Com. v. Carpenter, R.

• Court: Superior Court of Pennsylvania
• Decided: December 8, 2014
• Docket: 1569 EDA 2014
• Status: Unpublished

Opinion

J-S75042-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RUSSELL B. CARPENTER,

Appellant No. 1569 EDA 2014

Appeal from the PCRA Order entered May 2, 2014, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0010394-2011

BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.: FILED DECEMBER 08, 2014

Russell B. Carpenter (“Appellant”) appeals from the order denying his

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

sections 9541-46. We affirm.

The pertinent facts and procedural history have been summarized as

follows:

Following a waiver trial before the Honorable Angelo J. Foglietta, [Appellant] was found guilty of unlawful possession of firearms, firearms not to be carried without a license, and carrying firearms on the public streets in Philadelphia. Jeffrey Azzarano, Esq., represented [Appellant] at trial. Subsequently, [Appellant] obtained new counsel who made an oral motion for extraordinary relief on his behalf, alleging the ineffectiveness of trial counsel. On May 15, 2012, [Appellant’s] oral motion for extraordinary relief was denied, and the trial court proceeded to sentencing. Appellant received an aggregate sentence of three to six years’ imprisonment, followed by three years of probation. J-S75042-14

Commonwealth v. Carpenter, 2014 Pa. Super. LEXIS 1348 (Pa. Super.

2014), unpublished memorandum at 1-2 (footnote omitted).

Following the denial of post-sentence motions, Appellant filed a timely

appeal to this Court, in which he reiterated his allegations of trial counsel’s

ineffectiveness. We summarized these claims as follows:

Appellant argues that trial counsel was ineffective for failing to call any witnesses where trial counsel was under the misimpression that operability of the firearm was an element of the offenses. Appellant also argues that trial counsel was ineffective for failing to cross-examine the arresting officer about his preliminary hearing testimony, in which he testified that he could not be certain the item he saw [Appellant] discard was really a gun (the gun was never recovered). Appellant also claims that trial counsel should have called an expert witness to testify that police officers routinely mistake toy guns or replicas for real firearms.

As stated above, these claims were raised in post-trial and post-sentence motions, and evidentiary hearings were held, at which trial counsel testified. The trial court disposed of these claims on the merits, and addressed them in its Rule 1925(a) opinion. The trial court acknowledges the general rule in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), that defendants should wait until the collateral review phase to raise claims of ineffective assistance of counsel. (Trial court opinion, 6/7/13, at 4.) Nonetheless, the trial court urges us to review [Appellant’s] claims now, on direct appeal, pursuant to the so-called “Bomar exception” to the Grant rule. Id.; see Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003), cert. denied, 540 U.S. 1115 (2004) (recognizing a limited exception to the Grant deferral rule where there was an extensive record regarding the ineffectiveness claims, including a full hearing where counsel testified, and the trial court ruled upon all claims).

Carpenter, unpublished memorandum at 2-3.

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Before addressing Appellant’s direct appeal claims of ineffectiveness of

counsel, this Court noted that our Supreme Court had recently revisited its

Bomar holding in Commonwealth v. Holmes, 79 A.2d 562 (Pa. 2013).

After thoroughly discussing the high court’s decision, we concluded that

Appellant’s claims did not fit into either exception recognized by our

Supreme Court in Holmes. See Carpenter, unpublished memorandum at

3-6. Thus, this Court was “constrained to affirm the judgment of sentence,

without prejudice to [Appellant’s] right to re-raise his ineffectiveness claims

in a timely PCRA petition.” Id. at 6 (footnote omitted).

On March 17, 2014, Appellant filed a counseled PCRA petition, in which

he “re-raised” his claims of trial counsel’s ineffectiveness. On March 25,

2014, the PCRA court issued a rule to show cause upon Appellant, and oral

argument was scheduled for May 2, 2014. On April 23, 2014, the

Commonwealth filed a motion to dismiss Appellant’s PCRA petition.

Following argument on May 2, 2014, the PCRA court granted the

Commonwealth’s motion to dismiss Appellant’s petition because Appellant

“failed to provide this Court with any new evidence which would warrant the

granting of PCRA relief.” PCRA Court Opinion, 6/18/14, at 1. Thereafter,

Appellant waived the Pa.R.Crim.P. 907 requirements, and he timely filed the

instant appeal. Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

Appellant raises the following issue:

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Did the [PCRA court] err in ruling that [Appellant’s] trial counsel’s failure to call eyewitnesses, experts, or confront the Commonwealth’s lone witness with his preliminary hearing testimony did not constitute ineffective assistance of counsel?

Appellant’s Brief at 2.

In reviewing the propriety of an order granting or denying PCRA relief,

an appellate court is limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the findings of the PCRA court, “but its legal determinations are

subject to our plenary review.” Id. To be entitled to relief under the PCRA,

the petitioner must plead and prove by a preponderance of the evidence that

the conviction or sentence arose from one or more of the errors enumerated

in section 9543(a)(2) of the PCRA. One such error involves the

ineffectiveness of counsel.

To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Id. “Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Id. This requires the petitioner to demonstrate

that: (1) the underlying claim is of arguable merit; (2) counsel had no

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reasonable strategic basis for his or her action or inaction; and (3) petitioner

was prejudiced by counsel's act or omission. Id. at 533. A finding of

"prejudice" requires the petitioner to show "that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different." Id.

In assessing a claim of ineffectiveness, when it is clear that appellant

has failed to meet the prejudice prong, the court may dispose of the claim

on that basis alone, without a determination of whether the first two prongs

have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995). Counsel will not be deemed ineffective if any reasonable basis exists

for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.

1994). Even if counsel had no reasonable basis for the course of conduct

pursued, however, an appellant is not entitled to relief if he fails to

demonstrate the requisite prejudice which is necessary under Pennsylvania's

ineffectiveness standard. Douglas, 645 A.2d at 232. Counsel cannot be

deemed ineffective for failing to pursue a meritless claim. Commonwealth

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied,

852 A.2d 311 (Pa. 2004).

Moreover, trial counsel's strategic decisions cannot be the subject of a

finding of ineffectiveness if the decision to follow a particular course of action

was reasonably based and was not the result of sloth or ignorance of

available alternatives. Commonwealth v. Collins, 545 A.2d 882, 886 (Pa.

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1988) (cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204

(Pa. 1997)). Counsel's approach must be "so unreasonable that no

competent lawyer would have chosen it." Commonwealth v. Ervin, 766

A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller,

431 A.2d 233, 234 (Pa. 1981). Our Supreme Court has defined

“reasonableness” as follows:

Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com.

ex rel. Washington v. Maroney, 235 A.2d 349, 352-53 (Pa. 1967)). See

also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining

that a defendant asserting ineffectiveness based upon trial strategy must

demonstrate that the “alternatives not chosen offered a potential for success

substantially greater than the tactics utilized”). A defendant is not entitled

to appellate relief simply because a chosen strategy is unsuccessful.

Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995).

In addressing Appellant’s claims of ineffectiveness raised in his

Pa.R.A.P. 1925(b) statement, the PCRA court relied upon its prior opinion

filed in response to Appellant’s direct appeal. After careful review, we

-6- J-S75042-14

conclude that the June 7, 2013 seventy-six page opinion previously filed by

the Honorable Angelo J. Foglietta cites at length to the testimony provided

during the pertinent evidentiary hearings, and discusses his assessment of

its credibility. Further, Judge Foglietta applies correctly the pertinent PCRA

standards, and thoroughly explains why, given his credibility determinations,

Appellant’s ineffectiveness claims lack merit. See Trial Court Opinion,

6/7/13. We therefore adopt Judge Foglietta’s June 7, 2013 opinion as our

own in disposing of the present appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/8/2014

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COURT OF COMMON PLEAS OF PIlILADELPHIA COUNTY FIRST JUDICIAL DISTIDCT OF PENNSYL VANIA

COMMONWEALTH OF l'A CP-SI-CR-0010394-2011

v. TRIAL DIVISION

RUSSELL CARPENTER CRIMINAL SECTION

SUPERIOR COURT NO.: 2685 EDA 20 12

OPINION OF TIlE TRIAL COURT.

This is defendant, Russell Carpenter's, appeal of this Court's ruling of September 5.

2012. The defendant timely filed a Notice of Appeal on Seplember 11, 2012.

TIlls case has a long and drawn out post-tri al history with several extensive hearings and

on·the-record arguments on the issue of original trial counsel's effectiveness. Every benefit of

the doubt and every Ilvailable remedy has been afforded to this defendanl in his requested pre-

sentencing and post-trial motions for relief. Despite the numerous oPPoI1unitics granted by this

Court to this defendant, the end result is that the finding of guilt would not have changed had the

testimony presented. to this Court in posHrial relief been presenled in the original trial of this

matter. Therefore, it is requested that the decisions and detenninations as to the defendant' S guilt

and his trial counsel's effective assistance be upheld on appeal.

Defendant was charged with firearms violations, 1"8 Pa.C.S . §6 105 (Possession of

Firearm Prohibited); 18 PaC.S. §6106 (Firearms Not to be Carried without a License); and, 18

Pa.C.S. §6 108 (Carry Firearms Public in Philadelphia County).

The defendant "''as represented by Jeffrey Azzarano, Esquire, at a nOD-jury tri al. It is the

representation provided by Mr. Azzarano that the defendant subsequently asserts was ineffective.

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,.

111ercafter, Frank M. Spina, Esquire and Jonathan Altschuler, Esquire, entered their

appearance and assumed the representation of the delendant in the sentencing. post-trial and,

now, in the appellate phases of this matter.

"lbe non-jury trial of this case began on February 29, 2012. It was completed a week later

on March 7, 2012, at which time the defendant was round guilty on the above charges. He was

subsequently sentenced on May 15,2012 to 3 to 6 years incarceration to be followed by 3 years

probation. He was also instructed to attend anger management/drug/alcohol programs and

undergo drug screenings while on probation. Sentencing was within both the sentencing

guidelines and the sentencing statute, as defendant was convicted of three (3) separate felonies

and sentenced on the lead charge of 18 Pa.C.S. §6105, with the other charges merging into it for

sentencing purposes. There are no appellate issues raised in regard to the sentence imposed.

A 1925(b} Order was issued on defendant on September 19,2012. On October 5, 2012.

the Defendant fi led his 1925(b} Statement in which he has raised the following issues:

I. Defendant's trial counsel waS ineffective for failing to call eyewitnesses whose existence he knew or should have known of, who were available to testify at trial, and whosc testimony at [he post sentence hearing was exculpatory, and hence, the failure to call them clearly prejudiced the Defendant in the verdict rendered.

2. Defendant's trial counsel was ineffective for failing to call an expert witness ill the field of firearms examination, where tho witness was available to testify at trial and whose testimony at the pOSt~sentence hearing 'was exculpatory. and hence, the failure to call the expert witness prejudiced the Defendant in the verdict rendered.

3. Where Defendant was charged with possessing a firearm. Defendant's trial counsel was ineffective for falling to cross-examine the Commonwealth's only witness rcgarcling the witness's prior sworn testimony wherein he testified that he was unsure that what he observed was a "real' gun.

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••

4, The evidence was insufficient as a maHer of law to support a conviction of the Defendant on the charges of Possession of a Firearm Prohibited, Firearms Not to be Carried without a License. and Carrying Fireanns on Public Streets in Philadelphia because the evidence did not establish beyond a reasonable doubt that the object observed was a "rcal" firearm_

Subsequent to the March 7. 2012 verdict, this Court heard extensive argument and post-

trial testimony from defcndant's original trial counsel, referring counscl, a firearms expert.

several alleged eyewitnesses, as well as the testimony of the defendant himself addressing the

above issues on appeaL This Court concluded that none of this testimony heard posHriaJ would

have changed the outcome of the initial trial, nor did it support any aspeet of the claims of

ineffective assistance of counsel by Mr. A.zzarano.

For the reasons set forth herein, it is respectfully requested that this Court's findings of

fact and conclusions of law in regard to its decisions on the defendant 's various post-trial

motions, to wit, the sufficiency of the evidence supporting the dcfcndant's conviction. and his

trial counsel's effectiveness, be affinned on appeal.

Despi(e all of the issues raised by defcndant's posHrialfsentencing counse l and all of

opportunities granted the defendant, in the end, the parties agreed thai this case simpJy came

down to a matter of credibility of all of the witnesses, including the credibility of the defendant's

initial trial counsel, Jeffcry Azzarano, Esquire, in regard to his trial strategy, and those who

testified on the defendant's behalf during the post-trial phase.

This Court deternlined that the prosecution's witness at the original trial was more

credible than those alleged eyewitnesses presented by the defemic. as explained herein, and the

outcome of the February 29, 20121March7, 2012 trial would not have been different if all of

these witnesses had testified at that time. This Coun simply did not believe the testimony of

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".

certain of defendant's witnesses nor did it lind certain witnesses' testimony relevant to the legal

issues at hand.

Even though this case boiled down to a matter of credibility, since the Defendant has

raised claims of ineffective assistance of counsel, as a threshold matter, it must be acknowledged

that such claims arc normaHy withheld until collateral review proceedings. Commollwealth v.

Grallt, 572 Pa. 48, 813 A.2d 726, 738 CPa. 2002), As recognized in CommolJwealth v. Bomar,

573 Pa. 426, 826 A.2d 83 1, 853-54 (Pa. 2003). ineffective assistance claims are, in ,certain

circumstances, cognizable within the chain oflhc direct challenge to the verdict. Commonwealth

v. Chmiel, 585 Pa. 547,613,889 A.2d 501 (Pa. 2005) (explaining Bomar to hold that claims of

counsel ineITectiveness reviewed in post-sentence proceedings were properly raised, preserved,

and addressed in trial court).

Here the matters complained of on appeal were fully tried over numerous post-sentence

hearings, the issues wcre extensively briefed and vigorously and zealously argued by successor

defense counsel wi thin the chain of the direct challenge to the verdict. The issue of Mr.

Ai'.zarano's effective assistance of counsel was ripe for determination in these collateral review

proceedings as to whether there was "merit to Defendant's underlying claim," whether trial

counsel had. a "reasonable basis for his course of conduct," and whether "tllcre is a reasonable

probability that but for the act or omission in question, the outcome of the proceeding would

have been different." TrI.

In order to be eligible for relief under the peRA, an appellant must prove by a

preponderance oftlle evidence that the conviction or sentence he is collaterally attacking resulted

from one of seven specifically enumerated circumstances set fonh in 42 Pa,C.s. § 9543. To

establish a claim of ineffective assistance of counsel under §9543(a)(2) of the PCRA, a

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defendant must show that: (1) the claim is of arguable merit; (2) counsel had no reasonable

strategic basis for his Of her action Of inaction; and (3) but for the errors and omissions of

counsel, there is a reasonable probability that the outcome of the proceedings would have been

different. Commollwealth v. lamb(,1/, 555 Pa. 299, 724 A.2d 326, 333 (Pa. 1999).

This Court has provided tllis defendant with every opportunity to show that the outcome

of the trial may have been different had this course of conduct been employed by original trial

counselor had the witnesses provided testimony in his defense. Despite the degree of post~lrial

latitude granted to this defendant in the (our (4) extensive post-trial hearings, the defendant did

not meet his burden in proving trial counsel was ineffective by a preponderance of the evidence.

In reviewing all of the evidence, this Court concluded that I ) there was no merit to this

defendant's claims; 2) that original trial counsel, Mr. Azzarano, had a reasonable basis for the

course of conduct employed at trial; and, 3) the outcome of the proceedings would not have been

different had these witnesses testified. Under a totaHty of the circumstances analysis, this Court

re-considered all of the evidence and weighed it accordingly in rendering its post-trial decision

that this defendant was not entitled to the requested post-trial relief.

The substance of each hearing is addressed separately as follows:

THE FEBRUARY 29, 2012 TRIAL

Initially, on February 29, 2012, the Conunonwealth brought its case against the defendant

with Jeffrey Azzarano, Esquire, as hi s trial eounseL The Commonwealth was represented by

ADA Gauri Gopa!.

Prior to the taking of testimony in this matter, this Court perfonned a colloquy of the

defendant in regard to his decision to waive his right to a jury trial. Upon the conclus ion of the

colloquy, this Court was satisfied thatlhe defendant had voluntarily, knowingly and intelligently

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waived said right. (K,T., 02-29-12, P. 4, L. 13 to P. 9, 1.. 15). The defendant has not raised the

jury trial waiver as an issue on appeal.

TIle Commonwealth presented the testimony of Philadelphia Police Officer Justin

O'Brien, badge no. 1981. who was assigned to the 35'" Police District on the day in question .

Officer O'Brien was the only witness to testify at trial. The Commonwealth's exhibits, described

below, were admitted into evidence via stipulation and/or without objection.

Officer O'Brien testified that on August 18th, 2011, at approximately 7:15 p.m., his tour

of duty as a Philadelphia police officer took him to 1700 Cheltcn Avenue in the City and County

of Philadelphia. It was there that he and his partner came into contact with the defendant, Russell

Carpenter. (NT., 02-29-12, P. II, L. 5 to 11). Officer O'Brien was the passenger in full police

uniform in a marked police car. I-lis partner, Officer MeCormell, badge no. 9751, was the driver.

(N.T., 02-29-12, P. 11, L. 22 to 25).

These officers were travelling westbound on the 1700 block of ehelten Avenue and made

a right-hand turn onto northbound 17th Street As they made the right-hand lum their vehicle had

to swerve out of Lhc way of a black Ford Taurus which was illegally double parked in their lane h of travcl on I i Street. The officers passed this vehicle and then made a U-turn, coming back

southbound towards the vehicle. They activated the lights and sirens and parked in front of that

vehicle in which the defendant was a passenger. (N.T., 02-29-12, P. 12, L. 2 to 10).

Officer O'Brien testified that:

[14] We immediately exited our vehicle. [15] Immediately we were at a tactical disadvantage [16] approaching the vehicle from the front. I [17] immediately notified my partner that the defendant [18J wh ich [sic/was seated in the passenger seat was malting (19] furtive movements toward s the seat area. 120] We ordered the defen dant several [211 times to show his hands, which he wou ld not. I

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.'

