentence
motion which the trial court subsequently denied.
Appellant filed a notice of appeal, but his appeal was dismissed due to
defense counsel’s failure to file a docketing statement. On March 24, 2014,
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1 Although Appellant was seventeen at the time of the crimes at issue,
Appellant and his co-defendants were charged and tried as adults.
2 Judge Temin subsequently joined the Philadelphia District Attorney’s Office
as an Assistant District Attorney. The Commonwealth, in its Motion to Dismiss
Appellant’s PCRA petition, indicated that it had screened Judge Temin from
this case pursuant to its conflict-resolution protocol. See Pa.R.Prof.Conduct
1.12(c)(2) (providing for the disqualification of a lawyer who previously served
in a matter as a judge and setting forth notice and screening requirements for
participation of the former judge’s firm in the matter).
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Appellant filed a pro se PCRA petition, arguing that his counsel was ineffective
in failing to file the docketing statement. On February 20, 2014, the lower
court granted this petition and reinstated Appellant’s appellate rights nunc pro
tunc. After Appellant filed an appeal, this Court affirmed the judgment of
sentence on May 16, 2016, and our Supreme Court denied Appellant’s petition
for allowance of appeal on November 29, 2016.
On November 7, 2017, Appellant filed a pro se PCRA petition.3 The PCRA
court appointed Appellant counsel, who filed an amended petition. On
September 9, 2018, the Commonwealth filed a Motion to Dismiss the petition.
On November 20, 2018, the PCRA court notified Appellant of its intent to
dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant
did not respond to the Rule 907 notice. On December 20, 2018, the PCRA
court dismissed Appellant’s petition. This timely appeal followed.
Appellant raises two issues for our review:
I. Were Appellant’s constitutional rights under the Sixth and
Fourteenth Amendments of the U.S. Constitution and Article
1 sec. 9 of the Pennsylvania Constitution violated by trial
counsel’s failure to timely object to and appeal the Court’s
pre-trial ruling permitting the Commonwealth to introduce
evidence of Appellant’s prior juvenile ‘contacts’ with the
criminal justice system?
II. Did after discovered evidence of a pattern, practice and
custom within the Philadelphia Homicide Detectives Unit of
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3 Appellant’s petition meets the PCRA’s timeliness requirements. See 42
Pa.C.S.A. § 9545(b)(1) (indicating that a PCRA petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment of
sentence becomes final”).
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threatening, coercing, and falsifying witnesses and suspects
statements violate Appellant’s right to a fair trial?
Appellant’s Brief, at 3.
Appellant first claims trial counsel was ineffective in failing to object
when the Commonwealth elicited testimony concerning his prior contacts with
the criminal justice system. In reviewing claims of ineffectiveness of counsel,
we are guided by the following principles:
It is well-established 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. See Commonwealth v.
Pierce, 515 Pa. 153, 527 A.2d 973, 975–76 (1987);
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). The PCRA court may deny an
ineffectiveness claim if “the petitioner's evidence fails to
meet a single one of these prongs.” Commonwealth v.
Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000)....
Because courts must presume that counsel was effective, it
is the petitioner's burden to prove otherwise. See Pierce,
supra; Commonwealth v. Holloway, 559 Pa. 258, 739
A.2d 1039, 1044 (1999).
[Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d
310, 321 (2007);] see also Commonwealth v. Hall, 582 Pa.
526, 537, 872 A.2d 1177, 1184 (2005) (stating an appellant's
failure to satisfy any prong of the Pierce ineffectiveness test
results in a failure to establish the arguable merit prong of the
claim of ineffectiveness).
Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018).
With respect to the admission of evidence of a defendant’s prior bad
acts, we are guided by the following principles:
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While evidence of prior bad acts is inadmissible to prove the
character of a person in order to show conduct in conformity
therewith, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Commonwealth v. Sherwood,
603 Pa. 92, 982 A.2d 483, 497 (2009); Pa.R.E. 404(b)(2)
(providing that “[e]vidence of other crimes, wrongs, or acts may
be admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident”).
