Com. v. Rogers, W.

J-A27043-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM ROGERS, :
:
Appellant : No. 3149 EDA 2018
Appeal from the Order Dated September 26, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007426-2012
BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 27, 2020
William Rogers (Appellant) appeals from the September 26, 2018
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
By way of background, Appellant fatally shot Mark Aursby in a dispute
over a bicycle on March 14, 2012. In June 2012, Appellant turned himself
in1 and provided a statement to police claiming that he shot Aursby in self-
defense because he “thought that [Aursby] was going to reach for a gun.”
Appellant’s Statement to Police, 6/4/2012, at 4 (unnumbered). As such,
Appellant’s trial counsel (trial counsel) prepared for trial on a theory of self-
defense. Thereafter, Appellant’s mother (Mother) notified trial counsel that
Appellant had an alibi: he was at a party at his great-aunt Marlena Parker’s
1 Appellant’s uncle, Michael Burke, was with him when he turned himself in.
* Retired Senior Judge assigned to the Superior Court.
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house at the time of the shooting. Trial counsel consulted with Appellant
about this change in defense strategy and he had his investigator, Karim
Shabazz, investigate the purported alibi. Trial counsel filed a notice of alibi
listing Marlena,2 Mother, Michael, and Appellant’s sister, Jasmine Rogers, as
alibi witnesses. Notice of Alibi, 9/5/2013. Trial counsel additionally listed
Shirley Lackey3 in the notices of alibi as an individual who saw the shooting
and would testify that Appellant was not the shooter. Id., Amended Alibi
Notice, 9/18/2013.
On September 23-27, 2017, Appellant proceeded to a jury trial. Trial
counsel subpoenaed the alibi witnesses for trial and introduced his alibi
defense strategy in his opening statement. The Commonwealth called, inter
alia, Nyteisha Sanders and siblings Zahir Wiggins and Shanae Talley as
eyewitnesses. All three had provided statements to police shortly after the
shooting identifying Appellant as the shooter. Because they recanted to
various degrees in their trial testimony, these statements were introduced as
substantive evidence. Enrico Crispo also testified as an eyewitness but was
unable to identify the shooter.
Mid-trial, when trial counsel went to speak with the alibi witnesses
before calling them to the witness stand, he learned that they either could
2This Court will refer to lay witnesses by their first names to avoid confusion
because some witnesses share the same last name.
3 It was clarified at the PCRA hearing that Shirley’s name was actually
Yvonne.
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not testify as to Appellant’s whereabouts at the time of the shooting or
refused to come in to testify. Accordingly, after consultation with Appellant,
trial counsel shifted gears back to the self-defense strategy. Appellant chose
not to testify at trial, so trial counsel called Michael to testify about
Appellant’s statement to police. In his closing argument, trial counsel
focused on establishing reasonable doubt in the Commonwealth’s case by,
inter alia, arguing that Appellant’s statement was coerced, highlighting the
eyewitnesses’ inconsistencies, and calling attention to the fact that two
different types of shell casings were found at the scene.
On September 27, 2013, the jury found Appellant guilty of first-degree
murder, carrying a firearm without a license, and possession of an
instrument of crime (PIC). Appellant was sentenced to life imprisonment for
first-degree murder, with concurrent terms of three to six years of
incarceration for carrying a firearm without a license and two to five years of
incarceration for PIC.
This Court affirmed Appellant’s judgment of sentence on direct appeal,
and our Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Rogers, 122 A.3d 1140 (Pa. Super. 2015) (unpublished
memorandum), appeal denied, 128 A.3d 220 (Pa. 2015).
On November 9, 2016, Appellant pro se timely filed the instant PCRA
petition. The PCRA court appointed Attorney David Rudenstein, who filed an
amended PCRA petition on April 7, 2017. On May 8, 2017, Attorney Michael
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Wiseman entered his appearance on behalf of Appellant. On November 17,
2017, Attorney Wiseman filed an amended PCRA petition, replacing Attorney
Rudenstein’s prior amended PCRA petition and raising ten claims. Relevant
to this appeal, Appellant raised the following claims: (1) constructive denial
of Appellant’s right to counsel; (2) four instances of ineffective assistance of
trial counsel; (3) denial of Appellant’s right to a public trial and counsel’s
ineffectiveness in pursuing this claim; (4) prosecutorial misconduct and
counsel’s ineffectiveness in pursuing this claim; (5) cumulative prejudice;
and (6) actual innocence. See generally Amended PCRA Petition,
11/17/2017.
An evidentiary hearing was held on September 19 and 20, 2018. At
the hearing, the PCRA court heard testimony from trial counsel, Shabazz,
Mother, Yvonne, Marlena, Michael, Jasmine, and Dr. Gerald Cooke, an expert
in forensic psychology. On September 26, 2018, the PCRA court dismissed
Appellant’s PCRA petition.
This timely-filed appeal followed. On appeal, Appellant claims that the
PCRA court erred in dismissing nine of his PCRA claims. Appellant’s Brief at
1-2. We begin with our standard of review.
This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
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Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (quoting
Commonwealth v. Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015)).