[22] then drew my service weapon, ordered him to show (231 his hands, and he did not again. [24] At this time, the black Ford Taurus [25] put it in revcrse and fled from us in reverse at a

[21 high rate of speed. We immediately notified rad io (3] that we had a car pursuit and a location and where [4] it was going. We got back in our cac. At this [5] time it was reversing down the 1700 block of [61 Chelten which it was reversing eastbound. [7] The defendant who was seated in the [8] pa..senger seat jumped out of the car which was [9] still moving. J immediately exited my police ear {I01 in foot pursuit with the male.

(NT, 02-29-12, p_ 12, L_ 14 to P_ 13, L. 10)_ (Emphasis added.)

As he chased the dcfendant, Officcr O'Brien testified that:

lll ] At this time the male, with his right [12] hand was running eastbound on Chelten, threw over [13J the fence in the grass one orange pill bottle [141 containing an unknown substance at thi s time. [15] He than [sic] ran back westbound with me in [16] foot pursui t the whole time never losing sight of i17] him. I observed the male from about five to ten [181 feet away drop a black gun and numerous USc. [191 Again, I immediately notified pol ice [20] radio that he had dropped it at the eurb of a red [21] Volvo and the sidewalk. There was "pproximately 20 (22) to 3() people around it. I go there and secure the [23J weapon_ l24] Approximately 40 yards after that 1 [25] tackled the defendant, handcuffed him, again, went

[2] over police radio and told them to secure the area [3] of what he hadju>1 dropped. [4J J retu rned to the area. At this time IS) approximately 5 to 10 people were there and nothing [6J was able to be recovered.

(N_T_, 02-29-12, P_ 13, L_ 11 to 1'. 14, L. 6). (Emphasis added.)

Offieer O'Bricn described this incident as a short foot pursuit of approximately GO yards

lotal and specifically described the fireann as "a nonnal size black gun, six, seven inches, a

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semi-automatic gun." (N.T., 02-29-12, P. IS, L. 11 to 23). The defendant also dropped a large

amount of money with the gun near a red Volvo and the curb. (K T., 02-29-12, P. 16. L. 10- 11).

The 20-30 people in the area were approximately 5 feet from where the defendant

dropped the gun and the money. (N.T., 02-29- 12, P. 17, L. 4 to 22). When Officer O'Brien

returned within 2 minu tes to where the gun and money were dropped, there were only 5-1 0

people there. (N.T., 02-29- 12, P. 18, L. 5to 14).

In describing his experience with identifying a firearm, Officer O'Brien testified:

l21Q Officer, how long were you able to see the [31 gun? [4]A Mere seconds. He bladed himself. I don't know rS] ifhc had it in his hand, his pockets, his waist hand (sic]. L6] He just dropped it and kept running. 1 kept running [7J after him. [8]Q How long have you been a Philadelphia police [9J officer? [l O]A Going on four years. I11JQ And how mnny VUFA arrests have you made'! 1121A 50. (13JQ And how D1any times ha\.'c you rccoverell gun s in r14] the 50 arrests? 1151A 48. [16JQ SO when yo u saw him drop the gun, how long did 1171 it take you to recognize what it wa s? 1181A Imm ediately. [19]Q And how dill you do that? [201A I'm very familillr with a gu n, Your Honor. I [21] carry one evcry da)'. We take 80 hours of training al [22] the Po lice Academy and we have to certify every year.

(N.T., 02-29-12, P. 20, L. 2 to 22). (Emphasis added.)

On cross-examination, Officer O'Brien was questioned on the arrest memo he prepared

(which had been marked by the Commonwealth as C-I and then by the defense as 0-1) as

foHows:

(8JQ Officer O'Brien, can you tell me anywhere in [91 that arrest memo where it talks about he was bent over

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[10] or his hands were at his feet when you first [11] encountered him and you guys parked nose to nose or [12] five feet away, can you tell where that's reflected in [13] this memo? [14JA It doesn't say. [15]Q Can you tell me in that memo where it says that [J61 you had to draw your service revolver with regard to [17] this case? [1S]A It doesn't say that, Your Honor. 1typically [19J would-- [20]Q Just hold on. Let me ask the question. It's [21] not in the memo, correct? [22]A That's correct. [23]Q You wrote that memo the same day, correct? [24JA Yes. [25]Q You signed off on the memo the same day,

(2] correct? [3JA I did. [4]Q You actually reviewed it before you came to [5) court today and before you testified, correct? [6JA Yes, sir. [7]Q You didn't ask the district attorney that-- [8] you didn't tell the district attorney that you needed [9] to make a correction or anything like that, is that a [IOJ fair statement? tll]A That's a fair statcment. (12]Q Could you tell me in this arrest memo where it [13J says the car drove in reverse at approximately 25 miles [14J an hour while you were in pursuit of it. Does it say [ 15] that in the memo? [16JA Itsays the vehicle fled. (17JQ Docs it say the vehicle fled in reverse? [18] That's what I'm asking you about. [J9]A No. It doesn't say that. [20]Q SO the four or five things I JUSt mentioned [21] thatyoujusl testified to Judge foglietta today, [22] they're not in this memo, correct? [23 JA Two things. He fled from us, I would consider [24J that. [25]Q That's in there. How about did the car flee in

[2] reverse, is [bat in there? [3]A Not in reverse. [4]Q The furtive movement, is that in there? [SJA No, sir.

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[6]Q You drawing your service revolver, is that in [7] there? [8]A No, sir. [9]Q You telling him or giving him verbal commands [10] to show his hands, that's not in there either, right? [II JA No, sir. [12]Q Okay. That's [our things, correct, did 1 count [131 right? [14JA You did, sir.

(N.T., 02-29-12, P. 24, L. 8 to P. 26, L. 14).

When questioned about his returning to the location of where the gun and money were

dropped, Officer O'Brien stated:

[ l4JQ Did you get the names of1h05e people that were (15] anttherc? (16]A Aclually, the one was, 11hink he said his (1 7J daughter and she said it was her dad and he dropped the [18J money by the car so the daughter would pick it. [l9JQ Wait, the daughter said all this? [20JI\ He said it? [21]Q When did he say this? [22]A I-I e stated that he dropped money by the red [23] Volvo so the daughll:T would pick it up.

(NT, 02-29-1 2, P. 31 , L. 14-23).

Defense counsel cross-examined further on the conlents of the arrest memo:

[8]Q That's not what I'm asking you. Did he say [9] anj1hing? Did hc say, I didn't drop the gun, I didn't [101 drop a pill bottle, did he say that to you? [II JA He just said I ran because I was scared and [l2] dropped the money by the red Volvo. [13]Q Did you asl{ him about the gWl? [14]A I asked him if he had a permit to carry. [15]Q Did you ask him if he dropped the gun? [16]A Yeah. 11 7JQ And he said no? [18]A Of course. [l 9]Q You didn't put that in the memo that he said he [20] didn't drop the gun. [21]A I know whall seen.

10 RR13 .-------- · .. -_.- " .-----_._.". . __ . .. __._ ,, ......... ,. ...- ". - .. - . .,--_.- ·, .~· · ~~ ··Circulated .'-- - .· c .. 11/13/2014 - ..-_ -, - __ · ··, _ 01:00 . ,... -----. -PM --- ...__._-

, ,

(NT" 02-29-1 2, p, 32, L 8-21).

[8]Q In the memo it says, and you correct me if JIm [9] reading wrong, Quote, He through [sic] USC near a red Volvo [1 0] because the O\vner was his daughter and knew his [ llJ daughter would pick it up. That's the quote and that's (1 2] the quote you signed off on in the arrest memo, right? [ 13]A Yes,

(N,T" 02-29-12, p, 33, L 8-13)

[23]Q Did you ask him about the gun? [241A I asked him ifhe had a license to carry. [15]Q Did you p ut thaLin the memo?

[2]A No, I didn't put that in the memo. [3]Q But he also made a statement to you that he [4] didn't throw a gun, correct? [5]A Hc said, no. [6]Q And you didn't put that in the memo, correct? [7]A Correct.

(N,T., 02-29-12, P. 33 , L 23 to P. 34, L. 7)

Upon the conclusion of Officer O'Brien' s testimony, the Commonwealth moved inlO

evidence the following exhibits by stipu lation with defenda nt 's cOWlsel:

C-J- the Arrest Memo;

C-2- the 75-48 report prepared by Officer McConnel l;

C-3- the vehicle or pedestrian investigation report prepared by Officer McConnell;

C-4 - Certificate ofNo n -Liecn~ure , showing the defendant did not have a valid license to carry a firearm in the City and County of Philadelphia; and,

C-5 - the Quarter Sessions fi le for CP-SJ -CR- 130 1134-2006 indicating that the defendant has a past conviction making him ineligible to carry a firearm in the City and County of Philadelphia.

(N.T " 02-29-12, 1'. 34, L. 15 to P. 36, L. 8)

I1

RR14 ••• _ _ •• ' _ " ••• • .•• . _ •• _ _ _ 0 •• • _ - Circulated 11/13/2014 01:00 PM

, .

With these submissions admitted into evidence, the Commonwealth res ted . Defendant's

counsel then made a Motion fOT Judgment of Acquittal based upon the premise that the

Commonwealth is required to show 'operabi lity' as an essential element of the fueann charge.

(N.T., 02-29-1 2. P. 36, L. 19-2l.)

It should be noted that the Notcs of Testimony contain a typographical error, as the Notes

leflect that Mr. Av.arano staled in argument that he "d id not come prepared to /wm/le the case,"

(N.T., 02-29-12, r. 38, L. 25.), however, this Court recalls thai he had stated that he did not come prepared to !tam! ill the case, the conclusion of which is further supported by the argument that

continued thereaner. See N.T., 02-29-12, P. 38, L. 23 to P. 39, L. 13. At a subsequent hearing,

this Court did place its understanding of this comment on the record. See N.T., 05 ·15·2012, P.

108, L. 20 to P. 109, L. 6. Further, as can he gleaned from the portions of cross·examination set

forth above, Mr. A7.7..arano clearly came prepared to handle this case on February 29, 2012 .

Since Mr. Azzarano stared that he had case law to support his position in regard to the

necessity of the Commonwealth to prove an "operability" requirement, this Court, in the interest

of justice, adjourned the matter at that point and provided Mr. Azzarano with lhe opportunity to

bring the ense he was relying upon in support of his Motion fo r Judgment of Acquittal to this

Court's attention. The case was continued to March 7, 20 12.

THE MARCH 7, 2012 HEARING

Argument on the 'operability' issue which was the basis for the defendant's Motion for

Judgment of Acquittal reswned on March 7, 2012. Prior to the start of the proceedings, Mr.

A7.zarano, in an off the record disell..;;s ion, conceded that he had based his argument on the

premise set forth in CommOllwealth v. LaY/Oil, 452 Pa. 495, 307 A.2d 843, 1973 Pa. LEXIS 469

RR15 -....... -.~- . " .....:.........-.: ----"-'- -----.,... -.-- ..-. Circulated 11/13/2014 01:00 PM

.. (1973), but failed to recognize lhat the 'operability' requirement set forth in LaytOil had been

superseded by statute, as confinncd in Cow11loll)veuillt v. T!tomas, 2009 PA Super 245. 988

A.2d 669, 2009 Pa. Super. LEXIS 4967 (Pa. Super. Ct. 2009) and Commollwealt!t v. ZorlllulIL ,

611 Pa.22,23AJd519,2011 Pa.LEXIS 1617(2011).

lv1r. Azzarano, therefore, withdrew this position on this issue. With that, this Court denied

the defendant's i\'fotion for Judgment of Acquittal. At that point, Mr. Azzarano !':taled "Jud ge, I'm

not planning on calling any witnesses. Mr. Carpenter is not going to testify in this case. With

those provisors [sic} on the record, I would rcst." (N.T., 03·07-12, P. 6, L. 2-4).

Argumcnt was then heard from Mr. AzzarcUlO and from the Commonwealth. Although

Me Azzarano's closing argumenl was compelling, thorough and well expressed, it was not

convincing, as the evidence presented by the Commonwealth was deemed credible and

sufficiently met the elements of the crimes charged in order for the Commonwealth to meet its

burden of proof.

Based upon the credible testimony of Officer O'Brien, the defendant was found guilty of

possession of a fircann (§610S); firearms not to be carried without a license C§6106), and

carrying a fireaml. in public in Philadelphia. (§6108). Sentencing was deferred pending

completion of a pre-sentence report.

The Commonwealth also requested that the defendant's bail be revoked at that time. Said

request was denied by this Court. On March 9, 20 12, the Commonwealth filed a Motion for

Reconsideralion of lhis Court 's decision not to revoke bail. On April 4, 2012, this Court heard

argwnent on the Motion and ordered that bail be continucd as previously set. At this hearing, the

defendant was represented by new counsel, Frailk M. Spina, Ill, Esquire.

13 RR16 Circulated 11/13/2014 01:00 PM

·. A sentencing hearing was scheduled for April 24, 2012, however, in the interim, on April

19, 2012, Mr. Spina presented an oral Motion for Extraordinary Relief to this Court, argument

for which was scheduled for May 15,2012. Jo nathan Altschuler, Esquire, appeared at lhat time

on defendant's behalf. The sentencing aspect of the hearing was continued ba:-;ed upon the

pending Motion by defendant, as well as the fact that this COLIrt had not been provided with the

pre~sentcnce report for its consideration.

TI-fE MAY 15, 2012 HEARING

On May 15. 2012, this Courl heard argument on the defendant's Motion ' for

Extraordinary Relief pursuant to Pa.R.Crim.P 704(b). This Motion was premised upon Mr.

Auarano's failure to call witnesses in the defense p0l1ion of the case at the trial of February 29,

2012 .. i.e., his ineffective assistance, and also upon the sufficiency of the evidence presented by

the Commonwealth .

Pa.R.Crim.P 704(b) states:

Oral Motion for Extraordinary Relief.

(1) Under extraordinary circwnslances, when the interests of j ustice require, the trial judge may, before sentencing, hear an oral motion in arrest of j udgment, for a j udgment of acquittal, or for a new trial.

(2) The ju dge shall decide a motion for extraordinary relief before imposing sentence, and shall not delay the sentencing proceeding in order to decide it.

(3) A motion for extraordinary relief shall have no effect on the preservation or waiver of issues for post-sentence consideration or appeal.

TIlis Court granted the defendant's 704(b) Motion in order to determine whether or not,

in the interest of justice, that a ncw trial shou ld be granted. Defendant' s counsel proffered

14 RR17 ..... _ _ ._ _ _._ _ • _ _._ _ _...•_. --'-_'"'- _ __ ___._ .. ___ • _ _ .•. _ . _. _~ ,_" ._ _ .. ____ ._'- ,_.. -'_'-._, Circulated c . ~_.· ____ .. ----...._ 11/13/2014 ~ 01:00 .• "'_ PM .

evidence that there were "several witnesses", the people that were in the area where the

defendant dropped the gun and money, who would have testified at trial and who would have

stated that events did not occur as testified to by Offieer O'Brien. Counsel also argued that that

the defendant also would have testified at the trial in his defense and, further, that Mr. Azzarano

did nothing to prepare the case for trial, did no investigation, failed to contact witnesses and the

like. (N.Y., 05-15-12, P. 13, L. 25 to P. 2 1, L. 8).

Despite counsel's argument that there were "at least 6 and maybe 12 witnesses" who

would have testified for the defendant (N.T., 05- 15-12, P. 14, L. 6-10), at this hearing, he had

only three (3) present that day, Derrick Carpenter and Carl Carpenter, the defendant's brothers,

and Shanita Carpenter, his daughter. (N.T., 05-15-12, P. 19, L. 15-17). Defendant's new counsel

had never previously identified any of these other alleged individual witnesses by name at any

point during the posHriaJ proceedings. nor did he offer any proof that any of these purponed 6 to

12 witnesses would have been available to testify at the February 29. 2012 tria l.

Defendant's cOllnsel also proferred the testimony of Police Officer Raymond Andrejczak,

an expert ballistician with the Philadelphia Police Department. Counsel contended that his

testimony would have consisted of:

[23 J ... specific l24] ex.amples of situations where Philadelphia police [251 officers b::lieve an item to be a firearm that they

[1] see, but then. in fact, is not a firearm. ActuaJly, f2J not a situ ation like this one where the officer says (3) as he's running, he sees an object thrown t o th e [4J eurb and he keeps running right past it, comes back [51 la ter . But b e wou ld have (old you a bout :Ictua l 161 situ ations where Philadelphia police officers 11} recover items, they look at it, th ey inspect H, [81 they property receip t if, th ey m ake su re its not [9J loaded. T hey d o everyth in g if its a gun, only to 1101 fin d out its actually not a gun . Its a replica gun.

15 RR1B Circulated 11/13/2014 01:00 PM

[1111ts a slarter pistol. Its some other type of non [ 12] firearm. That happens a ll - maybe all the ti me is [13] overstating it. But that happens not infrequently. [14] He would have given specific examplcs of that [ 15] happening.

(N.T ., 05-15- 12, P. 21, L. 19 10 P. 22, L. 15). [Emphasis added.]

Given the nature of the defendant's motion, this Court dctennined that testimony would

be taken in order to rule on these issues to assure that the defendant had been given a fa ir trial.

At this hearing, the first witness to testify was Mr. Az7...arano, defendant's trial counse l.

He was directl y examined by the Commonwealth's attorney. Mr. Azzarano stated that he had

been an attorney for over 15 years, a ll of it as a criminal attorney. (N.T., 05 15 12, P. 41, L. 3-7). M M

In regard to his representation of the defendant and trial preparation, he stated:

[20J ... Mr. Carpenter come to my office, I believe it [21 ] could have been three trial preps, but I'm going to [22J say two. Definitely trial prep and strategy [23] sessions. [24] Q. In the course of trial preps, how many, if [25] any, witnesses d id he proffer to you that you

1] investigated? [21 A. I'\one. There were n ever witnesses mentioned [3[ to me. [41 Q. Did you at any time say to him tha t you would [5] not need witness es beCOluse you r case is open and [61 shu!'! [7} A. Never. I would never say that to a client. 18] In fact, I would say the polar opposite. I would 19} never tell their case is open and shut. II 0] In fa ct, what Mr. Carpenter wanted was a [11] guarantee from me thut we would win the case. And I [12J unequivocally would not g uarantee him one lhing [ 131 other than that I would do my best for him. I would [ 14] never guarantee a cl ient a result on any level. And [1 5J that is what Mr. Carpenter wanted and that is what I (16) would not give him.

