J-S50009-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MARCO BULLOCK
Appellant No. 2292 EDA 2014
Appeal from the PCRA Order July 10, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0701821-2006
BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 18, 2015
Appellant, Marco Bullock, appeals pro se from the order entered July
10, 2014, in the Court of Common Pleas of Philadelphia County, which
denied his petition filed pursuant to the Post Conviction Relief Act 1 (“PCRA”).
No relief is due.
This Court previously summarized the facts of this case as follows.
A group of about eight friends gathered together on 9 th and Cantrell Streets in the city of Philadelphia around 11 o’clock on the evening of May 6, 2004. About 20 minutes later, co- defendant Bullock, who used to live in that neighborhood, joined the crowd. Everyone in the group got along; they smoked blunts, drank and socialized.
Approximately 20 minutes following Bullock’s arrival, co- defendant [Kiyiem] Hagwood appeared at the scene wearing a hoodie; no one other than Bullock seemed to personally know ____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546. J-S50009-15
him. Hagwood asked one of the girls in the group for her phone number and then inquired if anyone had marijuana. When the victim, 18-year-old Andrew Rivera, indicated he had some marijuana, the two men walked about two houses away from the group. Less than one minute later, Rivera yelled for help and an eyewitness saw someone hit him over the head with the handle of a gun[,] which caused Rivera to collapse. One eyewitness testified he then heard eight shots fired at the victim; the bullets penetrated the victim’s arm, flank, chest, abdomen and groin. While the shots were being fired[,] the entire group retreated to one of the neighborhood girls’ homes for safety. Bullock was the only one from the group who did not do so.
Ten months after the shooting, Lamar Garfield, also co- defendant Bullock’s cousin, was stopped by police for a traffic violation; Bullock was a passenger in the vehicle. Although both men used aliases when stopped, the police quickly determined Garfield’s real name and brought him in for questioning in relation to the Rivera murder. Bullock was permitted to leave the scene of the stop. It was during this questioning that Garfield gave a statement implicating Hagwood and Bullock for the Rivera murder. That statement, which was introduced at the preliminary hearing and trial, related a conversation Garfield had with the co-defendants two day after the shooting. Specifically, Garfield relayed the following discourse among the men:
Hagwood: I don’t know what happened.
Bullock: That was the wrong guy, you got the wrong guy. You didn’t have to pop him cuz. It was only supposed to be a “jamming” [i.e, robbery] and that was the wrong person anyway.
Statement of Lamar Garfield, 3/6/2005, at 1.
Garfield, however, recanted this statement at both the preliminary hearing and at trial; he testified he made up the entire conversation he had with the co-defendants about the shooting. N.T. Preliminary Hearing, 7/5/2006 at 62; N.T. Trial, 9/4/2008, at 81, 83. Essentially[,] he testified that the police told him the co-defendants had implicated him in the shooting, and because he “was not going to take credit for something he did not do,” he “came up with a story and told the detectives that [Bullock and Hagwood] did it.” Id. at 94. Garfield also testified that the cops told him if he did not consent to have the statement videotaped, they were going to charge him for the
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Rivera murder. Id. at 91. By contrast, at trial Garfield’s arresting officers testified that they never intimidated Garfield into giving the incriminating statement and that, prior to him giving the incriminating statement regarding Bullock and Hagwood, the officers never told him that Hagwood and Bullock had “dimed” on him regarding the murder.
Commonwealth v. Bullock, 3174 EDA 2008 at 3-5 (Pa. Super., filed April
28, 2010) (unpublished memorandum) (footnotes omitted), appeal denied,
16 A.3d 502 (Pa. 2011).
A jury found Bullock guilty of third-degree murder, robbery,
possession of an instrument of crime and criminal conspiracy to commit
robbery. The trial court sentenced Bullock to an aggregate term of
imprisonment of 40-80 years.2 On appeal, this Court affirmed Bullock’s
judgment of sentence and the Pennsylvania Supreme Court denied allocatur.
Bullock filed a timely pro se PCRA petition. The PCRA court appointed
counsel who later filed a petition to withdraw and a Turner/Finley3 no-
merit letter. Bullock filed two sets of objections to counsel’s petition to
withdraw and requested counsel to draft a brief or permit Bullock to proceed
pro se. Counsel then filed an amended no-merit letter. The PCRA court
conducted a Grazier4 hearing, after which Bullock withdrew his request to
____________________________________________
2 Hagwood was convicted of second-degree murder, robbery, criminal conspiracy and PIC and was sentenced to life imprisonment. 3 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). 4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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proceed pro se. On June 9, 2014, the PCRA court filed notice of its intent to
dismiss Bullock’s PCRA petition in accordance with Rule 907 of the
Pennsylvania Rules of Criminal Procedure; Bullock filed a response to the
Rule 907 notice. On July 10, 2014, the PCRA court dismissed Bullock’s
petition and granted appointed counsel permission to withdraw. This timely
pro se appeal followed.
Bullock raises the following issues for our review:
1) Whether counsel was ine[f]fective, for failing to advance appellant’s sixth amendment right, to have compulsory process for obtaining witnesses in his favor/ whether appellant’s due process / equal protection of the law was violated, fourteenth amendment?
2) Whether trial counsel was ineffective, for failing to object to the judge charging the jury on criminal conspiracy to commit third degree murder/ whether trial judge abused discretion by allowing jury to return with guilty verdict under third degree/ whether defendant’s due process right’s [sic] were violated?
3) Whether defendant’s due process right’s [sic] and equal protection of the law fourteenth amendment/ sixth amendment right of fair trial was violated, for failure to request mere presence charge was the result of counsel’s ineffectiveness/ defendant’s right to be present on a public street?
4) Whether this court should reverse the prior judgment of the lower court, because the same robbery that was the basis of appellan’t [sic] conviction for third degree murder cannot be an act of unintentional killing which does not support guilt under third degree murder/ Whether appellant was sentenced ‘illegally’ upon felony murder and robbery, criminal conspiracy to commit robber is a question of ‘legality’ of a sentence that can never be waived/ Whether sentences imposed as singal [sic] trial, double jeopardy prevents this court from exceeding it [sic] legislative authorization by imposing multiple punishments for the ‘same offense’?
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5) Whether defendant’s confrontation clause right’s [sic] were violated under the sixth amendment where out-of-court statement was used to incriminate defendant and co- defendant, where defendant had not cross-examined co- defendant as to what witness said and without a limiting instructing being provided to the jury, that the statements used could not be considered as evidence against defendant, where co-defendant had not authenticated the statement being made by another?
Appellant’s Brief at iv.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review
is limited to the findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at the PCRA court
level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation
omitted). “[T]his Court applies a de novo standard of review to the PCRA
court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259
(Pa. 2011) (citation omitted).
In order to be eligible for PCRA relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).
These issues must be neither previously litigated nor waived. See 42
Pa.C.S. § 9543(a)(3).
As this Court has repeatedly stated,
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[t]o plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127 (2011).
Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012),
appeal denied, 64 A.3d 631 (Pa. 2013). A failure to satisfy any prong of
the Pierce test will require rejection of the claim. See Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014).
Preliminarily, we note that Bullock has waived his fifth issue raised on
appeal, wherein he argues that the use of Garfield’s statement at trial
violated the Confrontation Clause. This allegation should have been raised
on direct appeal, but was not. An allegation is waived “if the petitioner could
have raised it but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state post-conviction proceeding.” 42 Pa.C.S.A. §
9544(b); see also Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa.
2013). We further note that Bullock’s failure to include this claim in his PCRA
petitions provides additional grounds for waiver. See Pa.R.Crim.P. 902(B)
(“Failure to state … a ground [for relief] in the [PCRA] petition shall preclude
the defendant from raising that ground in any proceeding for post-conviction
collateral relief.”). Accordingly, we are precluded from addressing the merits
of this claim.
