Com. v. White, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMOND CHARLES WHITE :
:
Appellant : No. 478 WDA 2019
Appeal from the PCRA Order Entered March 5, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013548-2000
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 17, 2020
Appellant, Raymond Charles White, appeals from the March 5, 2019
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This panel previously summarized the procedural history as follows:
The record reveals that on July 16, 2002, a jury found Appellant
guilty of third-degree murder and criminal conspiracy to commit
third-degree murder.[FN1] On October 23, 2002, Appellant was
sentenced to an aggregate 30 to 60 years’ incarceration.
Appellant timely appealed, and on August 24, 2004, this Court
affirmed Appellant’s judgment of sentence. Commonwealth v.
White, 860 A.2d 1137 (Pa. Super. 2004). Appellant did not seek
discretionary review in our Supreme Court.
[FN1] 18 Pa.C.S.A. §§ 2502(c) and 903(a)(1), respectively.
On January 18, 2006, Appellant filed pro se his first PCRA petition
raising claims of, inter alia, ineffective assistance of counsel and
government interference. Counsel was appointed to represent
Appellant. On July 9, 2007, Appellant’s counsel filed a
Turner-Finley[FN2] no-merit letter and a petition to withdraw. The
PCRA court granted counsel’s petition to withdraw and notified
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Appellant of its intent to dismiss the PCRA petition pursuant to
Pa.R.Crim.P. 907. Appellant filed a pro se response. On August
17, 2007, the PCRA court dismissed Appellant’s PCRA petition.
This Court affirmed the dismissal, and our Supreme Court denied
allowance of an appeal. Commonwealth v. White, 959 A.2d
470 (Pa. Super. 2008), appeal denied, 958 A.2d 1048 (Pa. 2008).
[FN2] Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc).
On October 27, 2008, Appellant filed pro se his second PCRA
petition raising claims of, inter alia, ineffective assistance of
counsel and government interference. Counsel was appointed to
represent Appellant and subsequently filed a Turner-Finley
no-merit letter. On July 7, 2010, the PCRA court notified Appellant
of its intent to dismiss the PCRA petition pursuant to Rule 907.
Appellant did not file a response. On October 20, 2010, the PCRA
court dismissed Appellant’s petition.
On December 21, 2011, Appellant filed pro se his third PCRA
petition raising a claim of ineffective assistance of PCRA counsel
and alleging he never received notice of the PCRA court’s intent
to dismiss his second PCRA petition or the order dismissing the
same. On March 22, 2012, the PCRA court notified Appellant of
its intent to dismiss his third PCRA petition pursuant to Rule 907.
Appellant filed pro se a response alleging, inter alia, that PCRA
counsel abandoned him. The PCRA court dismissed Appellant’s
third PCRA petition on April 12, 2012. Appellant filed pro se a
notice of appeal on May 2, 2012. This Court reversed the
dismissal of Appellant’s third PCRA petition and remanded the
case with instructions. Commonwealth v. White, 2013 WL
11288929 at *1 (Pa. Super. January 28, 2013) (unpublished
memorandum). This Court found, “the PCRA court failed to
consider the ‘no merit’ letter at all, and that notice of the [PCRA
court’s intent to dismiss and subsequent dismissal order were]
given solely to PCRA counsel.” Id. (original brackets omitted).
On remand, PCRA counsel was instructed to provide Appellant a
copy of the no-merit letter. Id. The PCRA court, after an
independent review of the record, was to provide Appellant notice
of its intent to dismiss pursuant to Rule 907 in order to provide
Appellant an opportunity to respond. Id.On February 13, 2013, PCRA counsel filed a petition to reinstate
Appellant’s second PCRA petition nunc pro tunc. On November
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19, 2013, the PCRA court notified Appellant of its intent to dismiss
Appellant’s second PCRA petition pursuant to Rule 907.[FN3]
Appellant filed pro se a response on February 24, 2014. On
February 25, 2014, the PCRA court dismissed Appellant’s second
PCRA petition but did not grant counsel permission to withdraw.
Appellant filed pro se a notice of appeal on March 17, 2014. This
Court, finding PCRA counsel was not granted permission to
withdraw, was unable to address the merits of Appellant’s pro se
claims and remanded the case with instructions to determine
counsel’s status. Commonwealth v. White, 2015 WL 7587158at *3 (Pa. Super. January 7, 2015) (unpublished memorandum).
