J-S98001-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WESLEY COOK : : Appellant : No. 1206 EDA 2023
Appeal from the PCRA Order Entered March 31, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0113571-1982
BEFORE: PANELLA, P.J.E., STABILE, J., and BENDER, P.J.E.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 10, 2024
Petitioner, Wesley Cook (also known as Mumia Abu-Jamal), appeals an
order dismissing his petition for postconviction relief. 1 In 1982, following a
jury trial, Petitioner was found guilty of the first-degree murder of Officer
Daniel Faulkner. Petitioner was sentenced to death in 1983, but that sentence
was later vacated, and a term of life was imposed. Several successive
postconviction petitions were then filed in the years after the judgment of
sentence became final. In his most recent petition filed in 2021 (his sixth),
Petitioner claims that new evidence entitled him to a new trial. This was based
on the recent disclosure of a letter written by a witness to the lead prosecutor
asking for money owed to him, as well as notations by the prosecutor
____________________________________________
1 Petitioner’s claims are governed by the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. J-S98001-24
regarding the race of prospective jurors. The Court of Common Pleas of
Philadelphia County (PCRA court) dismissed the petition without a hearing.
Finding no basis to disturb that ruling, we affirm.
The underlying facts of the case have previously been summarized as
follows:
[A]t approximately 3:55 a.m. on December 9, 1981, Officer Faulkner made a routine car stop on Locust Street between Twelfth and Thirteenth Streets in Center City Philadelphia. The car was driven by the [Petitioner’s] brother, William Cook. After making the stop, Officer Faulkner called for assistance on his police radio, requesting a police wagon to transport a prisoner. While Faulkner was trying to handcuff Cook, [Petitioner] ran from across the street and shot the officer once in the back. Faulkner was able to fire one shot, which wounded [Petitioner], but after Faulkner had fallen to the ground [Petitioner] shot him four more times at close range, once through the center of the face. [Petitioner] was found slumped against the curb in front of Cook's car and taken into custody by police officers who arrived on the scene within thirty to forty-five seconds. The officers had been in the area and were turning onto Locust Street from Twelfth Street in response to Faulkner's radio request. They were flagged down by a cab driver [Robert Chobert,] who had witnessed the shooting while stopped at the intersection of Thirteenth and Locust. Two other pedestrians also witnessed the incident and identified [Petitioner] as the perpetrator, both at the scene and during the trial.
Commonwealth v. Abu-Jamal, 555 A.2d 846, 848 (Pa. 1989) (affirming
judgment of sentence on direct appeal).
Additionally, when Petitioner was apprehended at the scene of the
shooting, he was wearing a gun holster. A handgun sold to Petitioner, and
registered in his name, was laying on the ground a few inches away from him.
When Petitioner was transported to a hospital for the treatment of his gunshot
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wound, multiple witnesses testified at trial that they heard him admit to
shooting Officer Faulkner, and express his hope that he was dead. See N.T.
Trial, 6/24/1982, 28-30, 33, 113-16, 135-36.
The jury found Petitioner guilty, and he was sentenced to death. The
judgment of sentence was upheld on direct appeal in 1989. See Abu-Jamal,
555 A.2d at 848. Petitioner then filed PCRA petitions in 1995, 2001, 2003,
and 2009. The first petition was denied after the PCRA court held an
evidentiary hearing. The second, third, and fourth petitions were dismissed
as untimely. In each of these four proceedings, the appeal was immediately
heard by the Pennsylvania Supreme Court,2 and the denial of relief was upheld
in each instance. See Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa.
1998) (affirming denial of first PCRA petition); Commonwealth v. Abu-
Jamal, 833 A.2d 719 (Pa. 2003) (affirming denial of second PCRA petition);
Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008) (affirming denial
of third PCRA petition); Commonwealth v. Abu-Jamal, 40 A.3d 1230 (Pa.
2012) (affirming denial of fourth PCRA petition).