We have reviewed Bullock’s remaining issues raised on appeal, along
with the briefs of the parties, the certified record and the applicable law. The
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Honorable Barbara A. McDermott’s July 10, 2014 opinion ably and
comprehensively disposes of Bullock’s issues raised on appeal, with
appropriate reference to the record and without legal error. We affirm on
the basis of that decision. See PCRA Court Opinion, 7/10/14 at 6-7, 10, 14-
15, (finding: 1) even assuming proposed witnesses existed and were willing
to testify on Bullock’s behalf, their testimony would not have changed the
outcome of the trial given fact that jury chose to believe Garfield’s statement
that Bullock planned the robbery that resulted in the murder; 2) conspiracy
to commit third degree murder is a cognizable offense under Pennsylvania
law, therefore trial counsel had no basis on which to object to Bullock’s
charge or conviction thereof; 3) trial counsel could not be ineffective for
failing to instruct mere presence jury instruction where trial court did, in
fact, issue a mere presence instruction; and 4) Bullock’s convictions of
robbery, third-degree murder and conspiracy did not merge for sentencing
purposes and thus did not constitute an illegal sentence).
Order affirmed.
Judge Jenkins joins the memorandum.
Judge Mundy concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/18/2015
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IN THE c·oURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DMSION
COMMONWEALTH OF PENNSYLVANIA : CP-51-CR-0701821-2006
v. FILED MARCO BULLOCK JUL l.O 2014 PostTrfalUnit OPINION AND ORDER M~Dermott,J. July 10, 2014 v
Procedural History·
On September 9, 2008, petitioner was convicted by a jury of Third-Degree Murder,
Robbery, Conspiracy, and Possession of an Instrument ~f Crime. On Octa ber 27,' 2008, the
Honorable Renee Cardwell Hughes sentenced petitioner to an aggregate sentence of forty to
eighty years of incarceration.
On April 28, 2010, Superior Court of Pennsylvania affirmed the petitioner's judgment of
sentence. On January 25, '.2011, the Supreme Court of Pennsylvania denied the Petition for
Allowance of Appeal.
On July 5, 2011, petitioner filed a pro se Post-Conviction Relief Act (PCRA) petition. On
June, 14, 2012, Barnaby Wittels, Esquire was appointed to r~present petitioner. On July 29,
2013, PCRA counsel filed a Finley letter pursuant Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988)(en bane) and a motion to withdraw. On April 1st and April 10, 2014, petitioner
filed objections to the Finley letter and a motion to order counsel to draft a brief or permit .
petitioner to proceed prose. On April 29, 2014, PCRA counsel filed a supplemental Finley letter. Circulated 08/27/2015 01:55 PM
On May 2, 2014, petitioner filed a motion for a Grazier hearing. OnJune 9, 2014, after a
.w.i~~~vr hls, motion. t~ proceed pro se. On !June 9, -2014, this Court filed a ' ,' . • ' ' .. ' : • '~• • ; ' I
hearing, petitioner ' ' Notice of Intent to Dismiss pursuantPa.R.Crini.P. 907. . . . . : . ' . . .
On Jun~ 26~ 20~4, thls'. tourt;~ceived peti~~ner,; re~ponse ~o ~~ 907 notice, in which he asks for more time and for permission to re-plead his claim as to Lamar Garfield, as discussed
infra, under Commonwealth v. Medina, --- .A.3d ~~--, 2014 PA Super 108.
The':~uperi~r Court of Pennsylvania presented the facts in this case: as follows: . . .·,).·\: ·~ :':. \ _:1{:.:._.:'(:: .~.~.·~ .. :~.:; . , A group of about eight friends gathered together-on 9th and · · · Cantrell Streets in the city of Philadelphia around 11 o'clock on the evening of May 6, ~004. About20 minutes later, co-defendant Bullock, who used to live in that neighborhood.joined the cr6Mrd'. · · - .·.- · · Everyonein the group got along; they smokedblunts, drank and socialized. · . ·. :. · · · . ·:. . · · -·. · · ,, ' .,App;~ximat~ly 20 minutes following Bullock's arrival, co- def endant Hagwood appeared atthe .scene wearing· a .hoodie; no · · orie other than Bulioc~ seemed to pe~sonii.lly know him, Hagwood •• ~~~j on~.O(th.~, girla in th.~ grctup.fcir.h~r·phorie J!.utj'ibe{and then: . inqwred if anyonehad marijuana. When victim, 18:.year"'.old ·. the Andrew RiveraIndicated hebad some manju~a, the two 'rileh' w~k.e4.. about two houses away from the group. Less 1:hari. ~me . minute. later; Rivera yelled for,help and ail eyewitnes!rsaw'i .· . someone· hit him over the head with the handle of a .gun which \ {"~ :i,\~ .• ::-~ .-:·. • ....... ··,: • ..· .• .. ! .'· .. . • • ', •., •. .:.· . • • : • • . . . • •••
: . ~~~f4. .filYL~!. to. c~IJ~p~:~·. p~e :iy~~4iess :i~fie~ .~e 1~ .. eight shots fired at the victim; the bullets penetrated'the victim's ~e~d tll~ri. aim, flarik, chest, abdomen and groin, While shots were :being. the fired the entire group retreated to' one of'the neighoo.rh~
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preliminary hearing and trial, related a conversation Garfield has with co-defendants two days after the shooting. Specifically, Garfield relayed the following discourse among the men: Hagwood: I didn't know what happened. Bullock: That was the wrong guy, you got the wrong guy. You didn't have to pop him [C]uz. It was only supposed to be a "jamming" and that was the wrong person anyway.' Statement of Lamar Garfield, 3/6/2005, at 1. . Garfield, however, recanted·this statement at both the preliminary hearing and at trial; he testified that he made up the entire conversation he had with the co-defendants about the shooting. N.T. Preliminary Hearing, 7/5/2006, at 62; N.T. Trial, 9/4/2008, at 81, 83. Essentially he testified that the police told him the co-defendants had implicated him in the shooting, and because he "was not going to take credit for something he did not do," he "came up with a story and told the detectives that [Bullock and Hagwood] did it." Id at 94. Garfield also testified that the cops told him if he did not consent to have the statement videotaped, they were going to charge him for the Rivera murder. Id at 91. By contrast, at trial Garfield's arresting officers testified that they never intimidated Garfield into giving. the incriminating statement and that, prior to him giving the incriminating statement regarding Bullock and Hagwood, the officer never told him that Haywood ·and Bullock had "dimed" on him regarding the murder.' Hagwood was arrested by police in connection with the instant case on March 31, 2006. N ..T. Trial, -9/4/2006, at 223. Police, however, remained unsuccessful in locating and apprehending Bullock until April 19, 2006, when they went to Garfield's home to serve him with a subpoena to testify against Hagwood. There, the officers found Bullock; they held a shotgun to his head when he opened the front door. He instantly froze, got down- on the ground, and was arrested. Id at 262. ·
Commonwealth v. Bullock, 3174 EDA 2008 (Pa. Super. filed April 28, 201 O)(non-
precedential decision).
In his July 5, 2011,pro se PCRA petition, petitioner raised the following issues:
.1. "Whether counsel was ineffective, [sic] for failing to advance appellant's sixth amendment right, [sic] 'to have compulsory process for obtaining witnesses in his
I Footnotes omitted.