Ineffective Assistance of Trial Counsel
We begin with Appellant’s ineffective-assistance-of-trial-counsel
claims. “To establish ineffectiveness of counsel, a PCRA petitioner must
show the underlying claim has arguable merit, counsel’s actions lacked any
reasonable basis, and counsel’s actions prejudiced the petitioner.”
Commonwealth v. Jones, 71 A.3d 1061, 1063 (Pa. Super. 2013) (citations
omitted). “A failure to satisfy any prong of the ineffectiveness test requires
rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963
A.2d 409, 419 (Pa. 2009).
Ineffective Assistance of Trial Counsel: Alibi
Appellant first argues that trial counsel was ineffective for failing to
investigate and interview alibi witnesses, and for opening to the jury with an
alibi defense but then failing to present any alibi witnesses or explain their
absence to the jury. Appellant’s Brief at 32.
This Court has recognized that trial counsel has a general duty to
undertake reasonable investigations or make reasonable
decisions[,] which render particular investigations unnecessary.
The duty to investigate, of course, may include a duty to
interview certain potential witnesses; and a prejudicial failure to
fulfill this duty, unless pursuant to a reasonable strategic
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decision, may lead to a finding of ineffective assistance.
Commonwealth v. Mitchell, 105 A.3d 1257, 1276 (Pa. 2014) (citations
and quotation marks omitted).
A claim that trial counsel did not conduct an investigation
or interview known witnesses presents an issue of arguable
merit where the record demonstrates that counsel did not
perform an investigation. It can be unreasonable per se to
conduct no investigation into known witnesses. A showing of
prejudice, however, is still required.
Commonwealth v. Stewart, 84 A.3d 701, 712 (Pa. Super. 2013) (citations
omitted).
To prevail on a claim of trial counsel’s ineffectiveness for failure
to call a witness, an appellant must show: (1) the witness
existed; (2) the witness was available; (3) counsel was informed
of the existence of the witness or should have known of the
witness’s existence; (4) the witness was prepared to cooperate
and would have testified on appellant’s behalf; and (5) the
absence of the testimony prejudiced appellant.
Commonwealth v. Cousar, 154 A.3d 287, 312 (Pa. 2017) (citation
omitted).
At the PCRA hearing, trial counsel testified that he tasked his
investigator, Shabazz, with investigating the alibi witnesses, and he relied on
Shabazz’s oral reports that he had spoken with the alibi witnesses.
Additionally, trial counsel testified that he sent a copy of the filed alibi notice
to Appellant to ensure that the names, as written, were correct. N.T.,
9/19/2018, at 86-87, 89-90, 96, 103-04, 132, 160. Trial counsel
subpoenaed those witnesses, but when he went to speak with the witnesses
before putting them on the witness stand, he learned that they either could
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not testify that Appellant was with them or refused to come in to testify.
Accordingly, trial counsel switched his defense strategy back to self-defense
with Appellant’s approval. Id. at 99-100, 102, 134-35, 156-59.
Mother testified that Shabazz cancelled the first two appointments to
discuss Appellant’s case. She ultimately met Shabazz at the third
appointment, but the other alibi witnesses were not present. Id. at 13-15.
Shabazz testified that he met with Mother regarding the alibi, and was told a
number of names for people who could testify that Appellant was at
Marlena’s party at the time of the murder. This list of names included
Mother. Id. at 43-45. Shabazz remained in contact with Mother and her
family throughout Appellant’s trial. Id. at 49-50. Mother told Shabazz
about Yvonne’s proposed testimony, and Shabazz interviewed the Lackey
family. Id. at 15, 45-48.
In dismissing Appellant’s claim, the PCRA court credited trial counsel’s
testimony about his reliance on Shabazz.
[T]rial counsel investigated the alibi witnesses and reasonably
relied on his investigation. However, at the time of trial, the
witnesses either failed to appear or recanted. [Mother] was
present during the trial and could have testified to the alibi but
did not do so, and did not dispute the contention made by [trial
counsel] that the alibi witnesses were recanting. Moreover, the
putative alibi was unpersuasive. [Marlena] did not specify when
the party began, nor the time frame when she saw [Appellant]
at the party. The murder was committed approximately two
blocks from the address of the party. Even if [Appellant] had
attended the party he could easily have left, committed the
shooting, and returned to the party. Therefore, even if the alibi
testimony had been presented, it would not have resulted in a
different verdict.
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PCRA Court Opinion, 2/25/2019, at 14 (citations omitted).
As to trial counsel’s reference to an alibi in his opening statement that
went unfulfilled and unexplained to the jury, the PCRA court found as
follows.
At [the time of trial counsel’s opening statement,] he was relying
on the information given to him by his investigator, [Appellant],
and [Mother]. When he became aware that the alibi witnesses
were recanting, he changed his strategy to self-defense and
persuaded the Commonwealth not to mention alibi or ask for an
adverse inference instruction regarding alibi. [Trial counsel] did
the best he could under the circumstances created by
[Appellant] and [Mother]. Moreover, [the trial c]ourt gave a
cautionary instruction regarding opening statements.
PCRA Court Opinion, 2/25/2019, at 15.