[FN3] The record contains no order specifically reinstating
Appellant’s second PCRA petition nunc pro tunc. It is
apparent from the PCRA court’s notice of intent to dismiss,
however, that the PCRA court reinstated the second PCRA
petition.
On January 20, 2015, the PCRA court granted counsel’s petition
to withdraw. Having retained jurisdiction, this Court determined
that because Appellant perfected his underlying pro se appeal, the
PCRA court’s subsequent order, upon remand, granting counsel
permission to withdraw was a nullity. Commonwealth v. White,
2015 WL 7458884 at *1 (Pa. Super. March 5, 2015) (unpublished
memorandum). This Court remanded the case and instructed the
PCRA court to conduct a Grazier[FN4] hearing to determine if
Appellant waived assistance of counsel. Id.[FN4] Commonwealth v. Grazier, 713 A.2d 81 (Pa.
1998).
After conducting a Grazier hearing, the PCRA court determined
that Appellant knowingly, intelligently, and voluntarily waived his
right to counsel, and granted counsel’s petition to withdraw on
March 20, 2015. This Court subsequently affirmed the PCRA
court’s dismissal of Appellant’s second PCRA petition.
Commonwealth v. White, 2015 WL 7194237 at *5 (Pa. Super.
May 12, 2015) (unpublished memorandum).
On August 20, 2018, Appellant filed the instant PCRA petition, his
fourth, requesting a new trial based upon after-discovered
evidence.[FN5] The PCRA court conducted an evidentiary hearing
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on February 7, 2019, and subsequently dismissed Appellant’s
PCRA petition on March 5, 2019.[1]
[FN5] Appellant is represented by Assistant Federal Public
Defender Kirk J. Henderson, Esq., who was appointed by the
United States District Court for the Western District of
Pennsylvania upon Appellant’s filing of a petition for writ of
habeas corpus.
Commonwealth v. White, 2020 WL 2311152 at *1-2 (Pa. Super. May 8,
2020) (unpublished memorandum).
Appellant filed a notice of appeal raising the following issue for our
review:
Did the PCRA court err in finding that [Appellant] is not entitled to
a new trial as a result of the after-discovered evidence, namely
the testimony of an eyewitness to the shooting who identified two
alternate suspects and testified that [Appellant] was not present
at the scene at the time of the shooting?
Appellant’s Brief at 4.2
Upon a prior review of the PCRA court’s dismissal of Appellant’s fourth
PCRA petition, this Court concluded, after reviewing the record, that Appellant
pleaded and proved the first three prongs of the after-discovered evidence
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1The PCRA court found Appellant pled and proved the newly-discovered facts
exception to the jurisdictional time-bar, as set forth in 42 Pa.C.S.A.
§ 9545(b)(1)(ii). PCRA Court Opinion, 8/20/19, at 5. Therefore, Appellant’s
petition was timely filed, and the PCRA court had jurisdiction to address the
merits of Appellant’s underlying claim.
2 Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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test.3 As to the fourth prong of the after-discovered evidence test, we held
that “[t]he PCRA court, however, did not make specific, independent findings
of fact and conclusions of law and did not make a definitive determination as
to the credibility of the eyewitness.” White, 2020 WL 2311152 at *5.
Thereupon, we remanded “the case to the PCRA court for the limited purpose
of determining definitively whether it found the eyewitness to be credible and,
if so, whether her testimony would likely produce a different verdict in this
case if a new trial were granted.” Id. at *6.
On June 30, 2020, the PCRA court filed a supplemental Rule 1925(a)
opinion in which the PCRA court definitively determined that the eyewitness
was not credible. PCRA Court Opinion, 6/30/20, at 5. We now proceed to
review whether the record supports the PCRA court’s determination that the
after-discovered evidence, namely the eyewitness (and her testimony), was
____________________________________________
3 In order for a petitioner to be granted a new trial based upon
after-discovered evidence, the petitioner must demonstrate that the
after-discovered evidence:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
corroborative or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018), citing
Commonwealth v. Pagan, 950 A.2d 270 (Pa. 2008), cert. denied, 555 U.S.
1198 (2009).
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incredible and that Appellant, therefore, failed to satisfy the fourth prong of
the after-discovered evidence test.4
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman, 799
A.2d 136, 140 (Pa. Super. 2002) (citation omitted). In contrast, we review
the PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785(Pa. 2014).
