Com. v. Mott, G.

J-A24030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY MOTT :
:
Appellant : No. 2976 EDA 2018
Appeal from the PCRA Order Entered October 10, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014603-2009
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 05, 2019
Appellant, Gregory Mott, appeals from the October 10, 2018 Order,
entered in the Philadelphia County Court of Common Pleas, dismissing his first
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546, as meritless. After careful review, we affirm.
A prior panel of this Court summarized the underlying facts as follows:
Appellant’s convictions stem from the shooting death of Michael
Lazo. At Appellant’s jury trial, Norma Diaz testified for the
Commonwealth. She stated that at about 9:00 p.m. on
September 3, 2009, she encountered Appellant driving a white
van with blue detailing. Diaz was familiar with Appellant and knew
him by the nickname “Squeeze.” Appellant stopped his van and
asked if Diaz knew Michael Lazo. She responded that she did, and
Appellant then offered to pay Diaz $200 to find Lazo and bring him
to the intersection of 7th and Sedgley streets. Diaz agreed and,
after locating Lazo a short time later, she brought him to 7 th and
Sedgley streets as instructed by Appellant. Once there, Diaz
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* Retired Senior Judge assigned to the Superior Court.
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observed Appellant’s white van parked along the curb. Diaz
claimed that as Lazo approached the van, someone inside the
vehicle shot Lazo multiple times. Diaz testified that she could not
see the face of the person who shot Lazo, but did see a gun
protruding from the passenger side of the white van.
During Diaz’s testimony, the Commonwealth introduced into
evidence two prior statements she had given to the police. In the
first, given by Diaz on the night of the shooting, Diaz did not tell
police about Appellant asking her to find Lazo. Instead, she
claimed she was standing around the corner from the location of
the shooting when she heard the gunshots, but she did not see
who shot Lazo. She also stated that she saw a white van leaving
the scene of the shooting.
However, the day after the shooting, Diaz provided a second
statement to homicide detectives, at that point admitting that
prior to the shooting, she encountered Appellant driving a white
van and he offered her money to find Lazo. She told the
detectives that she took Lazo to the location where Appellant’s
van was parked, and that she could see Appellant’s face when he
shot Lazo with a black gun from the passenger-side window of the
vehicle. She also told the detectives that she did not see anyone
else in the van with Appellant at any point during her encounters
with him. Diaz testified at trial that she did not tell the police all
of this information on the night Lazo was shot because she was
scared.
In addition to Diaz’s testimony, the Commonwealth presented the
testimony of Jose Matos, who stated that on September 3, 2009,
he saw Diaz and Lazo walking toward a white van, after which he
heard gunshots. He did not see who was shooting the weapon.
The Commonwealth also introduced evidence of a statement to
police provided by eyewitness Wanda Lopez, who was deemed
legally unavailable to testify. [Lopez had previously testified at
Appellant’s Preliminary Hearing.] In that statement, Lopez told
police that she saw Appellant “hanging out of the passenger side
window [of a van] with a gun,” and that she witnessed Appellant
shoot Lazo several times. N.T. Trial, 12.15.10, at 38. However,
at the preliminary hearing, Lopez repudiated this statement,
claiming that she did not see the shooting.
Finally the Commonwealth introduced testimony by Philadelphia
Police Officer Rafael Cordero, who testified that he encountered
Appellant in August of 2009 at a location where a “street
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salesman” was selling cars. N.T. Trial, 12/15/10, at 71. Officer
Cordero testified that Appellant was looking at a white van and
told the officer that he was going to buy it.
Commonwealth v. Mott, No. 152 EDA 2011 (Pa. Super. filed October 31,
2012).
Police arrested Appellant for Lazo’s murder and related crimes, and on
December 17, 2010, a jury convicted Appellant of First-Degree Murder,
Firearms not to be Carried without a License, and Carrying a Firearm in Public
in Philadelphia.1, 2 That same day, the trial court sentenced Appellant to a
term of life imprisonment without the possibility of parole. Appellant filed a
timely Post-Sentence Motion, which the trial court denied. This Court affirmed
Appellant’s Judgment of Sentence on October 31, 2012,3 and the Pennsylvania
Supreme Court denied Appellant’s Petition for Allowance of Appeal on May 29,
2013. Appellant did not seek further review of his Judgment of Sentence,
which, thus, became final on June 28, 2013.4
On June 11, 2014, Appellant timely filed a pro se PCRA Petition. In the
Petition, Appellant alleged that his trial counsel was ineffective for failing to
contact Dietra Gaines and to call her to testify as an alibi witness. PCRA
Petition, 6/11/14, at 6. Appellant also indicated that he had discovered that
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1 18 Pa.C.S. §§ 2502(a), 6106(a)(1), and 6108, respectively.