(N.T., OS-1 5 t2, P. 4 1, L. 20 to P. 42, L. 12). (Emphasis added.) M

16 RR19 Circulated 11/13/2014 01:00 PM

During cross-examination by Mr. Altschuler, Mr. Azzarano further testified that:

[7] A. J didn't hire an investigator. Mr. Carpenter (81 never provided me names ofwitncsscs potentially to (91 belp him during his tim e in my office. [101 Q. Your defense in this case was that the [II] Commonwealth never recovered a gun and therefore (1 2J simply could not prove operability? [1 3] A. No. [14] Q. That wasn't your defense? [IS] A. No. (161 Q. Allhe time o[lhis trial, it was your belief (17J that operabil ity was an essential element of the fI 81 case; correct? 119) A. That was part of my defense, yes. That [20) wasn't the sole defen se in the e:lse. [21] Q. Your defense was definitely not to call any [22] witnesses; correct? 123} A. My defense was not to corroborate anything 1241 that the police officer said.

(N.T., 05-15- 12, P. 48, L. 7-24). (Emphasis added.)

Mr. Azzarano continued:

[6] ... He never brought any witnesses to my office. 171 Never told me the names of any witnesses or anything (8) like th.t. [9] Q. Didn't you tell him, though, the reason why [101 you don't need witnesses because that's a defense on [111 the law. We don't nood the witnesses, it's It [12J defense on the law? (13) A. Absolutely not.

(N.T., 05- 15-12, P. 49, L. 6-13). (Emphasis added).

In regard to his reliance upon Layt Oil at trial, Mr. Azzarano stated:

[2] ... At that point I went back [3] and researched it and realized that the state of the [4] law has changed And I told Judge FOglietta that ' [5] researched it and I was wrong. Withdrew the motion [6J for judgment of acquittal at that point. [7J But that didn' t change the defense in the 18) case because the defense in tbe ease was a two prong (9) defense. Not only on the law, but also police

17 RR20 _ .. _ _ _ .•.• .. • . ,.••_ __ ... .. ." .• __ .:...•. __ . • . .. _"'_.. ~ _~ Circulated ___ ""' ___ .•....•: __ ..... _... ;... .·_'-.w ~ . ,........; ..11/13/2014 01:00._._ _ • ...:..•.••. _""'"'""-' PM.__

(10) officer credibili ty.

(N.T., 05-1 5-12, P. 50, L. 2- 10). (Emphasis added) .

Still undcr cross-examination by defendant's counsel, Me. Azzarano testified in a

consistent manner about his conversations with thc defendant during the trial preparation

sessio ns, stating:

(3) A. We talked about him tes tifying in my offi ce. (4] And we discussed the upside lmd the many downsides [5] of him testifying, yes. [6] Q. You don't remember telling him that there is [71 no reason or there's no need for you to bring in any [8J wimcsst!s to court? You don't remember telling bim [9) tbat? [10] A. I would never have told him that. [IIJ Q. Your defense in this case was in part based [12] on the law of operability and in part based on [13) credibil ity? [14] A. Yes. (15] Q. The pan . .vith operability you now concede is [16] actually was no defense at all? (17] A. What I would tell you is that at the point in f18] time I made it, it was wrong and I corrected my [191 mistake if that's what you're asking.

(N.T., 05 -1 5-1 2, P. 57, L. 3-19). (Emphasis added).

In furthe r support of hi s trial strategy regarding the fi rearm that was not recovered, Mr.

Azzarano testified that:

[1 71 A. If a police officer wasn' t able to describe a [1 8) gun to th e Court's satisfaction Sitting as a waiver, [19J thell it would still be a viable defense. Meaning, [20J if a police officer would get up there and just say [2 J] 1 thought it was a gun and not describe it, color, [22] size. sbape, the way it sounded wben it hit the [23] ground. the way it sounded when it hit a roof, [241 something along those lines, it would still be a (25] valid defense. Because then the Court would have a

fl] problem or should have a problem, and 1 would be [2] arguing to this Court that the Court sbould have a

1S RR21 " - . --~" '-" •. ',... ..•.. ..... - ... , __ " ___..-'-_....,._.!.. _......,,__.. __ . _...._.. .__""'-.... . _~ _', ~ '_." _ _..' ___"_--..Circulated _ ......... _ _..•_11/13/2014 •. , __.. __ ....... 01:00 .... _....PM _... ,_ 0.

[3] problem finding that this particular object was, in [4] fact, a firearm.

(N,T" 05-15-12, p, 58, L, 17 to p" 59, L, 9HEmphasis added ,)

It should be noted that Office r O' Brien had identified the fi reann with particularity to this

Court's satisfaction as "a nornlaJ size black gun, six, seven inches, a sem i-automatic gun:' See

NT ,02-29-12, P, 15,L, I I to 23,

In regard to the defense cilliing the other officers who were involved in this incident of

August 18, 20 11 to testi fy at trial, Mr. Av...arano stated:

[13] A. I would always consider calling wi tnesses [14] that would not corroborate what an ini tial officer [1 5] says that would not back up what the initial officer [l 6] said , [1 7] In this case I didn't believe it was [1 8] necessary to do that. Strategy decision. f19J Mr. Ca rpenter agreed with it.

(N,T" 05-15-12, p" 63, L 13-19), (Emphasis added)"

11) Q ... W erc you only 121 considering the witnesses pr esented by the DA? [31 A, Yes, [41 Because ther e was no witn esses pr esent Isic] to me [5} by the defense. Those witn esses were never [6) mentioned to me. So J would on ly be abl e to [7] consider not only the one witness that testified, [8] but the other officers who were listed in the [9] discovery in the case. The namcs specifically I [10] don't remember. There were no witnesses p resented IllJ to me by Mr. CaJ'penter.

(N,T" 05-15- 12, p, 65, L. I- I I )" (Emphasis added),

Mr. Altschuler repeatedly cross-examined Mr. Azzruano on this issue in regard to his

failure to call defense witnesses, but never cross~examj ned him by identifying any ind ividual

witness by thei r specific name or with other information as to their identity or version of events.

See Commonwealtlt v. Huftter, 554 A.2d 550, 557-558 (Pa. Super. 1989) (setting forlh

19 RR22 Circulated 11/13/2014 01:00 PM

requirement that a defendant, who claims that trial counsel was ineffective [or not calling

witnesses, provide "the names and whereabouts o[thcse witnesses").

It was not until several hearings later than these alleged eyewitnesses were eventually

identified by Mr. Altschuler.

In regard to Mr. Azzarano not calling any officers involved in the arrest as a trial witness,

Mr. Altschuler asked:

[25J Q. Would there have been a need to then discuss

[1] with the officer what the testi mony would be? l2] A. Not necessarily. I probably would not want Pl to key an officer in by using him to -- if! was not [4] using him, obviously, to support the Commonwealth, [5J I'd be using him for another purpose to bo lster our [6] case, I wouldn't want to tip another officer off as [7] to where r may be goi ng. So as strategy. if J [8] thought that that could happen, 1 would never speak [9] to an officer and tip my hand.

(N.T., 05-1 5- 12, P. 65, L. 25 to p, 66, L. 9).

This line of question ing clearly addresses counsel's reasonable trial strategy and not his

ineffective assistance. Me Azzarano had a legitimate, reasonab le basis for employi ng this tri al

~1 rategy given the nature of the charges, the fact that a fireann was nat recovered, and his years

of experience as a crim inal attorney. Cross-examination did not sway this Court to conclude that

the strategy employed in the representation of the defendant did not have a reasonable basis.

In regard to testimony as to Mr. Au.arano's fai lure to supply this Court with the LaytOil

case at the trial on February 29, 20 12, the following occurred:

[3J So when you said you were not prepared to [4] handle the case, what you're now saying is what you [5] aCUlaHy said was "I'm not prepared to hand up a [61 case. n [7] A. That's exactly what you j ust read, yes. [8] Q. You knew you were coming to trial and you had

20 RR23 _.- .. '_..--- ._--'---"--'--- ..., - ..'_.. _._._>.. -'.- . ~ ....", .... ---" -'--"Circulated '--"'-'-'-"11/13/2014 '-" -.......""--_01:00 .. . :. . . . _,PM .......... -

,,

[9] cases in mind that you intended to rely upon for [10] your defense; correct? [111 A. Say that again. [12] Q. I'll break it down. [13] You knew on this day, February 29, that [14] Mr. Carpenter was coming to court, you were his [15] lawyer for trial? [16] A. Yes. [17J Q. You knew that a defense that you intended to lI8] bring -- actually, the defense you argued at the [19] motion for judgmenl of acquittal was focused on the [20] issue of operability? [21] A. Right. I can't argue anything else at a [22] motion for judgment of acquittal. IL's not a [23] credibility termination. [24] Q. SO you came to court knowing you were going [25] to have to arglle operability?

[1] A. One of things, yes. [2] Q. Did YOll comc to court with case law to [3] support your argument? [4] A. I didn't bring a case, no. [51 Q. Did you come to coul1 with any statutory [6] authority to support your argument? [7] A. Did I present to the Court, no. (8) Q. I know you didn't present anything to the [9] Court. But did you even come prepared with anything [101 in your file , any law or anything that would support [11] the argument you were making to the Court? 112] A. As I said there, I was not prepared to hand l13] up a case to the Court, no. [14] Q. Did YOli consider yourself prepared to go to [IS] trial when you camc armed with 110 case law to [16] support your defense? [17] A. I considered myself prepared to go to trial, [18] yes. [191 Q. Evcn though you had no case law to support [201 your defense? [21] A. A lot of times instead of what YOll do, there [22] is no case law-

(N.T., 05-15-12, P. 73, L. 3 tOP. 74, L. 22).

It should be noted that the defendant suffered no prejudice as to Mr. Azzarano's failure to

have a copy of the case with him on February 29, 2012, nor did Mr. Azzarano's reliance on

RR2' Circulated 11/13/2014 01:00 PM

LaytOll result in any prejudice, as this Court adjourned the trial at that time and granted him the

opportunity to bring the case that he was relying upon to the next Court listing.

The fact that LaytOil was lhe case that Mr. Azzarano had relied upon and subsequently

became aware after the fnct that it had been overturned by statute in regard to the issue of

operability, is irrelevant. In the instant case. the gun was not recovered and the fact-finder can

presume it to be a firearm under the law. See Commo11lvctlltIJ v. LaytOil . 452 Ps. 495. 307 A.2d

843 (1973). "A reasonable facl finder may, of course, infer operability from an object which

looks like, fee ls like, sounds like ill: is like, a firearm. Such an inference would be reasonable

without direct proof of operability. The inference of operability, however, cannot reasonably be

made where all the parties agree that the object was not operable." Supra at 498, 307 A.2d at

844). It should also be pointed out that in LaytOil , the parties stipulated that the gun was

inoperable.

In Commollwealth v. Yap/c, 238 Pa.Super. 336, 357 A.2d 617 (1976), it was determined

that the complaina~t's testimony that the defendant possessed a gun which was not introduced

into evidence allo\.ved a reasonable inference of operabililY. See also Com mOl/wealth v.

Ho/guin, 254 Pa.Super. 295, 385 A.2d 1346 (1978) . Under the totality of the circumstances, this

Court was satisfied that the defendant bad discarded a "real" fireann while fleeing from police.

As for Mr. !\.7..zarano·s trial stmtegy in th is case, his testimony clearly showed it wao;

reasonable in light of the facts of this case and the defendant's past history. Mr. Azzarano

testified as follows:

(16]IlY MR. ALTSCHULER: [17J Q. Did yo u see in the discovery where it (181 referenced Mr. Carpenter's daughter? [ 19] A. Yes. (20] Q. Did you ask Mr. Carpenter if you could (21) interview his daughter?

22 RR25 --.- " , . ~, -."_._- ...•Circulated -'--•...~... 11/13/2014 01:00 PM "-,-.~ ..---." --;-. '

[22] A. Did [ ask him? [23] Q. Yes. [24] A. I don't recall specifically whether [ asked [25] him.

[1] MR. ALTSCHULER: TIJat's all [have. [2]- - - [3] REDIRECT [4]- - - [5] BY MR. RITrERMAN: [6J Q. You were just asked about interviewing his [7] daughter. [8] \\Thy did you not interview the dcfendunt's [9] daughter? [10] A. I can't specifically recall what the [111 discussion was. My recollection, I haven't looked [12] at discovery in a while. my recollection is that the [13] police officer's testimony was that the objects were [14] thrown in an area that they determined to be the [IS] daughter's car. [161 Our defense was not focused on corroborating [I?} allylflillg that the police officer said in the casco [18] Meaning, I wasn't going to call the daughter nor any (19) other potential witnesses for the sake of argument (201 to corroborate what a police officel' is going to Slly (211 that there was no physical evidence recovered. No, 122) I wasn't going to ClU a witn ess that would [231 undermine our defense and corrobllrate the [241 Commonwealth's prosecution. (25] Q. What aspect of the prosecution would you

[1] corroborate? [2} A. Assuming for the sake of argument, number (31 onc, 1 didn't speak to her. But I \o\'8sn'1 going to (4J corroborate what the police officer was saying. [5] That wasn't our defense. They were the disc ussions 161 we had, not to corroborute what the police officer's (7 ) allegations were. [8J Q. Which specific allegation arc you referring [9) to? [10] A. Tbat there were people out there, there were 1111 others out there. Why tbe gun disappeared. The [12] officer gave a reason able c~planation as to why the [13] gun may not have been there. However,. didn' t want [14j to corroborate that. That's not what our orrense 1151 defense was. 1 don't even want to call a witness

23 RR26 .....:. .____ .. .. _ ., __ ...... •. _., ~ ~ .":' ~._ .. _ '_-'-_'_ _ ~ __ ._ ._ .. _._: ... ~ _. _.'-_~ Circulated __ .--:"""-",-_ _ __ 11/13/2014 . """'.___ 01:00 • ___ .O.."_ PM ........ ___ -'~.

I16] and say oh yeah, by the way, the police officer W:"I S {17] right, there wus 20 or 30 people out there. l18) Strategy decision.

(N.T., 05-15-12, P. 80, L. 16 to P. 82, L. 18). [Emphasis added.]

Given Officer O'Brien's credible testimony, this was a reasonable strategy to have been

exercised at the trial and clearly was not ineffective assistance. Further, Mr. A7zarano's concerns

of corroboration of testimony were legitimate, as the witnesses sl1b:.:;cquently produced by

defendant's post-trial counsel, Mr. Ahschuler, did, in fact, corroborate much of Officer

O'Brien's original lestimony, as detailed hereinafter.

In regard to the defendant testifying on his behalf at trial, again, Mr. Azzarano's

testimony clearly indicated that he weighed the pros and the cons of the defendant's testimony.

Based upon Mr. Azzarano's experience, knowledge, personal knowledge and observations of the

defendant, it was a sound determination. especially in light of the defendant's past, including a

crimen falSi issue, that caused him concern.

Mr. Azzarnuo stated as follows:

(N.T., 05-15- 12, r. 83):

[10] Q. Counsel asked yOll about discussions about hi s [11 J tcstifying, and that you presented advantages and [1 2] disadvantages. ll3 J What advantages and di sadvantages did you [14J present? lI S] A. Di sadvantages were that Mr. Carpenter, ifhc [I G] got up on the stand, based on my cxperiencc and [17] based on presenting him as a witness, would not be [18J found 10 be credible witness. [19] Q. What lead you to that conclusion? [20J A. Based on my discussions with him and based [21] upon what we talked about in my office. [22] Q. What was it specifically your discussiolls {23 J that lead you to believe that?

24 RR27 Circulated 11/13/2014 01:00 PM

·,

(NT., 05-15- 12, P. 84):

{8J A. When Mr. Carpenter would tell the story or a {9] story. he became very emotional in a progressive [10] way. I didn't think that was good for him to be [111 perceived that way nor as credible on the stand. [12] In addition [0 that, it was a 6105 charge. [131 Crimen fnlsi would have come in if he were to take 1141 th e stand . [lSI His prior record could impeach him. [16) So we made a strategy decision 1I0t only on 117) the way he would testity, bu t there WllS a decision [18) made that it would probably best strategy based on [19J all the facts in the case that he shouldn't tui(c the 1201 stand. (21J Q. 'W ho's ultimate decision was it? (22) A. Ultimately, it's always the client's decision (23J not to testify. [24] Q. SO Mr. Carpenter told you he did not want to [25] testify?

[Emphasis added.]

(N.T., 05-15-12, P. 85):

[I] A. He indicated to me that he didn't sec thc [2] reason to testify as well. [3 ] I can't keep him off the stand jf he insists [4] on taking the stand. It doesn't happen that way. I [5] can advise him and he can choose to follow that [6] advice or not follow that advice.lfhe chooses not [7] to fo llow that advice, hc gets up on the stand, He (8) chose to follow that advice,

On re-crass-examination, Mr. AZ7.arano testified as follows:

[14] Q. Prior to going to tria l, part of your thought [15] process was since the Commonwealth can't prove [16] operability in this case no rcason for Mr. Carpenter [ 17] to be on the witness stand because they can't make [18J out an essential element of their case, thal wa" [19] part of your thought process; correct?

25 RR28 __ .• _ _ _ •. __ •. _ •• _ J ••. _ _ ', __ ._ • ••..• ~ •. __ . • •• __ _ .~ _ _ .:..._"- .•• ___ . ~ __ . _ _ ;.. __ .,,_ ..:,,,.,., .. ~ ••. ..:•. ; ........ _ ••• •.. : .._ Circulated 11/13/2014 01:00 PM ... __ ~"," ..."", •. _• .'. ___.•.. - ' - _ . _ _ . • • • • __ .•• __.. .. _ ••

[20] A. I would have thought about that as well a'> a [21] lot of other aspects about him to testify versus nol [22J testify. [23] Q. r think you mentioned as part of your [24J strategy not to call any other witnesses. [25] Formally in that strategy,l think you also

[1] said you never actually spoke to any other potential [2] witnesses? [3) A. No other witnesses were told to me. No l4] witnesses were told to me by MI·, Carpenter, This is IS) the first] heard about witnesses, [6] Q. SO your testimo ny -- it's really kind of a [7] yes or no. You said that your st rategy was not to (8) caB other witnesses. But in reaching th:lt [9} strategy, you never interviewed any other witnesses? (101 A. There was nobody to interview.

(NT., 05-15-12, P. 89, L. 14 to P. 90, L. 10) [Emphasis added].