Commonwealth v. Busanet, 618 Pa. 1, 43, 54 A.3d 35, 60 (2012).
Specifically, Appellant argues that trial counsel was ineffective in failing
to object when the Commonwealth elicited testimony regarding Appellant’s
four prior juvenile arrests. Appellant argues that any probative value of the
admission of this evidence was outweighed by its prejudicial effect.
The Commonwealth responds that this line of questioning was proper to
rebut defense counsel’s suggestion in opening statements that Appellant’s
confession to police was involuntary and unknowing as a result of his age and
inexperience. At the time of his confession, Appellant was seventeen years
old and agreed to waive his Miranda rights.
Our Supreme Court has held that “[i]t is the Commonwealth's burden
to establish whether [a defendant] knowingly and voluntarily waived
his Miranda rights. In order to do so, the Commonwealth must demonstrate
that the proper warnings were given, and that the accused manifested an
understanding of these warnings.” Commonwealth v. Eichinger, 591 Pa. 1,
24, 915 A.2d 1122, 1135–36 (2007) (citing Commonwealth v. Hughes, 521
Pa. 423, 555 A.2d 1264, 1274 (1989)).
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In Hughes, the Supreme Court held that a defendant’s prior experience
with Miranda warnings is relevant in determining whether the defendant’s
subsequent waiver of those rights was knowing and voluntary. Hughes, 521
Pa. at 444, 555 A.2d 1264, 1274-75 (concluding that the appellant’s prior
waiver of his Miranda rights in a previous rape investigation suggested that
his subsequent waiver of these rights and confession to a murder was knowing
and voluntary). See also Commonwealth v. Davis, 861 A.2d 310, 318-19
(Pa.Super. 2004) (considering minor appellant’s previous contact with the
police in determining whether his statements to police should have been
suppressed as involuntary or unknowing).
However, as recognized by our Supreme Court in Hall, we need not
specifically determine whether Appellant’s claim has arguable merit, because
Appellant has not demonstrated that he was prejudiced by trial counsel’s
failure to object to the admission of this evidence. As noted above, “where it
is clear that a petitioner has failed to meet the prejudice prong, the claim may
be dismissed on that basis alone without determination of whether the first
two prongs of the ineffectiveness standard have been met.” Hall, 582 Pa. at
538–39, 872 A.2d at 1184.
The prosecution presented overwhelming evidence of Appellant’s guilt
including Appellant’s confession admitting his involvement in the robbery and
shootings, the accounts of four eyewitnesses identifying Appellant as one of
the perpetrators, and Appellant’s admission of guilt to his brother. As a result,
Appellant has not shown prejudice from counsel’s inaction such that “there
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was a reasonable probability of a different outcome if not for counsel's error.”
Johnson, supra. Thus, this ineffectiveness claim fails.
In his second claim of error, Appellant suggests that he is entitled to a
new trial based on after-discovered evidence. To successfully obtain relief on
an after-discovered evidence claim, a petitioner must show that the evidence:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.
Commonwealth v. Small, ___Pa.___, 189 A.3d 961, 969 (Pa. 2018)
(quoting Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008))
(other citation omitted). “In determining whether the evidence would compel
a different verdict, a court should consider the integrity of the alleged after-
discovered evidence, the motive of those offering the evidence, and the overall
strength of the evidence supporting the conviction.” Commonwealth v.
Sandusky, 203 A.3d 1033, 1060 (Pa.Super. 2019) (citation omitted).
Specifically, Appellant contends that there is an unconstitutional pattern
and practice within the Philadelphia Police Department’s Homicide Unit of
threatening, coercing, and falsifying statements of defendants and witnesses.