To obtain a new trial based on after-discovered evidence, the petitioner
must satisfy a four-pronged test requiring, inter alia, that the petitioner
demonstrate, by a preponderance of the evidence, that the after-discovered
evidence “would likely result in a different verdict if a new trial were granted.”
____________________________________________
4 In a July 20, 2020 per curiam order, this Court granted Appellant’s petition
requesting a supplemental briefing schedule. Appellant and the
Commonwealth timely filed supplemental briefs on August 4, 2020, and
August 18, 2020, respectively.
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Small, 189 A.3d at 972; see also Commonwealth v. Padillas, 997 A.2d
356, 363 (Pa. Super. 2010), appeal denied, 14 A.3d 826 (Pa. 2010). A
request for a new trial based on exculpatory eyewitness testimony hinges on
the credibility of the testimony. Small, 189 A.3d at 975. Only credible
testimony satisfies the fourth prong of the after-discovered evidence test. Id.
In determining whether the after-discovered evidence is of such a
nature and character that it would compel a different verdict if a new trial were
granted, “a court should consider the integrity of the alleged after-discovered
evidence, the motive of those offering the evidence, and the overall strength
of the evidence supporting the conviction.” Padillas, 997 A.2d at 365(citations omitted). It is axiomatic that if the after-discovered evidence is
incredible, the after-discovered evidence would not compel a different
outcome, and as a result, the PCRA court must deny the request for a new
trial regardless of whether a petitioner satisfied the first three prongs of the
test. Small, 189 A.3d at 977.
Here, the PCRA court, in finding that the eyewitness was not credible,
stated,
[The PCRA] court does not find [the eyewitness] to be a credible
witness. [The eyewitness] admitted several times that she was
given the names of [two males] by [a friend], who is related to
[Appellant]. Given the connection to [Appellant’s] family, the fact
that [the eyewitness] could not identify the perpetrators until
given their names by [Appellant’s family], and her unwillingness
to be interviewed by [police] detectives, [the PCRA c]ourt
expressly and conclusively finds that the witness is incredible.
PCRA Court Opinion, 6/30/20, at 5 (record citation omitted).
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Appellant argues that the PCRA court erred in finding the eyewitness
incredible because, in the PCRA court’s view, she did not know the last names
of the two male shooters personally, she received that information from a
friend connected to Appellant’s family, and because the eyewitness refused to
be interviewed by the police prior to testifying at the evidentiary hearing.
Appellant’s Supplemental Brief at 5-11. Appellant contends that the
eyewitness knew the first names of both male shooters and was able to
provide a physical description of the men, based upon her own personal
knowledge, and that her friend only provided the last names of the two male
shooters after the eyewitness spoke with Appellant’s legal counsel. Id. at 6-7.
Appellant argues that the police, when investigating a case against a suspect,
regularly rely on eyewitnesses who only know the alleged perpetrators of the
offenses by a nickname, first name, or physical description, and an
eyewitness’s lack of knowledge surrounding the proper full name of the
suspect does not make the eyewitness incredible. Id. at 7. Appellant also
contends that the eyewitness in the case sub judice was not obligated to speak
with the police or the prosecutor prior to testifying at the evidentiary hearing
and that her failure to do so does not make her an incredible witness. Id. at
9. Appellant argues, “[the] lack of trust and confidence in the police causes
many, especially those in communities of color, to avoid interactions with the
police.” Id. at 8 (citation omitted).
On the issue of whether the eyewitness’s testimony could result in a
different verdict if a new trial were granted, Appellant argues that at a new
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trial, the eyewitness would be the only witness “who could identify by name
the two [male] shooters[.]” Id. at 12. Appellant contends, “the
Commonwealth’s case against [Appellant] was both thin and premised on
inconsistent testimony and no physical evidence.” Id. at 12. The eyewitness’s
testimony, Appellant asserts, not only corroborates the testimony of
Appellant’s alibi witnesses, but also identifies, for the jury, two male
individuals, neither of whom were Appellant, as the shooters. Id. Appellant
submits that “[t]he entire case, both for the Commonwealth and [Appellant],
was full of testimony of individuals with questionable motives, and was
wanting of a disinterested witness for either side. [The eyewitness is] able to
fill that void for the jury.” Id. at 14-15.