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. . . .· favor' I [sicf;w~~th~r,.~pp~Ilanf~. due process/equal protection ' ' ,. «l ' ·' , ' I , ,• • , ,, ~ ': • • , of the law was violated, , '
. ~ . ;;. ./ / ~~;:; \:..: ./, . . . . . .: . ·' ., .. [ sic] fourteenth El.Q,'.\e,ndll}~~t?'1. , · .. , , : . • · • · ... : · · · , .. ·, · · : . ,: · · • ' • •' ' ', ': • ' •I ' ·,,'.' • ~ •:' • ." "': '
2 .. "Whether appeJ.l~t. ~~'~e~~{his,~pstiµitio~alr~glit, jsic] of due process, and effective .couns~i,' wh~f~: ~~;e}: fii i~~ ·~ ·~bje~~ ·~o· ~p~~;~~. highly prejudicial ,, •: ·: . ,:/':,:::·· .. ··,I,·•:': ,.:'-.:-. . , :, ".,;.:':_·> ,: · ·, .i:.; . . . 'remarks', [~ic}JP~~ by tri.al judge. ~t sentencing, and'\vhetJier counsel 0 0 was : \ ,•, ·, ·:/.·,.*:,~~l·:· >.,/.:~::~· . . . . '::;,) . /, .:' ., ~ .\:f .:-:. ::.~:l:'.1; ,I: ·:'':.,'.'·.;:: . ,I • ineffective. for.,. failing. .. . . w.·pq>p~fly . raise,. [sic] ~µgate. . this . . issue' on direct . . appeal?" 0 0 v-, ,! , · ,I :: ' ',',: ' .'-,: ,•': .:. ' • • , :, -. 1 '/:;,~·-- ·~·~~: i' . ', , I, '
3. "Wh~.the;· cpµp.s,~1 ·~~.,kJri~~tiv~~. [~i~] :rQr failing to pbject.before 'trial of [sic] •. ·.· . ·•• ~ .~:·.... • · : .• •-:, ' -: ·.·. · ~::: .. : r, ,·,; . ·. •." ::·:,: .. : ·.:.:· · .. , '\.! ~ .· .. .-: .,;,: ··(..'.:· ·:·· . ·. .·· app~il~uit° be4ig c4~1i~t~t~th .c.rifQinal conspiracy .to ·corifuut Tliird~·Degree • ' : 'l01~ ... :·,l·.':I'>~'.: ' . .. · . 0 =: ,·; ;.,~!, ';'.•,',..i'.'· .. ',.i ...'~.:; ,,:_:.{:,· !:•,'' '.·',.° ,1, ..... .rl !:•':I 'I·, 0:
Murder/VJh~ther [sic]. trial judge abused her discretionfor iristructingjury on above, . ··< . .:"{: . . > ': · · · . ··i-;.·:· . . -:, .: · . ..... ···/· . :..:·.·':.· : .:· ..:., l.: . . · and allowing jµry to t:yttip;l with a guilty verdict with' 'same', arid whether appellant' s 0 • • . •. • . ~ . ' • ' •. • '. . I , . .'. •• , : ::.'. : ;,.~,.' • , ·: -. , '. , f: ·'., ',· I , ··: • • •• : -". -~ _,.. •• .. ··,;,:' , ·.; • '. •• :' ;' ,l :: : :~:: :·· : .' ~ ::·.: • • • • • • • ' • •
. due process right's [~ic].:w,er¢ yip}atecJ( [sic] equalprotectionof the law?" '• . .. · . : ·.... ~ .. '';,: •. . _;_. . ·.·- . . : . ,~·' .:t_{~· '::·: :; . _ . . . :· ..' · ~ :·. . . . . : ' -, ~ ! .·i. In his August 5 2013 pro siPCRA peti#oh and.objection to' counsel's Finley letter . 1
' . '. . ·. t-.··· · . ,: ··;~·-· .. -·.. -: · . .-. : __;: . . _.1.· ·. · .. .;~~ .•. .
petitioner raised the follow4ig .1ss1,1~.s:. · .... , . . , .'.'. . . . · . · ·: , ·; ,, j • ) :' ' • • i . : . ,· ... ~ "i . ... : : .';, ~-.~·. :· \. ' ';°
1. Presentation rif.I~eti~ti~e.t~llll~·.R.qssitt!r;s persoli~ iss~es:wohld ~ve ~uited in a. · .· ·. '• .···.'/' . . _'.'.: ~:> '. :.:.·. · :·. <·:: . .':<· ':.\(··· '·:.'" ·. diff•:ni ou~J.~JJl~· . · . .•. • ',' :\. \ ·, . . < : : i . .: : / 2. Couns~l ·~#. in¢£f.~tj.ve ~~r {ailing tq·.investigate. or ,s~bpoeria ~messes. 3. Counsei was ineffective·fo;-fail~g.ic/~bJe6t. ~ - • • J • • •••• •. .. ~~jhd~·ii~ ;~~;s made at ·' • •• \ •••• ; ,' ~:. • • ,,:.'.: .·' •• . •'
~~ntencing. 4. Trial ·counsel was ineffective for ~ot objecting to the p_resentation of Conspiracy .~o .
Commit Thlr4~Degree Murder during the'jury instructions.
s. triiiu co~s~1 ·was. in~ff~cti~; for.~ot obje~~~ ~ ·~~ ~:o~~nwealth introdu~g
· statem~~{riiade.by L~~ &rliei:d:. . , ·. , 'I • . ~ . ,. ., , . 4 • , .~- '. • • - • • •• • •. : , • • ,
6:· Petitioner.alleges tb.at"the Comnionwealth committed aBtady violatipn.
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- --·. ·-- .,, --:':-"-~- .. --.-· .. ·----- :·.----~~-~·-.,. .,t:-:=._-::'.!_"'•••:"":''=.:-:_.-::--: ••• ;':": •. ::7. .. ,_:-;-:_.:;-'.":",:-::·~.-:::-~ • : - ···-- .•
In his Aprill, 2014,pro se PCRA petitionand objection to counsel's Finley letter,
petitioner raised the following issue:
I. "Whether defendant's, 'due process right's', [sic] and equal protection-of the law,
fourteenth amendment/ [sic] sixth amendment right of a fair trial was [sic) violated,
for failure to request 'mere presence charge' [sic] was the result of counsel's
i~effec_tiveness/ [sic] defendant's right to be present on a public street?"
In his fourth and final pro se PCAA petition filed April IO, 2014, petitioner raised the
following issues:
1. "Whether the imposition of sentence on a constituent offense is impermissible, where .
the offender has previously been sentenced upon the greater offense."
2. "Whether appellant, [sic] convictedof (third-degree murder) [sic] while in the course
- of a robbery, cannot be separately convicted and sentenced for the same armed
robbery?"
3. · "Whether this court should reverse the 'prior' [s.ic] judgment of the lower court,
because the same arined robbery that was the basis for appellant's conviction of
(third-degree murder), [sic] cannot be an act of intentional killing, which does not
support guilt under (third-degreemurder) [sic}?"
4. "Whether appellant was sentenced 'illegally', [sic] upon the felony murder and
robbery.jsicjtcriminal conspiracy to commit robbery, is a question of the legality of a
sentence that can .'never' [sic] be waive[d]?"
5. · "Whether sentences imposed at_[sic] sing[le] trial, [sicJ double jeopardy prevents the
court from exceeding its legislative authorization by imposing multiple punishments
for the same offense?"
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... To. warrant ·.. relief . . .based . .. . . . assis~~ . ·of counsel, a defendant must on a .clalm of ineffective show that such ineffectiveness "in the circumstances ofth~ particular case; so oodermined·th~ truth·d~~~nnin4J.g P!9f:~SS:!Mt ~o reliable adjpdication of'guilt or'irui!'.iceilce could have taken
place:'.' pommcmwea#h.,.v~ Jones, 9,.12 A,+d}6.~f278 (P~. 206~); 42 Pa.9.s:·§ 9543{a)(2)(ii). . .. . .
Counsel is presumed - to. be effective, . . ~. ' Gomm..onwealth ' . v. Bennett, . S7-A3d 1185, '1195-96 (Pa. . . .