After obtaining federal habeas corpus relief, Petitioner’s death penalty
was overturned, and he was resentenced in 2012 to a prison term of life
without parole. On appeal, Petitioner’s life sentence was affirmed by this
2 42 Pa.C.S.A. § 9711(h)(1) mandates that in cases where party has been sentenced to death, his claims “shall be subject to automatic review by the Supreme Court of Pennsylvania[.]”
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Court. See Commonwealth v. Abu-Jamal, 3059 EDA 2012, 2013 WL
11257188 (Pa. Super. filed July 9, 2013) (unpublished memorandum).
In 2016, Petitioner filed his fifth PCRA petition, this time claiming that
his appellate rights from the four earlier PCRA proceedings had to be
reinstated pursuant to the United States Supreme Court’s decision in
Williams v. Pennsylvania, 579 U.S. 1 (2016). In that case, the defendant
was found guilty of first-degree murder and sentenced to death. The
Honorable Ronald Castille was the District Attorney of Philadelphia at the time
of the trial, and he had authorized prosecutors to seek the death penalty.
The defendant in Williams filed a PCRA petition seeking a new penalty-
phase trial, and that request was granted by the PCRA court. The
Pennsylvania Supreme Court reviewed the ruling, and by the time the Court
heard the appeal, the Chief Justice was the Honorable Ronald Castille, who
refused to recuse himself from the case. Our Supreme Court reversed the
award of relief and reinstated the defendant’s death penalty. However, on
further review before the United States Supreme Court, it was found that
Justice Castille’s refusal to recuse despite his “significant, personal
involvement in a critical trial decision” had “presented an unconstitutional risk
of bias” in the PCRA proceedings. Williams, 579 U.S. at 11. Our Supreme
Court’s opinion was vacated, and the Court was directed to reconsider the
defendant’s appeal without Justice Castille’s participation. See id., at 17.
After the Williams opinion was issued, Petitioner relied on it to contend
that Justice Castille’s participation in the appellate review of his own cases
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constituted a similar constitutional violation. In 2018, the PCRA court directed
the Commonwealth to produce its entire case file from the trial, and 32 boxes
of records were submitted. On January 3, 2019, the Commonwealth disclosed
for the first time that it had discovered another six boxes of previously
undisclosed documents.
During a review of the newly disclosed materials, it was discovered that
in 1990, Justice Castille (in his prior role as District Attorney) had sent a letter
to the governor advocating for the execution of death row inmates who had
murdered a police officer. The PCRA court found that this letter was new
evidence that raised an appearance of bias and impropriety. Petitioner’s
appellate rights as to his first four PCRA petitions were reinstated on that
ground.
However, on further review, this Court held that the prior appeals had
erroneously been reinstated because Justice Castille’s letter to the governor
did not demonstrate any personal interest in the outcome of Petitioner’s case.
As such, the letter did not qualify as newly discovered evidence which would
exempt Petitioner’s claims from the PCRA’s time-bar. The four appeals were
therefore dismissed for lack of jurisdiction. See Commonwealth v. Cook,
No. 290 EDA 2019 (Pa. Super. filed October 26, 2021) (unpublished
memorandum) (vacating order granting reinstatement of Petitioner’s prior
PCRA appeals).
Although the issues raised in the prior PCRA proceedings are not directly
before us, they are nonetheless significant because they resulted in the new
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disclosures that now form the basis of Petitioner’s present claims. On
December 23, 2021, once the appeal at docket number 290 EDA 2019 had
concluded, Petitioner filed his most recent PCRA petition (his sixth), alleging
that the newly disclosed evidence from the Commonwealth’s case files
established violations of the constitutional rights at issue in Brady v.
Maryland, 373 U.S. 83 (1963), and Batson v. Kentucky, 476 U.S. 79
(1986).
The Brady claim was based on the discovery of a letter written by an
eye-witness (Robert Chobert) in which he asked the sole prosecutor at trial
(Joseph McGill, Esq.) about money he was “owed.” The letter was postmarked
on August 6, 1982, about one month after the trial had concluded. It reads
in its entirety as follows:
Mr. McGill, I have been calling you to find out about the money ow[ed] to me. So here is a letter, finding out about money. Do you need me to sign anything[?] How long will it take to get it[?] How was your week off good I hope.
