Com. v. Bagley, T.

J. S20026/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TARIK BAGLEY, : No. 2419 EDA 2016
:
Appellant :
Appeal from the PCRA Order, June 30, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0000553-2011
CP-51-CR-0009928-2010
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2017
Tarik Bagley appeals from the order entered in the Court of Common
Pleas of Philadelphia County that dismissed his first petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The PCRA court set forth the following:
On January 14, 2013, after arrest and
consolidation of the above matters, [appellant]
appeared before this Court and elected to be tried by
jury. On January 22, 2013, the jury returned guilty
verdicts of First-Degree Murder, Firearms Not to be
Carried Without a License (three counts), Carrying
Firearms in Public in Philadelphia (three counts), and
Possession of an Instrument of Crime (“PIC”) (three
counts), Conspiracy (two counts), and Reckless
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Endangerment of Another Person (“REAP”)[1] (two
counts).
On March 11, 2013, in CP-51-CR-0009928-
2010, this Court imposed consecutive sentences of
two to four years [of] imprisonment for Firearms Not
to be Carried Without a License and one to two years
[of] imprisonment for two counts of REAP. In CP-51-
CR-0000553-2011, this Court imposed the
mandatory sentence of life imprisonment without
parole for First-Degree Murder, and a concurrent
term of one to two years [of] imprisonment for
Firearms Not to be Carried Without a License, to be
served consecutively to the penalty in CP-51-CR-
0009928-2010, for a total sentence of three to six
years plus life imprisonment without
parole.[Footnote 1]
[Footnote 1] This Court imposed no
further penalty for each of the remaining
offenses.
On March 15, 2013, [appellant] filed a timely
Notice of Appeal. On April 30, 2014, the Superior
Court affirmed [appellant’s] Judgment of Sentence.
On August 25, 2014, the Supreme Court denied
Allowance of Appeal.
On August 5, 2015, [appellant] filed a timely
pro se [PCRA] petition. On November 23, 2015,
[appellant], through counsel, filed an amended PCRA
petition. On January 22, 2016, the Commonwealth
filed a Motion to Dismiss. On March 3, 2016, this
Court granted [appellant] an evidentiary hearing
limited to the issue of trial counsel’s ineffectiveness
for failing to call potential defense witnesses. On
May 16, 2016, this Court presided over a bifurcated
evidentiary hearing that was completed on May 25,
2016.
1
18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907, 903, and 2705,
respectively.
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....
On direct appeal, the Superior Court adopted
this Court’s statement of the facts and recited them
as follows:
On March 7[], 2010, at around
12:28 a.m., police officers, in response
to a radio call, arrived at 19th Street and
Snyder Avenue in Philadelphia and found
a man, later identified as Azzim Dukes,
lying on the ground bleeding from the
head. Azzim Dukes was pronounced
dead at the scene from a single gunshot
wound to the head at 12:33 a.m.
Lee Parker, a friend of Dukes, gave
a statement to police indicating that a
few weeks before his death, Dukes was
having a problem with individuals from
the area of 18th and Cleveland Streets.
While speaking with Dukes and Parker,
[appellant] pulled a black automatic
handgun out of his waist and placed it in
his pocket. After this incident, Parker
and Dukes discussed shooting
[appellant] in retaliation, and Dukes
obtained a .380-caliber handgun.
On March 7[], 2010, Dukes was
with a group of friends at his friend’s
home on 16th and Mifflin Streets. At
around midnight, Daud Riley, aware that
[appellant] was in the neighborhood and
looking for him, asked Dukes to walk him
home because he was afraid. When they
were walking in the area of 19th Street
and Snyder Avenue, [appellant] pulled
up in his car and got out. Riley ran when
he saw [appellant] pull out a firearm and
start shooting. Riley heard about three
gunshots.
Officers found Dukes lying on the
northwest corner of the intersection of
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19th Street and Snyder Avenue with a
fully loaded .380-caliber handgun about
two and a half feet from him. Officers
also recovered one .45-caliber fired
cartridge case from the curb line of the
1900-block of Snyder Avenue, one bullet
specimen from the Southeast corner of
the intersection, and a live .45-caliber
cartridge on Snyder Avenue just west of
19th Street. According to Firearms
Identification Expert Officer Gregory
Welsh, a bullet recovered from Dukes
and the bullet fragment recovered from
the crime scene had been fired from the
same firearm, but not the .380-caliber
handgun recovered from the scene.