The Commonwealth argues that the PCRA court’s credibility
determination is supported by the record because “the full identities of the
purported shooters [were] given to [the eyewitness] by a biased
source – [Appellant’s] wife[ – ]and [the eyewitness] freely spoke to defense
investigators but refused to speak to [the] police.” Commonwealth’s
Supplemental Brief at 1. The Commonwealth contends Appellant’s “wife again
somehow knew exactly who [the eyewitness] saw on the day of the shooting,
came up with two last names, and communicated them back to [(the
eyewitness’s friend)], who transmitted them back to [the eyewitness.]” Id.
at 4. The eyewitness is incredible, the Commonwealth asserts, because “[a]t
a minimum, the fact remains that [Appellant’s] wife is responsible for half of
the identification of the purported shooters.” Id. at 5 (emphasis in original).
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The Commonwealth further argues that the eyewitness’s refusal to speak with
the police demonstrated that the eyewitness “was not testifying out of a desire
to tell the truth or do the right thing” but, rather, “to help one party at the
expense of the other.” Id. The Commonwealth maintains that because the
eyewitness is incredible, her testimony “cannot form the basis for a new
trial[.]” Id. at 6.
Here, the PCRA court found the eyewitness incredible because the
eyewitness could not identify the two males who allegedly shot the victim until
Appellant’s wife’s aunt conveyed to the eyewitness the names of the two male
shooters and because the eyewitness refused a police interview after coming
forward with the after-discovered evidence. PCRA Court Opinion, 6/30/20, at
5. At the evidentiary hearing, the eyewitness testified that she was 16 years
old at the time she witnessed the shooting. N.T., 2/7/19, at 8. Upon
observing the two male shooters, the eyewitness knew their first names from
seeing them around the neighborhood and because a friend of the eyewitness
dated one of the alleged shooters. Id. at 11, 24. The eyewitness stated that
the two male shooters were approximately the same age as the eyewitness,
and the eyewitness was able to provide a physical description of the two
males. Id. at 15, 24. The eyewitness stated she did not disclose her
observations of the shooting at the time it occurred because she was scared
and because she did not want her mother to know what she was doing that
afternoon. Id. at 12-13, 16.
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Several years later, the eyewitness met and became friends with
Appellant’s wife’s aunt, who knew the eyewitness’s children because the
friend’s mother used to babysit the children. Id. at 13. In the course of the
friendship, the eyewitness confided in the friend about the shooting she
witnessed. Id. The friend recognized the details of the shooting because she
was familiar with the area and because her niece was married to Appellant.
Id. at 35-36. The friend testified that after speaking with her niece, she
provided the eyewitness with the name of Appellant’s counsel and told the
eyewitness, “if it came to her heart, that if she felt like she could get the
courage to speak up, that she could help because [Appellant has] been in jail
a long time.” Id. at 37.
The eyewitness subsequently spoke with an investigator for the Federal
Public Defender’s Office who asked the eyewitness if she could obtain the last
names of the two males she observed as the shooters. Id. at 19. The
eyewitness inquired with her friend about the last names, and her friend got
the last names from Appellant’s wife. Id. at 19, 37.
After disclosing the names of the two male shooters to the Federal Public
Defender’s Office, the eyewitness was contacted by the Pittsburgh Police
Department several times.5 Id. at 20, 50. The eyewitness did not speak with
____________________________________________
5 Detective Brandon Nee, with the City of Pittsburgh Police Homicide Unit,
testified that the police visited the eyewitness’s home in an attempt to speak
with her and made several telephone calls. N.T., 2/7/19, at 50-51. The
eyewitness stated that the police left a card with contact information at her
residence and left several telephone messages for her. Id. at 20.
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the police because at the time of her disclosure of the after-discovered
evidence to the Federal Public Defender’s Office, she was not informed that
the police would want to speak with her. Id. at 20.
