Com. v. Childs, T.

• Court: Superior Court of Pennsylvania
• Decided: March 8, 2022
• Docket: 303 WDA 2021
• Status: Unpublished

Opinion

J-S38024-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRELL LAMONT CHILDS : : Appellant : No. 303 WDA 2021

Appeal from the PCRA Order Entered February 16, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000620-2008

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED: MARCH 8, 2022

Appellant, Terrell Lamont Childs, appeals from the February 16, 2021

order dismissing his second petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, as meritless. After careful review, we

affirm.

The relevant facts and procedural history are as follows. On April 19,

2007, at approximately 8:30 AM, a man, later identified as Appellant, shot

Jibreel Scott in downtown Pittsburgh.1 Shortly before the shooting, Appellant

exited a stolen blue Subaru, wearing a hoody, a long black trench coat, gloves,

a dark dreadlocks wig, and a false beard. Appellant initially came upon Kevin

Alton, who Appellant misidentified as his intended victim, Mr. Scott. Appellant ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1One week earlier, Mr. Scott’s brother, Obatyah Scott, had shot and killed Appellant’s brother. J-S38024-21

seized Mr. Alton by the front of his coat, pointed a gun in his face, but then,

after looking at Mr. Alton for a few seconds, released him. Minutes later, and

just a few feet away, Appellant encountered Mr. Scott and shot him

approximately five times. Mr. Scott died from his injuries one week later.

While investigating the shooting, police recovered a fake beard, two

dreadlocks wigs, a right-handed black glove, and a black trench coat. DNA

samples from the glove and one of the wigs matched Appellant’s DNA. Police

also recovered the stolen blue Subaru. Inside the vehicle, police found a rust

brown-colored propylene fiber consistent with the propylene fiber from the

beard, and a brown-colored wool fiber consistent with fibers from one of the

dreadlocks wigs.

Following their investigation, police arrested Appellant and charged him

with First-Degree Murder, Third-Degree Murder, and Carrying a Firearm

Without a License. At trial, the Commonwealth presented testimony from

numerous eye witnesses and expert witnesses who established the above

facts.

Appellant proceeded to a jury trial following which the jury convicted

Appellant of the crimes charged. On August 6, 2009, the trial court imposed

an aggregate sentence of life plus three to six years’ imprisonment. Appellant

filed a timely direct appeal, and this court affirmed his judgment of sentence

on March 9, 2012. See Commonwealth v. Childs, 47 A.3d 1239 (Pa. Super.

2012) (unpublished memorandum). On August 21, 2012, the Pennsylvania

Supreme Court denied Appellant’s Petition for Allowance of Appeal. See

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Commonwealth v. Childs, 50 A.3d 124 (Pa. 2012). Appellant did not seek

further review of his judgment of sentence.

Appellant filed a first PCRA Petition in November 2013, which failed to

garner relief.

On November 2, 2017, Appellant filed the instant PCRA Petition, his

second, alleging that he had discovered new, exculpatory evidence. The PCRA

court appointed counsel who, on June 29, 2018, filed an Amended Petition

reiterating Appellant’s newly-discovered evidence claim and identifying

Damian Benjamin as a witness who would provide exculpatory evidence.

Appellant asserted that, although his Petition was facially untimely, the PCRA

court had jurisdiction over it pursuant to the new facts exception to the PCRA’s

one-year time-bar. See 42 Pa.C.S. § 9545(b)(1)(ii). Appellant further

asserted that on September 9, 2017, Appellant’s brother, Jermaine Childs,

sent a letter signed by Mr. Benjamin to Appellant in which Mr. Benjamin stated

that he saw two men other than Appellant in a blue Subaru shortly before the

shooting. Appellant averred that the information provided by Mr. Benjamin

was unknown to Appellant and his counsel before and during trial.

The PCRA court concluded that Appellant had satisfied the exception to

the PCRA’s time-bar and, on April 22, 2019, it held a hearing on Appellant’s

Petition.