Appellant claims that he is entitled to a new trial to offer this evidence of the
pattern and practice of misconduct as a “habit” under Pa.R.E. 406. In support
of this claim, Appellant attempts to offer as after-discovered evidence several
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cases in which other appellants had accused Philadelphia detectives of similar
claims of misconduct.4
However, even assuming arguendo that such cases can be construed to
show acts of police misconduct, Appellant has not shown any nexus between
those cases and the instant case. As these cases have little connection to the
evaluation of the voluntariness of Appellant’s confession, Appellant has not
established how these unrelated allegations of misconduct would support his
claim that he personally was coerced into making a confession by detectives
using illegal interrogation tactics. See Commonwealth v. Griffin, 137 A.3d
605, 609-10 (Pa.Super. 2016) (finding that “allegations about an unrelated
person in an unrelated case” did not constitute after-discovered evidence);
Commonwealth v. Foreman, 55 A.3d 532, 537-38 (Pa.Super. 2012)
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4 Appellant mainly claims that the decision in Commonwealth v. Thorpe,
CP-51-CR-0011433-2008 (Pa.Ct.Com.P., November 3, 2017) constitutes
after-discovered evidence of a pattern and practice of misconduct in the
Philadelphia Homicide Unit. We note that the record does not contain a copy
of the Thorpe decision. However, Appellant admits that the officers accused
of misconduct in the Thorpe case were not involved in the instant case.
Likewise, the majority of cases that Appellant attempts to offer as after-
discovered evidence analyze allegations of misconduct against officers who
were not involved in Appellant’s case. The only case Appellant cites that
involves a detective assigned to Appellant’s case is Commonwealth v.
Jones, 3317 EDA 2012 (Pa.Super. Aug. 15, 2014) (unpublished
memorandum). In Jones, this Court reviewed a defendant’s allegations that
her actual statement to police conflicted with Detective Bamberski’s account
of her confession. Commonwealth v. Jones, 3317 EDA 2012 (Pa.Super.
Aug. 15, 2014) (unpublished memorandum). However, in that case, the jury
convicted Jones of the charged offenses despite her claims of police
misconduct and this Court did not analyze the merits of Jones’s assertions of
misconduct, but reversed and remanded on different grounds.
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(finding that the appellant failed to show a nexus between the detective’s
conduct in his case and allegations of the detective’s misconduct in an incident
that occurred two years after the appellant’s conviction).
Moreover, we agree with the PCRA court’s finding that Appellant could
not use the alleged “after-discovered evidence” to demonstrate that his own
confession was involuntary or unknowing. Appellant claimed for the first time
in his PCRA petition that he was subjected to coercive interrogation
techniques. Specifically, Appellant asserted that he was held at the Homicide
Unit for 2½ to 3 days, only allowed to go to the bathroom once or twice, and
was deprived of food, except for when the detectives allegedly offered
Appellant a pork roll, knowing that Appellant was a Muslim. Appellant also
asserted that the detectives pointed a taser at him while he was being
interrogated.
However, Appellant’s allegation that his confession was coerced is in
direct conflict with the evidence of record presented to the trial court. Before
trial, Appellant never filed a suppression motion to challenge the admission of
his confession on the grounds that it was involuntary or unknowing.5 At trial,
before the prosecution read Appellant’s confession to the jury, Detective
Bamberski testified that Appellant’s statement was taken twenty-five minutes
after Appellant arrived at the Homicide Unit. As Appellant was five months
shy of his eighteenth birthday at that point, several documented attempts
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5 Appellant has not alleged that trial counsel was ineffective in failing to
investigate claims relating to the suppression of his confession to police.
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were made to contact Appellant’s mother and his aunt. However, the officers
were unable to reach either of the women. Thereafter, Appellant agreed to
waive his Miranda rights in order to give the detectives his statement.
Appellant did not challenge Detective Bamberski’s account of the events
surrounding Appellant’s confession at the trial court level.
Furthermore, we reject Appellant’s argument that he is entitled to a new
trial based on his contention that detectives may have coerced the statements
of Deshaun Williams and Keith Pena. Such allegations do not constitute after-
discovered evidence as both witnesses actually testified at Appellant’s trial
and were subject to cross-examination by Appellant’s counsel.