2 Daniel Rendine, Esquire, represented Appellant at trial. James A.
Lammendola, Esquire, represented Appellant on direct appeal.
3 On direct appeal, Appellant challenged the weight and sufficiency of the
evidence in support of his convictions.
4 See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3).
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the Commonwealth’s witness Philadelphia Police Officer Raphael Cordero had
been convicted in federal court of interfering with a federal drug investigation
and convicted of obstruction of justice on December 2, 2013. Id. at “7-4.”
Appellant alleged that the information revealed in the federal indictment
indicated that Cordero’s brother-in-law was a drug dealer in competition with
Appellant. Therefore, Appellant alleged that Cordero’s conviction is evidence
that, at the time he investigated Lazo’s murder, Cordero “could have easily”
convinced witnesses against Appellant to incriminate Appellant, and “it is
obvious” that Cordero’s primary motive in testifying against Appellant was to
assist his brother-in-law by removing Appellant as a large competitor. Id. at
“7-5.” Appellant asserts that he would use the newly-discovered evidence of
Cordero’s corruption as evidence “primarily . . . to show an alternate theory
of the crime—that [Appellant] was set-up by a corrupt police officer protecting
his family and a very large, dominant[,] and dangerous drug trafficking
organization” by “pointing the finger” at Appellant or being “complicit in
getting incriminating statements from Ms. Diaz and Ms. Lopez.” Id. at “7-6.”
Appellant avers that there is no way that he or his counsel could have obtained
this information prior to or during trial. Id.
The PCRA court appointed counsel on December 19, 2014. More than
two years later, on January 26, 2017, counsel filed an Amended PCRA Petition.
In his Amended Petition, Appellant claimed that his trial counsel was
ineffective for failing to object to the admission of Wanda Lopez’s prior
inconsistent statement. Amended PCRA Petition, 1/26/17, at ¶ 8.
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On September 11, 2017, the Commonwealth filed a Motion to Dismiss
Appellant’s Petition. In response, on January 8, 2018, Appellant filed a
Supplemental Amended PCRA Petition in which he claimed that his trial
counsel was ineffective for failing to object to the admission of Wanda Lopez’s
prior inconsistent statement and for stipulating to her unavailability.
Supplemental Amended PCRA Petition, 1/18/18, at ¶ 9. Appellant also
reiterated his newly-discovered evidence claim, and his claim that counsel was
ineffective for failing to interview Dietra Gaines and for failing to call her to
testify as an alibi witness who he alleged “was and remains available to
testify.” Id. at ¶¶ 19, 20, 26-33.
On February 15, 2018, the Commonwealth filed a Supplemental Motion
to Dismiss, to which Appellant filed a Response on April 30, 2018.
On July 11, 2018, the PCRA court advised Appellant of its intent to
dismiss his Petition without a hearing as meritless pursuant to Pa.R.Crim.P.
907. Appellant did not file a Response to the court’s Rule 907 Notice. On
October 10, 2018, the court dismissed Appellant’s Petition. This timely appeal
followed.5
Appellant raises the following three issues on appeal:
1. Did the PCRA [c]ourt abuse its discretion when it held [that
Appellant’s] trial counsel was not ineffective for failing to object
when a non-testifying witness’s prior inconsistent statement
was read into the record at trial?
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5 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement.
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2. Did the PCRA [c]ourt abuse its discretion when it held [that
Appellant’s] trial counsel was not ineffective for failing to call a
known alibi witness?
3. Is [Appellant] entitled to an evidentiary hearing as the result
of newly discovered evidence?
Appellant’s Brief at 2.
In his first two issues, Appellant challenges the court’s conclusion that
his ineffective assistance of counsel claims lacked merit.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if the record
supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.
2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. (citation
omitted). To satisfy this burden, Appellant must plead and prove by a
preponderance of the evidence that: “(1) his underlying claim is of arguable
merit; (2) the particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003) (citations omitted). Failure to satisfy
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any prong of the test will result in rejection of the appellant’s ineffective
assistance of counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002
(Pa. 2002).
First, Appellant claims that his trial counsel was ineffective for failing to
object to the portion of Wanda Lopez’s preliminary hearing testimony that
contained the prior inconsistent statement she gave to police when the
Commonwealth read it into the record at trial. Appellant’s Brief at 10. As
noted above, on September 5, 2009, Ms. Lopez gave a statement to police in
which she identified Appellant as Lazo’s shooter and she selected Appellant’s
photograph from a photographic array. At Appellant’s preliminary hearing,
however, Ms. Lopez repudiated this statement. As such, the Commonwealth
impeached Ms. Lopez at the preliminary hearing with her prior inconsistent
statement identifying Appellant.