PCRA Petition, 12/23/2021, Exhibit B.
In response to the disclosure of Chobert’s letter, McGill submitted an
affidavit on November 18, 2019. See PCRA Petition, 12/23/2021, Exhibit C.
McGill averred that he had never promised Chobert “anything of value in
exchange for his testimony," and that when Chobert asked if he could be
compensated for lost wages at the conclusion of the trial, McGill “responded
politely that [he] would look into it.” Id. However, McGill did not follow up
on Chobert’s request because it was against his office’s policy. See id.
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Further, McGill stressed that Chobert’s motivation to testify could not have
been based on a payment because he had come forward immediately to
identify Petitioner as the shooter at the scene of the crime. See id.
The Batson claim was based on Petitioner’s discovery that McGill had
noted the race of potential jurors at the trial, designating them with the letter
“W” (White) or the letter “B” (Black). Petitioner, who is Black, argued that
the notations demonstrated the Commonwealth’s strategy to exclude
members of his race from the jury.
The PCRA court heard argument from the parties on October 26, 2022.
On that date, the PCRA court issued a notice of its intent to dismiss the petition
without an evidentiary hearing. See Pa.R.Crim.P. 907. Petitioner and the
Commonwealth both filed responses, and additional argument was heard on
December 16, 2022.
The PCRA court dismissed the sixth PCRA petition without a hearing. In
its 1925(a) opinion, the PCRA court found that the Brady claim lacked merit
because the letter was not impeachment material or exculpatory, much less
material to the conviction; the Batson claim was found to be both waived and
without merit because McGill’s voir dire notes did not reveal an intent to make
any peremptory strikes on the basis of race. See PCRA Court 1925(a)
Opinion, 7/11/2023, at 8-29. Petitioner timely appealed, and in his brief, he
now raises two issues for our consideration:
1. Was the PCRA court in error when it dismissed [Petitioner’s] Brady claim on materiality grounds, without a hearing, when the
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claim presented evidence of a previously withheld agreement or understanding between the Commonwealth and the Commonwealth's principal witness, Robert Chobert, that Mr. Chobert would receive financial compensation for his testimony on behalf of the Commonwealth at [Petitioner’s] trial[?]
2. Was the PCRA court in error when it dismissed [Petitioner’s] Batson claim, without a hearing, on the grounds that the claim was untimely and waived, when [Petitioner] could not have raised the claim previously because it is premised on significant new evidence that the prosecutor was motivated by race in exercising peremptory strikes; the Commonwealth withheld that evidence from [Petitioner] for over three decades; and [Petitioner] diligently sought to uncover facts in support of his Batson claim in prior proceedings[?]
Petitioner’s Brief, at 1-2.
A postconviction claim warrants PCRA relief only if a petitioner "pleads
and proves by a preponderance of the evidence" that (1) his conviction or
sentence resulted from one of the grounds outlined in 42 Pa.C.S.A. §
9543(a)(2), and the claim has not been previously litigated or waived. See
42 Pa.C.S.A. § 9543(a)(3). Of relevance in the present proceedings, a
petitioner is eligible for relief where a conviction resulted from "[a] violation
of the Constitution of this Commonwealth or the Constitution or laws of the
United States which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place." 42 Pa.C.S.A. § 9543 (a)(2)(i).
Under the PCRA, all petitions, "including a second or subsequent
petition," must be filed within one year of the date that the judgment of
sentence in the case became final. 42 Pa.C.S.A. § 9545(b). A statutory
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exception to the time-bar must be invoked "within one year of the date the
claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).
Petitioner’s judgment of sentence became final in 1991, and the present
PCRA petition was filed about 30 years later. Accordingly, Petitioner needed
to satisfy one of the enumerated exceptions to the PCRA’s time-bar in order
for the merits of his claims to be considered.
When reviewing the denial of PCRA relief, an appellate court “is limited
to determining whether the PCRA court’s findings are supported by the record
and without legal error.” Abu-Jamal, 941 A.2d at 1267. This Court may
affirm if there is any basis in the record to support the PCRA court’s decision.