Upon review, we find that the PCRA court’s findings are supported by
the record and are free of legal error. The PCRA court credited trial
counsel’s testimony that he believed his investigator interviewed the alibi
witnesses in preparing for trial. We will not disturb the credibility
determinations of the PCRA court. Commonwealth v. Roney, 79 A.3d
595, 603 (Pa. 2013) (citation omitted) (“The PCRA court’s credibility
determinations, when supported by the record, are binding on this
Court[.]”). While trial counsel did not personally investigate the alibi, he
tasked his investigator with doing so and reasonably relied on that
investigation in preparing his alibi defense for trial. Though in hindsight it
may have been preferable in this instance to prepare the witnesses prior to
trial, trial counsel acted reasonably in following his normal practice of
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waiting to prepare the witnesses, who he believed his investigator had
spoken with, until shortly before they testified. As such, he acted
reasonably when he included the alibi in his opening statement, even though
the defense ultimately fell apart. He cannot be faulted for failing to present
witnesses who could not or would not provide an alibi, and counsel’s decision
to focus on self-defense instead of the failed alibi in his closing argument
was reasonable. Thus, the PCRA court did not err in dismissing Appellant’s
PCRA claims.
Ineffective Assistance of Trial Counsel: Yvonne Lackey
Appellant next argues that counsel was ineffective for failing to
interview and call Yvonne as a witness. Appellant’s Brief at 36.
At the PCRA hearing, Yvonne testified that she spoke with Appellant
while he was on his way to Marlena’s party 20 minutes before the shooting.
She further testified that she observed the shooting, and that Appellant was
not the shooter. According to Yvonne, she was never interviewed by
Shabazz about this murder, even though she told Mother that she was
willing to testify to what she saw. She testified that Mother nonetheless
asked her to come to court, but she could not remember whether she went.
N.T., 9/19/2018, at 161-62, 164, 166-72, 185-86. However, it was unclear
from her testimony whether she had notified Mother of her proposed
testimony prior to Appellant’s 2013 trial as she referenced 2016 dates and
speaking with Appellant’s PCRA attorneys. Id. at 185-87.
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Shabazz testified that he spoke with the Lackey family, including
Yvonne, and that she told him she did not see the shooting. Id. at 47-48,
51-52. Appellant testified that he was unsure whether he saw Yvonne on
the day of the shooting. N.T., 9/20/2018, at 62.
In denying this claim, the PCRA court credited the testimony of
Shabazz that he interviewed Yvonne and she was unable to testify favorably
for the defense. The PCRA court further found Yvonne’s proposed testimony
incredible. PCRA Court Opinion, 2/25/2019, at 16-17.
Since [Yvonne] was not credible, [trial counsel] could not have
been ineffective for failing to call [her] as a witness. Her
proposed testimony that [Appellant] told her that he was going
to the party does not amount to an alibi that he was actually at
the party. [Yvonne’s] conclusion that the shooter was not
[Appellant] was contradicted by the testimony of [Zahir, Shanae,
and Nyteisha] who put [Appellant at] the scene.
Id. at 18.
On appeal, Appellant argues that it was unreasonable for the PCRA
court to credit the testimony of Shabazz over Yvonne because Shabazz did
not take notes and the court’s conclusions were not supported by the record.
Appellant’s Brief at 39. Upon review, although Appellant believes Yvonne to
be more credible than Shabazz, the PCRA court’s conclusions and credibility
determinations are supported by the testimony offered at Appellant’s PCRA
hearing, and we will not disturb them. Accordingly, the PCRA court did not
err in dismissing this claim.
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Ineffective Assistance of Trial Counsel: Two-Gun Theory
Appellant next argues that trial counsel was ineffective for “failing to
adequately exploit the fact that two separate guns were fired at the scene”
to support Appellant’s self-defense theory in his closing argument.
Appellant’s Brief at 42.
During his closing argument, trial counsel referenced the ballistics
evidence as follows.
What are the facts? Not mentioned in the opening, there
happens to be two guns out there or two people firing. Well,
isn’t that a surprise? It is not mentioned by [Nyteisha, Zahir, and
Shanae]. So they put the ballistics man on, Officer Scott. This
is from one kind of gun, not a Glock. These here are from a
Glock, square versus circular or whatever the testimony was. So
how do we get around that? There are two sets of bullets out
there which usually means there are two people shooting.
(Indicating).
Oh, it is a relic. Of course. Did anyone interview, was
there a shooting the night before or two weeks before? This is a
busy street. So let’s look at relics. … Let’s see if these are
relics, things [lying] around on the street for days. You can look
at them back in the jury room. I will not hand them to you.
They don’t have the consistency of something [lying] out in the
street, filled with dirt, run over by cars, things of that nature.
We need a little more than that. Maybe it was last night.
Unfortunately, there are a lot of shootings in the streets of
Philadelphia[.] …
There are two different shells and they are not that far
apart. If you look at the photographs, and you have seen these
on the screen … this is the scene looking east …. Here are the
two shells I just had in my hand sitting on the box a few seconds
ago. They are about 30, 40 feet on the corner. It is really not
that far. It is not that far. It is like the first down and-a-half. …
So what is going on? We have two sets of shells here and
we don’t have an explanation of what’s happening but let’s keep
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digging. We are trying to find out and, unfortunately, I am not
going to be able to give you the conclusive answers. It is not
like Perry Mason where a witness gets up and says I did it. … I
cannot give that to you but I am raising issues that should
concern you and should be debated and discussed before you
reach a conclusion in this case.