That same day, at around
6:00 p.m., about sixty to one hundred
individuals from the neighborhood held a
vigil for Dukes in the area of 19th Street
and Snyder Avenue. According to
Sabrina Johnson, at around 6:30 p.m.,
[appellant] and his brother Malik Johnson
drove up to the vigil in a green mini-van.
From the van, [appellant] shot about five
times into the crowd of people attending
the vigil. []No one was harmed.[]
Later that evening, Sabrina
Johnson, along with her sister and two
children, were walking in the area of
16[th] and Mifflin Streets when
[appellant] and his brother Malik Johnson
drove up in a green mini-van.
[Appellant] asked Sabrina Johnson about
an individual she did not know and pulled
out a silver and black automatic
handgun. As Sabrina Johnson began to
run away from [appellant,] she heard
gun shots. Police Officer Joseph
Cosgrove, who had been at 16th and
McKean Streets, responded to the scene
within a minute after he heard gunshots.
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Sabrina Johnson directed Officer
Cosgrove to South 18th Street, where
she believed [appellant] lived.
Officers recovered surveillance
video from the 1600 block of Mifflin
Street that confirmed Sabrina Johnson’s
account of the shooting. The video
showed [appellant] on the night of the
shooting at 7:51 p.m. exit a mini-van
with a firearm and talk to Sabrina
Johnson. The video also showed Sabrina
Johnson and her sister react in a startled
manner to an occurrence off the camera.
That same night, at around
8:30 p.m. at South 18[th] Street,
officers pulled over a green mini-van
meeting the description of the one
involved in the murder and later
shootings. [Appellant’s] mother,
Jean[a]tta Bagley, was driving the
mini-van and Deana Parks was a
passenger. The mini-van had a bullet
hole in the driver’s side rear window.
Jean[a]tta Bagley gave officers consent
to search her home, located at South
18th Street, where officers recovered
thirty-six live .45-caliber rounds, nine
live .32-caliber rounds, and forty-three
live .22-caliber rounds.
After the shooting at the vigil,
officers recovered two nine-millimeter
fired cartridge casings and a bullet jacket
fragment from the area of 19[th] Street
and Snyder Avenue. From the area of
16[th] and Mifflin Streets, officers
recovered three nine-millimeter fired
cartridge casings and two .380-caliber
cartridge casings. All seven fired
cartridge casings, the two recovered
from 19[th] Street and Snyder Avenue
after the shooting at the vigil and the
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five recovered from 16th and Mifflin
Streets, were fired from the same
firearm.
On March 16, 2010, the day before
the preliminary hearing in this matter,
[appellant] called Christine Leeper,
Sabrina Johnson’s mother, and offered
her $2,000 if she and Ms. Johnson did
not appear in court the next day.
PCRA court opinion, 7/1/16 at 1-4.
Appellant raises the following issues for our review:
I. Were [a]ppellant’s Sixth Amendment rights
under the U.S. Constitution and his rights
under Article I sec. 9 of the Pennsylvania
Constitution violated when counsel ineffectively
simultaneously argued inconsistent alternative
defenses to the jury?
II. Were [a]ppellant’s Sixth and Fourteenth
Amendment rights under the U.S. Constitution
and his rights under Article 1 sec., 9 of the
Pennsylvania Constitution violated when
counsel ineffectively failed to call witnesses
Bernice Akanno and Jeanatta Bagley?
III. Were [a]ppellant’s Sixth Amendment rights
under the U.S. Constitution and his rights
under Article 1 sec. 9 of the Pennsylvania
Constitution violated when counsel ineffectively
failed to preserve, obtain and present [defense
witness] Ronald Johnson’s phone records which
would have corroborated [a]ppellant’s alibi?
IV. Did the Cumulative Effect of Ineffective
Assistance deny [a]ppellant his constitutional
rights under the Sixth and Fourteenth
Amendments?
Appellant’s brief at 3.
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We limit our review of a PCRA court’s decision to examining whether
the record supports the PCRA court’s findings of fact and whether its
conclusions of law are free from legal error. Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s
findings and the evidence of record in a light most favorable to the prevailing
party. Id.
