Com. v. Denmark, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYREEK DENMARK :
:
Appellant : No. 917 EDA 2022
Appeal from the PCRA Order Entered March 3, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0006336-2013
BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED MAY 31, 2023
Tyreek Denmark (Appellant) appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act.1 We affirm.
This Court recounted the underlying facts:
On March 29, 2013, at approximately 11:00 a.m.,
Philadelphia Police Officer Andrew Monroe and his partner
responded to a call of domestic violence on the 5400 block of
Regent Street in Philadelphia. The officers met with Erica Hood
[(Hood)], the alleged victim of domestic violence. While
conducting a walk-through of Hood’s property to secure the
premises, Officer Monroe discovered [Appellant] hiding in the
basement. As Hood was uncooperative with police officers at that
time, no further action was taken by police. Officer Monroe
observed Thyeem Snipe [(Snipe)] … standing across the street as
the officer participated in the investigation. One week
prior, Snipe and Hood had been in a physical altercation with each
other[,] which was broken up by police.
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1 42 Pa.C.S.A. §§ 9541-9546.
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After police left the scene, [Appellant], Jonathan Shaw
[(Shaw)], co-defendant Paul Tucker Bennett, and Tyleal Denmark
[(Tyleal)] ([Appellant’s] cousin), were hanging out on Regent
Street outside of Bennett’s home. [Appellant] and Bennett were
standing on the porch to Bennett’s home while Tyleal and Shaw
were located on the sidewalk. Snipe was getting on the porch wall
outside of 5519 Regent Street, which was located next door to
Bennett’s home. Bennett appeared to hand an object to
[Appellant]. [Appellant], with a gun in his hand,
approached Snipe and shot him multiple times. [Appellant] then
left the scene in his car, parking it a short distance away.
Snipe suffered a total of five gunshot wounds. … Each of
these gunshot wounds was fatal on its own. As a result of a
gunshot wound to the neck, Snipe’s cerebral spinal cord was
severed, resulting in near instantaneous death.
Police Officer Monroe, who had responded to the earlier
domestic violence call, heard the shots fired by [Appellant] and
responded to 5519 Regent Street at 12:09 p.m. Officer Monroe
observed [Appellant] walking northbound on 55th Street towards
Chester Avenue. Officer Monroe further observed Snipe lying on
the porch of 5519 Regent Street.
Eyewitness Jameel Starnes [(Starnes)] told police at the
scene that [Appellant] was the shooter, and [Appellant] was taken
into custody. Police never recovered the murder weapon.
Commonwealth v. Denmark, 144 A.3d 184 (Pa. Super. 2016) (unpublished
memorandum at 2-3).
The PCRA court summarized the procedural history that followed:
On October 10, 2014, following a jury trial before this
[c]ourt, [Appellant] was convicted of one count each of first-
degree murder (18 Pa.C.S. [§] 2502) and possessing an
instrument of crime (18 Pa.C.S. [§] 907) (“PIC”). The [c]ourt
immediately imposed the mandatory sentence of life in prison for
the murder charge (18 Pa.C.S. [§] 1102(a)(1)) and imposed no
further penalty on the PIC charge. [Appellant] was tried with his
co-defendant, … Bennett, who was acquitted of all charges….
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… On March 1, 2016, the Superior Court affirmed
[Appellant’s] judgment of sentence and on August 22, 2016, the
Supreme Court of Pennsylvania denied allocatur.
[Commonwealth v. Denmark, 144 A.3d 184 (Pa. Super. 2016),
appeal denied 156 EAL 2016 (Pa. filed August 22, 2016.)] ….