N.T., 9/27/2013, at 27-30.
At Appellant’s PCRA hearing, trial counsel testified that none of the
witnesses, either in their police statements or trial testimony, placed a gun
in Aursby’s hand. It was only Appellant’s statement to police that referenced
Aursby possibly having a gun. N.T., 9/19/2018, at 137. Therefore, when
trial counsel switched his defense strategy from an alibi to self-defense, he
chose to focus on establishing reasonable doubt by arguing that Appellant’s
statement was coerced, and that the Commonwealth witnesses recanted and
were inconsistent. Id. at 135, 137. This avenue was what he perceived as
the best way to take a case that had fallen apart and “put enough back
together that there’d be some form of reasonable doubt.” Id. at 137.
In dismissing Appellant’s claim, the PCRA court found that trial
counsel, after having to switch defense strategies mid-trial, effectively
addressed a two-gun theory in his closing argument. PCRA Court Opinion,
2/25/209, at 18. Upon review, we hold that the PCRA court’s conclusion is
supported by the record. Because counsel had a reasonable strategic basis
for arguing the ballistics evidence as he did, the PCRA court did not err in
dismissing this PCRA claim.
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Ineffective Assistance of Trial Counsel: Mental Health Evidence
Appellant next argues that trial counsel was ineffective for failing to
“obtain records or have Appellant evaluated by a mental health professional
to determine if his emotional and psychological deficits impaired his ability to
make a knowing, intelligent, and voluntary waiver of his Miranda[4] rights.”
Appellant’s Brief at 44 (citation omitted). Appellant argues that “[w]hile
counsel filed a motion to suppress the statement [given to police], and
presented argument that Appellant had cognitive and emotional deficits, he
failed to support this argument by collecting relevant records related to
Appellant’s life, schooling, and mental health, and failed to have him
evaluated by a mental health professional.” Id. (emphasis in original).
Additionally, Appellant argues that counsel should have presented this
evidence to the jury. Id. at 46.
We begin by observing the following.
[T]here is no per se rule that there can be no voluntary waiver
when a person is mentally ill.
The voluntariness standard of Miranda requires that
the prosecution prove by a preponderance of the
evidence that the waiver is knowing and intelligent.
This requires a two-step analysis. First, the waiver
must have been voluntary in the sense that it was an
intentional choice made without any undue
governmental pressure; and, second, that the waiver
must have been made with a full comprehension of
both the nature of the right being abandoned and
the consequences of that choice.
4 Miranda v. Arizona, 384 U.S. 436 (1966).
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[Commonwealth v.] Logan, [] 549 A.2d [531,] 537 [(Pa.
1988)] (citation omitted).
Thus, in the suppression realm, the focus is upon
police conduct and whether a knowing, intelligent
and voluntary waiver was effected based on a
totality of the circumstances, which may include
consideration of a defendant’s mental ...
condition[.] When a defendant alleges that his
waiver or confession was involuntary, the question is
not whether the defendant would have confessed
without interrogation, but whether the interrogation
was so manipulative or coercive that it deprived the
defendant of his ability to make a free and
unconstrained decision to confess.
[Commonwealth v.] Sepulveda, [] 55 A.3d [1108,] 1136-37
[(Pa. 2012)] (quotation marks and quotations omitted).
Commonwealth v. Mitchell, 105 A.3d 1257, 1268 (Pa. 2014) (some
citations omitted).
At the PCRA hearing, Dr. Cooke testified that in preparation for the
PCRA hearing, he conducted a forensic evaluation of Appellant by
interviewing Appellant, conducting a history, administering various tests to
Appellant, and reviewing Appellant’s records. He testified that this
evaluation revealed that Appellant had previously been diagnosed with post-
traumatic stress disorder (PTSD), anti-social traits, and impulse control
disorder. After completing a program at Benchmark prior to the murder,
Appellant’s diagnosis changed in that both the PTSD and anti-social traits
diagnoses were resolved. However, upon discharge, Appellant was
diagnosed with dysthymia, or persistent depressive disorder. Appellant was
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prescribed anti-depressants and treatment, with which he did not comply.
Additionally, Appellant had an IQ of 85, which was in the low-end of the
average range. Dr. Cooke concluded that Appellant was cognitively able to
understand the Miranda warnings, and that based on his functioning the
day he provided his statement to police, he would have been mildly-to-
moderately depressed. N.T. 9/20/2018, at 17-18, 22-25, 30-31, 35, 37-39,
51. Finally, Dr. Cooke testified that he would have been available as a
witness at Appellant’s 2013 jury trial. Id. at 52.
In denying Appellant’s claim, the PCRA court considered this testimony
and the proposed records and found that Appellant was not prejudiced by
their absence.
In denying [Appellant’s] motion to suppress his statement,
th[e c]ourt found that [Appellant] testified that at the time he
turned himself in to the police, he was taking Melatonin and
Benadryl and a medicine for depression, the name of which he
did not recall. [Appellant] testified that he had a learning
disability and that he could read and write very little. N.T.,
9/24/2013[], at 100.
