Com. v. Garrett, I.

J-S94016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IZEL WALTER GARRETT,
Appellant No. 154 MDA 2016
Appeal from the PCRA Order entered December 18, 2015,
in the Court of Common Pleas of Luzerne County,
Criminal Division, at No(s): CP-40-CR-0000761-2011.
BEFORE: LAZARUS, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY RANSOM, J.: FILED MARCH 10, 2017
Appellant, Izel Walter Garrett appeals from the December 18, 2015
order denying his motion for funds to hire a ballistics expert, as well as his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The pertinent facts and procedural history, as gleaned from our review
of the certified record, are as follows. Police charged Appellant, his brother,
Isiah Garrett (“Isiah”), and their cousin Tyrek Smith (“Smith”), with
multiple crimes, including criminal homicide and conspiracy to rob Abdul
Shabazz (“the victim”), during a drug transaction in Hazelton, Pennsylvania
on December 6, 2011. Although the three men gave various accounts of
how the transaction occurred, the victim was shot twice during the exchange
and ran out of the apartment. He was able to call 911 for assistance, was
* Former Justice specially assigned to the Superior Court.
J-S94016-16
still alive when help arrived, but subsequently was pronounced dead a
nearby hospital.
After an evidentiary hearing, the trial court denied Appellant’s pretrial
motion to suppress statements he made to police following his arrest.
Smith pled guilty to the robbery charge and testified for the Commonwealth
at the joint trial of Appellant and Isiah that was held over three days in
December 2011. When questioned, Smith gave multiple versions of what
occurred to the police, at first claiming nothing happened, then identifying
Appellant’s girlfriend, who was also present in the apartment, as the
shooter, and finally identifying Appellant as the shooter. At trial, Smith
testified in more detail concerning the drug transaction and the position of
the parties prior to the shooting. He testified that Appellant gave the victim
counterfeit money and the victim began to look closely at the money.
According to Smith, Appellant then pulled out a silver revolver, pointed it at
the victim while ordering him to the floor, and then shot the victim once in
the abdomen and once in the left arm. Smith testified that he was seated in
a chair directly across from the victim when he appeared at the door of the
apartment, while both Appellant and Isiah were standing up and to the left
of the victim.
Dr. Gary W. Ross, a forensic pathologist who conducted the victim’s
autopsy, testified that the shot to the victim’s arm was only a graze wound,
but that the shot to the “left upper abdomen” was lethal. N.T., 12/14/11, at
343. He testified that that bullet “entered the abdomen on the [victim’s]
-2-
J-S94016-16
left side, went through the spleen, the large bowel, the small bowel, the
stomach, the pancreas, the liver, through the diaphragm and they [sic] the
bullet in the right chest muscular wall.” N.T., 12/14/11, at 340. As to the
bullet’s trajectory, Dr. Ross testified that it traveled “from left to right, front
to back, and slightly upward.” Id. at 349.
At trial, there were two firearms introduced as evidence—a silver
Taurus .38 revolver, and a black Colt .38 revolver. Smith testified that
Appellant shot the victim with the silver revolver. In their statements to
police both Appellant and Isiah told police that Smith shot the victim using
the black revolver. Following a search of their mother’s apartment, the
loaded black revolver was found in Appellant’s bedroom, while the silver
revolver was found in Isiah’s bedroom. In addition, police found two spent
shell casings from the silver revolver on a dresser or table in Appellant’s
bedroom. Expert testimony at trial established that the silver revolver was
the murder weapon and that the two shell casings came from the silver
revolver.
Ultimately, the jury found both Appellant and Isiah guilty of second-
degree murder, robbery, conspiracy, and a firearm violation. Appellant was
sentenced to life imprisonment for the murder conviction. Appellant filed a
timely appeal to this Court. In an unpublished memorandum filed on July
12, 2013, we rejected Appellant’s challenge to the denial of his suppression
motion, and therefore affirmed his judgment of sentence. Commonwealth
v. Garrett, No. 694 MDA 2012.
-3-
J-S94016-16
Appellant filed a timely pro se PCRA petition in which he claimed trial
counsel was ineffective for failing to obtain an independent ballistics expert.