See Commonwealth v. Smith, 194 A.3d 126, 131 (Pa. Super. 2018).
A PCRA court may dismiss a PCRA petition without a hearing as long as
the record supports the finding that the petitioner failed to raise a genuine
issue of material fact as to his entitlement to relief:
The PCRA court has the discretion to dismiss a petition without a hearing when the court is satisfied “that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings.” Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011) (quoting Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.” Id. (quoting Commonwealth v. D'Amato, 579 Pa. 490, 856 A.2d 806, 820 (2004)). We stress that an evidentiary hearing “is not meant to function as a fishing expedition for any possible evidence that may
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support some speculative claim[.]” Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1003 n.8 (2002) (citation omitted).
Commonwealth v. Roney,79 A.3d 595, 604–05 (Pa. 2013).
Petitioner’s first issue on appeal is that the PCRA court erred in
dismissing his Brady claim without an evidentiary hearing because Chobert’s
letter to McGill created a genuine issue of fact as to whether his constitutional
rights were violated.
In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme
Court held that “the suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady, 373 U.S. at 87. To prove a Brady violation, it must
be shown that “(1) the evidence was suppressed by the Commonwealth, either
willfully or inadvertently; (2) the evidence was favorable to the defendant;
and (3) the evidence was material, in that its omission resulted in prejudice
to the defendant.” Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa.
Super. 2012) (citation omitted).
The burden of establishing a Brady violation “rests with the defendant
to prove, by reference to the record, that evidence was withheld or suppressed
by the prosecution.” Commonwealth v. Hutchinson, 25 A.3d 277, 310 (Pa.
2011). “The withheld evidence must have been in the exclusive control of the
prosecution at the time of trial.” Haskins, 60 A.3d at 547. However, “[n]o
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Brady violation occurs when the defendant knew, or with reasonable
diligence, could have discovered the evidence in question.” Id. (citing
Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa. 2011)).
“The Brady rule extends to impeachment evidence including any
potential understanding between the prosecution and a witness, because such
information is relevant to the witness' credibility.” Commonwealth v.
Wholaver, 177 A.3d 136, 158 (Pa. 2018). A Brady violation is only
“material,” and therefore prejudicial, if “constitutional error results from its
suppression by the government, if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Id. (internal citations omitted). Our Supreme Court
has summarized a “reasonable probability” as “a probability sufficient to
undermine confidence in the outcome.” Id. at 783–84 (citation omitted). In
this analysis,
[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense.
Id., at 158–59 (internal citations and quotations omitted).
As to the timing of a Brady claim at the postconviction stage, our
Supreme Court has noted that
[a]lthough a Brady violation may fall within the governmental interference exception [of the PCRA], the petitioner must plead
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and prove the failure to previously raise the claim was the result of interference by government officials, and the information could not have been obtained earlier with the exercise of due diligence. Section 9545(b)(1)(ii)’s exception requires the facts upon which the Brady claim is predicated were not previously known to the petitioner and could not have been ascertained through due diligence. In [Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007)], we clarified that § 9454(b)(1)(ii)’s exception does not contain the same requirements as a Brady claim, noting “we made clear the exception set forth in subsection (b)(1)(ii) does not require any merits analysis of the underlying claim. Rather, the exception merely requires that the ‘facts’ upon which such a claim is predicated must not have been known to appellant, nor could they have been ascertained by due diligence.”
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citations
omitted).
Here, we find initially that Petitioner timely raised his Brady claim. It
is undisputed that Petitioner’s judgment of sentence became final decades
ago, and that he had to establish one of the exceptions to the PCRA’s time-
bar in order to assert his new claims in 2021. Petitioner invoked the
governmental interference (42 Pa.C.S.A. § 9545(b)(1)(i)) and newly
discovered evidence exceptions (42 Pa.C.S.A. § 9545(b)(1)(ii)) of the PCRA.
Under either exception, Petitioner had to file his claim within one year from
the date upon which he learned of the claim’s factual basis; he also had to
show that the grounds for the claim could not have been discovered sooner
through the exercise of due diligence. See Abu-Jamal, 941 A.2d at 1268.