The additional testimony presented by Dr. Cooke at the
evidentiary hearing does not change this Court’s view of the
motion to suppress. The fact that [Appellant] had an IQ of 85[]
would not lead the court to conclude [Appellant] could not make
a knowing, intelligent, and voluntary waiver. Accordingly, [the
PCRA c]ourt [found] that Dr. Cooke’s testimony gave very little
support to this claim that [Appellant] was impaired to such a
degree that he could not make an intelligent and voluntary
waiver. Neither Dr. Cooke’s testimony nor the Benchmark
records would have changed the result on the motion to
suppress. Nor would the introduction of these items at trial have
persuaded the jury to disbelieve the voluntariness or credibility
of [Appellant’s] statement.
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PCRA Court Opinion, 2/25/2019, at 20.
Upon review, we conclude that the record supports the PCRA court’s
finding that Appellant was not prejudiced by the absence of this evidence,
and therefore counsel was not ineffective for failing to present it.
Pretrial Communication
We now review whether the PCRA court erred in denying Appellant’s
constructive-denial-of-trial-counsel PCRA claim. Specifically, Appellant
claims that he was constructively denied the right to trial counsel because
his only pre-trial interactions with counsel “consisted of a single 20-30
minute video conference” and one additional face-to-face conference in the
cell room next to the courtroom. Appellant’s Brief at 27.
The seminal case for reviewing this type of claim is Commonwealth
v. Brooks, 839 A.2d 245 (Pa. 2003).5
Brooks essentially announced the minimum action required by
counsel to provide what is deemed constitutionally effective
representation in capital cases: counsel must conduct at least
one face-to-face meeting with his client.
More recently, in [] Johnson, 51 A.3d 237[], the defendant,
who was [] convicted of first-degree murder and sentenced to
life in prison, argued on collateral appeal that trial counsel was
ineffective where he failed to have a face-to-face meeting with
him until the eve of trial. The majority determined that where
counsel had a last minute meeting with Johnson on the eve of
trial, a face-to-face meeting with the defendant at his
preliminary hearing, and a phone consultation with his client, he
5 Brooks was a capital case. This Court has applied Brooks to non-capital
cases. See Commonwealth v. Johnson, 51 A.3d 237 (Pa. Super. 2012)
(en banc).
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was not per se ineffective. Essentially, the Court found that
counsel’s limited pretrial contact with his client was entirely
distinguishable from the attorney in Brooks who “failed to meet
with his client ‘at all.’” Id. at 243. While our Court acknowledged
that additional pre-trial attorney-client contact “may have been
advisable,” it declined to read Brooks in a way that would
prevent it from analyzing the substantive impact that counsel
had on the defendant’s trial strategy. Id. at 243-44.
Commonwealth v. Brown, 145 A.3d 196, 203 (Pa. Super. 2016) (footnote
omitted; emphasis in original).
In denying Appellant’s PCRA claim, the PCRA court found the instant
case analogous to Johnson.
Here, [Appellant] was sentenced to life imprisonment
following a non-capital murder trial. Trial counsel conducted at
least two meetings with [Appellant]; one via video conference,
and one face-to-face in the holding cell of the courtroom. Based
on those meetings, and the exchange of letters,[6] trial counsel
was able to prepare two defense strategies for [Appellant]. Trial
counsel originally prepared this case as a self-defense case, and
changed his trial strategy when [Appellant] switched his story to
an alibi. A private investigator was sent to collect evidence for
the self-defense claim, and later for the alibi story. Trial counsel
investigated the alibi claim and in good faith believed that alibi
evidence would be available for trial. Trial counsel even
subpoenaed four witnesses to support the alibi defense. When
that claim fell apart after the start of trial, counsel was able to
competently argue a self-defense claim that was ultimately
unsuccessful. N.T., 9/26/2018, at 51-60, 76.
Like in Johnson, trial counsel consulted with [Appellant]
multiple times, and based on the substantive impact of those
consultations was able to prepare a defense strategy on behalf of
[Appellant]. Therefore, [Appellant] was not constructively
denied counsel; and this claim warrants no relief.
6Trial counsel sent multiple, apparently unanswered, letters to Appellant.
See N.T., 9/19/2018, at 114-16; N.T., 9/20/2018, at 57.
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PCRA Court Opinion, 2/25/2019, at 12-13.
Upon review, we agree with the PCRA court that trial counsel’s contact
is more akin to Johnson than Brooks. The record before us supports the
PCRA court’s conclusion that trial counsel’s actions were sufficient to allow
him to “obtain adequate information to defend [Appellant] against first-
degree murder charges[.]” Johnson, 51 A.3d at 244. Accordingly, the
PCRA court did not err in dismissing this claim.
Prosecutorial Misconduct
Appellant next argues that it “was an abuse of discretion to deny
Appellant’s claim that he was deprived of due process by the prosecutor’s
misconduct and that appellate counsel was ineffective for inadequately
litigating this claim.” Appellant’s Brief at 51. While acknowledging that
appellate counsel previously raised this claim in Appellant’s direct appeal,
Appellant avers that the PCRA court erred in dismissing this claim as
previously litigated because appellate counsel “presented an incomplete
argument and failed to cite controlling authority which, if considered by this
Court, would likely have changed the direct appeal outcome.” Id. at 52.