By the time of Appellant’s trial, Ms. Lopez was unavailable to testify, and
the court permitted the Commonwealth to read into the record her preliminary
hearing testimony, including the statement she gave to police.6 Appellant
claims that his counsel should have objected to the admission of Ms. Lopez’s
statement to police because it constituted a prior inconsistent statement, the
admissibility of which required Ms. Lopez’s availability for cross-examination.
Id. at 7-11.
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6Prior to the end of Appellant’s trial, Ms. Lopez became available to testify.
However, neither the Commonwealth nor Appellant called her as a witness.
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Pa.R.E. 803.1 provides, in relevant part, as follows:
Exceptions to the Rule Against Hearsay--Testimony of
Declarant Cecessary
The following statements are not excluded by the hearsay rule if
the declarant testifies [at the trial or hearing] and is subject to
cross-examination concerning the statement:
(1) Prior Inconsistent Statement of Declarant Witness. A
prior statement by a declarant witness that is inconsistent
with the declarant witness’s testimony, and (A) was given
under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition; or (B) is a
writing signed and adopted by the declarant; or (C) is a
verbatim contemporaneous recording of an oral statement.
Pa.R.E. 803.1(1). Rule 804 makes clear that testimony given by a witness at
a prior proceeding is admissible over a hearsay objection if the party against
whom the witness offers the testimony had an adequate opportunity to
develop the testimony by direct, cross, or redirect examination. Rule
804(b)(1).
Thus, a prior inconsistent statement used to impeach a witness at a
preliminary hearing is admissible at trial as substantive evidence “so long as
defendant “was specifically provided the opportunity at the preliminary
hearing to cross-examine [the witness].” Commonwealth v. Stays, 70 A.3d
1256, 1263-64 (Pa. 2013).
In addressing Appellant’s claim, the PCRA court noted that Appellant
had a “full and fair opportunity to cross-examine Ms. Lopez” at Appellant’s
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preliminary hearing about her prior inconsistent statement to police identifying
Appellant as the shooter.7 PCRA Ct. Op., 11/7/18, at 7.
Our review of the record confirms that Ms. Lopez testified at the
preliminary hearing, Appellant had a full and fair opportunity to cross-examine
her, and the court later determined she was legally unavailable to testify.
Accordingly, because the trial court properly admitted Ms. Lopez’s testimony
at trial, Appellant’s claim that the court should have precluded the admission
of this testimony lacks arguable merit. The PCRA court, thus, did not err in
denying Appellant’s ineffectiveness of counsel claim.
In his second issue, Appellant claims the PCRA court erred in concluding
that his counsel was not ineffective for failing to call Dietra Gaines as an alibi
witness. Appellant’s Brief at 12. Appellant claims he was at the Six Flags
amusement park with Ms. Gaines at the time of the shooting, that he informed
his trial counsel prior to trial that Ms. Gaines would so testify, but that counsel
failed to contact Ms. Gaines or call her as an alibi witness. Id. at 14.
In order to establish that trial counsel was ineffective for failing to
investigate and/or call a witness at trial, a PCRA petitioner must demonstrate
that:
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7 The PCRA court also aptly concluded that Appellant failed to satisfy the
prejudice prong of the ineffective assistance of counsel analysis because: (1)
“the record is replete with other evidence sufficient to convict [A]ppellant;”
and (2) Appellant declined to call Ms. Lopez to testify “to cure whatever
prejudice may have inured to [him]” by the introduction of his entire testimony
after she became available again prior to the conclusion of his trial. PCRA Ct.
Op., 11/7/18, at 7. The record likewise supports these conclusions.
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(1) the witness existed; (2) the witness was available to
testify for the defense; (3) [trial] 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 appellant] a fair trial.
Commonwealth v. Thomas, 44 A.3d 12, 23 (Pa. 2012) (citations omitted).
In rejecting this claim, the PCRA court explained as follows:
First, during trial, this [c]ourt conducted a colloquy of [A]ppellant
asking him if he had any witnesses he wanted to present in his
defense and he said he had none. He also did not identify this
alleged witness during the colloquy as a person who could provide
him an alibi[.] The law is clear that “a voluntary waiver of
testimony bars a claim of ineffective assistance for failure to
testify.” Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa.
Super. 2000). In addition, a defendant who in a colloquy states
that he knowingly, intelligently, and voluntarily waiv[es] his right
to call witnesses cannot later state that he was coerced to do so
by counsel. Id. (“A defendant who voluntarily waives the right
to call witnesses during a colloquy cannot later claim ineffective
assistance and purport that he was coerced by counsel.”).
Second, this []court deemed this issue to lack merit because
[A]ppellant failed to present any evidence to corroborate his bald
claim that he was at an amusement park when the murder
occurred. He attached no receipts, photographs, or other
evidence substantiating his claim that he could not have
committed the murder because he was not in Philadelphia when it
occurred.