As such, Appellant failed to show that he could not have obtained the
testimony of these witnesses prior to the conclusion of the trial by the exercise
of reasonable diligence. Our Supreme Court has provided that:
[t]o obtain a new trial based on after-discovered evidence, the
petitioner must explain why he could not have produced the
evidence in question at or before trial by the exercise of
reasonable diligence. Commonwealth v. Jones, 266 Pa.Super.
37, 402 A.2d 1065, 1066 (1979). A defendant may unearth
information that the party with the burden of proof is not required
to uncover, so long as such diligence in investigation does not
exceed what is reasonably expected. Commonwealth v.
Brosnick, 530 Pa. 158, 166, 607 A.2d 725, 729 (1992). See also
Argyrou v. State, 349 Md. 587, 709 A.2d 1194, 1202–03 (1998)
(holding due diligence requires that defendant act “reasonably and
in good faith to obtain the evidence, in light of the totality of the
circumstances and facts known to [him]”). Thus, a defendant has
a duty to bring forth any relevant evidence in his behalf.
Commonwealth v. Johnson, 228 Pa.Super. 364, 323 A.2d 295,
296 (1974). A defendant cannot claim he has discovered new
evidence simply because he had not been expressly told of that
evidence. Commonwealth v. Crawford, 285 Pa.Super. 169, 427
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A.2d 166, 175 (1981). Likewise, a defendant who fails to
question or investigate an obvious, available source of
information, cannot later claim evidence from that source
constitutes newly discovered evidence. Commonwealth v.
Chambers, 528 Pa. 558, 583, 599 A.2d 630, 642 (1991), cert.
denied, 504 U.S. 946, 112 S. Ct. 2290, 119 L. Ed. 2d 214 (1992).
Commonwealth v. Padillas, 997 A.2d 356, 363–64 (Pa.Super. 2010)
(emphasis added).
Appellant points out that although Williams gave a statement to the
police identifying Appellant as one of the individuals responsible for the
robbery and shootings in this case, Williams subsequently recanted this
statement while testifying at Appellant’s trial. However, although Williams
testified that the he merely signed a statement with allegations created by the
officers so that he could leave the station, Detective John Verrecchio testified
that he took Williams’s statement verbatim and required Williams to review
and sign each page of the statement to ensure its accuracy. Despite hearing
Williams recant his statement, the jury found Appellant guilty of the charged
offenses. As such, Appellant cannot claim that this testimony is after-
discovered evidence as it was available to Appellant and presented at trial.
In the same manner, the testimony of Keith Pena does not entitle
Appellant relief on his claim of after-discovered evidence. While Pena gave a
statement to police identifying Appellant as a perpetrator in the instant crimes
and testified consistently with this statement at Appellant’s trial, Appellant
points to the fact that, prior to Pena’s testimony, the prosecutor told the trial
court that Pena had suggested that he would recant his statement because
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his “identifications were a lie and that the detectives pressured him to do it.”
Notes of Testimony, 12/7/12, at 13. The trial court restricted the parties’
inquiry into Pena’s discussion with the prosecutor, finding that Pena had
threatened to change his testimony as he expressly blamed the District
Attorney’s Office for a perceived slight in his own unrelated criminal
proceedings.
However, the trial court indicated that the defense could inquire into
whether the detectives directed Pena to identify a particular person as one of
the perpetrators. Although Pena did testify at trial that Appellant was one of
the perpetrators, Appellant had the opportunity to question Pena on the
voluntariness of his statement and identification. As such, Pena’s testimony
was not after-discovered evidence as it was available to Appellant and
presented at trial.
Accordingly, we conclude that the PCRA court correctly determined that
Appellant was not entitled to relief on this claim.
For the foregoing reasons, we affirm the PCRA court’s order dismissing
this petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/19
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