Moreover, Appellant argues that the “direct appeal opinion finding some of
the statements an invited response was incorrect[.]” Id. at 53.
In order to be eligible for relief under the PCRA, a petitioner must
plead and prove by a preponderance of the evidence that the allegation of
error has not been previously litigated. 42 Pa.C.S. § 9543(a)(3). An issue
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has been previously litigated if “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue[.]” 42 Pa.C.S. § 9544(a)(2).
On direct appeal, a prior panel of this Court reviewed Appellant’s claim
of prosecutorial misconduct. Although this Court found that portions of the
prosecutor’s closing argument violated the American Bar Association
standards, we ultimately rejected Appellant’s claim, concluding as follows.
The prosecutor unambiguously expressed her personal opinion of
Appellant’s veracity. Nonetheless, the law requires us to consider
those statements in context rather than isolation. After the
objectionable statement, the prosecutor explained in detail –
based on the evidence of record and not based on her opinion –
why Appellant’s statement was not believable. Considering the
prosecutor’s statement in context, we believe it was a fair
response to [the assertion of] Appellant’s counsel[] that
Appellant’s statement [had] completely refute[d] all of the
testimony evincing his guilt. Per [Commonwealth v.] Chmiel,
[889 A.2d 501, 543 (Pa. 2005),] a prosecutor is permitted to
make a fair response to defense counsel’s argument.
Furthermore, we must analyze a prosecutor’s conduct under a
harmless error standard. As set forth above, the record contains
substantial direct evidence – in the form of eyewitness testimony
– confirming Appellant’s guilt. Given the overwhelming evidence
of Appellant’s guilt and the comparative insignificance of the
prosecutor’s remarks during closing, we cannot conclude the
isolated objectionable remarks warrant a new trial.
Rogers, 122 A.3d 1140 (unpublished memorandum at 7-8) (some citations
omitted).
Appellant’s attempt to reframe this issue as one of ineffective
assistance of appellate counsel does not allow him to bypass the PCRA’s
requirement that an issue not be litigated previously. “[I]t is well-settled
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that a PCRA petitioner cannot obtain review of claims that were previously
litigated by presenting new theories of relief, including allegations of
ineffectiveness, to relitigate previously litigated claims.” Commonwealth
v. Bond, 819 A.2d 33, 39 (Pa. 2002). Accordingly, the PCRA court did not
err in dismissing this claim.
Cumulative Prejudice
We next review Appellant’s claim of cumulative prejudice. Appellant’s
Brief at 55.
[W]here a claimant has failed to prove prejudice as the result of
any individual errors, he cannot prevail on a cumulative effect
claim unless he demonstrates how the particular cumulation
requires a different analysis. Although cumulative prejudice
from individual claims may be properly assessed in the
aggregate when the individual claims have failed due to lack
of prejudice, nothing in our precedent relieves an appellant who
claims cumulative prejudice from setting forth a specific,
reasoned, and legally and factually supported argument for the
claim. A bald averment of cumulative prejudice does not
constitute a claim.
Commonwealth v. Hutchinson, 25 A.3d 277, 318-19 (Pa. 2011) (citations
and quotation marks omitted).
Here, Appellant’s entire argument in support of this claim is as follows.
Appellant raised numerous claims of ineffective assistance
of counsel. When such claims fail individually for lack of
prejudice, then relief may be granted based on cumulative
prejudice. Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa.
2012).
The cumulative prejudice from trial counsel’s miscues and
inactions created the reasonable probability that but for the
errors and omissions of counsel, the outcome of [sic] would have
been different.
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Appellant’s Brief at 55-56. See also Appellant’s Amended PCRA Petition,
11/17/2017, at 82-83 (restating each individual claim of error but reaching
the same bald conclusion). Such a “bald averment of cumulative prejudice
does not constitute a claim.” Hutchinson, 25 A.3d at 319. Accordingly, the
PCRA court did not err in dismissing this claim.
Actual Innocence
We next review Appellant’s argument that the “continued incarceration
of a factually innocent person is a deprivation of that individual’s right to
liberty and to be free from cruel and unusual punishment” and that such a
claim is a cognizable basis for relief under the Pennsylvania and United
States constitutions. Appellant’s Brief at 56.
Our Supreme Court has held that such a claim is cognizable under the
PCRA because “although § 9543 does not use the term ‘actual innocence’ in
enumerating cognizable claims, the Act specifically states it is intended to
‘provide[ ] for an action by which persons convicted of crimes they did not
commit ... may obtain collateral relief.’” Commonwealth v. Abu-Jamal,
833 A.2d 719, 728 (Pa. 2003) (quoting 42 Pa.C.S. § 9542). As such, “[o]ur
review is limited to the findings of the PCRA court and the evidence of record
and we do not disturb a PCRA court’s ruling if it is supported by evidence of
record and is free of legal error.” Benner, 147 A.3d at 919 (quoting Perry,
128 A.3d at 1289). “Similarly, we grant great deference to the factual
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findings of the PCRA court and will not disturb those findings unless they
have no support in the record.” Id.