2012)Ccitation omitted), Topy,er~P.r;n~.th.e presumption, th~ petitlonerhas to :s~trsty,.~e . . . . . . . . .· performance . :· : and prejudice, test ' ' . .· selfoi:tb, in·S.trfckland . . . v; . Washington; . .. 466. . us. 668 6984). The Supreme Court of Pennsylvania has applied the Strickland test by Iooking to three· ~1tnients, f • • •
whether: .~ . . .(I) the . . underlying. claim ~~ arguable merit;. (2) _nc>'re~sonable basis exist~d for .
counsel's actions or failure to act; ~$1 (3)the petitionerhas shoWn'tbat.·h~··s~eied prejudice as a.
result of counsel's la,pse, i. e., that there is a reasonable' probability that' the"res'~t 'bft:he
proceeding would have b,een..~f.fer,ent fJenne(t,'5.7 A:3datl19:S-96 (c,iting Commo~wealth'v.
Pierce; 527 A.2d 973; 975. (Pa. 1987))..If a claim fails under any necessary elementof the
Strickland. 1~~t; . ·:. ,tAe. court ~~y . '· pr9c~~.d . . . to ~hat.e. iement iµst., , .. . 13ennetf;' 51 A.3d at. i ·iSiS-96 .' :
. In lµs.·· first .. allegation ... ,.·:. pf. ytror~ . . petitioner ··, . . argues that trial: . counsel'was' ineffective for •
failing 10 have fO~p~s9cy . . PE·~~~~- f.o~ obtaining .wi~~ses-. 'i.n his.favor, PCRAc~wfael interprets .
this claim as alleging trial counsel was ineffective.for failing. .to pioj)~ly 'investigate·: . hlid present
three witnes~~ .~t. trial, f etitioner claims that ¢I~ individuals; Michael Del.ericd, ~lfulantha Teal, andRosemarie Kelty. would testify that after the shooting petitiop.et'raii iri ~··different ' •' ' ,' I' ·:-.••'• '•, ' • ' • •
direction than the shooter. . . :· : : ·..... .
Jo Pf~vail on a, claim that trial counsel was ineffective for failing to present awitness, a
defendant rnµ.~t demonstrate that; (I) the witness existed; {2) counsel' was· either aware of or
should have been aware of the witness's existence; (3) the witness waswilling and able to
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-··-······· . .. ·-·· · -· , . . . .,_ ...... . -·-·-···· . .... . : .. : ·· ·· ~-~·-··-·· ···---·-··- -· -· ~ . : - -.. --:.-:---·--: ----'-. .
. cooperate onbehalf of the defendant; and (4) the proposed testimony was necessary to avoid
prejudice to the defendant Commonwealth v. Bryant, 855 A.2d ?26, 746.(Pa. 2004)(citing
Commonwealth v. Begley, 566 Pa 239, 780 A.2d 605, 630 (2001)).
Here, even assuming the petitioner's proposed witnesses existed and were willing to
testify on behalf of the petitioner, their testimony would not have changed the outcome ofth~ . . trial and petitioner suffered no prejudice from their absence: John A vallone, Gabriella Bloise,
and Amanda DiDomenicis testified. that that everyone ran into Amanda's house after the . . shooting except for the petitioner. None of the eyewitnesses testified to seeing petitioner leave
the scene of the murder. N.T. 9/3/2008 at 102"103, 140-141, 157"159. Having the petitioner's
· proffered witnesses testify that the petitioner ran in a different direction than the shooter would . . not have changed the outcome of the trial. This Court recognizes that petitioner was convicted
. primarily on the statemerit_~_!1~ig Q?.!f.l~!P 'f~~~-~~~~!~.~~e~ p~tjpner~ paiti~ip~!;i.Q~ . i?,.gie
e_l~j.!}g_ofJJ:i~.rnJJ.l?.~cy. Even if witnesses testified that petitioner ran a certain way after the
murder, this would not affect the fact that the jury chose to believe Garfield's account that the
petitionerplanned the robbery that resulted in the murder. This Court notes that inhis April 1,
2014 petition, petitioner admits that he agreed to commit a robbery. PCRA petition April 1, 2014 ·
at 37. This Court agrees with :PCRA counsel's assessmentthat this issue is meritless.
Next, petitioner argues that counsel was ineffective for failing to object to prejudicial
remark~ made by the trial judge at sentencing. Petitioner also asserts that appellate counsel was
ineffective for failing to raise this issue on appeal. Under 42 Pa.C.S. § 9543(a)(3), petitioner
must prove by a preponderance of the evidence that the issue has not been previously litigated .or
waived.
The Superior Court of Pennsylvania addressed this issued as follows:
T Circulated 08/27/2015 01:55 PM
. B1,1µ9-cf .n~~1 ~~P.l~& fl:lat his ,statutory ttitxlmum #ntence 'of' . 40.:so yearsj] imprisonment is manifestly unreasonable because the . triaj judge '?C?~W~ed,faots :n9t in evi~ce an~t .
. It is true,' ili~t. wh~n a court sentences a d~fe~dant outside the ~~~l.~e~,. ;~+~1:l:St~fMe its i;eaj;.~mi,.on the re.~r.d:_ 421-~d:d:$·.A:J · . 9121(o);'Cqn,monwe~lth \,. Byrd, 657 A,~d 961 '(Pa, Super, 1995). In addition, the: ( ,· · , -~ • . ·-:-·,: '. ·: ··. . ~-~: l ::.t court must· demonstrate tha{H uriderstillids"tli.d'- · ; · '· r ·'•I · :,;,: · · ~ ,. ··-·· 1·! ~ '; :· • ·~ '·· • ' : ·• • • • • • . ••· ' • ·-: ' • •
' applic~ble"gufdelmes ranges, ·y~i explain why it chose to d~yi,ate from, them. ..... t ... • .· Id. ('citatfoidmitted).: 1;·,1 ,;, !.··,· .• •: '·' · . "' ·' \, ::·· .·.~ .', ·•• '• ·. ,i" :··;,,·.: ·~:h:/,:: ;.:- , .... •\1·://I):C ... ::,.~,\,•,, ; ,. v, .' f ', , , ' • , •:' 0 .' .' ••• • • • 'j"'.·
!· ' .. : Iii (:om~nwealth'.v:,Jfal4~ 929 A.2d 957 ~a. ~Q.07),. our . ~~~fW,~··.G9~ qis~}!~.st4 ;\Y~~t ,Qut. tµn;~iiorl "i}(w.iieii': . '. · ( · C~ui'r~ reviewing a trial court's sentence. Specifically, it stated thatthe . ·'?.~At.raj ·f9~~(fi.~.ti~~#Y~. app.~llate !ev{ew.:1~ _'wheth~t·.~:ierlt~nce · . : . outside the Guidelines' i$ '.'w;rreasonabl~,'.1 42 ~a:C.S.A. § 978'l(c); and PJ,at in makwg tlui~'unr~oIJ.ab1eness'~iliqiihy vJe are.to·,,.,,.: ·. ~bnsider: fotiJ:° thirigs: ' . ' ' : ' . . . . ' ' . ' ' : ,._ :•, . ' .. ...(1) 1~e~awr,~.~-4. . ~tt.c?.~~~ce ~ftli~'.~ffe~e and the history . . . and character of the defendant; " . . . . . . ... , . (2) I.~~ ow.·~i,;tuni,fy, o..t:.!4.~. senten9µig"co~ to 'observe-the . ' . defendant including, any presentence investigation; . 0). The.fj_µ@rig$-,µp,Qn.,.which.the_ se~t~1fo¢.wis .based; and . (4) Tiie Gu1deliiies.prom.ulg~t~d hf the Commission . . ' Wq(l~. at.Q~~, -,cttfoiArr.a.;Q-,S.:A.}§ . 978:l(c):':··· ,(<:"' · . . -: · Here~ the.sentencihgjudge reviewed.a presentence report ·, W~_f:~ .Wf,1f1~~-.~p!~R..~f). P-~~~jec,pf~-.s~r,e, (~) ~d;q~e~e·: '. '' · , · · ·· gravity scores (ranging' from a 14 foi: murder and a 3 forJ>IC), . .',v}~tjpi iO?,J>.~t ~~~~tjfs, '..L~~1.q;t~~1:w\~~y.Jr'op:f ~~bck'.s l~Iy ;: ', .. : . . . : fyicfr¢ove'r;"as, the Qonunonwe~th ·~rrectly no~s;):ullq_cks, ' ·. s:~~teµqe.~~~~~Je.~t J9. .-~~-.4¢~4lf,~~ap'op.;'.~~#.~eiti~h.f~e~ausf: ,., . · -: · · · of the possession of a firearm m the commission.of the offenses. pi1~,~~.P.!8.frS f~·X~.~P.ns.fodrs.~entence.On.thci record'af·· . -, :; fo lows; ·. · . . • r ·.·: ·.- .••• ;. :·:). ·:··i .·.::· . :/.~·.'..:·,;:. ]'.!·)·,:;: !.·; ... r,;. ·: ... ·.·~·;:,:·~· .. ·.,1::·.::. It's clear to meMr, Hagwood didn't have the ~apac,itr ·. toJ>l~1•\t!¥:~ w.m-qrr.,JJ.qty.q~ ~·':~d,y9u'Wdp~an it?:: Arid there is absolutely no question that y(,)u were found . ~o/..:~f~s,?~~~- ~4:,1~9.!:_g#iy ?,f'.~e;: pJ.1or:crim6s; . qiifl ·~ permitted to ~ri.siqe(everytW,n~ th~t I have leamed ,aq9,ut ye;,µ, oyer, .th~ ·_9c,w:~e .ofJhe past .year; and . yol,i'did'_partid.pate in the mw:der in South Philly in the . same way that you participated in this murder. You set people up and you walk away. Tiw. consequences aren't yours ~~us~. you s~J people up; ·:and ;you have a lo11g ' . : 2 Fooniote 9mitted. 8 Circulated 08/27/2015 01:55 PM
·-·· ~· •.••.• ·- - ·-••:t .•. •·•·• .__ 7,,,.: .• ··- _.:_ :. _, .. ··--····· - ....•.• :.••. _.: · :. ·-··-···-'·: ·-··-~·· -!'" ·-·. . "':':':':. .. . .. . .