Mr. Benjamin testified at the hearing that he knew both Appellant and

the victim and did not witness the shooting. He testified that, on the morning

of the shooting, around 7:00 or 7:30 AM he was in the Hill District

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neighborhood of Pittsburgh. He testified that he saw a blue Subaru drive by

around 7:30 AM and stop. He walked past the car and saw Gary “Geno”

Adams standing outside the driver’s seat and a man he knew as “Dread” sitting

in the passenger seat. He testified that Mr. Adams and Dread were dressed

in black, that Mr. Adams was wearing a hoodie, and that Dread was alleged

to have dreadlocks. Appellant was not in the vehicle. He testified that he

learned from the news that someone had been shot outside a halfway house

in downtown Pittsburgh and later learned the identity of the victim from

another person, Chris Green. He testified that Mr. Green insinuated that Mr.

Adams had been the shooter. Mr. Benjamin admitted that he never spoke

with the police about the homicide and that, since the incident, he has been

in and out of prison. He testified that he had heard rumors about the homicide

and believed that Appellant had been wrongly convicted. He admitted that he

has two prior burglary convictions. Mr. Benjamin also testified that the first

time he came forward to report what he knew was on September 9, 2017

when he wrote a letter to his sister’s baby’s father asking him to let Appellant

know that he had information for him.

On February 2, 2021, the PCRA court notified Appellant of its intent to

dismiss his petition pursuant to Pa.R.Crim.P. 907 concluding that Mr.

Benjamin’s testimony was not credible and would not have changed the

outcome of Appellant’s trial. Rule 907 Notice, 2/2/21, at 4.

Appellant filed objections to the PCRA court’s Rule 907 notice in which

he disagreed with the court’s characterization of Mr. Benjamin as not credible

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and took issue with the court’s “focus” on Mr. Benjamin’s failure to contact the

police at the time of the incident and its conclusion that his testimony was not

exculpatory. Nevertheless, on February 16, 2021, the PCRA court dismissed

Appellant’s petition for the reasons set forth in its Rule 907 Notice.

This timely appeal followed.

Appellant raises the following issues on appeal:

I. The PCRA [c]ourt erred in denying relief where [Appellant] established his after-discovered evidence claim through [Mr.] Benjamin’s exculpatory eyewitness testimony.

II. The PCRA [c]ourt erred in denying relief because [Mr.] Benjamin’s testimony is likely to compel a different verdict at a new trial.

Appellant’s Brief at 5.

We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007). “Further, the PCRA court’s credibility determinations are

binding on this Court, where there is record support for those determinations.”

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010). We

give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Urwin, 219 A.3d 167, 170 (Pa. Super. 2019)

To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

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enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). 2 Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived. Id. at § 9543(a)(3).

Relevant here, the PCRA provides relief for a petitioner who

demonstrates his conviction or sentence resulted from “[t]he unavailability at

the time of trial of exculpatory evidence that has subsequently become

available and would have changed the outcome of the trial if it had been

introduced.” Id. at § 9543(a)(2)(vi). To establish a claim of after-discovered

evidence, a petitioner must prove that: “(1) the evidence has been discovered

after trial and it could not have been obtained at or prior to trial through

reasonable diligence; (2) the evidence is not cumulative; (3) it is not being

used solely to impeach credibility; and (4) it would likely compel a different

verdict.” Commonwealth v. Sepulveda, 144 A.3d 1270, 1276 n.14 (Pa.

2016) (citation omitted). The four-part test is conjunctive and if one prong is

not satisfied, there is no need to analyze the remaining prongs.

Commonwealth v. Pagan, 950 A.2d 270, 293 (Pa. 2008). Moreover, “the

proposed new evidence must be producible and admissible.”

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2 Neither the PCRA court nor the Commonwealth dispute that the claims in Appellant’s PCRA Petition meet the newly-discovered facts exception to the PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1)(ii). Upon review, Appellant pleaded and proved “1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence” as required to overcome the time-bar. Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citation, quotation marks, and emphasis omitted). Accordingly, we have jurisdiction to review the merits of Appellant’s claims. See id.

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Commonwealth v. Castro, 93 A.3d 818, 825 (Pa. 2014) (citation and

quotation marks omitted).