[2J FURTHER REDIRECT [3J - - - [4J BY MR. R1TTERMAN: [5] Q. Why did you not interview the daughter? [6J A. It was a complete strategy decision based on [7] my conversations with Mr. Carpenter. [8] Q. What, if any, agreement did you have on that? [9] A. Mr. Carpenter appeared to understand what I [10] was talking about. He appearcd to understand the [11] way the case should go at that point in time and [12] agrccd to it. Incentive to defense.

(N.T., 05-15-1 2, P. 91, L. 2 - 12)

Upon the conclusion of Mr. Azzarano's testimony, the defendant, RusselI Carpenter, took

the stand and testified as follows:

(N.T., 05-1 5- 12, P. 93):

[2J BY MR. ALTSCHULER: [3] Q. You heard Mr. Azzarano testify today about [4] his representation ofyoll? [5J A. Yes.

26 RR29 --- '- " '-'---" '" ,. __ ....__ .__ ._.•. '_ . ...._..... _.... _... ._._..'-'._---_ .. ....:_._ ....-'- . .:..._-,_._,-- .......... : : __Circulated "'-_. ..... .._---'.11/13/2014 _._- ._•...•... _--01:00 ... PM

[6] Q. How many times did you meet with Mr. Azzarano [7] in his office? [8] A. 1 believe it was twice. [9} Q. During those meetings, did you ever discuss [10] wi th Mr. Azzarano the fact that you knew of [1 1] eyewitncsss to this case? [12] A. Yes, sir. [131 Q. How many times in person did you tell [14] Mr. Azzarano that fact? [1 5] A.I believe it was twice in his office and once [161 before court.

(N.T., 05- 15-12, P. 94):

[7] Q. How many witnesscs did you tcll him y ou were 18] !!.!..!:!!!!: of? 19] A. I told him it happened in front of a 110] playground full of peoplc. And in front of the 111] playground there 's an apartmcnt building a nd I w as [1 21 nised in that neighborb ood. I told him ~ my exact (13J ver sion was I can fill this courtroom up with [141 witnesses, how many do you want? And he told me we [15] don't need that. (1 6] Q. Why did he tell you he didn't nt:t:d any (1 71 witnesses? [ 18] /\.. Mr. Azzarano j ust said it was an open and [19J shut gun, No gun, no case. (20] Q. How many times d id he say that to you, no L211 gun, no case? [22] A. J believe it was about two or three times. T (23] believe two or three times because we spoke in his (24J office twice. J believe once before court, it was [25] like a little prep. He didn't agree with that, with

(NT., 05-15-12, P. 95):

[1 ) me testifying or bringing my witnesses. [2} Q. He told you he didn't tbink your witnesses [3] should testify? (4] A. No. He told me exactly that. He said I [5J don't think they should testify. [6] Q. Because it was an open and shut case? [7] A. Because it's an open and shut case. l8] 1 specifically stated that it was in front of

27 RR3D Circulated 11/13/2014 01:00 PM

·. [9] a playground August 18, on a hot and sunny day when [10] I got off work. Its an apartment building, IOU-unit [11] apartment building right across the street where [12] everybody comes outside. I know I cou ld have gotten [131 witnesses.

[22] Did y ou have any speciJic people that you ha d [23J already identifi ed as witnesses that you knew to he [24] available? 1251 A. Yes .

(NT ., 05 - 15- 12, P. 96):

[11 Q. How many peopJe? [2] A. T en. About tCD to 20. {3] Q. Did you try to give that list to [4J Mr. Azzar:mo? [51 A. I suggested it. I suggested it, and he told [61 me thllt wasn' t a good strategy d ecision. [7 ) Q. Did you tell Mr. Azzarano that the police [8] reports were not true? [9J A. Yes, sir. [ 10] Q. Did you -- strike that. [1 11 Did Mr. Azzarano ever give yOll the [12] opport unity to when you were in eourt at trial to ( 13] testify and tell your version of events? [1 4] A. No. ( IS] Q. Between February 29 when Mr. Azzarano made (16) the arguments about operability. And March 7 when [1 7 ] your ea<;e continued, did Mr. Azzarano at that point [ 18] ever ask you about your w itnesses'? [19] A. No. [201 Q. Did you ever tell him about your witnesses [21 1 during that time? [221 A. Yes. [23J I kept stating that since the day that I mel [24J him through John Della Rocca who r also told about (25] the witnesses at the playground.

(N.T. , 05- 15-1 2, P. 97):

[1] Q. You also told Mr. Della Roeca about the [2] witnesses? [3] A. Yes, ...

RR31 .. ----~ ~--- - - .... ,...- ..-~- Circulated 11/13/2014 01:00 PM

Despite opportunity to do so, the defendant, again never mentions a single person by

name and simply, vaguely and not credibly re-iterated claims of numerous witnesses who he

believed he "could have gotten" to testify on his behalf.

This vagueness on the identity of lhe witnesses was compounded during cross-

examination of the defendant and it shed additional tight on exactly what he had told Mr.

Azzarano prior to the trial, which was essentially nothing of particular detail that would leave

one to question Mr. Azzarano's prcparednesl:i, trial strategy or effcctiveness in defending the

charges against the defendant.

(N.T., 05-15-12, P. 97):

(13) Q. You gave him specific names of witnesses? [14J A. No. [IS] I suggested it when we were meeting. [16] Mr. Azzarano was telling me on his strategy decision [17] that that wasn't a good strategy decision. (18] Q. Once he told you that. you never said the (19] names of witnesses? [20] A. r kept suggesting it every time we met. (2 J] Every single meeting that wc had, I kept suggesting (22] like Jeff, you don't think this is a good strategy (23] because it did happen in front of a playground full [24) of people. [25) Q. When you SDY you "suggested il", did you

(N.T., 05 -1 5-1 2, P. 98):

[1 1 suggest the name of a specific witness, wa s part of (2) your s uggestion you should call Mary? [3J A. No. [41 J just said Jeff, I ha ve tOO witnesses I can [5) bring. I thinl< that would be our best strategy. (6) Q. Is this a witness (hat you've spo),en to prior f71 to telling Jeff tbnt? [8J A. No. {9] Q. You just theoretically assume that out thcre [10] there was someone who saw this and \...·ould testify to r II] your version of events? [12] A. I was arrested on the case. And when I got

29 RRJ2 ... -.-----.--.----.- -- Circulated .•• _______ .___ ._"----'..:..... . •. '.'-,_",. ,' ..:.•.• _.~ \ .....:.....E.'.:,_-'-_,.. _. __ .. ..:: .,-'-' 11/13/2014 ••'-"'--'-____ ._, _,•.:;.'. _01:00 _-'-_PM .•:,. L._.

[13] out, I had a million people come up to me and say [14] they saw everything that happened. It was a hot [15] sunny day. everyone was oul.

(NT, OS- IS-12, P. 99):

[10] Q. How many people came up to you? [11 ] A. Whcn I walked back the neighborhood, I tried [121 to go around to sec who saw wbat happened. l knew [13] the fact -- I knew I didn't have a gun. When 1 came [14J to court, that's the way I wanted to prepare with [15] witnesses.

(N.T.,OS- IS- 12,P. IOO):

(4] Q. Did you tell Azzarnno you would not accept a [5] trial withoU1 those witnesses? [6] A. Once he gave me his version of the strategy, [7] it was like no gun, no case. 1 mean, that's what I [8] went with. [9] Q. SO Once he told you that, you accepted that? [lOJ A. Yes. [11) Q. But then you said on the next occasion you [I2J told him you wanted witnesses again, didn't you? [13J A. No. [1 4] I always brought up the fact where this [1 5] happened that -- 1 made that clear 10 him where it (16] happened, what the scene looked like. It was lot of [17] people outside. That's what I talked to him about. (J 8] Q. Let me ask the question again. [19] After the fi rst time you said 1 want [20] witnesses, he said we don't need the witnesses. You [21] met with him again and you again said to him I want [22] witnesses, didn't you? [23J A. Yes. t24] But he was very firm on his standing. He 125) said "Russ. listen, we don't" -- he didn't wnnt my

(NT., 05 - ];- 12, P. 10 1):

(I} witnesses to conflict what was goin g on in tbe (2) courtroom. And he didn't wo nt me to get up and [3) testify because of my prior history. r4} Q. After the police officer testified , you met

30 RRa3 _ .~ _ _ •• " _ ' ._ . A • •• _ ___ . _ • ••• _ _ , _ _ _ _ __ _ _ • __ . _ . _ . _ •• _ . _C .:___ .. ',", .~ • •• '_ .. _ .~ __ .:.. _ _ __ , . _. ,, ~ •. ,.. •. .-_ •.._ Circulated _ _ ._ _ _11/13/2014 .. _ _• _ __ , ._ 01:00 PM __ •_ _ •• • . __

[5] with Mr. Azurano and again said you wanted (6] witnesses; right? I7J A. No. [81 Q. Didn't you testify to that on direct? [9] A. Excuse me? [10J Q. Didn't you testif), on direct that in between [11] the -. don't look to your lawyer. In between tbe [12] witness testifying and tbe listing where the case [131 law was going to be argued, you once again asked for [14) witnesses, didn't you testify on direct that you [151 said that? [16] A. You said I asked my witnesses? (17) Q. You asked Mr. Azznrnno to call your [18J witnesses? [19] A. No. [20] Q. You were out on bail prior to uial? [21 ] A. Ye£;o [22] Q. Did you bring your daughter with you to your [23J lawyer's office? f24] A. No. I went down straight from work. [25J Q. llid you call your d aughter and tell her to

(N.T., 05-15-12, P. 102):

(1) meet you there? [2J A, No, [3] Q. Did you tell any of the so-called million [4] people to meet with your lawyer? [5] A. J had talked to them and they were prepared [6] to come. But since my lawyer suggested that we [7] don't proceed in that manner, I didn't proceed in [8] that manner. {9J Q. Did you bring them to court just to observe 110J the tri al'l 1111 A, No.

(N.T., 05-15-1 2, P. 102):

[3] Q. Did you tell him what those witnesses would [4] have said? IS] A. He never asked me. [6] Q. You said I have witnesses but you didn't give [7] their names or what they would have said? [8] A. As soon as I said we had witnesses. it was [9] "No, no, Russ, this is what we need to focus on."

31 RR34 •• ,.' • _ •• ~ ••.•.• _ • .•. _ ..... __ .i.. _ _ .•••• •_ •• _ _ _ . _ _ •_ _ ",-,.: _ _ ._. __ . __ ., •..: ... _ .. __• • _ _ ..... ... . '"'- ._'" _' _____ ._-= ._._--'_ Circulated .._............... 11/13/2014 01:00..:...._PM ... ... ~

..

[lO] So that's what we focused on.

Despite being: questioned on direct and cross-examination about the existence of

witnesses, neither the defendant, nor his post-trial counsel, ever provided the specific name of

even one witness until very late in the post-trial proceedings. Defendant even testified that he

never provided his former counsel with any specifics in regard to these wi tnesses. He went back

to the area to "try to find" witnesses. He fa iled to testify that he was successful in that pursuit.

This Jed this Court to reasonably conclude that there were no witnesses who could have

been specifically. or evcn generall y, identified by the defendant to Mr. Azzarano that would have

assisted in the defense of these charges. This Court did not believe the defendant's testimony in

this regard as it seemed rehearsed and was nol credible. If the defendant didn't know the identity

of the witnesses, it is reasonable and logical to conclude that his attomey could not have known

of their identity in order to perform pre-trial investigation. The defendant's positioll in this regard

is illogical.

Additional ly, the defendant's testimony regarding the assertions by Mr. Azzarano as to

the case being 'open and shut' were also nol credible and were not believed by this Court. This

defendant lacked any credibility in regard to his assertions of Mr. Azzarano's ineffectiveness.

Further, this testimony of the case being "open and shut" per the advice of Mr. Alzarano was

later contradicted by the defendant 's own brother who stated that the defendant told him it was

"open and shut" per his attorney at the preliminary hearing being held at the 35th police district

which look place before Mr. Azzarano had entered his appearance and the defendant Wc:l.S

represented at that lime by the Defender's Association. See testimony of Derrick Carpenter, N.T.,

08-24-20[3, P. 84, L. 14 - 25.

32 RRJ5 . . ..._.•...... '.- '- ~ -..--.. . - ,- ~ -- " - ,- " , -",,,-,- ,,_"':" ... _.__ ._ -,. _-....... .......... '---'-.......Circulated ...::..._ :.. ... . . ., _ ...:.. . , ..:;.. ... __ . ... ----'---"'_. --'-11/13/2014 01:00 .•'-_. _-.PM

After hearing argument from both cOllnsel, this Court weighed the testimony of Mr.

Azzarano and that of the defendant and determined that Mr. Azzarano's testimony was more

credible than that of the defendant and, therefore, denied the defendant's Motion for

Extraordinary relief.

Sentencing of the defendant then look place. Since there are no issues raised on appeal in

regard to the sentence imposed by this Court, the details are not necessary to include in this

opinion, but, should the appellate court deem it necessary, this Court incorporates its reasoning

in imposing Ihe sentence set forth at NT., 05-15-2012, P. 135, L. 14 to P. 136, L. 7.

On May 17,2012, the defendant filed a Motion for Post-Trial Relief. A hearing on this

motion was hcld on August 22,20 12.

THE AUGIJST 22. 2012 HEARING

At the August 22, 2012 hearing, argument was heard from both defendant's counsel and

from the Commonwealth. Detendant's counsel was permitted to present the testimony of two (2)

witnesses, Mr. Azzarano (again) and a ballistics expert, Philadelphia Police Officer Raymond

Andrejezak..

The purpose of this hearing was to provide evidence for this Court to consider as it

related to the allegations of Mr. Azzarano' s trial ineffectiveness. After hearing the testimony of

both witnesses, this Court, in a review of the entirety of the testimony taken post-trial, concluded

that the underlying outcome would not have been different had Offieer Andrejcak or any other

ballistics expert tes tilied at the original trial on defendant's behalf.

Onee again, Mr. AZzarano testified credibly and the testimony of Officer Andrejzak was

deemed irrelevant, as it addressed his expertise in examining guns that he was actually able to

33 RR36 Circulated 11/13/2014 01:00 PM

·. examine in order to determine if they were fircanns under the law as it relates to operability.

Defendant's counsel's line of questioning in thi s instance was unpersuas ive. as the significant

factor in this instance was that a gun was nol recovered and therefore, Officer Andrcjzak's

testimony would be of no importance since it couldn't be examjned, however, in order to once

again give the defendant every opportunity to a "fair trial", this Court permitted him to proceed

with this motion and conducted an evidentiary hearing.

Defendant's counsel proceeded ~ith his examination of Mr. Azzareno by again

questioning his trial strategy. related to the cross-examination of Officer O'Brien in regard to

whether the weapon he saw discarded was a "real" gUll. This testimony was as follows:

[9] Q. It was -- as 1 recall from your prior testimony, [10] your strategy in this case was twofold. One aspect of your [11] strategy was that if a fireann was not reco~ered, the [12] Commonvv'ealth would not be able to prove that it was in fact a [131 fi rearm under the Cri mes Code; is that correct? [14] A. They would have not -- that's part of it. They [IS] would have not been able to prove an operability. [16] Q. Correc!. Meaning it 'would not be considered a [17] fireann under the Crimes Code? That was part of your [18] strategy; is that right? [19] A. That was part of the stmtegy. yes. [20] Q. That other part of your strategy was to attack the [211credibi li ty of the police officer's story that this gun was [22] discarded in front of a big erowd of people but he simply (23] chose to leave it there and continuc chasing Mr. Carpenter? (24J The second part of your strategy was to attack the [25J credibility of the police officer's testimony; is that

[1] correct? [2] A. The second part of the strategy "vas to the [3] credibility of the police officer, yes. That this police (41 officer was fabricating, correct. [5] Q, Now, do you agree that at the trial you never asked [61 the police officer whether he believed the item tha,t he saw [7J hit the ground was the real firearm -- a real gun? [8] A. I don't know whether 1 asked him that or not. 1 [9) haven't review the trial transcript. (101 Q. You agree with me tbat would have been an imp ortant

34 RR37 · ___ . _ _ . _ ._ •. __ "_'_'. • __ . ' •. _.0. _ ....... ...... _ ~ •. _•. . • , __ ...••. ' ...• -" ___ _, ••. ..••.. __ .:... •• _. ___ ._:_.. _._. _ .~. Circulated __ _ .___ _ _ 11/13/2014 .• _ _ . '-.!._."'- , 01:00 ,~ _____ PM .~

{UI question to nsk the police offieer since he was the only {121 witness in the whole case -- about the only witness in the [13} whole c~sc? You agree it would have been important to get 114J from his perspective whether this was actually firearm? 115) A. Well, I guess it would depend on your strategy. I [16) mean, if part of the defense was to concede that some sort of (I7) object was thrown then maybe it would have been a strategic [18] decision to ask that question. But part of defense was not 119J to concede that nnything was thrown, quite frankly, and 1 120] discussed that with Mr. Carpenter with r ega rds to, "Do we 121 J concede al1 part or none of it," in so many words. 122) So depending on the strategy, it could be an (231 important question but th:lt W:IS not part of the strntegy. \Ve [24] weren't conceding anything that the officer was saying. [25J Q. Why did you argue operability at all jf it's your

[1] position that there was no gun ever involved in this case? [2J A. I would always argue operability at the stage J [3] argued it at, whieh I believe the first time I argued it was (4] the motion for judgment of acquittal stage in front of the [5] Court. I also incorporated that argument as well at the [6] reasonable doubt stage.

(N.T., 08-22-2012, P. 35, L. 9 to P. 37, L. 6)(Emphasis added.)

Cowlsel repeatedly questioned Mr. AZzarano on his trial strategy. but nothing elicited

from him shows how it prejudiced the defendant to the extent it would have changed the

outcome of the trial. Mr. Azzarano's approach to defending this case was reasonable and was

explicitly set forth in the following line of questioning:

N.T., 08-22-2012, P. 37:

[14] Q. Correct. If the Court were to find the officer [15 ] credible, which was a distinct possibility, why didn't you [16] ask the offieer whether he was certain if that goo was [17J real? {IS] A. Well, there is a lot of possibilities. 1 mean, the (1 9] Court could have found the officer not credible and I [20) WOUldn't have had to ask that question. It certainly is a [21 1 possibility. I don't know whether the question was asked or [22] not because like I said, I haven't reviewed the trial (23] transcripts. However, it was the strategy decision if I (24) didn't ask it beca use it was an all or nothing defense. We

35 RR J6 ..-.- ...---- ...•.. ---.- . -.-~.--.- .- - ' .. -. .:... ..:. ... .•.-- ---.---. -.-.•. ...;,- .... ~11/13/2014 Circulated ~--'---." . ~ 01:00 PM - - ~- -.-...-- -- -

(25J were not conceding anythin g that tbe loan (sic] officer said.