PCRA Ct. Op. at 8-9 (citation to the notes of testimony omitted).
In sum, the PCRA court dismissed Appellant’s claim because he
knowingly and intelligently waived the right to call Ms. Gaines as a witness
and did not present any evidence to corroborate his claim that she could
provide an alibi for him. Thus, the record supports the PCRA court’s conclusion
that Appelant’s claim that his counsel was ineffective for not calling Ms. Gaines
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as a witness lacks arguable merit. Appellant is not, therefore, entitled to relief
on this claim.
In his final issue, Appellant avers that the PCRA court erred in denying
relief without holding a hearing on his claim of newly-discovered evidence of
Officer Cordero’s corruption. Appellant’s Brief at 15-17. In support of this
claim, Appellant alleged that Officer Cordero’s association with the DTO gang
is substantive evidence of Officer Cordero’s motive to implicate Appellant in
Lazo’s death. Id. at 15. He avers that Officer Cordero’s affiliation with the
DTO gang was unknown to him at the time of trial, and, that had he known of
Cordero’s affiliation, Appellant would have sought to impeach him and to
introduce Cordero’s acts as evidence of his motive to lie. Id. at 16. He asserts
that “in light of Officer Cordero’s willingness to interfere with the FBI’s
investigation into the DTO less than six (6) months after [Appellant’s] trial
and Officer Cordero’s connection to DTO’s leader [ , Appellant] would have
undoubtedly sought to introduce this evidence under Pa.R.E. 404(b)[.]” Id.
He claims that had he introduced this evidence at trial, the result of the
proceedings would have been different. Id. In support of this claim, Appellant
proffered a newspaper article to show that Officer Cordero was convicted in
2013 by a federal court of obstruction and lying to the FBI for tipping off his
half-brother8 about a heroin trafficking investigation.
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8 Officer Cordero’s half-brother was a member of the DTO gang.
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Relevant here, the PCRA provides relief for a petitioner who
demonstrates his conviction or sentence resulted from “[t]he unavailability at
the time of trial of exculpatory evidence that has subsequently become
available and would have changed the outcome of the trial if it had been
introduced.” 42 Pa.C.S. § 9543(a)(2)(vi). To establish a claim of newly
discovered evidence, a petitioner must prove that: “(1) the evidence has been
discovered after trial and it could not have been obtained at or prior to trial
through reasonable diligence; (2) the evidence is not cumulative; (3) it is not
being used solely to impeach credibility; and (4) it would likely compel a
different verdict.” Commonwealth v. Sepulveda, 144 A.3d 1270, 1276 n.14
(Pa. 2016) (citation omitted). Newly discovered evidence must be producible
and admissible in order to entitle a petitioner to relief. Commonwealth v.
Castro, 93 A.3d 818, 825 (Pa. 2014).
There is no right to a PCRA hearing; a hearing is unnecessary where the
PCRA court can determine from the record that there are no genuine issues of
material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008).
In Castro, supra, our Supreme Court held that it was not sufficient to
rely upon a newspaper article to establish after-discovered evidence for use
in a post-sentence motion. The Court held that, while a newspaper “article
[may] contain[] allegations that suggest [exculpatory] evidence may exist, [
] allegations in the media, whether true or false, are no more evidence than
allegations in any other out-of-court situation.” Id. at 825. Although
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magazine and newspaper “articles can alert a party to the possible existence
of evidence, the party must do more than attach the article [to establish] the
evidence that will meet the [test for newly-discovered facts. . . . A petition]
must, at the very least, describe the evidence that will be presented at the
hearing.” Id. at 827. This Court has applied Castro to the newly discovered
fact exception to the PCRA. See Commonwealth v. Brown, 141 A.3d 491
(Pa. Super. 2016).
Our review of the record indicates that, Appellant proffered a newspaper
article reporting on Officer Cordero’s 2013 convictions, but he did not offer
any additional evidence or signed certifications of any potential witnesses in
support of his claim that: (1) Appellant had been involved in drug trafficking;
(2) his primary competitor had been the rival gang DTO; (3) Officer Cordero’s
half-brother was a member of DTO; (4); and that, as a result, Officer Cordero
“had a specific motive to ensure that [Appellant] was convicted of murder and
taken off the streets.” Supplemental Amended PCRA Petition, 1/12/18, at ¶¶
26-29.
In light of Appellant’s failure to proffer any evidence or identify any
witnesses that could establish a nexus between Officer Cordero’s 2013
convictions and Appellant’s own alleged drug dealing, the PCRA court properly
declined to grant Appellant an evidentiary hearing on his clam. See
Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013) (holding that the
denial of ineffective assistance of counsel claim is proper where the claim was
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“based on nothing more than speculation, devoid of any factual evidentiary
support”). Appellant is, therefore, not entitled to relief on this claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/19
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