Notably, when evaluating the fourth prong, our Supreme Court has

instructed, “the question is whether the nature and quality of the evidence is

such that there is a reasonable probability that the jury would have credited

it and rendered a more favorable verdict.” Commonwealth v. Johnson, 966

A.2d 523, 542 (Pa. 2009). The PCRA court’s assessment “must include a

recognition of the impeachability of the witnesses, and not merely a viewing

of their testimony in a most favorable light.” Id. Some witnesses may be

subject to strong impeachment or display a demeanor that convinces the court

that no reasonable jury would believe them. Id. “On the other hand, some

witnesses may conduct themselves, or be of such repute, that the PCRA judge

has substantial confidence that a jury would credit them.” Id.

In his interrelated issues, Appellant avers that the PCRA court erred in

denying his request for a new trial based on after-discovered exculpatory

evidence because, if it had been offered at trial, Mr. Benjamin’s testimony

would have compelled a different verdict. Appellant’s Brief at 17-26. He

asserts that the PCRA court improperly “usurped the province of the jury”

when it determined that Mr. Benjamin’s testimony was not credible. Id. at

21. Appellant also avers that Mr. Benjamin’s testimony establishes that Mr.

Adams—a man Appellant concedes police eliminated as a suspect based on

his height, weight, skin tone, and lack of a DNA match from the scene of the

shooting—was the shooter. Id. at 23-25. He concludes that Mr. Benjamin’s

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testimony about Mr. Adams’s whereabouts on the morning of the shooting

would have compelled a different result. Id. at 25.

The PCRA court disagreed with Appellant’s assertions. In explaining its

reasons for dismissing Appellant’s petition, the court opined as follows:

[Mr.] Benjamin’s testimony lacks credibility and is not outcome determinative. Through his own admission, [Mr.] Benjamin possessed the information since the day of the incident, yet failed to provide[] authorities with the information, or take any action for that matter, for over a decade. Furthermore, he has two prior crimen falsi convictions for burglary which also weighs heavily against his credibility.

Even if believed, [Mr.] Benjamin’s testimony merely established that he saw two other individuals in a blue Subaru an hour before the shooting. As such, his testimony is not exculpatory to [Appellant] for the time of the shooting. Further, [Mr.] Benjamin’s testimony alluding that Geno Adams was the perpetrator is misguided as law enforcement, during the course of their investigation, specifically excluded that individual based upon his height, weight, skin tone, and lack of DNA.

What is credible but detrimental to [Appellant’s] claim is that his DNA was found on the wig and beard recovered during the investigation, and he could not provide law enforcement with a plausible explanation for such. Additionally, [Appellant] had motive and matched the physical description given at trial of the shooter. Further, recorded jail calls evidence [Appellant] and his family attempted to pay off witness Kevin Alton. As such, [Appellant’s] claims of innocence are belied by the record and his PCRA claim is without merit.

Rule 907 Notice at 4-5 (some paragraph breaks added).

Contrary to Appellant’s argument that the PCRA court usurped the role

of the jury in determining that Mr. Benjamin’s testimony was not credible, it

is the PCRA court’s responsibility to determine witness credibility. “Indeed,

one of the primary reasons PCRA hearings are held in the first place is so that

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credibility determinations can be made; otherwise, issues of material fact

could be decided on pleadings and affidavits alone.” Johnson, 966 A.2d at

539. Here, the PCRA court found that Mr. Benjamin’s testimony was not

credible. We decline to usurp the PCRA court’s credibility determinations or

reweigh the evidence.

Moreover, the record supports the PCRA court’s findings that the

testimony offered by Mr. Benjamin was not exculpatory when considered in

the context of the record as a whole and we discern no legal error in its Order.

Accordingly, there is not a reasonable probability that a jury would have

credited it and rendered a more favorable verdict. Appellant, thus, fails to

meet the fourth prong of the after-discovered evidence test. Accordingly, we

conclude the PCRA court properly exercised its discretion in denying relief.

Order affirmed

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/8/2022

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