On appeal, Appellant argues that he presented evidence to establish
his innocence via Yvonne, “an exculpatory witness who saw the shooting and
who testified that the shooter was not Appellant. The PCRA court’s holding
that Appellant ‘baldly asserted his innocence, whereas the evidence
conclusively proves otherwise,’ is an abuse of discretion.” Appellant’s Brief
at 56-57 (citations omitted).
As discussed supra, the PCRA court found Yvonne’s testimony
incredible, and we concluded that ruling was supported by the record.
Accordingly, the PCRA court did not err in dismissing this claim.
Closing the Courtroom
Finally, we review Appellant’s argument that the PCRA court abused its
discretion in denying his claim that “closing the courtroom for the testimony
of two Commonwealth witnesses violated Appellant’s right to a public trial.”
Appellant’s Brief at 47 (citation omitted). Specifically, Appellant claims that
trial counsel was ineffective for failing to object to the closing of the
courtroom following an allegation of witness intimidation. Id. at 49, 51.
In Commonwealth v. Penn, 562 A.2d 833 (Pa. Super. 1989), this
Court addressed the issue of witness intimidation as the basis for a trial
court’s decision to close a courtroom.
Criminal trials in the United States have, by historical tradition,
and under the First Amendment, been deemed presumptively
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open to public scrutiny and this ... presumption of openness
inheres in the very nature of the criminal trial under our system
of justice.
***
The openness of criminal trials and the purposes which this
openness is intended to serve, are protected not only by
tradition, but by provisions in both the United States and the
Pennsylvania Constitutions as well. See U.S. Const. Amend. 1;
U.S. Const. Amend. 6; U.S. Const. Amend. 14; Pa. Const. Art. 1,
sec. 7; Pa. Const. Art. 1, sec. 9; Pa. Const. Art. 1, sec. 11.
***
Though the right to an open public trial is central to our system
of criminal justice, the right is not absolute.
***
This case involves an order which directed the court to be
cleared during the testimony of a witness who was reported to
have claimed that he was intimidated by unnamed persons who
sought to prevent or alter his testimony against [a defendant].
In appropriate cases, full or partial closure of criminal
proceedings may properly be granted in response to witness
intimidation.
***
Succinctly, if the means of justice are to be preserved and the
ends of justice protected, courts must exercise their discretion so
as to dispel any belief that intimidation of victims or witnesses
will serve the ends to which the intimidation is directed.
***
However, a bald assertion of alleged intimidation does not justify
the kind of encroachment on a defendant’s Sixth Amendment
right to a public trial which clearing the courtroom for a
witness’[s] testimony entails. To the contrary, specific
procedures designed to ensure a proper balancing of competing
interests must be followed before even a partial closure for a
single witness’[s] testimony may be ordered. …
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The presumption of openness may be overcome only
by an overriding interest based on findings that
closure is essential to preserve higher values and is
narrowly tailored to serve that interest. The interest
is to be articulated along with findings specific
enough that a reviewing court can determine
whether the closure order was properly entered.
In the instant case, the trial court made no findings whatsoever
regarding the nature, extent, or impact of the alleged
intimidation on [the witness]. Rather than questioning [the
witness] himself, the trial court relied entirely on the
prosecutor’s second-hand, hearsay, rendition of the allegations
made by [the witness] in explanation of his failure to comply
with the court’s subpoena.
Id. at 835-38 (some citations and quotation marks omitted).
In Penn, this Court held that the trial court abused its discretion when
it failed to examine the allegedly-intimidated person for itself in order to
assess the person’s credibility and determine the “nature, extent, and impact
of any attempts to intimidate” the witness, or to “make specific factual
determinations based upon sufficiently reliable information which would
support a conclusion that important interests existed which would justify the
partial closure ordered.” Id. at 839.
While the right to a public trial may certainly bow to interests in
protecting witnesses from injury or intimidation in some cases,
such an encroachment on a defendant’s rights requires, at a
minimum, that the trial court first determine whether or not the
threat of injury or intimidation in fact exists.
Id. (emphasis in original).
Also, this Court concluded that the trial court abused its discretion
when it failed to consider alternatives to closing the courtroom or explain on
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the record why alternatives “would be impractical or inadequate to serve the
interest(s) that closure of the trial during [the witness’s] testimony was
intended to protect.” Id.
By way of background, it appears that immediately following Zahir’s
testimony on September 24, 2013, Zahir’s mother, April Talley, allegedly
received a threat based upon his testifying against Appellant. Concerned
about the safety of Zahir’s sister, Shanae, who was set to testify on
September 25, 2013, the trial court held an in-chambers discussion with the
prosecutor and trial counsel about closing the courtroom. N.T., 9/25/2013,
at 2-8.7 Trial counsel requested that the trial court warn the public that any
intimidation would be referred to the prosecuting authority instead of closing
the courtroom because “you give him a new trial if the public courtroom is
closed.” Id. at 8. The trial court disagreed, stating that it could close the
courtroom with good reason, but that it would need to hear testimony from
April first. Id. at 8-9. Trial counsel then changed course, advising the trial
court that hearsay testimony from the officer who spoke to April would
constitute a sufficient basis for the trial court to close the courtroom for the
Commonwealth witnesses. Id. at 9-10. Thereafter, Officer Anthony Jackson
testified that he was told by April that on the evening of September 24,
2013, unnamed individuals came to her house and told her that they were
7 Additionally, a discussion was held about not referring to Shanae as a
police informant during direct or cross-examination.