history, not of convictions, but of getting arrested for setting people up, and that's why you are standing in front of me today because you are smart, and I have a hard time processing you. **~ You're very smart, and you are a setup man, and that's what you did to Andrew Rivera. Your coconspirator chose the wrong victim, but you definitely intended for . a robbery to go down that day, and you are definitely responsible for the consequences of what occurred that day. * * *' The guidelines in this case would call for 90 months to the statutory limit. I find the statutory limit to be exceedingly appropriate because you set in place something that you could not control, but you definitely set it in place. *** Mr. Bullock, Ifeel this is appropriate because of the reign of terror that you have wreaked in our ,. ·' .. community. N.T. Sentencing, 10/27/2008, at 34-36 (emphasis added). ·'. . . In sum the court's sentence was based upon five "aggravating" factors (1) inconsistent and windfall verdict of third- degree murder for Bullock; (2) exploitation of'his cousin and luring him.to commit the actual crime; ·(3) his P~S severely underestimated Bullock's criminal history; (4)'Bullock used his intelligence to escape blame from the crimes and he was the mastermind.behind the· crimes; (5) Bullock's actions ended the victim's life as well as any real life for-Hagwood WP,O will serve the rest of his life in prison for the instant crimes. Based on the above, we believe that the sentence is fair and just in light of the seriousness of the offenses, Bullock's Character, · and his presentence history, The trial court demonstrated that it was aware . of the guideline .ranges, and provided considered and thoughtful reasons for deviating from those ranges in handing down Bullock's sentence. Accordingly, we find no abuse of discretion. Walls, supra.
Commonwealth v. Bullock, 3174 EDA 2008 (Pa. Super. filed April 28, 2010)(non~
This issue has been previously litigated; thus, this Court agrees with PCRA counsel's
assessment that this issue is not properly presented.
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' Petitioner claims. . that trial . '. counselwas.ineffective- . . for. failing to. object to the appellant ' ' • .' ': . ' • ' • I•.• .r ·, ' . ': :, . ,: • ': : ',. : ·,. . . • ' •
· being charged with Conspiracy. to Commit Third-Degree Murder, for failing to object to the trial • ... · .. :,· ' . ~ .. . ·, . ,·. . .: .••. ', • . • '. '· -«: '.· •
judge instructing the . jury on Conspiracy to Commit Third-Degree. Murder, and for allowing the . . . : .. . . . ·,:·,;·,.·.· .. ,.. :..: '" ·.-:: 'I • • , • :., . '"..., :.' •·. :. :·, ;'··.· :-·: .. .':: , • . jury to return a verdictof guilty as.t9 Q~p.spi.r~1;yto Commit-Third-Degree Murder . .• ::·.·),=·:·.: ·.~· . :. ,.--:;:!:;·.·< ·.:::::.:,;. :. , .. <· '!•.; .: .· i,._.:,.: .. . . In Commonweolth Y·: .f.if~eJ\8.P !,\.Jg. ~.1~6. (P.a. 20l));gie.Peiin:sylvania.Su~reme Co1:}rt · . ·>· . .:.:·.:. ·. ~.;:'.,_:,;-( . ;:.:~~:';:.':'.\.-: · :::.:i--t:i'·: . / .. ·. '?:· . . \:<. 1:>.'. ._:..'.·;.,i~~·-.:·. :·;:. . ·. · . confirmed that Conspiracy to Commit Third-Degree Murder . is a cognizable . offense. Therefore, . . . .
trial counsel was not i~effe~!iY~ fpr .f~!4i,g to obje~l to this offense. · · · · '. . : , '.. . .: . · .. · . ·;·<··/"!_:,. . :·':· ·· .~:·. ~!· . ·. '. ~- r · .;:, '.·,: ...... \', .
Petitioner asserts trial cou.Q.sel.~a~ ineffective for:faUj,µgJo object.to theCommonwealth
introducing. the state~ent ·~Je b~; Lfml~:ci·eld·~\~'. ~as ~~~i~~i~~~:h~say . . . Pennsylvania Rule ~f Evi~e~~·. ~q~_.1 ~rpvldes:.. · · · ' .. • •. • .» ·; .:' ', • -. ·:. ::; .. : : • \ •• r ,\ ', ;; •• , ,; .• ". "'. v- •"' .'· ·.. • ; . ,· ,· ."·· , .