To be entitled to PCRA relief, the defendant bears the burden of
establishing, by a preponderance of the evidence, that his conviction or
sentence resulted from one or more of the circumstances enumerated in
42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “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)(i)
and (ii); see also Mason, 130 A.3d at 618 (citations omitted).
Here, appellant’s claims assert that his trial counsel provided
ineffective assistance.
Counsel is presumed effective, and in order to
overcome that presumption a PCRA petitioner must
plead and prove that: (1) the legal claim underlying
the ineffectiveness claim has arguable merit;
(2) counsel’s action or inaction lacked any
reasonable basis designed to effectuate petitioner’s
interest; and (3) counsel’s action or inaction resulted
in prejudice to petitioner. With regard to reasonable
basis, the PCRA court does not question whether
there were other more logical courses of action
which counsel could have pursued; rather, [the
court] must examine whether counsel’s decisions
had any reasonable basis. Where matters of
strategy and tactics are concerned, [a] finding that a
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chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an
alternative not chosen offered a potential for success
substantially greater than the course actually
pursued. To demonstrate prejudice, a petitioner
must show that there is a reasonable probability
that, but for counsel’s actions or inactions, the result
of the proceeding would have been different. Failure
to establish any prong of the [] test will defeat an
ineffectiveness claim.
Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).
Appellant first complains that trial counsel was ineffective because he
argued inconsistent alternative defenses to the jury; specifically, that trial
counsel presented an alibi defense, as well as self-defense. The record
belies appellant’s claim.
In his brief, appellant claims that during trial counsel’s opening
statement, he “‘set up’ a self-defense claim” and “never once referred to
[appellant] having an alibi.” (Appellant’s brief at 19.) Appellant further
complains that during the trial, trial counsel “continued to develop evidence
to establish self-defense,” specifically citing to trial counsel’s
cross-examinations of Daud Riley and Officer Melissa Jones. (Id.) Appellant
also complains that during closing statements, trial counsel argued facts
relevant to self-defense. (Id. at 22.) Despite these claims, our review of
the record supports the PCRA court’s conclusion that trial counsel
“unequivocally proffered an alibi defense, and not a theory of self-defense.”
(PCRA court opinion, 7/1/16 at 5.) Our review of the record also supports
the PCRA court’s conclusion that although trial counsel proceeded with an
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alibi defense, his theory of the case was that because the victim was part of
an ongoing dispute involving numerous individuals and because the victim
was armed and holding a gun when his body was found, the unknown
person who shot and killed the victim likely did so in self-defense. (Id. at
5-8.) The record reflects that trial counsel introduced that theory, as well as
the alibi defense, in his opening statement, as follows:
Now, some of the things that I would like you
to keep an open mind about in this case the district
attorney already talked to you about. One of which
is [the victim] wasn’t just at the scene of the murder
where he was killed. No one disputes he was killed.
He’s there with a gun. That [witness] Daud Riley
isn’t just somebody who happened to be there. He’s
not only [the victim’s] friend. He’s a convicted felon.
He’s got other things in his background that I want
you to consider. And I’m not going to get into the
credibility of all the witnesses because you’re going
to judge that and we’re going to talk about that at
the end of this case. Certain things about people’s
criminal backgrounds are going to come out.
Motives and biases and opportunities to lie or
fabricate. We will get into that. But I want you to
think about that.
I also want you to think about the fact that this
neighborhood issue didn’t just go one way. That
there were two sides to this issue. There are many
explanations for why [the victim] was shot. They
don’t all lead back to [appellant]. You’re going to
hear certain evidence from [appellant], and I’m not
going to get into all of that right now. But you will
hear evidence from our side as to his whereabouts
and what happened to him and his family. You will
hear evidence that his mini-van was shot at.
Notes of testimony, 1/14/13, Volume I at 41-43.
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As for trial counsel’s cross-examination of Daud Riley, the record
reflects that although Mr. Riley gave a statement to police that he was with
the victim at the time appellant confronted them with a firearm, Mr. Riley
retracted his statement and testified on direct and cross-examinations that
he was not with the victim on the night of the murder; that he did not know
the victim; that he did not remember making contrary statements to the
police; and that the police obtained a statement from someone else and
forced Riley to sign that statement. (Notes of testimony, 1/15/13 at
39-91.) The record of Mr. Riley’s testimony, therefore, belies appellant’s
claim that cross-examination advanced the inconsistent defense theories of
alibi and self-defense.