On August 21, 2017, [Appellant] filed a pro se petition
pursuant to the [PCRA]. David Rudenstein, Esquire, was
appointed to represent [Appellant] on October 27, 2017. On June
15, 2018, Mr. Rudenstein filed an amended petition (“First
Amended Petition”) alleging that Commonwealth witness []
Starnes was paid to testify falsely at [Appellant’s] trial. The
Commonwealth filed a motion to dismiss the petition on December
6, 2018. Shawn Page, Esquire, entered his appearance on behalf
of [Appellant] on May 1, 2019. Mr. Page filed an amended petition
(“Second Amended Petition”) on November 4, 2020, in which he
adopted, by reference, the First Amended Petition and averred
that [Appellant] intended to present testimony from Starnes’s
mother to support the claim that Starnes’s trial testimony was
false. The Commonwealth filed a second motion to dismiss on
February 17, 2021. [Appellant] filed a response to the
Commonwealth’s motion to dismiss on April 12, 2021 (“Response
to Motion to Dismiss”)[,] to which he appended a signed
statement from Starnes’s mother, Darlene Oliver [(Oliver)],
claiming that Starnes could not have witnessed the murder[;
Appellant also appended] a photo of a signed and notarized
affidavit from Starnes recanting his trial testimony ….
On March 3, 2022, the Court held an evidentiary hearing on
the issues related to the recantation of Starnes and the testimony
of Oliver. At the conclusion of the hearing, the [c]ourt dismissed
[Appellant’s] petition. [Appellant] filed a notice of appeal on April
1, 2022. The [c]ourt issued an order pursuant to Pa.R.A.P.
1925(b) directing [Appellant] to file a Concise Statement of Errors
Complained of on Appeal by April 26, 2022.
PCRA Court Opinion, 6/13/22, at 1-2. Appellant and the PCRA court have
complied with Pa.R.A.P. 1925.
Appellant presents the following questions:
[1.] Did the trial court err in denying the Appellant relief under the
[PCRA]?
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[2.] Did the trial court err [or] commit an abuse of discretion by
overruling a request for a continuance of the evidentiary hearing
to allow then-counsel the opportunity to present the testimony of
[] Starnes regarding his location on the night in question,
payments made to him by law enforcement and what, if anything
he observed on the night in question[?]
Appellant’s Brief at 8.
This Court’s standard of review “is limited to examining whether the
PCRA court’s determination is supported by the evidence of record and
whether it is free of legal error.” Commonwealth v. Sandusky, 203 A.3d
1033, 1043 (Pa. Super. 2019) (citation and quotation marks omitted). “The
PCRA court’s credibility determinations, when supported by the record, are
binding on this Court; however, we apply a de novo standard of review to the
PCRA court’s legal conclusions.” Commonwealth v. Mitchell, 105 A.3d
1257, 1265 (Pa. 2014) (citation omitted). Our scope of review is limited to
the findings of the PCRA court and the evidence on the record of the PCRA
court’s hearing, viewed in the light most favorable to the prevailing party.
Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008).
Appellant argues the PCRA court improperly denied his request for a
continuance to obtain evidence of the Commonwealth’s payment to Starnes.
Appellant’s Brief at 13, 16. Appellant claims: “The document request had
been outstanding for several YEARS. Counsel for the Commonwealth
recognized that prior counsel had mishandled the request. This was the first
request for a continuance by the defense.” Id. at 15. (citation omitted).
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Appellant points out that the murder weapon was not recovered, and no
witnesses had come forward prior to Starnes’s statement. Id. at 16.
Appellant asserts that while “the [PCRA c]ourt was correct that [there] would
be a delay, that needs to be balanced against the constitutional demand for a
fair trial.” Id.
Appellant directs our attention to the “clear and unequivocal” testimony
of Oliver, Starnes’s mother. Id. at 17. Appellant asserts “the likelihood of
whether Oliver’s testimony would compel a different verdict is quite high.” Id.
Pertinently, the denial of a motion for a continuance
is within the sound discretion of the trial court and will be reversed
only upon a showing of an abuse of discretion. An abuse of
discretion is not merely an error of judgment; rather[,] discretion
is abused when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill will, as shown by the evidence or
the record[.] … We will not reverse a denial of a motion for
continuance in the absence of prejudice.
Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa. Super. 2014)
(citations and quotation marks omitted).
The PCRA court explained the context and rationale for its decision:
[T]he [PCRA c]ourt’s denial of [Appellant’s] request for a last-
minute continuance was entirely reasonable and well within its
discretion. At 10:25 a.m. on the day of the evidentiary hearing,
which was scheduled to begin at 9:30 a.m., [Appellant’s counsel]
informed the [c]ourt that his witnesses were on the way to the
courthouse and requested additional time to get them there. N.T.
3/3/2022 at 21-23. The [PCRA c]ourt recessed to allow the
witnesses to arrive. Id. at 27. Following the recess, the defense
called Oliver to the stand. Id. After Oliver [testified], [Appellant’s
counsel] stepped out of the courtroom to check for Starnes and,
not finding him, the defense rested. Id. at 65. The
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Commonwealth then presented the testimony of Officer Riddick.
Id. at 73-84. After the Commonwealth rested, [Appellant]
requested another recess to attempt to get Starnes to appear. Id.
at 87-91. The [PCRA c]ourt agreed to hear argument on
[Appellant’s] remaining claims and then take a lunch break to
accommodate [Appellant’s] request. Id. at 91, 104. When
Starnes had still failed to appear after the lunch recess,
[Appellant] requested that the [c]ourt bifurcate the hearing. Id.
at 104. The [c]ourt denied the request on the grounds that the
PCRA petition had been pending for over four years, and
[Appellant] had many months’ notice of the hearing in order to
line up his witnesses. Id.
PCRA Court Opinion, 6/3/22, at 8-9. The PCRA court added:
[I]t was obvious that Starnes was intentionally hiding, and
that a continuance would not likely result in him appearing and
rendering testimony helpful to the defense. At 10:45 a.m., on the
morning of the evidentiary hearing, defense counsel advised the
[c]ourt that he had spoken to [Appellant’s] mother, and that she
had confirmed that she was with Starnes and Oliver (Starnes’s
mother), and that they were on their way to the courthouse. N.T.
3/3/2022 at 22-23. Only Oliver showed up[] and claimed to have
no knowledge of Starnes’s whereabouts. Id. at 33. Moreover,
Starnes had been the subject of substantial attempts at witness
intimidation as a result of his testimony identifying [Appellant] as
the shooter in this case.3 Importantly, defense counsel never
represented that Starnes had been subpoenaed to testify at the
evidentiary hearing, and he never requested the [c]ourt to take
action to require Starnes to appear.
3 Starnes testified at trial that he failed to comply with subpoenas
from the Indicting Grand Jury in this case on numerous occasions
because he was afraid of retaliation, scared of “getting killed[,]”
and did not appear until he was detained prior to testifying. N.T.
10/8/2014 at 32-33, 83. He testified that the only reason he came
to court during the trial was because he did not want to be
detained again. Id. at 34. Following Starnes’s trial testimony,
the [c]ourt was informed of inappropriate behavior by spectators
both inside the courtroom and immediately outside of the
courtroom. Id. at 85. The [c]ourt was made aware that
spectators were “making inappropriate threatening comments
[and] acting in an inappropriate way.” Id. The [c]ourt warned
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the gallery that the behavior would not be tolerated and that
[identification] would be required to enter the courtroom from that
time on. Id. at 85-86.
Additionally, the resolution of [Appellant’s] petition had
been delayed prior to the evidentiary hearing by 17 continuances
that had been requested by the defense. Since [Appellant]
declined to appear for this hearing via video during the Covid-19
epidemic, the hearing was further delayed for nearly a year.
Accordingly, the [c]ourt did not abuse its discretion when it denied
[Appellant’s] request for another continuance in order for Starnes
to testify. No relief is due.
Id. at 9-10 (footnote in original, remaining footnotes omitted).