The folloW41g stat¢p,1~pts .~:~ot_~~~Iu,4e~,~y._the rule' against hearsay if the' decla,ranj.fe~fies an.dis subjec{~q:qr9sS·:exainmation about the pripr .~.~,:W??.,~nt:/ .: . . . .: ·i>\~i} ; ·: · .: . :. !'=°".;~}/; .:-'-: ': \ . . • . (1) Pnor Inconsistent Statement , :,;: ... · ,•::, ...·:·;t ..y::····1·~ . . ·\:·,,:·s,/•?., . :,'.•.-··~·l·t·.•\•· . o f.Declarant ., ... : -.-1,.f,.··,:\.~ ,.. ·:, ··;:.·.· ..·.:··:·Wrtness:-A .· :.::·,. ·. pnor · :
stateni~~~ ·.~r:~:. 9-¢f;l¥.~h~'.?Jt~ll~'.~f}.s .·~~.~s~~~ntyVith. th~ :. . · _:, decl~ant':'~m~~-~~.~~O;t:l.Y:-~9i-i·bi·'·;.: ; · . ., ·i,.fr;v:;\·: . · .· :,· ,;',:'•. (A,}_w~ ~Y.~#;@4#! ·9·~-~"·,m.;·d~i!1'j~tJoJ4r. trial h'"'.'•.· ., . .,._,:;.,,tli"'·''''·S'. . ·.:'"ti·.f,.,Y:. ~f. perj_ij!j at'. a• . •'·"" -. , 'd p~~. 1
; e~g;. o~.9 . . 1n~?:P.9.e~. µ,i.g; pr·m:~.,;el?H~f.,.9.,;i;.,:r·1.1.·:,. ·:· .. ·, · · (Bffs··-·wntin''si ''e<:i.a:iid.ado . foci'lf .thed iclarantior, · · . . (~).}~;~·:t~rb~~:,:;~~;~f?tml~;-f~g~g~~: -~~4l~~~ ,or · · videotaped r~cormD:ip,(.~Il- . o.(m ~~~~P:~i: ?.B;;~·P· :80~ ::1:.: • • •• o ,, I , \ .,> 1' ' •1.\ ~ '.. • ' ., , ' . :. , · · . : .:·:. .•, • ,I,',,-·•., !',, ,/:" ,• i•'•:r- :·>•. ,d;::,;. ~;•:• :.::'~::.',1:··~··: .: .: -. :•,,!":\.,: .:·.: ... ~·');: ,: • • Prior inco~s,i.~te?t syit~~p.~s:*1¥,f?t ~-W.~~~~:~a,~tui. ~viµl~P.Je f('', .::.+,·,:,,. •.· are properly mtroduced ~- ~ubsJaµµye ew4AAce, <;..o,,nm,onw~ql,h ,v. Lively; 61 O A.2d 7 (Pa. ' ; '_,:.: :·',.?;'./.: .·:' · .:,.:·/'.;;-;>"'.·.· . ::- ·i,::·i,. ' .::·:\ . .:.~. ·, . . ·. . : ·.: . ·. : . 1992); Commonwealth''.v. . 'Bra.ti)', .. '50? . ·A.,.~d 66 Cf~ ·,· . .. 1_~8.?). . .. <, · ,:, ·.: . . . ,.·. I. ·• · ..
• f' • :. . ·: :;·•.
At trial, Garfield denied being present when the pet1tioner and. Hagwood discQsS'ed the ' ... :.·. . . . . . . ~·, . • .. : . \~. :~· ·, : : ".£· .. :·:·.' ,·, . ,' ·. ·~ ;•.: ·~ . .· murder. N.T; '9/3/2008 at 60.Qii'March 5, 2005~-Gaifield gave a statement ih which he described . . ·.~. ~. . . •'
that he was present when Hagwood and the petitioner discussed the mmder. Id. at 96, 212. The
st~temeiifwas sigrieci ahd ~bpted by"daifield. id. at'84.'°clarlield;s ·s~~~ent ~as c~~'etent
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....... - .: ... ~-=-----7~· • ',••-••••• ,.:-"~,-.:-:.-' ~~••,-. • __ ._.__~-~ .. ·-cc ,.,-~':777~~:-':":"':'.#•:::.,•_.;:~ 0,.',A,,~••:.: .. •:._•:., , ,.,o:,, •• •• ·~
evidence and properly introduced at trial. This Court agrees with PCRA counsel's assessment
that trial counsel was not ineffective for failing to object to the statement.
Petitioner argues that the Commonwealth failed to produce any 911 calls made on May 6,
2004 and any and all-police investigation documents. Under Brady v.. Maryland, 373 U.S. 83, 83
S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the prosecution's failure to divulge exculpatory evidence is
a violation of a defendant's Fourteenth Amendment.due process rights. "[T]o establish a Brady
violation, a defendant is required to demonstrate that exculpatory or impeaching evidence,
favorable -to the defense, was suppressed by the prosecution, to the prejudice of the defendant."
Commonwealth v. Ly, 980 A:2d ~I, 75 (Pa. 2009)(citing Commonwealth v. Gibson, 951 A.2cJ
111 o, 1126 (Pa. 2008)).
The burden of proof is on the petitioner to demonstrate that the Commonwealth withheld
or suppressed evidence. Ly, 980 A.2d a! 75(cittng Commonwealth v. Porter, 728 A.2d 890, 898
(Pa. 1999)). In interpreting the federal precedent, the Pennsylvania Supreme Court has explained
that, in order to establish a Brady violation, a petitioner must show that: (1) evidence was
suppressed by the state, either willfully or inadvertently; (2) the evidence was favorable to the
petitioner, either because it was exculpatory or because it could have been used for
impeachment; and (3) the evidence was material, in that its omission resulted in prejudice to the
petitioner. Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012)(citing Commonwealth v.
Lambert, 884 A.2d 848, 854 (Pa. 2005); Commonwealth v. Collins, 888 A.2d 564, 577-18 (Pa.
2005)).
Unless a criminal defendant can show bad faith on the part the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law." Arizona v.
Youngblood, 488 U.S. 51, 59, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). An allegation that
'11 Circulated 08/27/2015 01:55 PM
destroyed evidence w~· exculpatory must be. supported by morethan a "mere assertion." ·
Commonwealth v. Snyder, . 963 A.2d . 396,. 4Qp..:(Pa.-2009). . . .: · , , . ,, ' .>. . · ·.
PC~ counsel explainsthat alth<;>ugQ: 9 U. calls. are recorded, .and thus, the evide~te
petitio~er requests pr~b.fl.ply e;(ste~. at ~~e. time, it .i~ impossible to show that-a: 911 call would ·
have . been . e~culp,atol,1' . . .. ' . . ~r. .~~t A_9t ~V.~P.g,t.Q.e ... . preJ1:1
certainly. 4a4 IJ/> value. to petjtjon~r:~w.ce -··:·. . . ... \: . . ,·; .~t th~ tup,e cf the ' caJ(tbi3: .·· .. petitioner. ·. . . ,'' ' ' was viewed as· . merely belng presen,t, ~t the. s,qen~ of tQ.e.·,c~e:_PGM. ... ;: •t . ", \:, .· ··. ·.. '·_:··. ·.. .. . . . . ' CQ\1µ~~1: . also: asserts that there i~ no reason . .. .
to. beliexe, . ~! ..·· ... if the G,"P~ ';",a.5:. 1~,~~- . ~e,,strpy~g.i~· . . . :Was.. done . _iµ. bad· faith, Instead; ifit existed and . · ,, . .
was destroyed irwas almost ~nlytb.e ~ ~~ ' ,• •' : ' ' ' ' •' I • ; • t •' ' • • • ' f • ' resulrof'normalprocedure, This Court agrees with" .: • o .. o • 1 ' ' ' o o o
. . PCRA counsei's assessment. There clearly was no bad faith on the part of'the Commonwealth in
failingto, preserv« f! 91 L9W,~· 'A-tso, .t\l~~e: j,s ~
. ~). tP . ? ~ J calls ~~t~-~r~,P:~;7~~~t# :t9· P9Ji~,8~-~~~t9~ Ol)jM~Y:.6, 2004, . 2) Any and all policeiiivestigation documents of above ~: . 3). · Apy_ ~q. ~~ l'Pli.~~ . ,im9m\~tjo11.Rf '~p,tj9(' ~µsp_t#~ that.were pursued. 4) All iiiforrnatio» of d~sctj ption of shooter. . . . . · . · . 5). p;i!~alp~~p3W~.,7:~~;~~;J?~~~stp~~9.9~~r.(~.c~;~~n?,C~);_.,. ·. ,:. ' :· . ·: ·., ·. , . 6) · Police survey' s of wr~esses who ~ave infoi;:t:nati<>n ~onym~usly put declined to .give a· staten1,~n,.; . . . ~. ' . : ', . ~~r.~ ,. . . pr~s~n;_ ~ . ... ·. . on .C.anµ-~11 . .Str,~~t¥,~y§, '. ,. '•' . . .. . .2. Q04.-:- . . . . · · · · · '
Pp~ . . counsel rtp,ain~ . . th1=1t~e ??~es . . ' p~titig~e~.' s request for dis~?very as ·a' ,rileritle$s . . . .' .
