Com. v. Barbour, G.

J-S13015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GRANT A. BARBOUR :
:
Appellant : No. 1385 EDA 2022
Appeal from the PCRA Order Entered April 29, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0000350-2015
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JUNE 20, 2023
Grant A. Barbour (Appellant) appeals from the order dismissing the
petition he filed pursuant to the Post Conviction Relief Act (PCRA).1 For the
following reasons, we affirm.
The trial court previously explained:
On the evening of October 26, 2014[, A]ppellant’s wife, Shneek
Walker (the Victim)], was at her mother’s home at 143 West
Wyneva in […] Philadelphia. Appellant arrived to pick up [the
Victim] at or about 9:30 pm. [The Victim,] who had previously
taken Oxycodone, drove while [A]ppellant sat in the passenger
seat. [The Victim] drove toward I-76 Eastbound when the two
began arguing. After reaching the highway, and while arguing,
[A]ppellant got out of the car. After about ten minutes[,
Appellant] returned to the car and [the Victim] drove again.
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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Once [the Victim] reached a driving speed of approximately fifty-
five miles per hour, [A]ppellant stated that he would kill himself
and then said, “we’re both going to die tonight.” Quickly
thereafter, [A]ppellant reached over and grabbed the steering
wheel “and yank[ed] it toward the left.” The car struck the center-
dividing wall and flipped over twice. EMS removed [the Victim]
from the car and transported her and [A]ppellant to the hospital.
Appellant repeatedly apologized and told [the Victim] to “just tell
everybody that [she] lost control of the car.”
State Trooper Michelle Naab, … responded to the scene of the
accident at or about 10:00 pm. Appellant was out of the car and
walking. Appellant told Trooper Naab he had been asleep at the
time of the crash. After the vehicle was towed, Trooper Naab …
went to HUP (University of Pennsylvania Hospital) to conduct
interviews. Trooper Naab spoke with [A]ppellant first, as [the
Victim] was not in stable condition until several hours later.
Trooper Naab took statements from [the Victim] at 3:00 [a.m.]
immediately following the accident on October 27, 2014, and
again on October 29, 201[4].
[The Victim] was hospitalized from October 26, 2014 until
November 14, 2014. [The Victim’s] injuries included a broken
fibula, punctured spleen, crushed ribs, fracture of her thoracic
spine, and four plates and sixteen screws in her ankle. [The
Victim] was transferred from trauma to the ICU where she
underwent two surgeries. [The Victim] was discharged to rehab
and required another surgery to remove the screws and plates
from her ankle.
Upon his release from the hospital on October 27, 2014, the
morning following the accident, [A]ppellant was placed under
arrest. [The Commonwealth charged Appellant with attempted
murder, aggravated assault, simple assault, terroristic threats,
recklessly endangering another person, and possession of an
instrument of crime. See 18 Pa.C.S.A. §§ 901(a), 2702(a)(1),
2701(a), 2706(a), 2705, and 907(a).]
While he was in custody awaiting trial, [A]ppellant made repeated
phone calls to [the Victim] while she was in the hospital and
continued once she was discharged. Eight of the call recordings
were played [at Appellant’s non-jury] trial, following proper
authentication, without objection.
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Trial Court Opinion, 10/10/19, at 1-3 (record citations and footnotes omitted).
At trial, the Victim recanted her statements to police; she instead
claimed she lost control of the car and accidentally caused the crash. N.T.,
5/20/16, at 12-16. The Commonwealth impeached the Victim’s testimony
using her prior inconsistent statements to police and her testimony at the
preliminary hearing. Id. at 17-35. The Commonwealth also played recorded
telephone calls in which Appellant tried to convince the Victim to either recant
or not appear at trial, while the Victim reiterated that Appellant had tried to
kill her. Id. at 35-48.
This Court explained:
[T]he trial court convicted [A]ppellant of the [ ] crimes. On July
18, 2016, the trial court imposed [a] sentence [of 18½ - 40 years
in prison]. Appellant filed a timely motion to reconsider sentence,
which the trial court denied on July 26, 2016.
Appellant filed a timely notice of appeal. On August 2, 2018,
this [C]ourt dismissed [A]ppellant’s appeal for failure to file a
brief. Commonwealth v. Barbour, No. 2785 EDA 2016, per
curiam order (Pa. Super. filed Aug. 2, 2018). On September 7,
2018, [A]ppellant filed a [PCRA] petition … seeking reinstatement
of his direct appeal rights nunc pro tunc. The trial court reinstated
[A]ppellant’s direct appellate rights nunc pro tunc on October 23,
2018. This [C]ourt quashed [A]ppellant’s appeal sua sponte on
July 12, 2019 for failing to file a timely notice of appeal.