We agree with the PCRA court that Petitioner’s Brady claim was timely
filed. See PCRA Court Notice of Intent to Dismiss, 10/26/2022, at 19 n.20.
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The Commonwealth did not turn over the case files containing Chobert’s letter
until January 3, 2019, and Petitioner filed the present petition as soon as was
procedurally permitted.3 Prior to the discovery of the letter, Petitioner acted
with due diligence, having sought unsuccessfully to obtain such evidence at
the PCRA proceedings in 1995. See id. Thus, since the claim was timely filed,
it is not procedurally barred.
Turning to the merits of the claim, we also agree with the PCRA court
that Chobert’s letter was not evidence of a Brady violation or otherwise
material because it did not establish a fact which would impeach Chobert’s
credibility.
Under the PCRA, a petitioner has the initial burden of identifying the
evidence that establishes the right to relief. See 42 Pa.C.S.A. §9543(a)
(requiring that a petitioner “must plead and prove” his claim.). But here, the
only evidence Petitioner put forward is Chobert’s letter, in which the witness
asked the prosecutor about money he believed he was owed. It is entirely
speculative to assume, as Petitioner does, that the letter proves McGill
promised Chobert money in exchange for his testimony. See e.g.,
Commonwealth. v. Dickerson, 900 A.2d 407, 411 (Pa. Super. 2006)
(finding that alleged Brady violation did not establish governmental
3 Petitioner learned of Chobert’s letter while an earlier PCRA petition was still
pending. He filed his present PCRA petition as soon as that prior petition was fully adjudicated, making it timely. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).
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interference exception to the PCRA time bar because it was “nothing but pure
speculation.”).
Witnesses at a trial are statutorily entitled, under 42 Pa.C.S.A. § 5903,
to compensation for their participation. This statute provides that a witness
“shall be paid at the rate of $5 per day during the necessary period of
attendance,” 42 Pa.C.S.A. § 5903(b), and that even if he is not called to
testify, he is entitled to this compensation while attending the matter under
subpoena. See 42 Pa.C.S.A. § 5903(g).4
In light of this statute, there is nothing facially, or per se, improper
about Chobert asking for compensation once the trial had concluded. Chobert
testified both at a pretrial suppression hearing, which took place over four
days, and at Petitioner’s trial, which lasted two weeks. Due to concerns over
his safety, Chobert had to be housed in a hotel during those proceedings.
Once the trial concluded, he was owed monetary compensation as a matter of
law. His request for renumeration, alone, is therefore not evidence that he
was being paid to testify. Thus, the trial court did not err in determining that
4 42 Pa.S.C.A. § 5903(g) provides that “[a] witness who attends any matter
under subpoena, but who is not called to testify therein, shall receive the same compensation and expenses as if actually called to testify.” The statute provides further that, “[t]he person disbursing compensation and expenses to a witness under this section may require that the witness first certify under 18 Pa.C.S. § 4904(b) (relating to statements “under penalty”) that the compensation and expenses paid do not exceed the amount specified by this section.” 42 Pa.S.C.A. § 5903(i).
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Petitioner had failed to carry his burden of raising a question of fact whether
a Brady violation occurred.5
Even assuming that Chobert’s letter could conceivably constitute
impeachment evidence under Brady, we would find, like the PCRA court did,
that it was not material. Again, Chobert immediately identified Petitioner at
the scene as the person who shot Officer Faulkner, and he did so before he
ever met McGill. Chobert testified consistently at Petitioner’s trial, in his out-
of-court statements to police, and at Petitioner’s initial PCRA proceedings in
1995. The Pennsylvania Supreme Court and the federal district court both
recognized the consistency of Chobert’s identification of Petitioner as the
person who fatally shot Officer Faulkner. See Abu-Jamal, 720 A.2d at 96;
Abu-Jamal, 2001 WL 1609690 at *23 (“A review of the record also
demonstrates that Chobert’s statements consistently indicated that the
shooter and another man moved from the shooting scene, that they were
apprehended, [and] that Chobert was positive about his identification of
petitioner as the shooter[.]”).