· allegation o'r a Brady _viol11tj_o.n. Petitioner does not ~~ I, , ':. . ·, • ' ' • ·• • ~ ': ' • • • ' . ,, ' his·r~qu¢~t as an· allegation that the .. • •
Commonwealth . . w,itphel4 . ~ . . exculpatory . ' ' . . . ·. . ~vidt:.nce;·ID,J~,.thus. ~s Court will n6t~dtess . . . the ~quest . · as such.3
Petitioner . ·.· argues thatpresentation . . . . . of Detective . . ' Kenneth Rossiter's personal issues.would ,,, .... '••
have resulted in a diffe~eµtpftc~me. PCRA counsel interprets petitioner's claim that PC~·
counsel was iµeffecti:ve for fail~g to allege an after-discovered evidence claim. · 3 It is also cle~ to this Court that if any of these item existed they would have been provided to trial counsel,
12 Circulated 08/27/2015 01:55 PM
~ -"·--~~·...- -'-.- ·- -··- ··-······ -:;'~~.~--::~····" . ~· ~~~ .. ' ··-··. "··-· --.- - --- . . ,_, .- ---.~ .... -:---~::---___.-
To prevail on an after-discovered evidence claim, a petitioner must establish that: (1) the
evidence could not have been obtained prior to the conclusion of trial by the exercise of
reasonable diligence; (2) the evidence is not merely corroborative or cumulative; (3) it will not
be used solely to impeach the credibility of a witness; and (4) it would likely result in a different
verdict if a new trial were granted. Commonwealth v. Pagan, 950 A:2d 270, 292 (Pa. 2008).
The test is conjunctive; the appellant must show by a preponderance of the evidence that each of
these factors has been met in order for a new trial to be warranted. ·Commonwealth v. Padtllas,
997 A.2d 356~ 363 (Pa. Super. 2010).
In Commonwealth v. Foreman, 55 A.3d 5321 537 (Pa. Super. 2012), the Superior Court
a:ffinned the PCRA court's denial of appellant's PCRA petition alleging that the fact that
criminal charges were filed against the detective that testified at appellant's suppression hearing
was after-discovered evidence. The court found that the detective's Theft by Unlawful Taking,
~alse Swearing in Official Matters, Unsworn Falsification to Authorities, Obstructing
. Administration of Law or Other Governmental Function, and Official Oppression charges would
.be used solely to impeach the detective's credibility. Id Further the court found that there was no
nexus between the appellant's case and the detective's alleged misconduct that occurred two
years after appellant's conviction Id. at 537-38 (citing Commonwealth v. Soto, 983 A.2d 212
(Pa. Super. 2009)).
Here, this claim fails both the third and fourth prong of the after-discovered· evidence test.
At the outset, this Court notes that neither petitioner nor PCRA counsel provided this Court with . .
any evidence of .any misconduct . by Detective Rossiter other than references to a newspaper
article which was not provided as an' exhibit." However, assuming that there is evidence that
4 Commonwealth v. Castro, 19 EAP 2013 (Pa. decided June 16, 2014)(holding that a newspaper article alone cannot establish an after-discovered evidence claim), ·
13 Circulated 08/27/2015 01:55 ., . PM
Detective Rossiter engaged in. overtime abuse, this 'claim does ~ot,merit relief The evidence • : ' • ' ' I ·o j • ' ' •
would solely be used-to. ~peach Detective )los~itefs .cr~~iJity, Petitioner specifically states
that the. only use . for. this . evidence ' . . . would -.be impeachment: ftJ.rthe.i;~ . -, 11f,tjµoner. provides nonexus . .. . ~. .
between . . .Detective . Rossiter's . ... . . ... . overtime . . abuse and . .. how . . it wouldaffect ·:. ~ . . . this case. 'This : Court ,. ·.. : :
agrees with the aesessment P~RA counsel th~ this .c~ai;m,.is. meritless. .· . . . of . the . .. . '. ' ' · -, ·
. . The,, following / ' issues raj.se.p .by .. ·. . ·.-·.· . : . :. . the petitiqµei:.' w. ere. . ·.··· . . . . .. not addressed . . by counsel in his Finley . . ,, ' . . . .. - / . .....
lette~s. After independent review ~s. Court determines ip.e issues.to be-meritless .. I • ' ' ~' • ' ' •
Petitioner alleges that trial counsel was ineffective f9! failing to request a "mere'
presence" charge . The. trial court instructed . ·,. . the jury that: ·. · · -. ': ,• ' ' ' '
. A person cannotbe con;icted because they were,inerely present··. . with.others even, if person'ktiew what the others were doing or the piaiµiilig to · qp -. There .¢.ti~tbe. proof of the agreement between the defendant}md:·an:other·1fors.oij_to' form or' continue a conspiracy, To . be..~roy_p~ ~flo/: qf..b~~g a ,co.Ii~J?~!of:t11~t4~f~µ4ant must have; · ., · intended to' act jointly with another person and must have intended tha(fue..~i~-~·~Jhe·g~~ o.ftpe,.e:9~sp~~Y,:.N.T .. W$/i008 at 88~ ..... · s9· (eifiphasis ad1e'dj. · · · · · · · · ,:. . ·< ·. .' ~ . '. . : :.: . . ·. ·. .,:-.: ; ;· : . : '. -, . . . ~ ._·.. : ·. . .~ .... : ... ; ·.~. ~-' ,.,.:~/·:·~· .. ·. . . ! '. -. } ,, .;: . . .
· · The trial court instructed the jury that they .could not convict the petitioner because he • • •. \ . • : ,, • • .: ••. :·:·". ·, .: • .. • ' ' ~·- •• '· .> • •. -~ ·:·.~ -~ .• ) ', • . . ·._ .. : , •.
was merely present with others. Petitioner suffered no prejudice ~om trial counsel f~g to , ' ~ I 1 ', • , 1• : •:. !, • 0 ,' : ' , r: ' ,( ~' ' , , 0 ' 1 •••. ' . 1 ,. . . ~ .. '. . request this charge. This claim is meritless. , • • : . , i , -, ·: , _' ',I ',_' ,• ,: ~:., : ~ '•. 1 : •.' • :: ' I': :•., :, , . ', -, : ' , , ' 1 •\ ~ ,• •: , : \-1 , " . Petitioner make multiple allegations· of error arguing that because he was convicted of
Third-Degree . . that occurred in the course Murder . of a robbery he cannot . be separately convicted . . . . . . . • : . ~ ··.· .. · •.. ~·...• : •.• (·· ".' ';~ :·: .:~ : ..••. , ., : .; ".·._:·: . ' • • ..• ,: : .r, . •
and sentenced for Robbery, Petitioner argues that the sentences imposed on him are illegal and
there was a violation of 'double jeopardy for i~o~g ~tipl~ p~shment~ ~~/~~ same
offense. . . . ~ .. . . . . Sentences are appropriate for merger when the same facts support convictions for more .
than one offense, the elements of the lesser offense are all included within the elements of the t
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····· . -·-········ --·--~. -- . -~ .. ,·~.·_. ___- ,;.,, __ ,,., .... ,-- .. ··· . .
greater offense, and the greater offense includes at least one additional element. Commonwealth
v. Ward, 856 A.2d 1273, 1276 (Pa. Super. 2004)(citing Commonwealth v. Anderson, 650 A.2d
20 (Pa. 1994)). 'However, where·both offenses require proof of at least one element that is
different, the sentences do not merge. Id. (finding convictions for Attempted Homicide and
Robbery do not merge for sentencing purposes because they are not gr~er-~d-lesser-included (
offenses); Commonwealth v. Harper, 499 A.2d 331, 337 (Pa. Super. 1985)(finding the offenses
of Robbery and First-Degree Murder did not merge and the consecutive sentences imposed for
Murder and Robbery were proper).