Based upon our review of the record, we do not find, as a matter of law,
that the eyewitness was incredible because she was unable to provide the full
names of the two male shooters. The eyewitness was able to provide the
investigator from the Federal Public Defender’s Office the first names and
physical descriptions of the two male shooters, based upon personal
knowledge. Only after the investigator prompted the eyewitness to learn the
last names of the two male shooters did the eyewitness enlist the aid of her
friend. It is axiomatic that the courts, the Commonwealth, and defendants
regularly rely on the testimony of witnesses who observe criminal activity but
are able only to identify a suspect by first name, last name, nickname,
street-name, or a description in order to prove the elements of a criminal
offense or a defense to criminal charges. See Commonwealth v. Shepherd,
409 A.2d 894, 897 (Pa. Super. 1979) (holding that use of nickname
information to determine the defendant’s full name was permissible for
purposes of establishing probable cause in support of defendant’s arrest); see
also Commonwealth v. Williams, 58 A.3d 796, 800 (Pa. Super. 2012)
(stating that disclosure of the defendant’s nickname was relevant and,
therefore, not overly prejudicial when disclosed to the jury, because the
witness, who implicated the defendant in the victim’s murder, only knew the
defendant by his nickname), appeal denied, 68 A.3d 908 (Pa. 2013). Here,
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the eyewitness knew the first names of the two male shooters and was able
to provide a physical description. The eyewitness did not inquire about, or
learn of, the last names of the two shooters until asked to do so by the Federal
Public Defender’s Office in the course of its investigation. The eyewitness’s
inability to immediately provide the last names of the two male shooters does
not, alone, make her an incredible witness.
Furthermore, we do not conclude, as a matter of law, that the
eyewitness lacked credibility simply because she refused to speak to the police
after coming forward with the after-discovered evidence. See
Commonwealth v. Rodriguez, 174 A.3d 1130, 1140-1141 (Pa. Super.
2017) (finding that the eyewitness’s admitted reluctance to inform the police
of what he observed because he did not like to cooperate with the police did
not prevent the jury from finding the eyewitness’s testimony to be credible),
appeal denied, 186 A.3d 941 (Pa. 2018); see also Commonwealth v.
Molan, 465 A.2d 676, 678 (Pa. Super. 1983) (stating that a witness for the
prosecution is not required to speak with defense counsel prior to trial);
Commonwealth v. Fletcher, 750 A.2d 261, 272 (Pa. 2000) (stating that a
defense witness is not required to speak with the prosecution prior to trial),
abrogated on other grounds by, Commonwealth v. Freeman, 827 A.2d 385(Pa. 2003).
The eyewitness in the instant case was 16 years old when she witnessed
the shooting of the victim in 2000, a fact that she kept secret until disclosing
the information surrounding the event to a friend sometime in late January or
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early February 2018. N.T., 2/7/19, at 12-13. The eyewitness did not speak
to the police about the shooting because she was “scared of somebody
knowing who [she] was. [She] was scared of some act of violence happening
to [her] or [her mother].” Id. at 16. In describing the impact that witnessing
the shooting had on her life, the eyewitness stated,
I don't go out. I have -- I shut myself in. I have seven children.
I’m very overprotective of them. I keep them sheltered. I keep
them in the house. I just don't feel like I've lived the life that I
should have because of that.
Id. at 12-13. The eyewitness stated that she felt comfortable, now, disclosing
the names of the two male shooters because she learned that both males were
deceased. Id. at 17.
After the eyewitness disclosed the after-discovered evidence to the
Federal Public Defender’s Office, the Pittsburgh Police Homicide Unit
attempted several times to contact the eyewitness. The eyewitness, much
like any witness in a case who is not subject to court order, was not obligated
to speak with the police prior to the evidentiary hearing, and the eyewitness’s
failure to speak with the police, alone, does not compel a finding that she
lacked credibility. Therefore, we discern that the PCRA court abused its
discretion and erred as a matter of law in expressly and conclusively finding
the eyewitness was not credible.
This error, however, does not necessitate a new trial unless Appellant
demonstrated, by a preponderance of the evidence, that the eyewitness
testimony would likely result in a different verdict. Our Supreme Court defined
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“preponderance of the evidence” as “‘a more likely than not inquiry,’
supported by the greater weight of the evidence; something a reasonable
person would accept as sufficient to support a decision.” Commonwealth v.
Batts, 163 A.3d 410, 474 (Pa. 2017) (citation and some original quotation
marks omitted).
When evaluating whether a petitioner [] established by a
preponderance of the evidence that the after-discovered evidence
would likely produce a different verdict, a court must examine the
persuasiveness of the new evidence[,] assuming the fact-finder
believes it. This inquiry includes evaluations of (1) the nature of
the new evidence; (2) whether, and to what extent, the new
evidence is consistent[,] or inconsistent[,] with other trial
testimony; and (3) whether, and to what extent, the new evidence
is consistent[,] or inconsistent[,] with documentary evidence.