Commonwealth v. Barbour, No. 3586 EDA 2018, per curiam
order (Pa. Super. filed July 12, 2019).
Appellant filed a PCRA petition on August 30, 2019, in which
he sought reinstatement of his direct appeal rights nunc pro tunc.
The trial court granted [A]ppellant’s petition … and [A]ppellant
filed a notice of appeal that same day.
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Commonwealth v. Barbour, 239 A.3d 88 (Pa. Super. July 22, 2020)
(unpublished memorandum at 1-2) (footnote omitted, some parentheticals
added).
This Court affirmed Appellant’s judgment of sentence. See Barbour,
239 A.3d 88 (unpublished memorandum at 1). Appellant did not seek leave
to appeal to the Pennsylvania Supreme Court. Appellant pro se filed the
instant PCRA petition on September 1, 2020. The PCRA court appointed Jules
Szanto, Esquire (PCRA Counsel), to represent Appellant. PCRA Counsel filed
an amended PCRA petition on September 30, 2021, contending, among other
claims, that Attorney Carl Reginald Johnson (Trial Counsel), was ineffective.
Amended PCRA Petition, 9/30/21, at 7-8. Thereafter, the PCRA court issued
Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition. Despite being
represented, Appellant filed a pro se response. On April 29, 2022, the PCRA
court dismissed the petition. On May 17, 2022, Attorney James Lloyd, III
(Attorney Lloyd), entered his appearance and filed the instant appeal on
Appellant’s behalf.
Appellant raises the following issues:
[1] Did the PCRA [c]ourt err when it denied [A]ppellant’s PCRA
petition where [T]rial [C]ounsel was ineffective for failing to:
a. Review prior to trial, and utilize at trial, recorded
telephone calls in which the [Victim] admitted
[A]ppellant is not guilty of the crimes at issue;
b. Call a witness who was a party to the recorded
phone calls to testify that [the Victim] admitted
[A]ppellant is not guilty of the crimes at issue; or,
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b. Cross-examine [the Victim] regarding her motive
to fabricate the allegations against [A]ppellant in
order to avoid a mandatory prison sentence
including, inter alia, her drug use prior to the
vehicle crash at issue, her prior no contest plea to
DUI, and her knowledge that a DUI conviction for
this incident would result in mandatory
incarceration?
[2] Did the PCRA [c]ourt err when it denied [A]ppellant’s PCRA
petition where [A]ppellant’s conviction is the result of the
unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the
outcome of the trial if it had been introduced, namely, testimony
from [the Victim] and three other individuals which indicates that
[the Victim] admitted after trial that she was under the influence
of [Phencyclidine (PCP)] at the time of the accident, lied in order
to avoid being arrested for a second DUI offense, and falsely
blamed [A]ppellant for causing the accident because she was
angry at him?
[3] Did the PCRA [c]ourt err when it denied [A]ppellant’s PCRA
petition where [T]rial [C]ounsel and/or PCRA [C]ounsel was
ineffective for failing to:
a. Obtain [the Victim’s] toxicology report from the
hospital following the alleged crimes; or,
b. Obtain recorded telephone calls occurring after
sentencing in which [the Victim] admitted
[A]ppellant is not guilty of the crimes at issue?
Appellant’s Brief at 4-5.
We review the PCRA court’s denial of relief by “examining whether the
PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
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the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.[T]he PCRA court has the discretion to dismiss a petition without
a hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings.” Pa.R.Crim.P.
909(B)(2). “[T]o obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Commonwealth v.
D’Amato, 856 A.2d 806, 820 (Pa. 2004).
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
Appellant argues Trial Counsel and PCRA Counsel were ineffective. As
the Pennsylvania Supreme Court has explained:
[C]ounsel is presumed to have been effective and the petitioner
bears the burden of proving counsel’s alleged ineffectiveness.
Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). To
overcome this presumption, a petitioner must establish that: (1)
the underlying substantive claim has arguable merit; (2) counsel
did not have a reasonable basis for his or her act or omission; and
(3) the petitioner suffered prejudice as a result of counsel’s
deficient performance, “that is, a reasonable probability that but
for counsel’s act or omission, the outcome of the proceeding would
have been different.” Id. A PCRA petitioner must address each
of these prongs on appeal. See Commonwealth v. Natividad,
938 A.2d 310, 322 (Pa. 2007) (explaining that “appellants
continue to bear the burden of pleading and proving each of the
Pierce elements on appeal to this Court”). A petitioner’s failure
to satisfy any prong of this test is fatal to the claim. Cooper, 941
A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (citations
modified). “Counsel cannot be found ineffective for failing to pursue a
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baseless or meritless claim.” Commonwealth v. Taylor, 933 A.2d 1035,
1042 (Pa. Super. 2007) (citation omitted).