With respect to Officer Jones’s testimony, appellant complains that
trial counsel “intentionally elicited testimony that [the victim] had been
found with his hands outside his pockets and his right hand just to the left of
where the un-fired weapon had been found.” (Appellant’s brief at 19.)
Appellant fails to explain how testimony regarding the circumstances
surrounding the position of the victim’s body at the time it was discovered
supports his ineffective assistance of counsel claim based on inconsistent
defenses.
Finally, with respect to trial counsel’s closing argument, again, the
record demonstrates that trial counsel presented an alibi defense and
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incorporated his theory that the unknown assailant who killed the victim did
so in self-defense, as follows:
And you heard where [appellant] was. You
heard his uncle come up here and say where he was.
From before midnight to after. And the
Commonwealth cross-examined him extensively on
that about the details of it. About where they went.
About who they were with. He didn’t waiver [sic].
He didn’t shake on it. He said where [appellant]
was. He said [appellant’s] mother knew where he
was, where they were.
And what did the government use to rebut
that? Nothing. Did they bring somebody in to refute
it? To say that the car was never there? Didn’t
show up where Johnson was going to Bernice’s
house? No. . . .
....
When [the victim] rolls up strapped with a
.380 Cobra in his right hand locked and loaded and
ready to go with gunpowder residue already in the
barrel. Not murder of the first degree. Can’t prove
anybody had an intent to kill him. Not murder of the
third degree. Can’t prove anybody had an intent to
severely inure [sic] him. And they definitely can’t
prove whoever it was was [appellant].
....
In summary, you take four things away from
this. [Appellant] did not shoot [the victim]. [The
victim] showed up at 19th and Snyder with a loaded
gun. And whoever encountered him, the
government cannot prove to you that person acted
with an intent to kill him and did not act defending
themselves.
Notes of testimony, 1/18/13 at 27, 35, 50.
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The record clearly supports the trial court’s conclusion that trial
counsel did not present inconsistent defenses. As such, appellant has failed
to demonstrate that this claim has arguable merit, and consequently, it
necessarily fails.
Appellant next complains that trial counsel was ineffective for failing to
interview and call Bernice Akanno and Jeanatta Bagley to testify as defense
witnesses at trial. To prevail on a claim of trial counsel’s ineffectiveness for
failure to call a witness, the petitioner must show: (1) that the witness
existed; (2) that the witness was available; (3) that counsel was informed of
the existence of the witness or should have known of the witness’s
existence; (4) that the witness was prepared to cooperate and would have
testified on the petitioner’s behalf; and (5) that the absence of the testimony
prejudiced the petitioner. Commonwealth v. Fletcher, 750 A.2d 261, 275
(Pa. 2000). Trial counsel will not be found ineffective for failing to
investigate or call a witness unless there is some showing by the petitioner
that the witness’s testimony would have been helpful to the defense.
Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996).
At the outset, we note that both Ms. Akanno and Ms. Bagley testified
at the PCRA evidentiary hearing, and no issues exist as to either witness’s
existence or availability at time of trial.
With respect to Ms. Akanno, appellant argues in his brief that this
potential witness testified “credibly” at the evidentiary hearing and he goes
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on to attack trial counsel’s credibility. (Appellant’s brief at 31-37.) Our
standard of review, however, is to examine, in the light most favorable to
the Commonwealth as the prevailing party, whether the record supports the
PCRA court’s findings of fact and whether its conclusions of law are free from
legal error. Mason, 130 at 617 (citations omitted). Therefore, we decline
appellant’s invitation to assess the credibility of the witnesses who testified
at the evidentiary hearing.
That being said, during the evidentiary hearing, trial counsel testified
as to why he did not call Ms. Akanno as a witness, as follows:
I believe what I asked her was whether or not she
could corroborate or substantiate what Mr. Johnson
was telling me, which was that he was with
[appellant] until about 1 o’clock in the morning and
that then [appellant] left Mr. Johnson’s presence,
and that Mr. Johnson and Ms. Akanno drove to drop
off Mr. Johnson together; and my recollection is that
Ms. Akanno could not do that. That she -- for one
reason or another there were details about what she
remembered or what she was able to testify to that
did not match what Mr. Johnson was saying in terms
of time or location or where she was or what she
could say [appellant] did or didn’t do when he left
the residence or what time that was.