N.T., 08·22·20 12, P. 38:

(7] Q .... What [S] would the strategic decision have been to not ask thc officer [9] about whether the gun was real or not? What would the harm [10] have been? [11] A. As I understand your qucstion, sitting as a fact [12] fi nder, the harm would have been that this Court could have [13] assumed I was arg~l ing out of both sides of my mouth. I did (14] not want to stand up in front of this Honorable Court and [15] say, "Judge, if you believe something was thrown, how could [16] they prove it was a gun? And, Judge, here's the other thing, [17] I'm not conceding anything was thrown." [1 8] That wasn't the strategy in this case. ] didn't [19] want to argue in front of the Court out of both sides of my [20] mouth. [21 ] Q. Wasn't that exactly what you did at your motion for [22] judgment of acquittal when you argued that the clement of the [23] crime is the operability of a firearm? [24] A. No, it's no!. [25] Q. Mr. Azzarano, if the Court were to believe your

N.T., 08·22·20 12, P. 39

[I) theory that there was no such gun, why would operab ility [2] matter? (3] A. Because I have a legal duty to my client to present [4] every poss ible defense and if the Commonwealth didn't meet [5] their standards with regards to the legal element of the [6] crimc, as opposed to credibility, because as you know -- (7) well, I'm assuming you know -- as you very well know, [8] credibility is not an issue at the motion for judgmcnt of [9J acquittal stage. J can't argue to this Court \.\'ith a straight [10] face that this Court could take into consideration the (II] officer's cred ibility. [12] Every inference at that particular point at [131 the motion for judgment of acquittal goes towards the [14] Commonwealth. Same standards at the preliminary hearing, [15] essentially. (16] Q. Now, if the officer had testified, notwi thstand ing [1 7] your theory, thal l don't know whether it was a real gun or [I S] not, would that have bolstered yom argument at the judgment

36 RR39 · ...... -...... . . . • • . c • . •.•.• .. • • . • • • • _ _· _ _ c .. _ ..•• _ _ ~ . . . . ." ,_ .... . . ,~ Circulated 11/13/2014 01:00 PM ............ . . . . . . . . . . . _ . ... . ..c.~~~ .• _ . . . . . . . . c .

[19] of acquittal stage? PO] A. Ifthc officer had testified that it was not a real [21] gun. [22J Q. 111at hc didn't know it one way or the other? [23] A. I guess it would have. [24] Q. Okay. But you didn't ask the officer that [25] question?

N.T" 08·22-20 12, p, 40

[ 1) A. No. In my expericnce, the officer wasn't going to [2] testify that he didn't believe it was a real gun. [3J Q. Not whether he believed. Whelher he km::w? (4] A. The officer was not going to testi fy that he wasn't [5 ] sure this was a real gun. [6] Q. That's what you believe? [7] A. That's what I believe from doing this for 15 [8] years.

Defendant's counsel continucd to question Mr. Azzarano on his trial strategy over the

next several pages of testimony, most of which was essentially a rehashing of the prior

testimony. none of which had a negative effeet upon Mr. Azzarano's credibility, nor provided

trus Court with any evidence which wou ld indicate he was ineffective in his defense of the

The defendant next presented the testimony of Poliee Officer Raymond Andrejczak of the

Firearms Identificat ion Unit (FlU). Officer Andrejczak has been an officer fo r 19 years and

assigned to the FlU for the 1ast5 II, years. (NT, 08-22-2012, P. 85, L. 5-14),

In regard to identify ing a weapon that he has the opportunity to actually examine, he

test ified as follows :

[15JQ. In your experience, are you able to look at an idea [sicl (16J that appears to be a semiautomatic handgun by simply looking [17] at it and not touching it and determine whether or not il'S a [18] firearm? [ 19] A. That would depend on several different factors. [20) Q. Who [sic] type of factors? [211 A. One is how close I am to the supposed firearm.

37 RR40 • ._ .•• ;._._.• _._.'~_.~ ~. __ .•• _ •• _ ._,,_. , ._ •• n.:•. •.• _._ •• __ •• '.: • ••. _ ._ . _ _ _ _ ... _ .•• ••• _. __ •• -"-'" _ ._ ._: _.~ Circulated , _._ .. _11/13/2014 . , _ . ~ ._...: _;: .' •• • . • ___ ._~01:00 PM•• • • ----'-.:: •

[22] Prior experience with certain types of mock fireanns or [23] replica firearms, absence or presence of the warrant sarety [24] Lip, which is common with a lot of the replica types and the [25] air soft types. Based on my training and my experience, at

[1] firs t glance, most of the time I could pick them off pretty [2] good. [3] Q. You can? [4] A. Yes.

(N.T., 08-22·2012, P. 86, L.15 to P. 87, L. 4)

Later Officer Andrejczak stated:

[22] Q. Officer. do you believe that a Philadelphia police [231 who \vas engaged in flight after a suspect who observes an [24) item being thrown or discarded to the ground and continues [251 running without stopping to recover it, do YOli believe that

[ I] anybody could have concluded definitively whether that item [2] was a fireann or not? [3] A. I can't state yes or no on that. Based on -. that's (4J anybody's guess whether they could say whether it was or [5J not. (6J Q. Well, would you be able to conclude whether (7] something is a fireann with all your experience if you saw it [8] discarded while in the case and never saw it again? [9] A. Again, there is many factors that could affect that (10] whole scenc. [11] Q. Would that include, for example, how good of a look l12] of the item that you got? [1 3) A. How far away I was when it wa" thrown, tbe daytime, [l4] nighttime, streetl ighting, any kind of the debris on the [15] ground. Like I said, there arc too many factors that could (16] affect that whole·· unless you actually saw it and know that (17] you saw it .. I mean, you don't have to be an expert to say [18] that, "Yes, I saw someUling that appeared to be a firearm." [19) Q. Something that appeared to be a fireann? (20) A. TIlings aren't always as they seem. [21] Q. IUgh!. Aod that's what wc saw from D-I and D-2, [22] correct?

(N.T., 08·22-2012, P. 89, L. 22 to P. 90, L. 22)

38 RR41 Circulated 11/13/2014 01:00 PM

Exhibits D-I and D-2 refer to a pr,?perty receipt and report prepared by this officer in

regard to a weapon that appeared to be a firearm, but UpOIl examimr/i(}Jl was determined to be a

non-firing replica. Counsel's point on this line of questioning addresses an instance where an

item appears to be a firearm but is not by statutc because it was determined, after examination, to

be inoperable.

The relevance of this testimony to this matter by Mr. Altschuler was wholly misplaced, as

the initial misidentification of this replica weapon referred to in D-I and D-2 was not made by

Officer O'Brien, but by other officers not involved in this case. Had Officer O' Brien been the

officer who had previously misidentified a fireann in another instance, then Officer Andrejczak's

testimony may possibly have had an effect on the credibility of his trial testimony as to the object

discarded by the defendant.

The case was adjoumcd and re-listed for its continuation on August 24, 2012.

THE AUGUST 24, 2012 HEARING

The matter resumed on August 24. 2012. This Court heard testimony from five (5)

witnesses, one for the Commomvealth and the remainder for the defendant.

Defendant first called Gregory Morgan to testify. Mr. Morgan has been a friend of the

defendant for over 35 years. (N.T., 08-24-2012, P. 8, L. 10-16). He also works with the

defendant. (N.T., 08-24-2012, P. 10, L. 6-8).

Mr. Morgan stated that on August 18, 2011, he was with a group of several people,

including the defendant, sitting and talking around 1700 Chclten Avenue. (N.T., 08~24-2012. P.

8, L.17 to P. 9, L10).

In regard to the events leading up to the derendant's arrest, Mr. Morgan stated:

39 RR.il2 " ,. , ' ---- - " .... " "--~'--"--~'-'-----'-""'~'-' .......:..- - .. '~'- " Circulated .-.,~.-~ ..- ----,... .. 11/13/2014 - - ,.~-01:00 PM -,'.. - , ~.' , ...... ,

[19] Q. Now, at some point did Russell leave the [20] playground area where you were? [21J A. Yes. [22J Q. Where did he go? [23] A. Across Chelten Avenue, up 17th Street, and [24] got in a car. l25] Q. Could you describe the car that he got

[I J into? l2J A. It was a small car. I don't know if it was [3] a Camry or an Altima, but it was small. And it was [4J dark, like black. [5] Q. Four-door? A small four-door car? [6] A. Yes. (71 Q. Okay, Do you have any idea who was in that [8J car? [9J A. No, I don't. (10] Q. How long was Russell gone, if you paid [II] attention to that? [12] A. I'd say not even 5 mi nutes, abOut that. [I3J THE COURT: How long? [14] THE WITNESS: For a few minutes, (151 probably about 5 minutes, because he had to walk [16J up to the cur. [17] BY MR. ALTSCHULER: [l8] Q. Did anything then dmw your attention to [19] the area where this car was? [20J A. The police. [21J Q. Okay. What happened with the pol ice? {22] A. They were standing out -- they was out [23] fron t of the car with their guns out moving towards the [24] car (indicating).

(N.T. , 08-24-2012, P. 10, L. 19 to P. I I., L. 24)

[9J Q. What happened next? [10] A. The car went in reverse arxl. came down 17th [11] Street towards -- in reverse towards Chelten Avenue and [12] turned onto Chelten Avenue and Russclljumped out. [13] Q. Was the car still moving or stopped? ' [14J A. Yes, it was still moving. [15J Q. When Russell jumped out? (1 6) A. When hejwnped out, yes. 117] Q. SO what happened when he jumped out? [18] A. He jumped and stumbled or whatever. And l19J the eop was right there. One of the cops that was

40 RR43 ·.... --_._-_...•._......._.. ..-. - ~ .., -•...'. -. ... . ~-'--~ . - - .-...:...-,~~ ....• -..... --- ':"'" - Circulated -. ... - ,----~. - , .11/13/2014 -. - ..,-' 01:00 PM -.- ~ . --.' . -~-.- -- .- -

[20] right there told him don't move, and he did like this [21] (indicating). [22] Q.lndicating for the record he had his hands [23] up'l [24] A. Yes.

(N.T., P. 12, L. 9-24).

[2] A. He was taken over to .- this was in the [3] middle of the street. So he was taken over to the [4] apartment, Ollto the pavement on the side of the [5] apartment building and wrestled to the ground. [6] Q. Okay. [7] A. And I crossed from over at the playground [8] side to where Wagner Public School is, which i:s [9] directly across from the apartment building, where they [10] subdued him to the ground or arrested him there. And [ [11] stood over there like this (indicating). [12] Q. Just stood with your hands crossed? [131 A. Yes, I stood with my hands crossed and [14] watched the whole thing. [15] Q. Okay. You wcre not involved in anything [16] between Russell and the police; you were just [17lobserving? [IS] A. Not at alL [19] Q. You were just observing? [20] A. I observed the whole thing, yes.

(NT., P. 13, L 2-20).

It was stipulated thallhe witness was approximately 25 feet [rom this activity.

[31 Q. Did you ever see Mr. Carpenter run from the [4] police? [5] A. No. [61 Q. Did you sec him discard any items? [7] A. No, [8] Q. Now, you described the playground as fairly [9] crowded? [10] A. Yes. [11] Q. Did you see anybody from Ihe playground go (12] Over and recover any evidence or anything? [1 3] A. No, I didn't see nobody recover anything. [1 4] Q. Okay. Did you ever lose sight of Mr. [15] Carpenter from when he jumped out'ofthis black car [16] until he was arrested?

41 RR44 " . - - .. .- . .. ~- - .- ~- --. -'--... .. _...• _. ...... '_ . •. _, '._ .. • • · . _ . ___ -'- •.••. _c.., '.• _ .;,.._,. ____ ...:._ ..; __ .-:.....~Circulated . _... _ _ . ,~,11/13/2014 01:00.•• _PM .... _ __ "., _ . _~_." _~ .. _.:_

.,

[17] A. No.

As to this witness' availability to appear at trial, he testified:

[181 Q. Now, after this incident when Russell was [19] arrested and then at some point he was released. fs [20] that right? [21] A. Yes. [22] Q. Did you talk 10 him about the incident? [23] A. Yes. [24J Q. Did yOll discuss with him your availability [25] or unavailability to be a witness for him?

[1] A. Yes. [2] Q. What did you tell him? [31 A. I told him I would come ifhe needed me. [4] Q. And in February oftms year, February 29th [5] of2012, if you had been subpoenaed as a witness, 'wou ld [6] you have eome to court? [7] A. Yes. [8] Q. Were you ever subpoenaed as a witness? [9] A. No. lID] Q. Wcre you ever interviewed before me by any [11] other attorneys or investigators? [12] A. No. [13] Q. Were you prepared to cooperate and testify [14] at trial on behalf of Russell? [l5] A. Yes. [16] Q. Did you ever ask Russell why it was that [171 you were not being either interviewed by an attorney or [18] subpoenaed to testi fy in court? [ 19] A. When he told me he didn't need me, I asked [20] him why.

(N.T., 08-24-2012, P. 15, L. 18 to P. 16, L. 20).

[3] Q. Well, did you come to court? [4] A. In Febmary? [5] Q. Yes. [6] A. No. [7J Q. Why? [8] A. I was told I wasn't needed. [9] Q. Aud what were you told as to why you didn't [10] have to eome to court? [lIJ A. Russell told me that it was an open and [12] shut casco

42 RR45 .. ~ ... - .•...--.. -".------' -~ - -,-.- .. ------ - -.--_ Circulated 11/13/2014 01:00 PM .._..... - ---~.,-.~

(N.T., 08-24-2012, P. 17, L. 3- 12).

[14] Q. What was the convcrsation you had with Mr. [15] Carpenter as to why you were or were not going to come [16] to court? [17] A. Why 1 didn'l come? [1 8] Q. RighI. I 19J A. I told you I was willing [0 comc. I told [20J you I didn't come because he said r wasn't needed. [2 1] Q. Okay. And did you havc a conversation with [22] Russcll as to why yOli weren't needed? [23] A. Yes.

(N.T., 08-24-2012, P. 20, L. 12-23).

[3] Q. I-Ie talkcd to his lawyer is what he -- L41 A. Is what he told me . I don't know what he [5} said to him. I know what he told me.

(N.T., 08-24-20 12, P. 21, L. 3 - 5).

This witness only knows what the defendant told him. He does not know what Mr.

Azzarnno told the defendant about the need or lack thereof for witnesses. When comparing this

testimony to the testimony of Mr. Azzarano • Mr. Au..arano was, again, more credible in rega ~d

to never being told the idcntity of specific witnesses.

Cross-examination of this witness regarding the August 18, 20 11 arrest by the

Commonwealth elicited furt her details:

(9) Now, when Russell gets into this car, [10] do you sec the car pull up firs l? [11 ] A, Did it pull up? [121 Q. Yeah. ( 13) A. Well, I d idn't pay attention to it until he [141 walked over there. He answered his phone and then [15] walked over there. [16] Q, He answered his phone fi rst? [17] A. Yes. [1 8] Q. SO he gets into the car and 5 minutes later [19] the police show tip, right. with guns?

43 RR46 • • • __• _ . _ _ _ _ •••• • ••••• _ ••_ e • • • • ,. _ . _ •• _ . , . . . . . . . . . . . ... :. •• • • _ . . .. _ • • ; _ • • , • • • _ • • _ _ , . _ ..,;. ••.• ~ > • .' • • .. , . • _ _ Circulated 11/13/2014 01:00 PM . • "' _ _ .• _ - - ' • • , •• _ __ __ ,'... ~ ........ _ _ __ -._ •.~_. , ._ ...

. . [20] A. Well, actually you see them -- from where [2 1] we were standing at, you could see the pol ice, like, [22] the cop car, because it actually passed him on 17th [23] Street. It passed him and came down and turned onto [24] Chelten Avenue, went past Smedley Street, made another [25] U-turn, came back, turned onto 17th Street, passed

(N.T .• 08-24-2012. P. 24. L. 9 - 25).

[1] them. And that's when they jumped out and were [2J standing in front of them.

[5] Q. Now, you say the police wrestled him to the [61 ground. Is that correct? [7] A. Yes. [8] Q. And docs that mean there was, like, a [9] wrestling match going on? [10] A, No, meaning he was trying to make him lay [ 11] on the ground. [ 12] Q. Okay. [13] A. He was already on his knees. [ 14] Q. He was on his knees? [15] A. He was trying to make him lay on the [16] ground. And he told thcm he wasn't laying on the [1 7J ground because he had a bullet in his neck were the [18] exact words. [19] Q. You heard him say that? [20] A. Yes.

(N.T.• 08-24-2012, P. 25, L. 1- 20).

[23 ] Q. All right. Let's backtrack here. [24] The police are coming at him with guns [25] and then he gets on his knees?

III A. No. He had his hands up, So they took him {2J from out in the midd le of the street over to the [3] pavement on the other side across from lhe playgroWld, [4] which is an apartment building. [5) Q. Okay. [6] A. And right there on 17th Street is a pateh [7] of dirt, like, ,,,,there grass is supposed lO be. There's [8] no grass. But that's where they were at. [9] There was truce eops right there. So [10] they told him to get down on the ground. He got down

44 RR47 · ........... -----... - - . - - -.... --.-.-.,., - - -....• _........ .. ...,.---~.,.- .•.. -- ~- •.. ... .. - .. --_11/13/2014 Circulated 01:00 PM..' .' -."-'~----'

(11] on his knees. And one ofthc officers was trying to [12] wrestle him to the ground. And he said he wasn't [J3] getting all the wayan the ground because he had a [14] bullet in his neck.

(NT., 08-24-2012, P. 26, L. 23 to P. 27, L. 14).

[20] Q. SO what time did these other cops show up? [2 1] A. During the mix of all this - and th is is no f22] lie - it seemed like the whole 35th was out there by [23] then, because some cops went to chase the car. Some [24] cops stayed there and had the dogs and went up in the [25] playground and everything else.