5 McGill stated in his affidavit of November 18, 2019, that he recalled Chobert
approaching him after the trial had concluded to ask if he could be compensated for the wages he had lost as a result of not being able to work during the trial. McGill stated that he told Chobert he would “look into it,” but ultimately he did not follow up with Chobert on this point because it was inconsistent with the policies of his office. Petitioner has submitted no evidence which refutes McGill’s assertions. See PCRA Petition, at Exhibit C.
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Aside from Chobert’s identification, there was other compelling evidence
of Petitioner’s guilt which is noticeably absent from the recitation of facts in
his briefing before us. This included several witnesses who testified to hearing
Petitioner admit to shooting Officer Faulkner and hoping he was dead. A
hospital security guard, Priscilla Durham, and a police officer, Gary Bell, both
testified at trial that they overheard Petitioner make this declaration. See
N.T. Trial, 6/19/1982, at 176-200, 263-64; N.T. Trial, 6/21/1982, at 4, 109;
N.T. Trial 6/24/1982, at 27-30, 33-34, 56-61, 112-16, 133-36. A third
witness, Officer Wakshul testified at the PCRA hearing held on August 1, 1995,
that Petitioner admitted to shooting Faulkner. 6
Additionally, Petitioner was arrested moments after Officer Faulkner
called for backup. When backup arrived, a handgun was laying a few feet
away from Petitioner at the scene of the shooting. The weapon was bought
by and registered to Petitioner, who was wearing an empty gun holster when
apprehended at the scene. Petitioner had also been shot in the chest by
6 Petitioner has previously attempted to impeach the Commonwealth’s witnesses on various grounds, none of which have been successful. In his first PCRA petition, in particular, he argued that the Commonwealth had committed a Brady violation by not having Officer Wakshul testify at trial. Even though the officer had reportedly heard Petitioner’s admission, he had given arguably inconsistent statements that no such admission had been heard. Our Supreme Court rejected that ground for postconviction relief. See Abu-Jamal, 720 A.2d at 92-93. As to the second eye-witness, Cynthia White, Petitioner argued that the Commonwealth had failed to disclose an alleged deal between her and prosecutors in which she would testify in exchange for leniency in her own pending cases. Our Supreme Court also found this claim to be meritless. See id., at 93-94.
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Officer Faulkner during the incident, and the bullet recovered from Petitioner’s
body was the only round discharged from Officer Faulkner’s weapon. Under
these circumstances, the Commonwealth’s delayed disclosure of Chobert’s
post-trial letter to McGill does not undermine our confidence in the outcome
of the trial.
Lastly, we address Petitioner’s argument that he presented enough
evidence of a Brady violation to raise a material issue of fact, requiring the
PCRA court to hold an evidentiary hearing. For reasons similar to those
outlined above, we find that the PCRA court did not err in this regard.
Chobert’s letter does not raise a question of fact as to whether a Brady
violation occurred, and it is not clear what legitimate purpose an evidentiary
hearing would have served. In his affidavit, McGill averred that no money had
been paid to Chobert in exchange for his testimony. Chobert himself, at the
PCRA hearing in 1995, denied that he had testified against Petitioner in
exchange for any favors promised by the Commonwealth. 7
No other evidence or witnesses have been proffered by Petitioner that
supports his Brady claim or contradicts the statements given by Chobert and
7 Petitioner had made a Brady claim in his first PCRA petition, asserting that
the Commonwealth had failed to disclose that Chobert had testified at trial in exchange for having his suspended driver’s license reinstated. See Commonwealth v. Abu-Jamal, 720 A.2d 79, 95-96 (Pa. 1998). Although Chobert testified that he had asked McGill to help him reinstate his license, Petitioner failed to produce any evidence that Chobert ever received that benefit. In fact, as of the hearing in 1995, which was over a decade after the trial had ended, Chobert’s license still had not been restored. See id., at 96.
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McGill regarding the allegation of an improper payment for false testimony.