In addition, she may have said something
about drinking that day and being sleepy and that
was about the substance of my conversation with
her, and based on that I elected not to call her as a
witness because I felt that it would not corroborate
Mr. Johnson, and in fact could hurt the alibi that
[appellant] wanted to present.
....
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I do recollect that what she said did not match with
what Mr. Johnson was telling me, and it also didn’t
match with what [appellant] had told me, and so I
do remember that because it did not square with
what the defense was going to be, I was not going to
present her[].
Notes of testimony, 5/25/16 at 20-21, 23-24. This testimony, viewed in the
light most favorable to the Commonwealth, supports the PCRA court’s
conclusion that Ms. Akanno’s testimony would not have been helpful to
appellant because it conflicted with what appellant had told trial counsel, it
would not have corroborated Ronald Johnson’s testimony, and it conflicted
with appellant’s alibi defense. Therefore, trial counsel had a reasonable
basis for not calling Ms. Akanno to testify at trial.
With respect to Jeanatta Bagley, trial counsel testified that he did not
call her to testify that she drove a green minivan much like the green
minivan appellant drove because he opted to call Ada Bagley to testify that
Ada Bagley was a passenger in Jeanatta Bagley’s green minivan when the
vigil shooting occurred. (Notes of testimony, 5/25/16 at 28-29.) Trial
counsel testified that he decided to call Ada Bagley instead of
Jeanatta Bagley to testify that Jeanatta Bagley was driving a green minivan
that night because he believed “Ada Bagley would make a better
presentation to the jury” and that Jeanatta Bagley’s proposed testimony
regarding the timeline and location of the vigil shooting would have
conflicted with Ada Bagley’s testimony. (Id. at 33.) Trial counsel testified
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that he “elected as a matter of trial strategy to not have [his] own witnesses
contradict each other but to present [appellant’s] best case forward.” (Id.)
Appellant nevertheless contends that “it was not objectively
reasonable for counsel to simply pretend that these inconsistencies didn’t
exist. Rather than burying his head in the sand and simply ignoring the
evidence of inconsistencies, he should have instead played those
inconsistencies up. When presented with lemons, make lemonade.”
(Appellant’s brief at 44.) Appellant’s argument is fruitless. Appellant
entirely fails to demonstrate that the absence of Jeanatta Bagley’s testimony
prejudiced appellant and that trial counsel’s decision to forego calling her as
a witness lacked any reasonable basis designed to effectuate appellant’s
interest.2
Appellant next complains that trial counsel was ineffective for “fail[ing]
to preserve, obtain and present Ronald Johnson’s phone records which would
have corroborated appellant’s alibi.” (Appellant’s brief at 45.) The record
again belies appellant’s claim.
At trial, Ronald Johnson testified that he did not have any telephone
records to support his claim that he telephoned appellant at 11:55 p.m. on
the night of the victim’s murder; that he no longer had the telephone he
2
We note that throughout appellant’s brief, appellant repeatedly misstates
the second prong of Commonwealth v. (Michael) Pierce, 786 A.2d 203
(Pa. 2001), and its progeny to require that trial counsel’s strategy be
“objectively reasonable,” as opposed to “lack[ing] a reasonable basis.” See
Mason, 130 A.2d at 617.
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used to place the call; that he did not remember that particular telephone
number; and that he never received telephone bills for that telephone.
(Notes of testimony, 1/17/13 at 161-164.) Counsel cannot be deemed
ineffective for failing to “preserve, obtain and present” Ronald Johnson’s
telephone records when Ronald Johnson testified that he did not have those
records and that he did not have any memory of any fact that could have led
to their discovery.
Appellant finally complains that “the cumulative effect of ineffective
assistance denied appellant his constitutional rights[].” (Appellant’s brief at
46 (capitalization omitted).) Simply stated, because appellant’s claims of
ineffectiveness entirely lack merit, no “cumulative effect of ineffective
assistance” can exist. Stated differently, and in the words of our supreme
court, “no number of failed ineffectiveness claims may collectively warrant
relief if they fail to do so individually.” Commonwealth v. Reid, 99 A.3d
470, 520 (Pa. 2014) (citation omitted).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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