(N.T., 08-24-2012, P. 28, L. 20 - 25 ),

This witness' testimony not only corroborated Officer O'Brien's trial testimony, but also

the accuracy of his arrest memo, C-I. as it contains information related to a K-9 unit being

uti lized to search for the discarded items. This witness did nothing to aid in the defense of the

defendant, but only compounded the strength of lhe Commonwealth's evidence and reinforced

the credibility and accuracy of Officer O'Brien's trial testimony. Mr. AZ7..8ranO could not be.

faulted for failing to call this witness.

In regard to what this witness knew in regard to the reason his friend was being arrested,

he stated:

III J Q. Did it secm to you that th ey wer e a rresting I12J him for no reason? [13J A. I don't know what hllppcned. I'm watching 114) to sce whaf's go in g on. People get arrested every day. [15J [ don't know what's go ing on.

(N.T., 08·24·2012, p, 34, L, 11- 15).

[I ] Q. And when you talked to him a couple days [2] later, did he tell you what the CllSC was about?

45 RR48 _. __ . •. _ ._•• _• ._•. __ _ .• __ ••.. . • _• .• _. __ .....•• ' __ _ _ _ _ . • _ _ .J.: .. _'. '_'_'_' . : '" . _ ~ Circulated __ ._:••.. _._........ __ . ,c • . , 11/13/2014 . _,_,.. _ '""'""'. "'_•• ~ 01:00 PM _ ___ ____ :.

[3] A. He said they charged him with a gun. [41 Q. Okay. And you said to him, well, I didn't [5] see a gun. Right? [6] A. Probably. If not, something to that [7] effcct. [8] Q. SO did you then go to the police and say 1 [9J was out there; he didn't have a gun? [ 10] A. No. II 1] Q. Did you go to a lawyer and say, hey, I saw 1J2) this ; this didn l , happen'! 1131 A. No. (l4] Q. Did you find out who his lawyer was? 1151 A. No. [16] Q. Did you talk to the other witnesses about fl1] the charge once you found out what it was? [18] A. Not that I can recall. [19J Q. And did you ask the defendant when his [201 trial was? [21 1 A. Not that I can recall. [22] Q. Did you want to see what happened with your [23] fri end of35 years at trial? [24] A. I fi gured I was go ing to. I'm with him ~- [25] I was with him almost every day, so he was going to

III tell me if he needed me. And that's what was said; he [21 didn't need me, so I didn't go. Would I just sit in a [3) courtroom to just go? No. [4] Q. Weil , didn't you want to see if he would [5] get convicted or not? Didn't you want to see what [6] would happen to him? [7] A. If I wasn't going to partake, you know, lo [8] give my side of what's going on, j ust to sit there, no.

(N.T., 08-24-2012. P. 40, L. I 10 P. 41, L. 8).

On re-direct, tilis witness stated:

[IS] Q, Did you tell Russell that you were (16) available to speak with his attorn ey if nceded? [1 71 A. Well, I guess he would assume thnt. But if [18J he asked me would I be a witness, I would assume that [1 9] would have been taken.

46 RR49 •.. '.. .. .. :: -_. -_....- ... . ' ..- ." - .. .- .--.- .... -.. - •..........• --~- .... -..:....;..-----'..:. .~.~--:- . -. - Circulated .. . - - ' ...... ..- -. .... ~ -~-01:00 ...,.,..-- -11/13/2014 PM ,- .... .

This line of questioning clearly shows that there was nothing definitive in regard to

conversations between this witness illld the defendant and are all just basic assumptions, on his

part. Despite a nearly lifelong friendship with the defendant, this witness appears 10 not have

interacted to any degree with the defendant on this matter. Even if this witness was willing to

testify, it is clear that the defendant failed to share this specific information with Me. Azzarano.

The defendant then called his brother Denick Carpenter as a witness. Under direct

examination by Mr. Altschuler, he testified:

N.T., 08-24-2012, P. 58:

[I] before your brother got arrested do you remember seeing [2] your brother? [31 A. I remember seeing my brother cross the r4] street from the playground as I was walking down the [51 street. And ljust yelled at him like we normally do. L61 Q. Okay. What was the next time you noticed {7] your brother? [8J A. Jumping out the Car. [9] Q. So did you ever see your brother get into a [10] car? [11] A. No, sir. [12] Q. But you saw him getting Out ofa car? [13] A. Yes, sir. [14] Q. Could you describe the car that you saw him [15] getting out of? [16] I don'l need the make and model, but is [17] it a two~door car? Four-door car? Convertible? Dark (18] color? Light color? That type of description? [19] A. A four-door black car. [201 Q. Okay. What drew your attention to this [21 J four-door black car? (22] A.ljust happened to look up from -- once [ [23] got to [he playground and stm1ed having a [24] conversation, I just happened to look down 17th Street. [25] And the eop car that just passed me was now turned on

N.T , 08-24-2012, I'. 59:

[1) l7lh Streel blocking t.jle black car, and there was two [2] officers with their guns out.

47 RR50 Circulated 11/13/2014 01:00 PM

[3} Q. They were on foot or they were in a [4] vehicle? [51 A. With their guns out? [6J Q. Yes. [7] A. They was on foot at each side oflhe door [8J oftlle black car. [9] Q, Okay. What did you see next? [10] A. What I saw next was like -- somebody say, ll l] yo, I think Chink is in that car. That's Russell. And (121 t said, yo, I hope they don't shoot in that car b~>causc {13] my brother in that car. [14] And nex t thing I know, the car went in (I5} reverse. They officers re-holstered their guns. They [16] start trotting back to their vehicle. When the car [17} came to the 17th and Chelten comer, which was only [18] maybe about 10 feet, the door came open. He came out. [19] His foot was caught -- [20J Q. Who is he? [21 J A. Russell. [22] The door came open at the stop. You [23] could hear the driver throwing it in drive now. And [24] his door came open, and he came out, and his foot was [25] caught, and you could tell he was jumping out.

Again, another defense witness corroborated Officer O'Brien's trial testimony and also

provided details on facts which he was cross-examined not contained within Police Officer

O'Brien's arrest memo, again corroborating the veracity of the officer's trial testimony. This

witness clearly would have defeated Mr. Azzarano's trial strategy of co nceding nothing and

discrediting the officer on his own words. This witness' testimony continued:

N.T., 08-24·20 12, P. 60:

[6] A. The car took off towards Ogonz going west [7J on Chelten. [8] Q. And what did the po lice officers do at this [9J point? [10] A. The police officers immediately came Lo the [11] comer. They both jumped out. They told him get down [1 2] 10 the ground, get on the ground. He had his hands up. [13] And he said, man, I can't get on the ground: r got a [14] bullet in my neck.

48 RR51 • ," , _._. __ ,_. ,. _, ________ '-._ •• _ • • • _ _ _ _ '-: ••• _ _ _ _ • ___ -'-'_'__ •• __ • __ ._., • • _ • •"_. __ _ _ ....:_~ Circulated •• '_'__"_' •• .:.. _ _ _ _ , . __ " ••11/13/2014 " ......... ..c... . '-' •• _01:00 ". _ ~ •. ..-_ . __PM ,. , __

[IS] And the officer jumped on top of him [1 6] and said, I don't care about a bullet in your neck. [1 7] And he just pushed him down on the ground and put his [1 &] knee in his neck after he just told him that.

N.T., 08-24-2012, P. 61:

[3] Q. Okay. How far away were you from the [4] comer where your brother was taken to the ground? [5] A_From here to that door. [6] Q. Which door? [71 A. Thc door of the counrooJn. [8] Q. SO roughly from here to the back door of [9J the courtroom? [10] A. From me to the courtroom. [II] MR ALTSCHULER: Andjust ror the (12) record, we'll agree it's roughly 35 feet.

N.T.. 08-24-2012, P. 62:

[1 ] fThc police searched) his pockets and stuff. He didn't [2] have nothing on him. He put him in the car. And then [3 ] the other cops just started searching the whole area [4] and just told us to move; this is a crime scene now; [5] this, that, and the third. That's when I moved. f6] Q. Did you see your brother throw anything? [71 A. No. I seen him lose hi s cell phone when he [81came out the car. [91 Q. Oka)·. [10] A. That was the only thing I saw. [11] Q. Did you sec him throw any money? [12] A. No. (13] Q. Did you sec him throw nny ambcr~eo l ored 114] pill bottles? 115] A. No. (1 61 Q. Did you sec him th row any kind of guns? 1171 A. No. 118J Q. Did you scc anybody rrom the playground or [I9J the street or that area run over and pick up any money? [20] A. No, sir. [21] Q_Or any pill bottles'! [22] A_ No, sir. [23] Q. Or any gun-shaped items?

49 RR52 -----------_..-.-.- .•.•..-'. - .~ -. - --. _. _.--_.- --.. ------_._---... _- -.; - - , -' - ..,... _..... _-,.. Circulated --'. _ _'",---_.....01:00_. .._.,""'...'-.; -...11/13/2014 . .. PM- -..

[24] A. No, sir.

This witness did not see the defendant throw anything, in particular money, once the

defendant emerged from the car, despite the defendant himself informing the police that he threw

money near a car because he knew hjs daughter would pick it up. One must question why the

defendant would flee from police and later admit only to discarding a large amount of money

near a crowd of people without discarding something else, as it is not unlawful or illegal to

possess currency.

As for this witness' ava ilabilily to testify at trial, he stated:

N.T. , 08-24-2012, P. 65:

[9] Q. Did he ever ask you about your willingness [10] to he a witness for him? [II] A. Yes, he asked. And I told him --I told [l2J him that, yo, we need to get the who le neighborhood [13] down there. And in return Russell said, well , I spoke [14] to the lawyer and everything; they don't have no gun; [15] and hc told me I don't need no witnesses. [l6] Q. How many times did you discuss this case [17] with Russell ? 118] A. Many times. [191 Q. Okay. Were you available to come to court (201 in Fehmary of this year as a witness? [2 1] A. Yes, sir. [22] Q.lfyou were subpoenaed, would you have corne [23J to court? [24] A. Yes, sir. [25] Q. Were you prepared to cooperate with your

N.T., 08-24-2012, P. 66:

[1] brother and his lawyer? [2] A. Yes, sir. [3] Q. And you were prepared to tcstify in this [4] case? [5] A. Yes.

50 RR53 Circulated 11/13/2014 01:00 PM

Despite this witness' wiUingness and availability to testify, it still does not affirm that Mr.

Azzarano knew or should have knOI,VIl of his existence, nor does his testimony aid in the defense

of the charges against the defendant

On cross·examination by the Commonwealth, this witness testified:

N.T., 08-24-2012, P. 71:

[7] Q. How do they put him all the ground? [8J A. They wrestled him. They forced him down [9] onto the ground. He wenllo the knees, and tht!n they nO] pushed his face on the ground.

Again the usc of the word «wrestled" was employed by all three witnesses who testified

on this day and who were sequestered during the trial.

On the issue of the defendant dropping his eellphone, the following cross-examination

testimony was taken:

N.T., 08-24-2012, P. 72:

(14J You said tbat you saw a cell phone [15] fall. Correct? [16] A. Yes, sir. {171 Q. Did anyone pick it up? (18] A.I have no idea. Nobody went nea"r the cops [19] wresrling somebody down on the ground. I have no idea. [20] I was more worried aboulmy brother than the cell [21] phone. [22] Q. SO you kept your attention right on your [231 brother? [24] A. Yes, sir. I even pulled my phone out and [25] said, make sure they don't hurt my brother.

N.T., 08-24-2012, P. 73:

[II Q. SO someone else could have picked up the [2} phone because you weren't loolting; you were looking at [3} your brother? (41 A. I'm looking at my brother. I have no idea.

51 RR54 .•. __._-_ _--_....... _•. _-_. _..... ., ....• ...:..... - . ..,.. ~ ~. -- .~ .•...•.• "-. ~- •...•_.•....... -_....... '-'.--." ..Circulated ~ - ---... :... .."'-- '-.,11/13/2014 . ...... 01:00 '.' PM ~...'

He does not know if anyone picked up his brother's cellphone since he was focused on

the actual arrest. Since he was focused on the arrest, then he was not aware of other events going

on around him. He was so concerned about his brother's well-being that he took his own

cellphone out, presumably to preserve on video or by phOlOb'Taph the defendant's arrest. This

witness ",:ould not have been focused on the activities of these other 30 or so people in the area

of the playgrou nd, many of whom dispersed shortly thereafter. Thi s Court concluded that some

person or persons in that crowd took the pill bon Ie, money and gun before the police were able to

relurn to the area of the red Volvo and left the sccne before the scarch took place.

The most interesting testimony fr?m this witness was elicited in regard to questions about

the events occurring shortly after the defenda nt's arrest and leading up to the preliminary

hearing. This ,,,fi tness stated:

N.T., 08-24-2012, P. 76:

[14] When did you find out the reason for [151 his arrest? [16] A. I fOWld out the reason when 1 talked to my [17J mother. [18] Q. And when was that? [19] A. Wllctr he was able to call home. The next 120] day I)robably, for bail. [2 1]Q. And you found out that he was arrested fo r [22] having a gun. Right? [23] A. No. I found out he was accused of having a [24J gun. [25J Q. Okay. And you knew that that was

NT , 08-24-2012, P. 77:

[1 1 ineolTcct? [2J A. Yes, 1 did. [3J Q. So did you go to co urt the next day? [4] A. No. My brother didn't want anybody ~It ISJ court. (6] Q . Did yon talk to the police and ten them my (7] brother didn't I.J.IIVC n gun'!

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18) A. No. My brother was given orders that he 19] don't need nobody for this casco [101 Q. And he did Ihis Ihe nexl day? (11) A. He did this the next day, the tria l day, 1121 and all the other d:lYS. [131 Q. Did you talk to other people who were at [14J the scene about the case? [15] A. Yup, sure did. [16] Q. And did you ta lk to Gregol'Y Morgan'? 1171 A. Yup, wc'vc been ta lking for the last year {lSI about the case.

NT, 08·24·2012, P. 78:

[5 J Q. SO when was the firs t time you ialked wi th (6] G regory Morgan about the case? [7] A. J don't know. 1 can't recall. [8] Q. Approximately within a week of the arrest? [9] A. Maybe. [101 Q. And when was Ihe last time you talked with (11] him about this casc'! [12J A. About a week ago. [ 131 Q. Did you talk to him about it today? (14] A. Did I talk to him about today that's 115] coming? [16] Q. No, I'm sorry. Today did )'OU Ullk to [17] Gregory Morgan? [lS] A. No. [19] Q. When you talked to Gregory Morgan a week l20] ago, what were you talking about with him? l21] A. That we're going to get our day in eoultj l22] that's a fair judge. [23] Q. Right. [24} And that means you're going to ta lk 125] about what you actually saw at the scene?

N.T., 08·24-2012, P. 79:

[1] A. Exactly. [2] Q. That you saw the defendant just get [3] arrested for no reason? [4] A. No. I jUSl saw my brother jump out of a [5] car aoo get a gun placed on him. [61 Q. Okay. And that's what he said he was going [7]10 talk about too. Righi?

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[8] A. That's what happened. [9] Q. That's what happened that he said he was [101 going to talk about what happened? [11] A. No, the case itself; that he didn't have a (12] gun. He didn't have drugs, pills, none of that. [13] Q. And that's what Gregory Morgan said he was [1 4] going to talk about in your day in court before a fair [I 5] j udge _Right? [1 6] A. Yes. si r.

This witness and Mr. Morgan discussed thi s case and had prepared their testimony for

over a year. Despite having a year to prepare, this witness testified to facts that were contrary to

the defendant's own testimony rcgard il~g his conversations with Mr. Azzarano about trial

strategy and the matter being an "open and shut" case, Not only does this testimony conn ict

with the defendant's, but clearly corroborates Mr. Azzarano' s testimony that he never made such

comments to the deFendant. In this regard, the witness testified on re-direct by Mr. Altschuler:

NT, 08-24-2012, P. 84:

[8] Q. Do you remember when I was asking you [9} whether you discussed witnesses with your brother, and [101 1 th ink your response was something to the effect of [11 ]lhe whole neighbo rhood -- [12] A. The whol e neighborhood saw it. [13) Q. That's right. 114} A. The whole neighborhood saw it. The whoJe fl5I neighborhood saw it, so all of us cnn come and testify. [1611 told Russell that at his preliminary, (I?J the 35th District is only around the corner. You can [18) get everybody at the 35th District. But if it goes [19] downtown, you're going to lose witnesses, because [20] people don't ]jll:e to come downtown to be witnesses. [211 ' 'hy your la\'l-')'er teUing you not to (221 bring witnesses to tbe 35th, I have no clue on that. [231 And he said. yo . He says, it's open and closed. They (24) don't have no gun.l ain' t have no gun, so th ey don't [25J have no gun. It's open and closed. That' s what I

N.T. , 08 -24-2012, P. 85:

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(I] said.

This testimony conflicts with the defendant's position that the case was "open and shut"

per the advice of Mr. Azzarano, as it appears that this was either the defense position from the

Lime of the preliminary hearing, held well before Mr. f\zzarano was retained by the defendant

and entered his appearance, or a misunderstanding by the dcfendant of the advice/discussions

with the Public Defender. This Court resolves this conflict in favor of Mr. Azzarano, since the

defendant cannot cstablish by a preponderance of the evidence that it was, in fact, the advice and

legal conclusion of Mr. Azzarano, given the timing o[these statements made by Ihe defendant to

his brother at or around the time of the preliminary hearing.

Lastly, as to this witnesses availability for trial, he stated:

NT., 08-24-2012, P. 85:

[2] Q. Okay. But let's focus on the trial. [3] Forget about other witnesses. I only want to focus on [4] you. [5] A. RighI. [6] Q. Were you available on February 29th to come [7] to this trial? [8] A. Yes, I was. [9] Q. And did your brother indicate whether or [J 0] not he needed you at (rial? [II] A. He said he didn't need rne.

Consistent with this COlll"t's conclusion, as with all of the defendant's alleged

eyewitnesses, although he was available to testify at trial , Mr. Azzarano could not have known of

his existence, further his testimony failed (0 provide any favorable testimony that would have

aided or assisted on behalf of the defense. This witness not only corroborated the testimony of

Officer O'Brien, but that ofMr. Azzanmo as well.