Petitioner therefore failed to carry his burden of putting forth evidence of a
Brady violation such that an evidentiary hearing was required, and the PCRA
court did not err in denying a hearing on the Brady claim. See Roney, 79
A.3d at 604–05.
Petitioner’s second claim is that he was entitled to postconviction relief
based on a portion of prosecutor McGill’s jury-selection notes, which show that
during voir dire he recorded the race of prospective jurors. In Batson, the
United States Supreme Court held that a defendant’s equal protection rights 8
are violated where a prosecutor exercises peremptory strikes against
prospective jurors for the purpose of excluding members of a particular race
from the jury:
In order to establish a Batson claim, a defendant must establish a prima facie case of purposeful discrimination. To do so, a defendant must demonstrate that he/she is of a cognizable racial group; that the prosecution has exercised peremptory challenges to exclude members of that racial group from the panel of venirepersons; and finally, that these facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude venirepersons on the basis of race. Implicit in this scheme is the notion that peremptory challenges constitute a jury selection practice that allows for such discrimination by those who have a design to discriminate. If a defendant succeeds in establishing a prima facie case of purposeful discrimination, the prosecution is then required to provide non-discriminatory reasons for striking the potential jurors. ____________________________________________
8 The Equal Protection Clause of the Fourteen Amendment to the United States
Constitution provides that no state may deny any person within its jurisdiction “the equal protection of the laws.” U.S. CONST. amend. XIV, § 1.
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Abu-Jamal, 720 A.2d at 113–14 (internal citations omitted).
According to Petitioner, McGill’s trial notes demonstrate that he engaged
in racial discrimination in selecting the jury. We find, however, that the PCRA
court did not err in ruling that (a) the claim is barred because of a lack of due
diligence in discovering the new evidence, and (b) the claim lacks merit
because no constitutional violation is apparent from that evidence.
It is important to note that this is the third time that Petitioner has
alleged a Batson violation. He raised the same issue on direct appeal and in
his first PCRA petition in 1995. At both proceedings, our Supreme Court found
that Petitioner failed to raise a prima facie case of discrimination:
This court's analysis of this issue on direct appeal indicated that the record reflected that the prosecution employed peremptory challenges to strike eight African–American venirepersons. It now appears, via a stipulation, that there may have been two more African–American venirepersons stricken by the prosecution. That evidence does not alter our original conclusion. Significantly, in concluding on direct appeal that Appellant failed to establish a prima facie case of discrimination, we stated: “. . . we have examined the prosecutor's questions and comments during voir dire, along with those of the appellant and his counsel, and find not a trace of support for an inference that the use of peremptories was racially motivated.” 521 Pa. at 198, 555 A.2d at 850. Even assuming that ten, rather than eight, stricken venirepersons were African–American, we would still arrive at the same resolution of this issue that we did on direct appeal. [Petitioner’s] current claim, thus, warrants no relief.
Commonwealth v. Abu-Jamal, 720 A.2d 79, 114 (Pa. 1998).
Crucially, McGill was subpoenaed and available to testify at a PCRA
hearing in 1995 as to whether he exercised peremptory strikes to exclude
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jurors on the basis of race. See N.T. PCRA Hearing, 7/18/1995, at 56, 58-
59; 7/26/1995, at 222-29; 7/27/1995, at 28-29, 155-56; 8/4/1995, at 117-
18. The Commonwealth stated that Petitioner “should be given full latitude”
at that hearing to develop his Batson claim. N.T. PCRA Hearing, 7/31/1995,
at 292. Nevertheless, Petitioner declined to call McGill to the stand and
develop his claim. See N.T. PCRA hearing, 8/4/1995, 119-20.