In his first issue, Appellant contends Trial Counsel was ineffective for
failing “to utilize recorded telephone calls in which [the Victim] admitted that
Appellant is not guilty of the crimes charged.” Appellant’s Brief at 25. He
further argues Trial Counsel was ineffective for failing to call a witness who
overhead the Victim admit Appellant was innocent, and for failing to cross-
examine the Victim about her motive to falsely implicate him. Id. at 33, 39.
The Commonwealth counters that playing the phone calls would not
have changed the trial’s outcome. The Commonwealth states that because
the calls occurred after the phone calls the Commonwealth played at trial, the
trial court “properly gave more credence to the statements the Victim made
within the first few days of the crash[.]” Commonwealth Brief at 9; see also
id. at 10-11. The Commonwealth disputes Appellant’s contention that Trial
Counsel should have called a witness who allegedly overheard the Victim
recant, alleging the testimony “would fall into the same category as other later
statements made after [Appellant] had convinced [the Victim] to change her
story.” Id. at 12; see id. at 11-12. Further, the Commonwealth claims Trial
Counsel had a reasonable strategy for not cross-examining the Victim about
her motives to lie about the incident. Id. at 13.
In rejecting Appellant’s argument, the PCRA court explained:
Trial counsel’s strategy of not calling these witnesses [was] not
ineffective, because the evidence was merely cumulative.
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Moreover, the trial court established that [Appellant] constantly
harassed the [V]ictim, attempted to bribe her, and instructed her
to hide from the police to avoid appearing at court. N.T.
45:10,95:24-25,96:6-18; 97:1-8 (May 20, 2016). This shows
that he attempted to influence her testimony or have her recant.
N.T. 92:16-17 (May 20, 2016).
PCRA Court Opinion, 9/19/22, at 7 (unnumbered).
The record supports the PCRA court’s rationale. The trial court, sitting
as factfinder: (a) discounted evidence of the Victim’s recantation; (b) credited
the Victim’s statements and testimony about Appellant’s culpability; and (c)
credited evidence that Appellant pressured the Victim to recant. Appellant
has not demonstrated that playing the telephone calls would have changed
the result. See Wholaver, 177 A.3d at 144.
Appellant’s claim that Trial Counsel should have called the witness who
had overhead the Victim recant also fails. Again, this testimony was
cumulative. “[T]rial counsel will not be found ineffective for failing to call a
witness whose testimony would be cumulative.” Commonwealth v. Gibson,
951 A.2d 1110, 1134 (Pa. 2008). The trial court rejected the Victim’s
recantation, and Appellant has not demonstrated that the witness’s testimony
would have changed the result. See Wholaver, 177 A.3d at 144.
Appellant further claims Trial Counsel was ineffective for not cross-
examining the Victim about her motive to lie due to her fear of being
prosecuted for DUI. Appellant’s Brief at 39. The Victim testified that she lied
to police and at the preliminary hearing because she was angry at Appellant.
N.T., 5/20/16, at 14-16. She also testified she was driving under the influence
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at the time of the incident. Id. at 15, 56-67. Under these circumstances, we
agree that it was reasonable for trial counsel to not question the Victim further,
because she was testifying favorably to Appellant. See Commonwealth v.
Hanible, 30 A.3d 426, 451 (Pa. 2011) (holding trial counsel was not
ineffective for failing to impeach a prosecution witness about his prior criminal
record, where witness recanted his earlier statements to police and testified
favorably to defendant).
In his second issue, Appellant argues he is entitled to a new trial based
on after-discovered evidence. Appellant’s Brief at 44-52. Appellant contends
he obtained signed statements from the Victim in 2017 and 2021 in she which
recanted her statements to police and her preliminary hearing testimony. Id.
at 44-45. Appellant also claims to have obtained signed statements from
Tyreese Barber, Gloria King, and Danita Bates claiming the Victim told them
she had lied to police; that Appellant did not try to kill her; and she was under
the influence of PCP during the incident. Id. at 46-47.
The law is well-settled:
The four-prong test for awarding a new trial because of after-
discovered evidence is well settled. The evidence: (1) could not
have been obtained prior to trial by exercising reasonable
diligence; (2) is not merely corroborative or cumulative; (3) will
not be used solely to impeach a witness’s credibility; and (4)
would likely result in a different verdict. See Commonwealth v.
Pagan, [ ] 950 A.2d 270, 292 ([Pa.] 2008) (citations omitted).
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014). In determining
“whether the alleged after-discovered evidence is of such nature and character
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that it would likely compel a different verdict if a new trial is 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.” Commonwealth v. Padillas, 997 A.2d 356, 365
(Pa. Super. 2010). Also, “the proposed new evidence must be producible and
admissible.” Castro, 93 A.3d at 825. It is the petitioner’s burden to prove
by a preponderance of the evidence that he met each of the factors necessary
for a new trial. Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super.