The PCRA court appointed counsel, and PCRA counsel filed a motion to
provide funds to hire a ballistic expert on Appellant’s behalf. Within this
motion, PCRA counsel averred that, he had contacted Fred Wentling, a
ballistics and firearm examiner in Lancaster, Pennsylvania, who was willing
to examine the evidence and offer an expert opinion as to who fired the fatal
shots, if such funds were granted. Isiah filed a similar PCRA petition and
joined in Appellant’s motion for funds. On August 13, 2015, the PCRA court
held an evidentiary hearing to resolve both matters. Appellant and Isiah
both testified, as did their respective trial counsel. At the conclusion of the
hearing, the PCRA court took the matter under advisement and requested
that the parties file briefs. By order entered December 18, 2015, the PCRA
court denied both PCRA petitions and the joint motion for funds. Appellant
timely filed this appeal.1 Both Appellant and the PCRA court have complied
with Pa.R.A.P. 1925.
Appellant raises the following issues:
A. Whether trial counsel was ineffective in failing to
request a ballistics expert to examine the guns, the
victim’s clothing, autopsy report and photograph[s],
casings and bullet hole in the wall to determine where
____________________________________________
1
Isiah also filed a timely appeal found at No. 155 MDA 2016.
-4-
J-S94016-16
the shooter was located at the time of the two
gunshots?
B. Whether the PCRA court abused its discretion in denying
[Appellant’s] motion to provide funding for a ballistics
expert?
Appellant’s Brief at 4 (excess capitalization removed).
This Court has recently reiterated:
On appeal from the denial of PCRA relief, our standard and scope
of review is limited to determining whether the PCRA court’s
findings are supported by the record and without legal error.
Our scope of review is limited to the findings of the PCRA court
and the evidence of record, viewed in the light most favorable to
the prevailing party at the PCRA court level. The PCRA court’s
credibility determinations, when supported by the record, are
binding on this Court. However, this Court applies a de novo
standard of review to the PCRA court’s legal conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014)
(citations omitted).
Because Appellant’s claim challenges the stewardship of prior counsel,
we apply the following principles. The law presumes counsel has rendered
effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.
Super. 2010). The burden of demonstrating ineffectiveness rests on
Appellant. Id. 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 reasonably probability that the outcome
of the challenged proceedings would have been different.” Commonwealth
-5-
J-S94016-16
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy 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).
In assessing a claim of ineffectiveness, when it is clear that appellant
has failed to meet the prejudice prong, the court may dispose of the claim
on that basis alone, without a determination of whether the first two prongs
have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.
1995). Counsel will not be deemed ineffective if any reasonable basis exists
for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.
1994). Even if counsel had no reasonable basis for the course of conduct
pursued, however, an appellant is not entitled to relief if he fails to
demonstrate the requisite prejudice which is necessary under Pennsylvania's
ineffectiveness standard. Douglas, 645 A.2d at 232.
Appellant first claims that trial counsel was ineffective for failing to
have an independent ballistics expert testify at trial. According to Appellant:
There was no dispute as to the location of Smith at the
moment of the shooting. He was sitting in a chair in front
of the door. [Appellant and Isiah] were standing. Dr.
Ross, the forensic pathologist, testified that the path of the
bullet was from entry into the lower abdomen by going
upward through the gastrointestinal system. This implied
the shooter may have been sitting.
[Appellant] contends that the testimony of a ballistics
expert, who based upon his knowledge of bullets,
weapons, and trajectory could have identified the location
of the shooter is imperative to his case. If a ballistics
expert could state dispositively [sic] that the bullet was
fired from Smith’s sitting position, this would have
-6-
J-S94016-16
demonstrated to a jury that he was lying about [Appellant]
and [Isiah’s] role in the shooting.
Trial Counsel admitted that his strategy was to impeach
Smith. This scientific evidence was the best possible
impeachment evidence, and clearly was more than
cumulative. There could have been no reasonable trial
strategy that did not include using a ballistics expert to
impeach Smith.
Appellant’s Brief at 20-21.
The standards that we apply when reviewing a claim regarding the
failure to call an expert at trial is well settled:
In order to demonstrate counsel’s ineffectiveness for failing
to call a witness, a petitioner must prove that “the
witness[] existed, the witness [was] ready and willing to
testify and the absence of the witness[’] testimony
prejudiced petitioner and denied him a fair trial.”
[Commonwealth v. Johnson, 27 A.3d 244, 247 (Pa.
Super. 2011)] (internal citation omitted). In particular,
when challenging trial counsel’s failure to produce expert
testimony, “the defendant must articulate what evidence
was available and identify the witness who was willing to
offer such evidence. Commonwealth v. Bryant, 579 Pa.
119, 855 A.2d 726, 745 (2004) (internal citation omitted).
Also, [t]rial counsel need not introduce expert testimony
on his client’s behalf if he is able effectively to cross
examine prosecution witnesses and elicit helpful
testimony.” Commonwealth v. Copenhefer, 553 Pa.