Under these circumstances, we are not persuaded that Petitioner
exercised due diligence at the relevant times. Had Petitioner questioned McGill
in 1995 and asked him in the most general terms about the reasons for his
peremptory strikes, then the factual basis of his present claim may have easily
been discovered at that point. See Commonwealth v. Daniels, 963 A.2d
409, 432-33 (Pa. 2009) (at PCRA hearing on petitioner’s Batson claim,
prosecutor was called about his voir dire notes in which the race of jurors was
recorded, as well as the reasons why the jurors were stricken). Petitioner’s
failure to take even that modest step in uncovering the potential evidence of
a Batson violation in 1995 is therefore fatal to his attempt to resurrect that
same issue in 2021.9
9 Petitioner insists that it was not incumbent on him to call McGill to the stand
in 1995 because any questions that have could been asked of him were limited in scope to a narrow offer of proof. It follows in Petitioner’s reasoning that, since he did not have access to McGill’s voir dire notes, the PCRA court would have precluded any questions about their contents. We find this reasoning to be unpersuasive. Petitioner asserts that the “only Batson-related matter he had notice of to present was the racial makeup of the jury.” Appellant’s Brief, (Footnote Continued Next Page)
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But even had Petitioner exercised due diligence, we would still find that,
under the circumstances of this case, McGill’s voir dire notes are not evidence
of a Batson violation. Indeed, it would have been odd for McGill not to have
taken such notes under the circumstances.
Before voir dire had even begun, Petitioner’s counsel had repeatedly
raised the issue of discrimination in the jury selection process. Defense
counsel alleged that race was a factor in the case because Officer Faulkner
was white, and Petitioner was black. Further, counsel asserted that in his
experience, Black jurors were routinely stricken by the prosecution due to
their race. McGill denied defense counsel’s allegation, and the trial judge
cautioned defense counsel against shifting the focus of the trial to matters of
race rather than the evidence of Petitioner’s guilt or innocence. See N.T. Trial,
3/18/1982, at 11-16.
As voir dire was about to begin, defense counsel asked the trial court if
the potential jurors could be prompted to verbally state their race in open
court. Defense counsel explained that having them do so would be necessary
to perfect the record for appellate review. See N.T. Trial, 6/7/1982, at 17-
20. The trial court permitted defense counsel to ask potential jurors to identify
at 51. Yet recording the racial makeup of the jury was the only supposed impropriety in McGill’s notes. Whether or not Petitioner had those notes in 1995, he would have been able to ask McGill why he struck Black jurors. Moreover, as we detail above, there was nothing unusual or improper about McGill recording the race of potential jurors, especially when defense counsel had preemptively made their race an issue.
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their race. Jury selection went forward and, some, but not all of the jurors
were asked by defense counsel to state their race verbally on the record.
In context, then, McGill’s decision to note the race of prospective jurors
does not at all show that he improperly struck any particular venireman from
the jury for a discriminatory purpose. Instead, McGill’s notations were a
logical response to defense counsel’s emphasis on that very subject. Defense
counsel all but told the prosecution the Commonwealth would need to be
prepared to address the issue on appeal.
Our case law is clear that any subsequent post-trial inquiry into the issue
of discrimination would hinge on there being a record of (a) the race of all
venirepersons in the jury pool; (b) the race of all venirepersons remaining
after challenges for cause; (c) the race of those stricken by the prosecutor;
and (d) the race of the jurors who served, as well as the race or gender of
jurors accepted by the Commonwealth but who were stricken by the defense.
See Commonwealth v. Hill, 727 A.2d 578, 582 (Pa. Super. 1999) (citing
Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993)). Once such a record
is established, a court must review it under the totality of the circumstances
to determine whether the defendant has made a prima facie case of purposeful
discrimination. See Hill, 727 A.2d at 582 (citing Commonwealth v.
Thomas, 717 A.2d 468, 475 (Pa. 1998), and Commonwealth v. Rico, 711
A.2d 990, 993 (Pa. 1998)).
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While McGill’s notations should have been disclosed earlier, they do not
evidence any improper motivations on his part, much less a violation of the
Equal Protection Clause. Noting the race of prospective jurors was an obvious,
even necessary, action for McGill to take after defense counsel announced that
the race of the jurors would be a factor at the outset of voir dire. Thus, we
uphold the PCRA’s dismissal of the claim without a hearing, as Petitioner failed
to carry his burden of raising a question of fact as to whether a Batson
violation occurred.
Order affirmed.
Date: 9/10/2024
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