Petitioner wasconvicted of Third-Degree Murder and Robbery, Each charge requires
proof of an element that the other does not. 51bird-Degree Murder and Robbery are not lesser
included offenses and do not merge for purposes of sentencing. This claim is meritless.
Petitioner argues "[wjhether this court should reverse the 'prior' [sic] judgment of the
lower court, because the same armed robbery that was the basis for appellant's conviction of
(third-degree murder), [sic] cannot be an act of intentional killing, which does not support guilt
under (third-degree murder} [sic]?" Th.is claim challenges the sufficiency of the evidence
supporting the petit~oner's convictions. The Superior Court of Pennsylvania addressed the
sufficiency of the evidence as follows:
Bullock claims that the evidence was insufficient to prove his culpability in any criminal conspiracy. Because conspiracy forms the basis of all his remaining convictions, he claims that his verdict cannot stand. We disagree and find there was sufficient proof: although circumstantial, to prove that Bullock was guilty of conspiracy to commit robbery.
5 A person is guilty of Robbery if, in the course of committing a theft, he inflicts 'Serious bodily injury upon another. 18 Pa.C.S. § 370l(a)(l)(i). 18 Pa.C.S. § 2502 establishes that Murder in the Third-Degree is any murder that is not committed as an intentional killing, and is not committed while defendant was engaged as a principal oran accomplice in the perpetration of a felony. Third-degree Murder is a killing with malice. See Commonwealth v. Thomas, 717 A.2d 468, 479-80 (Pa. 1998). 15 .. Circulated 08/27/2015 01:55 PM
, .,t.\~ .wi~ a.~ompµce li~iliD'; mere ~s~ciation~With.~e · · .· perpetrators, mere presence at the scene, or mere knowledge of the . .crin,.~ is ~~~ffi9i~wtt~. ,esta~!i~~ thata ~efendaJ?.t: was .parfof a: · · . conspiratorial agreement to commit the crime. Tfi;ere needs .to be . . . ~-~~~ ~~9,?,nal proo{ that tll~_ ~~,f~µdapt in~~cie·~ to· -~_om,ilifr the ms crime aloµg with co-conspirater. Commonwealth v-, Barnes, 8.U A;~d. ~-12. ~a: Sµper~:2()~5)./rR ~~n ·~1conyi~tio~·for. ·. crimiriai co~sprracy, 'ihe c6m,¢011weatt4 m1;1st estab~slithatthe . .4~~P.4.~t:: (lJ. '-'.ll~t,e4;~,~fil'~meµt.:lQ_,,c9~(pr"aid.ini1t:i - unlawful act with ano~er person qr peri5ons~ (2) ~1:h ashared :·~l~~}pt.e~~:-~1.q):a4.4;9.y~i:t ~twas· dq~e_:pi:~~qm,ce of · the ponsprracy; _18 Pa.C.S; § 903, . · . ·. · ,,i. _.; •.J~~~~'. 9~~~4.:.~ s~t.e#i~#~;}f~~~,.as. ~:'by_:,tli~jufy ,-: ·. proVIqed that Bullock and Hagwood hadagreed to "jam" someone ("White B·oy Tommy") and .that Hagwood shot the wrr.mgpefson ·. · despite the plan. Aithotlgh Hagwood the indiviciµai'_that · . was .. ' a,~t:u~~y ~ho}tp.i?·,~,ci}w_,'J.t . i~J:V,el!-laj<>wii·thatev,en:i.fthe'.; •. · . ,; ', ' ,' -· '·' conspirator did not act as a principal in committing the underlying crime; .he is ,st,ilt' cqiiµnally li?ple f9r $.e. a~tions·;ofhis . co-: · . : , - : : · -: . · :conspiratols·ci.,k;n ofthe -Gbrispidicyi ·see.~so ip.'furili~rance . . Cqm:;µp11weaith_ v. Qi#s/469,,A.id;I 074: (.p~~l.$u.i,ter,.-.19.83)(&.rect . . ~;oofof'itgre~~~nt'i~'ri6i 'required; :c.onduct of parties and . cµ:9~s~~~s. S?,tt:,_.,.-r.<· .... ,:.:,.: .: ·_.· '! ,,;·, .·. Commonwealth:v: Bullock, 3 ~ 74 EDA 2~08 (Pa. Super. filed April 28, 201O)(non- preced~it£fde~is1orif. ':· "'.' ·<,.: . · ii/i.· '.' ·'> ;':·, . . ,: - ::.: ··, . -. ,· .. ·~
/_ . .... _, ... :_.·:, . ,, : .- ·. · .. : .-·:·:·.,:;,:-,. ... :0 .... _, '". .. : ·: -. - \:·.--.:, . ·:,· · ... , .. - . .. . . ;·_·. ·.· Under 42 Pa.C.S. § 954~(a)(3), petitioner must prove by a preponderance of.the evidence · :i : ,:. .'\\• ', ' • .... .: • ' / ,' f,:: :: ·,.. i.',\' ': '• ·.-,,.,..I;::-:::, • •:<( '.:',:'i' •' ,; :• :: ' . . .: • ·: I .' : ' ''\·,~~, .. ~ that the· issue has not been previously litigated or waived. This claim has.been previously
litigated. I • •' ,•' ,:•;
Finally. . 907,~btjce~-p~tiip~et ~ks'-:fo;:~~re tune so that he · in his ~~sP,pris~'tP.W/¢·~~'~ . . . ·.·: ·. : .. ~./,:·: ..... . . . -~,:·.:.:-'· ·.. {.'.~::: . -;:-~ . . · .:·-.:;··;,ii~. :. ~-;::/\:.
can use Common~eal(~.r·-· '1ieqi7:1d:· ~-.;~ \1(3 d ~-~~, ~o.ifi>i Sµpei}os, ili, oro~r to provide ~ basis ' ' ' '\; ':·','I''•:''•. 'I.~:~ :, ,' ., 1';'': . .f.~ rr:. < .'<:,l:f: · ~:;• • • t' •• =» ·, for relief based on Lamar Garfield, s recantation of tl!e s:ta.temen:~ he initially gave to police:
However, Garfield recanted in court, on the witness stand and in full view of the jury, which-was
free to assess .. the ;. -~ veracity . .. . of his . recantation; . . . . . ln.vohr.¢'s Med.inp, @nvetsely; . . . a'grantpf'PCRA: .. ..~ . ; '• . 0 1
' , ' :•· ,., •• ~ ' ; ; .1 ' .' ' ' ' ' ·: • , • ; ' ' • ' ' ' ·•• • •' • ' C " ' • ' ' • I • , , ' , ;' ~ : , • , •
relief where witnesses wh.o. gay~. adverse te~~ony at ttial rec~.t tlia~ testi.t;nony supseqliently.
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••-- r•-•·--- ... -~ .. ---, --· ...... ...,......:.- -~ .~O .. HP•,i- »+M•r;v,, i ? ..... ••-• .• •;, •'tt If-·-·· 0 •• -,·.s;;-•OO ·:x,..o-,;. O O •,;::-:::: O ... ::.--..:·::,;.:·:::::: • ....:.· ... ~:::- •.. ·: •• :: •. ~::..: •• :• •• .. ••o>• ._ ••: ••: .. ::::...~ ·-· O •... : ••• ~: • .'... :, O ••: •• ":· •.• • .' .. ,~·:~---. .-,
T~us, Medina is inapposite and cannot formthe basis of a successful claim based on Lamar
Garfield's recantation during trial, For this reason, the request to amend bis petition contained in
his resp
Petitioner's multiplePf'Ra filings fail to establish a meritorious ineffective assistance of
counsel claim, Brady claim, after-discovered evidence claim, or illegal sentence claim. For the
foregoing reasons, the petition is hereby DISMISSED. Furthermore, Petitioner's counsel's
motion to withdraw is hereby GRANTED.
BY THE COURT,
.~~· Barbara A. McDermott, J.