The defendant then called his last allcged eyewitness, his other brother, Carl Carpenter.

On the date of his brother's arrest, the witness saw the defendant at the playground, who then

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saw him leave and get into a car. (NT., 08-24-2012, P. 89, L. 16 - 25). His attention was drawn

back to thal car when he beard the sound of screeching tires. He saw his brother jump out of the

vehicle and Ihe officers telling him to get down on the ground. eN,T., 08-24-2012, p, 90, L. 8-

22).

This witness heard the police teU his:

[41 brother to gel on the ground. He got au his knees. [5 ] That's when they was telling him to put his face to the [6] dirt. He told them he wasn't doing it. [7J Q. Okay. So whaL happened Lhen? 181 A. That's when onc offi cer. C'lm e and wrestled 191 him down to the ground. [10J Q. Okay. [11] A. And then held his knee into his neck. [12J Q. Okay. [13] A. My oLdest brother told him to get his knee [14] offbis neck because he got a bullet in his neck. That [15] officcr told him he don't give a damn.

(N.T., 08-24-2012, P. 92, L. 3 -15). [Emphasis added.J

[25J Q. Did you ever see your brother run or flee

[1] from the police? [2] A. No, he didn't have time to. (3) Q. Did you sec him discard any items? [4) A. No, hc didn 't have time to.

(N.T., 08-24-2012, P. 92, L. 25 to P. 93., L. 4). [Emphasis added.J

The witness was then questioned about his availability to testify at trial. This witness

never told his brother he would testify on his behalf:

[lOJ ... had [11] you ever discussed witb him your willingness to be a [12J witness for him? [13) A. Well, ] didn 't actually tell him , because [141 he already knew I would be there. It's my brother. [15J Q. Got you. [16J SO in other words, you never said, hey,

56 RR5!l Circulated 11/13/2014 01:00 PM

[17] brother, if you need me as a witness, I'll be there for [18] you? [191 A. No....

(N.T., 08-24-2012, P. 95, L. 10-19). [Emphasis added.]

Since this witness never told his brother he was willing to testify on his behalf and the

defendant did not testify that his brother was a witness, it can be reasonably concluded that Me.

Azzarano could not have known nor should he have kno¥.'I1 of the existence of this particular

witness. For the defendant to fail to specifically tell his anomey that his own brothers were

eyewitnesses to these events belies belief. The defendant never named a single individual to Mr.

Azzarano and now complains of the failure to produce witnesses when he, himself, failed to ever

identify anyone, includ ing through the post-trial phase.

While still under direct examination the witness testified.:

[141 Q. Did your brother ever tell you whether he [15] needed you to come to court or whether he did not need fl6] you to come to court? I17] A. He kept telling mc he didn't Deed mc. The [18] lawyer said it was an open and shut case; he didn't [ 19] have a gun. [20J Q. Did any lav.'Yer other than me ever ask you [21] what you saw or what you know about this incident? [22] A. I don't even know the other lawyer. Never [23 ] seen him, met him, talked to him, wrote a letter to mc, [241 tcxl mc, nothing.

(N.T., 08-24-2012, P. 96, L. 14 - 24). [Emphasis added.]

On cross-examination, this witness stated that at the time ofthc arrest there were "25, 30,

maybe morc" people at the playground and that he knew "95 percent" of them. (NT., 08 -24-

2012, P. 102, L. 2 - 7). After the incident, he stated that there were maybe even more peoplc

around. (N.T., 08-24-2012, P. t03, L. 7 - I I), which contradicts prior wi lness testimony.

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He also slated that he had a' clear view of the arrest and if something was discarded, he

would have been able to see it. (NT., 08-24-2012, P.l02, L. 23 :-25). He further stated:

[7) Q. Did you see the defendant drop a cell l8) phone? [9) A. I didn't see him drop anythin g. [10] Q. Did you see a cell phone lying on the [1 1] ground where he was? [ 12} A. No, because I was lOO busy arguing wilh the [131 cop about his smarl remarks ...

(NT, 08-24-2012, P. 104, L. 7 -13). [Emphasis added.]

This also contradicts the previolls lestimony of the defendant's own witness.

These three witnesses provided testimony thaI clearly corroborated much of Officer

O'Brien's trial testimony in regard to facts not contained in the arrest memo, i.e, the officers

drawing their service weapons, the car being driven in reverse, the defendant jumping out of the

vehicle, the vehicle fleeing, the nwnber of people around the scene, the use of K-9 dogs

search ing the park, etc. Such corroboration was Mr. mzarano's initial concern in preparing his

defense and trial strategy in attacking the officer's credibility by pointing out lhe lack of

specificity in the arrest memo. If anything, these witnesses corroborated the accuracy and

credibility of Officer O'Brien's testimony and did not aid the defense.

Had these witnesses testified at trial, !VIr. Azzarano's . . enrirc cross-examination of Officer O'Brien in regard to the lack of detail and specifici ty in his arrest memorandum as to the facts

related to the arrest of the defendant would have been confirmed through these witnesses. This

would have soundly defeated his defense suategy that Officer O'Brien was lying in regard to his

version of eventS since most of the pertinent and important details of hi s testimony were absent

from the arrest memorandum. These witnesses only served to strenglhen that testimony.

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Basically, the only facts that these witnesses didn't corroborate was the length of the

chase and the contention that a pill bottle, money and a gun was discarded by the defendant. One

witness stated he saw tbe defendant drop his ccllphane when jumping from the vehicle, which a

second was certain that nothing was dropped or discarded when he exited the car. This also was

controdicted by the defendant's own statement to the police shortly after being arrested that he

had dropped money ncar his daughter's car for her to pick up. This COUtl even questions if these

three biased witnesses were even at the scene at the time leading up to the arrest or were told of

the events by the defendant thereafter. For these reasons, this Court found them not credible.

The key issue in this case was whether or not the defendant discarded a weapon. This

Court concluded that he did discard a weapon in reaching its verdict on March 7, 20 12 and still

maintained the same position upon the conclusion of the defendant's post·trial motions. None of

the tcstimony that these witnesses provided this Court would lead it to conclude that the outcome

of this case would have been different had they testified at the original trial of this matter.

These witnesses were consistent in their testimony on the general facts of the case and all

basically told the same exact story, including the same use of certain words and relative

distances, including the word "wrestle", to describe the manner in which the police took the

defendant to the ground. See N.T., 08-24-2012, P. 32, L 10 (Gregory Morgan); P. 71, L. 8

(Derrick Carpenter) and P. 92, L. 8 (Carl Carpenter). Yet they contradicted one another on the

subtle and important detail s of the case.

'flle testimony of these three witnesses seemed well rehearsed amongst them for

presentation to this Coun on the generalities of the case. This conclusion is not to infer that Mr.

Altschuler was involved in coaching their stories, as he zealously argued his client's position and

what he was told by his client and the~e witnesses. It does clearly indicate, however, some

59 RR62 -,- . . .- -..... - - .. -~,~- ..... . . . - - .. _.-- ."- ~- Circulated 11/13/2014 01:00 PM

degree of collusion between the defendant, his brothers and his long-time friend in preparing for

their testimony, which one witness described as talking about the case for over a year. This

clearl y casted doubt as to the veracity of their testimony.

In light of this determ ination, this COW1 dismissed their testimony in regard to providing

trUlhful, unbiased testimony, as legitimate concerns as to their credibility were raised. It is well

established that the trier of fact while passing llpon the credibility of witnesses and the weight of

the evidence produced, is free to believe all, part or none of the evidence. C011111101t1Vealtll. v.

Smith, 2013 PA Super 100 (pa. Super. Ct May 1,2013).

The defendant called his last witness, John Della Rocca, Esquire, to the stand. Prior to

the start of Mr. Della Rocca's testimony a stipulation was put on the record as follows:

"Your Honor, it's hereby stipulated by and bctvveen the Commonwealth of Pennsylvania and defendant Russell Carpenter through the wldersigning counsel that a document was created by John Della Rocca, Esquire, that clearly stated, one, defendant Russell Carpenter wished to testify on his own behalf at the time of trial; and, two , defendant Russell Carpenter wants to discuss his witnesses to the events leading to his arrest on or about August 18, 2011 . (In the stipulation no names and date of births were provided.) It is further stipulated that the document . containing the information in the above-numbered paragraphs was provided by AHorney Della Rocca in the foml of a referral letter to Jeffrey Azzarano, Esquire, at the start of Mr. Azzarano's representation of defendant Russell Carpenter in the above-captioned matter which proceeded [sic] the tri a~ of this case by several months."

N.T., 08·24·2012, P. 124, L., 2210 P. 125, L 17.

Mr. Della Rocca had previously represented Mr. Carpenter in several traffic court

matters. During the course of that representation, the defendanL advised Mr. Della Rocca ofthcse

charges and he referred the defendant to Mr. Azzarano for representation in this ease due to a

conflict. Mr. Della Rocca met with and interviewed the defendant. At that time, he "wrote down

a few Lttings he said ." N.T., 08-24-2012, P. 127, L 12 to P. 128,1.. 3.

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Mr. Altschuler questioned Mr. Della Rocca on the details oftbe interview as follows:

112J Carpenter whether or not -- strike that. Do you [13] remember Mr. Carpenter telling you about witnesses in [14] this case? [15] A. Yes. I remember when we first met he was [16] pretty adamant that he thought he was getting a bad (17] deal and didn't have a gun. And he told me from the [18] get-go that, you know, there was several people that [19] saw what happened. [201 I remember him mentioning either an f2l1 older black gentleman or:\ woman who lived nearby that [22] observed the entire thing as well as a couple other r23) guys that were standing nearby J guess a playgrollnd or [24] a basketball court that also observed what happened. [25] He didn't give me :my names at the

[11 time, but he did mention that thcrc WCI'C at Icast three [21 witnesses, possibly more, at that time. I should have [3] written it down in my notes.

N.T., 08-24-2012 , P. 128, L. 12 to P. 129, L. 3. [Emphasis added.]

It should be noted that Mr. Altschuler also failed to proffer any identifying infomlation

on these alleged witnesses identified by defendant to Mr. Della Rocca.

Mr. Della Rocca testified that because he would not be representing the defendant, he did

not inquire further of the defendant for information to the identity of these alleged witnesses. He

simply provided the information to Mr. Anarano for him to follow-up. N.T., 08-24-2012, P.

129, L. 4 - 22.

On cross-examination, Mr. Della Rocca acknowledged that this meeting with the

defendant occurred after the preliminary hearing had taken place and that he did not fonnulate

strategywithMr.Azzarano. N.T., 08-24-2012, P. 130,L. 16-25.

As the record reveals, in the timcline of this case, the number of a!leged eyewitnesses

multiplied as time passed. Initially with Mr. Della Rocca, there were several potential witnesses,

which increased to "6 to 12" and then to "dozens", which then increased to hundreds, and in the

RR" Circulated 11/13/2014 "_ _ . _ . __01:00 ..•• •• ' _ PM '.' . ",. _~ _ .•. .,•. _ ... . . _'.. _ •. _ .• _ •. ' _ " • . _. _ . ___ ._, ,-, . _. ___ . '., • . '-_ ••. _ •. · _.-"!.l .. _ _ ~",.•. _ •• .•.• ;_ ... __ .•••~ ..... _; •. _ . . . ...... :: •. ;.;.. _ ' - _. __•• ,~ .'-" .'

end, we were back to just three witnesses, none of whom were the witnesses initially, albeit,

vaguely, identi fied to Mr. Della Rocca. Mr. Altschuler ended up calling the defendant's lifelong

friend and two (2) brothers as witnesses.

This Court fails to see where Mr. Azzarano could have been faulted as it related to

securing eyewitnesses who may have provided exculpatory testimony. when the witnesses were

not identifted by the defendant, were not named in discovery and, in reality, it appears that they

did not exist. This COllrt concluded that all of the assertions of all of these witnesses were simply

just that. baseless, non-meritorious assertions made by the defendant. This argument, in and of

itself, lacks any degree of reliability or credibility and Mr. Azzarano could not have known nor

should he have known of their existence.

Thercafier a stipulation was placed on the record that the preliminary hearing was

conducted before Judge Robins on September 8, 20 II (at which time, thc defendant was

represented by Public Defender Stanfield) and that Mr. Azzarano entered his appearance on

November 9, 20 11, two months later. -The Notes of Testimony from the preliminary hearing were

also accepted into evidence. At this time, the defendant rested on his motion.

The Commonwealth called just one witness, Detective James Poulos, Badge No. 9260, of

the Northwest Detective Division, to rebut the testimony of Officer Andrejczak, the ballistics

expert. Since this CoUrt disregarded the testimony or Officer Andrejczak due to it being deemed

irrelevant in this casc, it also disregarded the testimony of Detective Poulos, as his appearance

was as a rebuttal witness. Detective Poulos' tcslimony addressed pol icies. procedures and

directives on the handling of fireanns or items that appeared to be firearms submitted for ballistic

testing. Again, sinee no gun was recovered in this case, this line of inquiry was wholly irrelevant

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and, once again, the case simply defaulted back to the credibility of Officer O'Brien's trial

testimony and the credibility of the defendant's witnesses.

In light of all of the foregoing testimony and argument, this Court weighed the testimony

of aU of the fact witnesses and determined that the defendant failed to meet his burden of proof

that he was entitled to a new trial. This Court concluded that Mr. Azzarano was eITecllve trial

cOlmscl and that the evidence was sufficient for th is Court to conclude thalthe defendant was in

possession of a firearm that he discarded and which was not subsequently recovered .

. Based lIpon these findings, on September 5, 2012, this Court denied the defendant's post-

trial motion for a new uial.

L EGAL ANA LYSIS

The defendant's right to counsel, guaranteed by the Sixth Amendment to the United

States Conslitution and Article I, § 9 of the Pennsylvania Consti tution, is violated where

counsel's performance "so undcrm incd the truth-determining process that no reliable adjudication

of guilt or innocence could have taken place." Commonwealth v. Rios, 591 Pa. 583, 600, 920

A.2d 790. 799 (2007).

In this matter, this Court determined that Mr. Azzacano' s representation of the defendant

did not undermine the truth-determining process, as the sole issue boiled down to the witnesses'

credibility. This Coun weighed Police Officer O'Brien's testimony to that of the three alleged

eyewitnesses, all of whom had a personal relationship with the defendant. As was Mr.

Azzarnno's original concern, these wimesses did, in fact, corroborate much of the officer's

testimony. As stated above, one even corroborated Mr. Azzarano's testimony as to the issue of

the case being "open and shut."

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Failure To C all E ycwitncsses

The primary premise of defendant's PCRA motions addressed ineffectiveness of Mr.

Azzarano for his fai lure to call po tential eyewitnesses. In order to establish counsel's

ineffectiveness, defendant needs to show that: ( 1) the witness existed; (2) the witness was

available to testify for the defense; (3) counsel knew of, or should have known of, the existence

of the witness; (4) the witness was wilting to testify for the defense; clOd (5) the absence of the

testimony of the witness was so prejudicial as to have denied the defendant a fair trial.

Commol/ wealth v. S" eed. 45 A.3d 1096, 1108-09 (pa.2012).

The defendant clearly failed to meet the tbird and fifth prongs of this test, and this Court

is skeptical of who was presented by the defendant to meet the first prong. Without meeting all

five (5) prongs, the defendant's cl aim fa ils.

To demonstrate prejudice when sueh a claim is raised, a defendant "must show how the

uncalled witnesscs' testimony would have been beneficial under the circumstances of the case."

Sneed, 45 A.3d at 1109. Counsel will not be found ineffective fo r failing to call a witness " unless

the petitioner can show that the witness's testimony would have been helpful La the defense. A

failure to call a witness is not per se ineffective assistance of counsel for such decision usually

involves matters of trial strategy." Id. (cited by Commonwealth v. Matias, 2013 PA Super 53, 63

A.3d 807, 810- 11 (Pa Super. CL 2013».

The witnesses ' identity' was solely within the knowledge of the defendant and he fai led

to share pertinent info rmation re lated to these witnesses with Mr. Azzarano. Since the defendant

fa iled to provide "the names and whereabouts of these witnesses" to Mr. A7..7.arano, he has no one

to fault but himself. Commonwealth v. HUllter, 554 A.2d 550, S57~558 (Pa. Super. 1989).

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Since Mr. Azzarano was not aware nor made aware of these witnesses, the defendant

failed to meet the third prong of the test. Even if he knew or should have known of them, the

witnesses' testimony was not beneficial to the defensc. Thus, defendant has also failed to meet

the Slh prong of the test.

Mr. Azzarano's "failure" to call witnesses did not constitute per sa ineffectivcness,

Commollwealth v. Cox, 603 Pa. 223, 983 h.2d 666, 693 (2009), but generally involved a maUer

of trial strategy. Commollwealth v. Lauro. 819 A2d 100, 105 (Pa.Super.2003). appeal denied,

574 Pa. 752, 830 A.2d 975 (2003). In this case, lhis Court detennined tlJatthese witnesses called

by the defendant would not havc been helpful to the defense, in that their testimony clearly

defeated the trial strategy of Me. Azzarano which he had testified was to "'concede nothing" as it

related to the facts in order to attack the police officer's testimony and credibility.

II should be noted that Mr. Altschuler had the same information regarding the purported

witnesses generally referenced by Mr. Della Rocca in his reren'ing letter to Mr. Aa:arano, yet

none of these witnesses were presented by Mr. Altschuler in the post-trial hearings, which v.'Ould

have provided more re liable support fo r the defendant' s requested relief.

Mr. Altschuler produced nothing to support the position that Mr. Aaarano's

represcntation was less than diligent. Despite counsel's zeal, this entire post-trial process failed

to produce any reliable evidence for this Court to reconsider its prior adjudication. or to conclude

that Mr. Azzarano was ineffective in his defense of the defendant.

Mr. Azzarano produced no witnesses at trial under his well -reasoned trial strategy. Mr.

AlscllUler produced three, none of whom could be deemed unbiased given their relationship to

the defendant. and who did, if fact, corroborate much of the trial testimony of Officer 0' Brien,

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which was Mr. Azzarano's initial concern, especially in light of the lack of details in his arrest

memo.

Mr, Della Rocca's interview notes to Mr. Azzarano vaguely identified several potential

witnesses. The information in these nOtes was as equally available to Mr. Altschuler before or

during the post-trial hearing phase, yet he also failed to secLUC the attendance of these individuals

as well. FurthemlOre, none of the "dozens" of independent eyewitnesses who were allegedly in

the area where and when the defendant was arrested were presented to this Court by Mr.