Commonwealth v. Payne, 210 A.3d 299, 302 (Pa. Super. 2019) (citations
omitted), appeal denied, 218 A.3d 1201 (Pa. 2019). Where the
after-discovered evidence does not undermine the Commonwealth’s theory of
guilt which it presented at the original trial, or make it more difficult for the
Commonwealth to argue that theory at a new trial, in light of the
after-discovered evidence, then the after-discovered evidence is unlikely to
result in a different outcome. Payne, 210 A.3d at 302, relying on
Commonwealth v. Bulted, 279 A.2d 158 (Pa. 1971). Typically,
after-discovered evidence “that only undermines the credibility of witness
testimony will not justify a new trial because such after-discovered evidence
would not be of the nature and character to change the outcome at a new
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trial.” Small, 189 A.3d at 976 n.12, citing Commonwealth v. Choice, 830
A.2d 1005 (Pa. Super 2003) (Klein, J. dissenting).
Here, a review of the record demonstrates that the Commonwealth
offered the testimony of City of Pittsburgh Police Homicide Detective Richard
McDonald (“Detective McDonald”). Detective McDonald stated that Appellant
initially admitted to being present at the shooting but denied shooting the
victim. N.T., 7/19/02 (morning session), at 65-66, 73. Appellant identified a
second male, by the nickname “Pooter,” as the shooter responsible for the
victim’s death. Id. Appellant explained to Detective McDonald that the events
that led to the shooting death of the victim stemmed from an incident that
occurred on the prior day, involving, inter alia, Appellant, Pooter, and James
Thomas, who Appellant identified as “J.T.” Id. at 73. During questioning by
Detective McDonald, Appellant subsequently confessed that he shot the
victim, dismantled the gun, and disposed of the gun parts throughout the
surrounding community. Id. at 75-78; see also N.T., 7/19/02 (afternoon
session), at 13, 32-48; N.T., 7/22/02, at 408-4126. Officer McDonald took
notes of Appellant’s statement describing his involvement in the shooting.
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6 A clerical error is apparent in the notes of testimony marked as “July 16,
2002 through July 23, 2002 (July 19, 2002, see separate transcripts)”. Page
220 and page 405 of the notes of testimony each identify the testimony that
follows as occurring on July 18, 2002. A review of the notes of testimony
demonstrates that the testimony beginning on page 220 occurred on July 18,
2002, and the testimony beginning on page 405 occurred on July 22, 2002.
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N.T., 7/22/02, at 408-412. Upon memorializing Appellant’s confession in his
notes,7 Officer McDonald asked Appellant to review the notes, make any
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7 Based upon Detective McDonald’s testimony in which he read and explained
his notes, Appellant’s confession was memorialized as follows:
Interview of Raymond Charles White. Black male. 19 years old.
Date of birth, [June 17, 1981]. It all started the day before the
murder. [Did not] know the kid that got shot. [Was not] after
him. Was after J.T. The day before driving down Hermitage
[Street] in my red Pontiac 600 with Pooter [(Anthony Boyd)]. Not
going anywhere in particular. Just driving around. Pooter said
[he] saw J.T. and a group of other guys. [A]s we were driving by,
J.T. was shooting at the car, spun [the car] back around.
J.T. - dude ran towards [North Lang Avenue]. Drove to [North
Lang Avenue]. J.T. saw the car again. [Shot at car while we were
driving between Hermitage Street, between Monticello Street and
North Homewood Avenue. First time they shot before running to
[North Lang Avenue].] Drove to Mt. Vernon [Street]. Got out of
the car. I had a 9 millimeter [handgun] on this day. Pooter had
a 48 [sic] semi[-]automatic handgun. While walking over to
[North Lang Avenue], saw J.T. and the other dudes with him in a
car. Shot--we (Pooter and me) shot at the car and then drove off.
Next day, middle of the day, we were going over to Pooter's
girlfriend, Christina's house[.] Hanging out there. Had guns with
us. On this day, I had the 45-caliber black [semi-automatic
handgun,] make and model unknown. [The handgun is] an Army
issue 45 caliber. Pooter had the 9 millimeter [handgun]. Believes
it was a Smith and Wesson. Walked back to Hermitage [Street].