With regard to Appellant’s claim that the Commonwealth withheld
evidence of its payment to Starnes, the PCRA court cited applicable law in
explaining:
Under Brady v. Maryland, 373 U.S. 83 (1963), exculpatory
evidence not disclosed to the defense will give rise to a due
process violation and will require a new trial if the exculpatory
evidence is “material” either to guilt or punishment. [Id. at] 87;
see also Pa.R.Crim.P. 573(B)(1)(a) (specifying, as mandatory
discovery, “[a]ny evidence favorable to the accused that is
material either to guilt or to punishment, and is within the
possession or control of the attorney for the Commonwealth”).
Therefore, to establish a Brady violation, [Appellant] must
demonstrate that: “(1) the prosecution concealed evidence; (2)
which was either exculpatory evidence or impeachment evidence
favorable to him; and (3) he was prejudiced by the concealment.”
Commonwealth v. Simpson, 66 A.3d 253, 264 (Pa. 2013). …
[T]o establish prejudice, [Appellant] “must demonstrate a
reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different. A reasonable probability for these purposes is one which
undermines confidence in the outcome of the trial.” Id. (internal
quotations and citations omitted). Moreover, “Brady evidence
may not be cumulative of other evidence, cannot have been
equally available to the defense, and cannot have been
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discoverable through the exercise of reasonable diligence.” Id.(internal citations omitted).
….
[Appellant] failed to produce any evidence to show that
Starnes was promised or received any form of payment pre-trial,
let alone that the Commonwealth withheld information regarding
these alleged payments.2 At the evidentiary hearing, [Appellant]
failed to present Starnes as a witness, even after the [c]ourt
granted multiple defense requests for additional time during the
day to locate him. N.T. 3/3/2022 at 21-22, 26, 87-90, 104. Since
[Appellant] failed to prove that the Commonwealth concealed
anything regarding payments or promises to Starnes, the [c]ourt
properly rejected [Appellant’s] Brady claim premised upon such
concealment.
2 Before the evidentiary hearing, while addressing a preliminary
issue regarding a defense motion for a continuance, [Appellant]
provided the [c]ourt with a letter from the Pennsylvania Office of
the Attorney General and a letter from the Philadelphia District
Attorney’s Office detailing payments made to Starnes. N.T.
3/3/2022 at 14-15. The Office of the Attorney General paid post-
trial hotel expenses in the amount of $2,643.90 from its Witness
Relocation Program. Letter from Office of the Attorney General
dated 2/14/2022. The Philadelphia District Attorney made two
post-trial per diem payments in the amount of $210 each. Letter
from the District Attorney’s Office dated 2/25/2022. These letters
were never made part of the record. In any event, they only
document post-trial payments to Starnes, and fail to support
[Appellant’s] claim that Starnes was promised anything prior to
testifying.
As to the claim that the Commonwealth withheld evidence
regarding Starnes’s “whereabouts on the time and place of the
incident,” Statement of Errors at ¶ 30(a), this claim was never
raised in the PCRA court. Because [Appellant’s] counsel is raising
this issue for the first time on appeal, the issue is waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”) ….
PCRA Court Opinion, 6/3/22, at 5-7 (footnote in original, emphasis added).
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In sum, the record supports the PCRA court’s findings and its legal
conclusions are proper. Sandusky, 203 A.3d at 1043. Appellant’s issues do
not merit relief.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2023
____________________________________________
2
To the extent Appellant challenges the PCRA court’s credibility findings
regarding Oliver, the “PCRA court’s credibility determinations, when supported
by the record, are binding on this Court[.]” Commonwealth v. Mason, 130
A.3d 601, 617 (Pa. 2015) (citation omitted). “We will not disturb the findings
of the PCRA court if they are supported by the record, even where the record
could support a contrary holding.” Commonwealth v. Flor, 259 A.3d 891,
911 (Pa. 2021) (citation omitted).
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