Altschuler. Instead, he presented three (3) biased witnesses who ':Vere nevCT previously

identified by the defendant to Mr. Della Rocca, Mr. Azzarano or this Court during his testimony

about potential witnesses. The persons were finally identified at the very last hearing on August

24,2012.

During the testimony of the defendant in the post-trial stage, he was adamant that he told

Mr. Azzarano ofthe ex.iste,nce of witnesses and said that he knew they would have testified. Still,

he never testified that he had even told Mr. AZlru'MO that his own brothers were witnesses. This

clearly defies logic that if he knew of witnesses, he would have named at least one by name or

relation to hi s counse l. ]11is is further supported by Mr. Della Rocca's testimony that there were

a "couple of guys" near the playground, not "his brothers" who were near thc playground.

Dcsp'ite ample and numerous opportunities to do so, the defendant failed to provide specifics to

anyone. When revic",rjng all of thc evidence, this raised this Court's skepticism that these other

witnesses even existed in relation to the first prong.

During post-trial argument, defendant's counsel rel ied upon Commonwl!alth. v. J1abie,

467 Pa. 464 , 471 , 359 A,2d 369, 372 (1976), in regard to Mr. Azzarano's failure to interview

witrlesses prior to trial, however. that case is factually distinguishable from the case at hand.

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In "'fabie, defendant's counsel was shown the Conunonwealth's file which contained the

statement Mabie gave to the police. a police officer's description of Mabie when arrested and the

names of several eyewitnesses. Defense counsel decided not to interview those named

eyewitness to the incident based only upon the testimony of one witness at the preliminary

hearing and the conversation with Mabie.

The iWabie Court determined that the "value of the interview is to infonn counsel of the

facts of the case so that he may formulate strategy. Perhaps, after questioning these witnesses,

eounsel may have concluded that the best strategy was not to call them due to hostility and, as a

matter of strategy. That decision on counsel's part would not be subject to a claim of ineffective

assistance of counsel." Commonwealth ~. Owens, 454 fa 268, 312 A.2d 378 (1973). However,

no such claim of stratc.:gy can be attached to a decision not to interview or make an attempt to

interview eyewitnesses prior to trial. Cot1tmolllvcultlz v. Mabie, 467 Pa. 464, 475, 359 A.2d 369,

374 (1976).

The key difference here is that Mabie's counsel had actually been provided with the

specific names of eyewitnesses and failed 10 take any action. In this case, Mr. Azzamno was

never provided with specifics regarding the wimesses claimed by the defendant, and was only

provided vague generalizations about various witnesses. He just asswncd that dozens would

appear on his behalf. Despite being out on bail prior to trial and despite time. place and

opportunity to do so , the defendant never provided the names and addresses of these witnesses he

knew of to trial counsel for further investigation. He never brought these alleged witnesses 10

meet with Mr. Azzarnno during pre-trial preparation sessions.

Clearly, the reasoning and holding of Mabie does not apply here as these matters are

faerually distinguishable as it relates to trial counsel's effectiveness. In Mahie. counsel knew or

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should have known of the witnesses, here, Mr. Azzarano had no way of knowing the names of

any witnesses as they were not listed in discovery and never identified to him by the defendant.

Gl"d11ted, the defendant's daughter was identified in the police report, but that informat ion

was provided to the investigating officers by the defendant himself, as simply being the owner of

the red Volvo where he dropped the money because he knew she would pick it up. She was not

listed as an eyewitness in the reports, nor did she ever appear on the defendant's behalf to

provide testimony to this Court to SUppOit any of ddendant's post-trial arguments. She did

appear in Court for one post-trial hearing, but she was not called to testify by Mr. Altschuler.

Essentially, the trial strategy employed by Mr. Azzarano was the same trial strategy

employed by Mr. Altschuler during the post-trial proceedings. Aside from the defendant's

brothers and his long-time friend, PCRA counsel never identified these numerous other alleged

eyewitnesses on the record, apparently none were ever subpoenaed to appear by him and there

was no mention of an investigator being employed to detennine the identity of these numerous

witnesses, despite six (6) months passage from the time of the defendant's conviction to the time

of the last post-trial hearing.

fo r post-trial counsel to criticize trial counsel as to his preparedness or lack thereof and

then take an identical course of trial strategy. leads this Court to reasonably conclude that none

of these dozens of alleged witnesses were even known to the defendant and they were simply

baseless claims made by the defendant to both of his counsel.

As a result, this matter complained of on appeal lacks factual or legal support and this

Court' s conclusion should be upheld on appeal.

Fa il ure to Call an E xpert Witness

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As for complaints that Mr. Azzarano failed to eall a ballistics expert, this position is

specious at best, since a gun was not recovered. An expert witness cannot provide 'expert

testimony' in regard to whether the gun in this case \I.'3S, in fact, a "real" gun, since he could not

examine it. This strategy is without merit Counsel cannot be considered ineffective for failing

to assert a meritless claim or legal position. Coumrom vealth v. Perry, 403 Pa. Super. 212, 22 1.

588 A.2d 917, 92 1 (1991) (citing Commo",,.nltl, v. Dllrst, 522 Pa. 2, 559 A.2d 504 (1989);

Common wealth v. Pursell, 508 Pa. 2 12, 495 A.2d 183 (1985).

Mr. Altschuler chose to usc the word areal" throughout the PCRA hearing. The use of

this word is simply being used as a synonym for "operable". However, there is a presumption of

operability, and the Commonwealth needs only to prove operabll ity if a defendant presents

credible evidence sufficient to rai~e a reasonable doubt as to operabil ity. CommOl/ wealth v.

Horshaw, 346 A.2d 340 (Pa.Super. 1975). The gun was determined to be "rcal "by this Court's

acceptance of Officer O'Brien's testimony. Proof of "operability," in this casc, was ilTclevant,

since it was not recovered. A fact finder can infer .operability, Le. , a «real" fireann, from the

testimony when the weapon is not recovered. See Common wealth v. Yaple, 238 Pa.Super. 336,

357 A.2d 617 (1976) and Commom venitlt v. H olglI;II , 254 Pa.Super. 295, 385 A.2d 1346 (1978).

Officer Andrejczak's testimony could not provide an expert opinion in this case to assist

in the defense. Further, he cannot provide expert testimony as it relates to credibility, so, as

stated, both aspects of his testimony were disregarded by this Court in reaching its

determinations. Therefore, this position of defendant was without merit and not indicative of the

ineffectiveness of Mr. Azzarano at trial.

Basically, Officer Andrejczak was called to Icstiry as to the opcrability is!>'Ue, which Mr.

AzzardIlO argued at trial as pan of his defense, yet was criticized by Mr. Alschuler and

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questioned extensively on the issue, but, once again, he employs the same arguments in the post-

trial motions.

In light of all of the evidence, this Court concluded that Mr. Azzarano was effective trial

counsel despite not calling a ballistics expert at trial. Sr:e Commo11wealth v. Williams, 537 Pa. I,

640 A.2d 1251, 1265 (1994) (holding that "trial counsel need not introduce expert testimony on

his client's behalf if he is able effectively to cross-examine prosecution witnesses and elicit

helpful testimony").

In rcaching this determination, and since utilizing an expert witness at trial falls within

counsel's trial strategy, this Court applied the three-pronged test to be applied when trial counsel

is alleged to have been ineffective as stated in Commomvealth v. Pierce, 515 Pa. al 157, 527

A.2d at 975, as it relates to the performance and prejudice test articulated by the United States

Supreme Court in S/I'ickland v. Washing/on, 466 U.S. 668, 687, 104 S. Ct. 2052,2064, 80 L.

Ed. 2d 674 (1984).

The Strickland/Pierce test requires a p~titioner to prove: (I) the underlying legal claim

was of arguable merit; (2) counsel had no reasonable strategic basis for his action or inaction;

and (3) the petitioner was prejudiced - that is, but for counsel's deficient stewardship, there is a

reasonable likelihood the outcome of the proceedings would have been different. Pierce, 515 Pa.

at 158·59, 527 A.2d at 975.

If a petitioner fails to prove any of these prongs, his clrum fails. Commonwealth v.

Williams, 594 Pa. 366, 378, 936 A.2d 12, 19-20 (2007). Moreover, counsel is presumed to be

effective, and a petitioner must overcome that presumption to prove all three Stricklaml/Pierce

factors. Commollwealth v. Singley, 582 Pa. 5, 19, 868 A.2d 403, 411 (2005):

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In proving the second prong, i.e. , the urea<;onable basis" prong, this Court concluded that

counsel's chosen strategy had a reasonable basis and the defendant fai led to prove that "an

alternative not chosen alTered a potential for success substantially greater than the course

actually pursued." Commomvealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006).

In attempting to establ ish the third prong, i.e., prejudice, the defendant also failed to show

that there was a reasonable probability that the outcome of the proceedings would have been

different, but for Mr. Azzarano's action or inaction. Commollwealth v. Demlis. 597 Pa. 159, 950

A.2d 945, 954 (2008); CommollIvealth v. Matias, 2013 PA Super 53, 63 AJd 807, 810 (Pa.

Super. Ct. 2013).

The defendant may only havc obtained relief if he had plead and proved by a

preponderance of the evidence that his conviction resulted from ineffective assistance of counsel,

that, under the circumstances, so undennined the tmth~dctermining process that no reliable

adjudication of guilt or innocence could have taken place. See 42 Pa.C.S. §9543(a)(2)(ii).

In this case, the defendant fai led to show that "there is a rt:asonable probability that, but

for cOlUlsel's unprofessional errors, the result of the proceeding would have been different."

Stricklal/d, 466 U.S. at 694, 104 S. Ct. at 2068~ accord Commollweflltfl v. Cox, 603 Pa. 223,

243,983 A.2d 666, 678 (2009). A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the proceeding. Commonwealth v. Ali, 608 Pa. 71, 86~87, 10 A.3d

282, 291 (2010).

This expert's testimony was not applicable here, since a weapon was not recovered and

Officer O'Brien was not the officer who had previously misidentified a replica firearm as being a

"real" firearm. Officer Andrejczak's testimony addressed examinations of ' fircamls' that were

actually recovered and made avai lable to the Firearm Investigation Unit for examination in order

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to determine operability. An expert witness cannot opine on the operability of a weapon that is

not recovered. In light of these two (2) signifi cant, distinguishing factors. this Court gave no

weight to this expert's testimony from either a credibility or evidentiary standpoint and Mr.

Azzarano, there fore, cannot be faulted for fai ling to employ a baseless strategy.

In the instant maner, this Court concluded that the defendant fai led to meet all three of

the required prongs by a preponderance ar tbc evidence. The underlying argument was provcn .to

not have any meritj that Mr. J\zzarano had a reasonable basis for employing his trial strategy,

which was compounded by the evidence and testimony provided during the post~trial process;

and, the outcome would not have been different had a ballistics expert been called at trial.

This matter complained of on appeal lacks any meritorious basis and this Coun's finding

on this issue should be upheld on appeal.

In effective Assistance for Failure to Cr oss·Exa mine

TIle third matter complained of on appeal addresses Mr. Azzarano's failure to cross-

examine Officer O'Brien on his preliminary heari ng testimony in regard to whether he thought

the gun was "real".

The Preliminary Hearing Notes reflect that Officer O'Brien's testimony was consistent

with his testimony from the February 29, 2012 lrial in regard to both the events of that day and,

in particular, the description ofIhe glID discarded by the defendant.

The questioning that defendant contends Mr. Azzarano was ineffective for fajJj ng to ask

at trial is based upon a single question on cross-examination at the preliminary hearing:

[151 Q. As you sit here today, you can't say for [16} certain that was a real gun, right? (17] A. That's right.

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(N.T., 09-08 -2011, P. 9, L. 15 - 170

When the transcript is read in its entirely and as a whole, this one question does not

negate Officer O'Brien's testimony. Had it been asked at trial before this Court, it would not

have changed the outcome of the trial, as a determination as to whether it was a real gun or not

falls to the trier of fact wcighing all of the cvidencc. Such a qucstion addresses credibility and

not weight of the evidence.

There was ample evidence to support this Court's finding that the defendant possessed a

fi reann while a felon. While fleeing on foot, the defendant discarded a pill bottle, money, and a

gun, dcscribed as "a nonnal size black gun, six, seven inchcs, a scmi-automatic gun". Officcr

O'Brien stated that he has recovered 48 guns in making arrests and due to this, and his

experience and training, he "immediately" recognized it as a gun.

This officer's cxpcrience enabled this Court to credit his testimony thnt he observed the

defendant discard a semiautomatic fireaml, the pill bottle and money (affirmed by the defendanL)

during the police chase. See Commolllveallh v. Pestiuikas, 617 A2d 1339, 1347 -48 (Pa. Super.

1992) (en bane) (attempt to conceal evidence is admissible as evidence of consciousness of guilt

and "may, along with other evidence in the case, fonn a basis from which guilt may be

inferred"). See also Commouwealtlt v. Rizzuto. 777 A.2d 1069, '1078 (Fa. 2001) (evidence of

flight shows a consciousness of guilt). Defendant may nol ask this Court 10 view the evidence in

the light most favorable to himself and find that the officer was incorrect in his observations. See

CommolJwealth v. Dougherty, 860 A.2d 31, 36 (Pa. 2004) (sufficiency claim attacking

credibility of the evidence is not sufficiency claim at all; it is a weight claim and therefore fails).

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\Vhen viewed in its entirety. this Court's conclusion that the underlying proceeding

would not have been different had this question been asked by Mr. Azzarano is supported by the

evidence taken in the post-trial proceedings.

Under a totality of the evidence review this Coun, finds Mr..o\..zzarano·s trial strategy was

not have ineffective and he employed a reasonable basis that was designed to effectuate his

client's interest. See Commonwealth v. Poillde).1er, 435 Pa.Super. 509, 646 A.2d 1211, 12 17

(1994). Even in hindsight, this claim of ineffectiveness by defendant could not have succeeded

when comparing Mr. Azzarano's trial strategy with the alternative strategy employed by Mr.

Altschuler. Commonwealth v. Hammond, 953 A.2d 544, 558 (Fa.Super.200S) appeal denied,

600 Pa. 743, 964 A.2d 894 (2009). The failure to ask this one question would not have cbanged

the outcome of the trial.

Sufficcncv of the Evidence

Lastly, the defendant claims that the evidence was insufficient as a matter of law to

support the conviction of the defendant on the charges of Possession of a Firearm Prohibited ,

Firearms Not to be Carried without a License, and Carrying Firearms on Public Streets in

Philadelphia because the evidence did not establish beyond a reasonable doubt that the object

observed was a "real" fireann.

The evidence. both direct and circumstantial, taken at trial allowed th is COUIt to

determ ine that each and every element of the crimes charged were established beyond a

reasonable doubt. Evidence is deemed sufficient to suppon the underlying convictions if therc is

testimony offered to establish each material element of the crime charged and to prove

commission of the offense by the accused beyond a reasonable doubt. TIle question ofcredibility

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is left for the fact-fmder and the verdict wilt not be disturbed if the fact-finder determines the

evidence is worthy of belief. Commonwealth v. Kal'karia. 533 Pa. 412, 625 A.2d 1167, 1170

(Pa. 1993).

The cvid(''11ce here was more than sufficient to sustain defendant's convictions fo r

violations of the Uniform Firearms Act. Defendant challenges the sufficiency of the evidence to

prove his firearm convictions arising under 18 Pa.C.S. §§ 6105, 6 106, and 6108.

A person violates §6 105 when he possesses a fireann after he has been convicted of one

of the enumerated offenses. A person violates §6106 ofthc Uniform Firearms Aet if he carries an

operable, concea led firearm without a liccnse. 18 Pa.C.S.A. §6 106. Under 18 Pa.C.S.A. §6108, a

person is guilty if he carries a "firearm, rifle or shotgun at any time upon the public streets or

upon any public property in a city of the fi rsl class," unles.o; licensed to do SO or is exempt from

the license requirement. 18 Pa.C.S.A. § 6108. The elements of all three (3) crimes were met.

Officer O'Brien testified that the defendant concealed the weapon as he ran from him

when he 'bladed' himself as he ran from the officer before abandoning it near the vehiclc. The

weapon was concealed by the defendant from the police as he ran and until he dropped it on the

street.

As stated previously. this Court concluded that this was a real ftrearm based upon Officer

O'Brien testimony describing the gun as he ran past it in pursuit of the defendant. This Court can

infer that this was a "reaJ" weapon per Commonwealth v. Fitzhugh, 520 A2d 424, 432 (Pa.

Super. 1987).

Defendant's argument that the evidence is insufficient because there is no proof that the

unrecovered gun was "real' is essentially the same argwnent as the Commonwea lth's failure to

prove "operabil ity" of a gun that was never produced at trial, but requiring such proof in light of

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the ease with which a weapon can be discarded is absurd. See Commollweallh v. Hammond, 350

Pa. Super. 477, 482, 504 A.2d 940, 942 ( 1986).

This Court concluded that the defendant did unlawfully possess a fuearm, concealed that

weapon from view of the police oOlcer when he was in the vehicle and also when he fled on

foot, which he carried and subsequently disregarded while being chased on the streets of the City

of Philadelphia.

In this case, the evidence of the Commonwealth was morc credible than that of the

defendant in regard to defendant's possession and concealment of a "real" gun that he discarded

and was not recovered by police after the facl. The Commonwealth provided sufficient evidence

to meet the clements of the crimes charged through the testimony of Officcr O'Brien and the

documentary ev idence submitted by stipulation. TIIC verdict is based upon reliable evidence and

not sunnise Or conjecture. Cf Commoltwealth v. Maxon, 2002 PA Super 137 (Pa. Super. Ct.

2002).

For all of tbe foregoing reasons, this Court requests that tbe conviction of tbe defendant

as \-vell as the detennination of his trial counsel as effective, be upheld on appeal.

BY THE COURT:

==0-=--=-====,.,-_1. ANGELO .I. FOGLIETTA

Cc: Hugh J. Bums, Jr., Esquire - DA's Office Jonathan Altschuler, Esquire - Defendant's Counsel (PCRA and Appellate) Jeffrey Azzarano,Esq. - Defendant's Trial Counsel Karen Reid Bramblett, Esq. - Superior Court of Pennsylvania, Prothonotary

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