Talked about going up to Lincoln [Avenue] to get J.T. [[G]oing up
to Lincoln [Avenue] to shoot J.T. because he shot at us the day
before. Didn't know dude on bike. Shot at him. When he spotted
us coming out of alley onto Laxton [Street], shot at him until he
was out of my sight. Pooter shot at J.T. and the other dude.] With
the guns, walked from Hermitage Street to Lincoln [Avenue].
Once over at Lincoln [Avenue], walked down the alley. As [we]
walked down alley, saw dude on bike. [[N]o one, J.T. or the
others, ever shot back at us. Me and Pooter, were the only ones
shooting. [Do not] want to go on tape. This is good enough. The
guns were usually on our persons. We shared guns or we stashed
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necessary corrections, and initial any corrections made, because Appellant
refused to submit to an audio recording of his confession.8 Id. at 413-414;
see also N.T., 7/19/02 (morning session), at 78-79.
To refute the veracity of his confession, Appellant, at trial, inter alia,
presented evidence showing that the gun Appellant used to shoot the victim
(which, according to Appellant’s confession, was dismantled and scattered
throughout the community) was later discovered intact and used by another
____________________________________________
them[.] [Will not] tell where. Shot at dude on the bike, about
five times. Started running. Stopped. Shot at house. J.T., other
dudes, ran in. They never shot back. Ran to Hermitage [S]treet.
Fired eight shots. Gun held seven in clip, one in chamber (7 and
1).] Saw the dude on bike, riding on Laxton [Street]. Still
continued to walk down the alley. [On] Tennis [Way, the victim]
rode [his bike] back to Laxton [Street] where couple [of] other
dudes and J.T., light-skinned dude[,] were. Once [we] got to
Laxton [Street], up from where we were near the alley [the victim]
on [the] bike saw us. And as we got on Laxton [Street]. Had
guns in our hands. Pulled guns. 45 caliber. Started shooting [at
the victim while he rode his bike]. He drove off on bike from
Laxton [Street] onto Atwell [Street]. Pooter shot at J.T. and other
dudes[.] Still continues to shoot. Ran back down Tennis [Way].
Stopped near other side of house. Still shooting. I fired total of
about eight shots. Ran down alley, back to Hermitage Street.
Dismantled guns and spread parts throughout Homewood. [Will
not] tell where. [They are] just gone. [R]ed Pontiac is owned by
a sister[. Do not ] know the plate number.
N.T., 9/22/19, at 408-412 (Appellant’s corrections of Detective McDonald’s
notes appear in italics).
8 Detective McDonald stated that after Appellant confessed to shooting the
victim, Detective McDonald asked Appellant to repeat his confession to
another detective. N.T., 7/19/02 (morning session), at 82. The other
detective did not testify at Appellant’s trial.
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suspect in a separate, unrelated criminal act that occurred while Appellant was
incarcerated pending trial in the instant case. N.T., 7/19/02 (afternoon
session), at 38-40; see also N.T., 7/19/02 (morning session), at 79.
Appellant also relied upon the recantation testimony of James Thomas
(“Thomas”). At trial, the Commonwealth offered Thomas as a witness against
Appellant because Thomas initially told the police that he observed Appellant
shoot the victim. When called to testify at trial, however, Thomas recanted
his earlier statement to the police and said he lied to the police when he
previously identified Appellant as the shooter. Thomas explained that he
falsely identified Appellant as the perpetrator because Appellant owed him
money.9 N.T., 7/18/02, at 256, 265-266, 282-284, 289. Although Thomas
stated that Appellant was not the shooter, Thomas was not able to identify
the perpetrator. Id. at 289.
In his defense, Appellant presented the testimony of two alibi witnesses
at trial. One of Appellant’s alibi witnesses was his then-girlfriend and the other
was a friend of Appellant. Both alibi witnesses testified that on the day and
time of the shooting, Appellant and “Pooter” were with them having dinner
and watching a movie. N.T., 7/22/02, at 438-442, 477-479, 481. According
to these witnesses, Appellant was not present at the scene of the shooting
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9 In exchange for cooperating with the Commonwealth as a witness against
Appellant, Thomas received immunity from prosecution for any crimes
stemming from his testimony. Initially, Thomas refused to testify and was
held in contempt of court. Subsequently, however, he testified, whereupon
he recanted his prior identification of Appellant as the shooter.