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going to “fuck up” her son for testifying. Id. at 16-17. As a result of this
threat, she relocated. Id. at 16. Based upon that testimony, the trial court
closed the courtroom for the testimony of Shanae. The trial court also
closed the courtroom for the testimony of Nyteisha because she lived in the
same neighborhood and would similarly place Appellant at the shooting. Id.
at 18-19. Trial counsel did not object.8
In denying Appellant’s PCRA claim, the PCRA court found that trial
counsel was not ineffective for failing to object because the objection would
have been meritless. PCRA Court Opinion, 2/25/2019, at 21.
Here, [the trial c]ourt cleared the courtroom for the
testimony of Zahir[9] [], Shanae [], and Nyteshia [] in the
interest of safety. Th[e trial c]ourt only did so after hearing
testimony from Officer Jackson that individuals had shown up at
the house of [Zahir and Shanae’s] mother, and threatened to
physically assault [Zahir] if he testified. N.T., 9/25/2013[,] at
15-18.
As a result of the threats to the mother of two of the
witnesses, th[e trial c]ourt ordered that the courtroom be
cleared for the testimony of the three witnesses who placed
[Appellant at] the scene of the shooting. In so doing, th[e trial
c]ourt limited the risk that the news of their testimony would
reach hostile persons. The basic guarantees of fairness,
8 Alternatively, Appellant argues that if this Court finds trial counsel did
object, appellate counsel was ineffective for failing to raise this claim in
Appellant’s direct appeal. Because we agree that trial counsel did not
object, we need not reach this alternate argument.
9 We note that the PCRA court states that it also cleared the courtroom for
the testimony of Zahir. However, Zahir testified prior to the threat, and in
fact, his testimony was the impetus for the threat. See N.T., 9/25/2013, at
2, 15-16.
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including the making of a record for a later review, were not
infringed.
Id. at 21 (footnote omitted).
As in Penn, the trial court in the instant case did not interview the
intimidated person. While the trial court in the instant case went one step
further and heard the testimony of the reporting police officer, it still relied
on hearsay in finding that unnamed individuals threatened April. Thus, as in
Penn, we conclude that the trial court abused its discretion when it closed
the courtroom without questioning April to ascertain “whether or not the
threat of injury or intimidation in fact exist[ed,]” and for failing to consider
alternatives to closing the courtroom. 562 A.2d at 839.
Accordingly, we conclude that the underlying claim of error has
arguable merit. In order to obtain relief on his ineffective-assistance-of-
trial-counsel claim, though, Appellant must also establish that trial counsel’s
failure to object lacked any reasonable basis and that Appellant was
prejudiced thereby.10 See Jones, 71 A.3d at 1063.
10 On direct appeal, when a defendant has been denied her right to a public
trial, a new trial must be granted and no showing of prejudice is required
because the violation is in “the nature of a structural error.” See
Commonwealth v. Rega, 70 A.3d 777, 786-87 (Pa. 2013) (citation
omitted). When a defendant does not object at trial, that claim is waived for
appellate review. Id. Thereafter, the only cognizable aspect of such a claim
in the PCRA context is ineffective assistance of counsel, wherein a defendant
must prove prejudice. Id. at 787. Because trial counsel failed to object,
and the claim regarding closure is before this Court in the context of an
ineffective-assistance-of-counsel claim, Appellant must prove prejudice.
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Preliminarily, we note that no record exists as to whether trial counsel
had a reasonable basis for not objecting to the trial court’s closing of the
courtroom. However, this dearth of record evidence is due to Appellant’s
choosing not to present evidence at the PCRA hearing. At the PCRA hearing,
Appellant notified the PCRA court that it would be presenting evidence as to
the ineffective assistance of trial counsel claims discussed at length, supra,
and his claim that he was constructively denied the right to trial counsel.
N.T., 9/19/2018, at 7-8. As to the remainder of his PCRA claims, Appellant’s
PCRA counsel stated that “[t]he other issues were either [sic] we don’t
believe require a presentation, we will not be pursuing them.” Id. at 8.
It is well-settled that “a PCRA petitioner bears the burden of
demonstrating counsel’s ineffectiveness.” Commonwealth v. Miller, 212
A.3d 1114, 1126 (citation omitted). Moreover, “[o]ur Supreme Court has
articulated a strong preference that counsel be heard before being found
ineffective[.]” Commonwealth v. Durrett King, 195 A.3d 255, 263 (Pa.
Super. 2018) (citation omitted). Because Appellant had the opportunity to
question trial counsel about his failing to object to the closing of the
courtroom at the PCRA hearing, but declined to do so, Appellant has failed to
sustain his burden of proof. See Commonwealth v. Koehler, 36 A.3d
121, 146-47 (Pa. 2012) (rejecting ineffectiveness claim because PCRA
counsel failed to question trial counsel at PCRA hearing regarding any
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potential reasons for the allegedly ineffective conduct). Accordingly, the
PCRA court did not err in dismissing this claim.
Conclusion
Based on the foregoing, we affirm the order of the PCRA court
dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2020
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