285, 719 A.2d 242, 253 (1998); accord Commonwealth
v. Williams, 537 Pa. 1, 640 A.2d 1251, 1265 (1994).
Finally, “trial counsel will not be deemed ineffective for
failing to call a medical, forensic, or scientific expert
merely to critically evaluate expert testimony which was
presented by the prosecution. Copenhefer, 719 A.2d at
253, n.12.
Commonwealth v. Luster, 71 A.3d 1029, 1047 (Pa. Super. 2013) (en
banc).
-7-
J-S94016-16
After hearing the testimony at the evidentiary hearing, the PCRA court
concluded that Appellant failed to establish his ineffectiveness claim. The
PCRA court summarized the relevant testimony as follows:
[Trial counsel] testified that the trial strategy was to
discredit [Smith]. [Smith] had given various inconsistent
statements and the strategy was to question his credibility.
[Trial counsel] was asked during the course of considering
discrediting the witnesses [sic] whether the parties
considered employing a ballistics expert to examine the
trajectory of the bullets that were fired. [Trial counsel]
said they did not because the overall evidence did not
justify such a course of action. The best chance to
exonerate [Appellant], according to [trial counsel], was
through a suppression motion. [Trial counsel] testified
that his review of the case was that the evidence was
overwhelming against [Appellant]. His only hope was the
suppression motion and some inconsistent statements.
[Appellant] testified that he did not have discussions
with [trial counsel] about procuring a ballistics expert. If
he had, [Appellant] would have wanted one to testify to
prove that the testimony would have bolstered the
strategy of discrediting [Smith]. It is [Appellant’s] belief
that the ballistics expert could have determined where the
bullet was fired from.
PCRA Court’s Opinion, 3/21/16, at 2.
The PCRA court then reasoned:
[T]he evidence showed that the victim was killed by a
bullet. During the trial [Smith] testified as to his position
which is exactly what [Appellant says] he was in when the
victim was shot. Because his positioning [was] not
disputed, it follows that that the jury apparently believed
that he was not the shooter and deemed him credible.
At trial, the testimony of Dr. Ross, the forensic
pathologist, regarding the trajectory of the victim’s wounds
[sic] was that the fatal bullet traveled “from left to right,
front to back, and slightly upwards.” [N.T., 12/14/11, at
-8-
J-S94016-16
349]. As the Commonwealth argued, to make the
determination of who was the actual shooter rather than
the path of the bullet, an expert would have to rely on
some witness’s description of the scene. The ballistic[s]
expert would have done nothing to change the outcome of
the case.
PCRA Court’s Opinion, 3/21/16, at 4-5.
Our review of the record supports the PCRA court’s determination.
Initially, as noted by the PCRA court, it was undisputed at trial that Smith
was seated across from the victim when he appeared at the apartment door.
Although it was also undisputed at trial that the bullet traveled at a “slightly
upward” trajectory, the expert first testified that the trajectory of bullet was
“left to right.” In closing to the jury, the prosecutor argued that if the bullet
was fired from directly across where Smith was sitting, the bullet would not
have gone “from [the victim’s] left to right, slightly upward[.] It’s going to
go front to back.” N.T., 12/15/11, at 568.
Moreover, even assuming that Appellant’s proposed expert would be
able to testify as to the exact location of the shooter, the PCRA court found
that Appellant did not suffer prejudice, given the totality of the evidence.
Once Appellant’s suppression motion was denied, his statements made to
police were admitted at trial. According to Appellant, Smith fired the black
revolver, rather the murder weapon. In addition, the police found both
revolvers at Appellant’s residence, and the two spent bullet casings from the
murder weapon were found in his bedroom. Given the totality of this
evidence, Appellant failed to establish that the outcome of his trial would
-9-
J-S94016-16
have been different had a ballistics expert testified about the location from
which the victim was shot. Any such expert testimony could not refute the
fact that the murder weapon and the spent bullet casings were found in
Appellant’s residence. As noted above, trial counsel cannot be deemed
ineffective for failing to pursue a meritless claim. Loner, supra.
Given this conclusion, Appellant’s remaining claim that the PCRA court
abused its discretion in failing to grant funds to hire a ballistics expert
likewise fails. See, e.g., Commonwealth v. Reid, 99 A.3d 470, 506 (Pa.
2014) (concluding that the PCRA court did not abuse its discretion in denying
request for funds to retain a ballistics expert). In sum, because the PCRA
court correctly determined that Appellant failed to establish his
ineffectiveness of counsel claim, we affirm its order denying post-conviction
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
- 10 -