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and, therefore, could not have been the shooter. Gary Stevenson, Thomas’s
brother, also testified that he observed one of the shooters, who was unknown
to him. Id. at 507-510. Stevenson provided a description of the shooter,
which did not match Appellant’s physical appearance. Id. According to
Stevenson, Appellant was not the individual he observed. Id. at 508.
Stevenson admitted, however, that he observed a possible second shooter but
he could not definitively state whether that person was someone other than
Appellant. Id. at 511-513.
Here, the identity of the shooter was the focal point of Appellant’s trial.
The Commonwealth argued that Appellant’s confession and Thomas’s initial
identification of Appellant as the shooter proved Appellant’s guilt. Appellant
proffered the testimony of two alibi witnesses, together with Stevenson’s
testimony, to establish that the shooter was someone other than himself.
Furthermore, Appellant portrayed his confession as incredible due to the
circumstances under which it was obtained (and subsequently memorialized)
and because the confession contained inaccuracies relating to the dismantling
of the gun used to shoot the victim. Presented with all of this evidence, the
jury, as fact-finder, convicted Appellant of the aforementioned crimes after,
inter alia, crediting Appellant’s confession and Thomas’s original identification
of Appellant as the shooter and correspondingly disregarding the alibi witness
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testimony and Stevenson’s identification of the shooter as someone other than
Appellant.10
We are unable to agree with Appellant’s argument that he has shown,
by a preponderance of the evidence, that the after-discovered evidence in the
form of eyewitness testimony would likely result in a different verdict if a new
trial were granted. Notwithstanding that an element of Appellant’s confession,
namely the dismantling of the gun, was proven inaccurate at trial, the veracity
and integrity of the inculpatory content of the confession was otherwise fully
tested by Appellant’s counsel during the lengthy cross-examination of Officer
McDonald. The confession provided a detailed account of the events that
occurred on the day prior to the shooting and of the circumstances
surrounding the shooting death of the victim. Appellant’s recollection of these
events, as detailed in his confession, was supported by additional witness
testimony. Rather than denying that he was present at the scene of the
shooting, when questioned by Officer McDonald, Appellant initially claimed he
was present at the scene of the shooting but that he did not shoot the victim.
Appellant, however, later confessed to Officer McDonald that he was the
shooter.
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10 Although the evidence against Appellant was circumstantial, comprised
mainly of Officer McDonald’s notes memorializing Appellant’s confession and
Thomas’s initial identification of Appellant as the shooter (later recanted at
trial), the jury found Appellant guilty of the aforementioned crimes despite the
absence of eyewitness testimony linking him to the shooting and lack of
physical evidence such as Appellant’s fingerprints on shell casings recovered
at the scene or on the gun, which was later discovered intact.
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Here, the after-discovered evidence, namely the eyewitness’s
identification of the two male shooters, neither of whom were Appellant, goes
to the very heart of Appellant’s defense theory. While the proffered testimony
of the eyewitness amplifies Appellant’s claim that he was not the shooter, the
after-discovered evidence does not present a distinctly different theory of
defense. If a new trial were granted, the Commonwealth’s evidence would
still include, inter alia, Appellant’s confession and Thomas’s initial identification
of Appellant as the shooter, and the Commonwealth could still argue that
Appellant, based upon this evidence, was the shooter. The after-discovered
evidence would do little more to refute the Commonwealth’s position than the
evidence presented by Appellant at his original trial, namely the testimony of
the alibi witnesses and Stevenson, as well as Thomas’s recantation. Given
the eyewitness’s connection to Appellant’s family and the fact that the two
individuals identified by the eyewitness are now deceased, we are not
persuaded that the added specificity of naming the two male shooters makes
Appellant’s defense theory more believable, or more likely to produce a
different outcome, than the evidence presented at Appellant’s original trial.
In considering the overall strength of the evidence presented against
Appellant, as well as the integrity of the eyewitness and the motive for her
testimony, we hold, based upon a preponderance of the evidence, that the
after-discovered evidence would not likely result in a different verdict.
Consequently, the PCRA court did not error in denying Appellant’s PCRA
petition.
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Order affirmed.
Judge Musmanno joins.
Judge McCaffery concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2020
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