2007).
Here, the PCRA court rejected Appellant’s after-discovered evidence
claim because the “evidence and that testimony was known during the trial
and initial appeal … and cannot be admitted as newly discovered evidence.”
PCRA Court Opinion, 9/19/22, at 9. We agree.
The Victim testified that her original statements to police and
preliminary hearing testimony were not true, and she was intoxicated at the
time of the incident. N.T., 5/20/16, at 12-16, 56-57. Thus, the Victim’s
affidavit affirming her trial testimony does not constitute after-discovered
evidence. Castro, supra. Further, affidavits from third parties avowing that
the Victim repeated this information are cumulative and do not constitute
after-discovered evidence. Id.
In his third issue, Appellant claims PCRA Counsel was ineffective for
“failing to obtain then utilize, recorded prison calls in which [the Victim]
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admitted [A]ppellant was not guilty of the crimes[.]” Appellant’s Brief at 52.
Appellant further argues PCRA Counsel was ineffective for failing to “obtain
and utilize [the Victim’s] toxicology report.” Id. at 63.
In Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), our Supreme
Court held that “a PCRA petitioner may, after a PCRA court denies relief, and
after obtaining new counsel or acting pro se, raise claims of PCRA counsel's
ineffectiveness at the first opportunity to do so, even if on appeal.” Id. at
401. Because this is Appellant’s first PCRA petition, and he presents this claim
at the first opportunity following PCRA Counsel’s withdrawal and Attorney
Lloyd’s entry of appearance, Bradley applies.
“Where a petitioner alleges multiple layers of ineffectiveness, he is
required to plead and prove, by a preponderance of the evidence, each of the
three prongs of ineffectiveness relevant to each layer of representation.”
Commonwealth v. Parrish, 273 A.3d 989, 1003 n.11 (Pa. 2022).
In determining a layered claim of ineffectiveness, the critical
inquiry is whether the first attorney that the defendant asserts
was ineffective did, in fact, render ineffective assistance of
counsel. If that attorney was effective, then subsequent counsel
cannot be deemed ineffective for failing to raise the underlying
issue.
Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010).
While Appellant asserts a “layered claim of ineffectiveness,” see
Appellant’s Brief at 5, 52, he argues PCRA Counsel was ineffective for failing
to utilize “the statement made by [the Victim] in the recorded phone calls …
to support the claims that new evidence became available which, if presented
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at the trial, would more likely than not have resulted in a different outcome.”
Id. at 54. Appellant makes this same claim with respect to the Victim’s
toxicology report, i.e., PCRA Counsel should have obtained it “to support a
claim that new evidence was available[.]” Id. at 63.
As discussed above, PCRA Counsel claimed Trial Counsel was ineffective
for not utilizing prison phone calls in which the Victim recanted her statements
to police. Since those phone calls were known at the time of trial, they cannot
constitute after-discovered evidence and PCRA Counsel cannot be deemed
ineffective. Castro, 93 A.3d at 821 n.7. To the extent Appellant refers to
phone calls which occurred after trial, they would not have bolstered his claim
of after-discovered evidence, because, like the aforementioned affidavits, they
were cumulative. See id.
Appellant also maintains PCRA Counsel was ineffective for failing to
obtain the Victim’s toxicology report. Appellant’s Brief at 63. Appellant has
not identified the report or shown that it exists. Appellant claims the Victim
told him her “medical records reflect the presence of PCP in her system[.]”
Id. However, Appellant’s amended PCRA petition states, “all medical
records were passed to Trial Counsel through mandatory discovery and were
made part of the trial record through a stipulation by Trial Counsel and the
Assistant District Attorney[.]” Amended PCRA Petition, 9/30/21, at 10
(emphasis added). Even if there is a report indicating the Victim was under
the influence of PCP, Appellant has not demonstrated how it would support his
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after-discovered evidence claim. It is undisputed that the Victim had ingested
drugs.2 N.T., 5/20/16, at 15, 56-67. Thus, the report would not qualify as
after-discovered evidence. Castro, supra.
In sum, Appellant’s claims do not merit relief. Accordingly, we affirm
the PCRA court’s order dismissing Appellant’s PCRA petition.
Order affirmed.
P.J.E. Stevens joins the memorandum.
Judge Nichols did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2023
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2 Appellant does not explain the relevance of whether the Victim was under
the influence of Oxycodone or PCP. See Appellant’s Brief at 39. At trial,
Appellant sought to prove the Victim lied to police because she was afraid of
being charged with a DUI and going to prison; the substance the Victim
ingested was not at issue.
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