J-A02042-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KASHIF OMAR ELLIS : : Appellant : No. 1435 WDA 2023
Appeal from the PCRA Order Entered November 17, 2023 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001880-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KASHIF ELLIS : : Appellant : No. 421 WDA 2024
Appeal from the PCRA Order Entered November 17, 2023 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000773-2018
BEFORE: KUNSELMAN, J., MURRAY, J., and BECK, J.
MEMORANDUM BY BECK, J.: FILED: April 9, 2025
In these consolidated appeals, Kashif Ellis (“Ellis”) appeals from the
order entered by the Northumberland County Court of Common Pleas denying
his first petition filed pursuant to the Post Conviction Relief Act (“PCRA”)1 after
an evidentiary hearing. Ellis asserts that the PCRA court abused its discretion
____________________________________________
1 42 Pa.C.S. §§ 9541-9546. J-A02042-25
by concluding that Ellis failed to prove that his trial counsel, Attorney Ralph
Thomas Forr, Jr., provided him with ineffective assistance. Because we
discern no abuse of discretion in the PCRA court’s conclusion, we affirm.
Ellis’ petition stemmed from his convictions in two interrelated cases
regarding the July 13, 2013 robbery and shooting death of Stephen Lamont
Hackney (“Hackney”). Ellis orchestrated the robbery with his then-girlfriend
Taylor Griffith (“Griffith”) and Quasim Green (“Green”). A prior panel of this
Court summarized the background of the first case:
At Ellis’ direction, Griffith visited [Hackney’s residence.] While inside … Griffith texted Ellis, informing him that she saw large quantities of narcotics and U.S. currency, and that Hackney was alone and unarmed. Griffith … unlocked the back door to Hackney’s residence so that Ellis and Green could enter [and returned to Hackney’s bedroom. Around 1:00 a.m.,] Ellis barged into Hackney’s bedroom and shot him three times, resulting in his death. [Griffith] and her co-defendants then stole the cash and narcotics and fled.
The police responded to the scene and discovered Hackney’s body, as well as large quantities of cash nearby. After securing and searching the surrounding area, police seized a Samsung cellphone …, which had been discarded in the alley behind Hackney’s residence. The police obtained a search warrant for the digital contents of the Samsung phone. Forensic analysis of the Samsung phone revealed that it belonged to Green.
The investigation into the murder went on for several years. During the investigation, the police utilized a software geo- location mapping program called CellHawk. [CellHawk collects historical data from cellular tower “pings” to locate cellphone users on a given date and time. The data is known as cell-site location information (“CSLI”)]. The investigating officers accessed [CSLI] for two separate cell phones that, police determined, were respectively associated with Ellis and Griffith. The [CSLI placed] these phones in the general area of Hackney’s residence on the night of the murder. It further showed that both Ellis’ and
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Griffith’s phones were in the Philadelphia area shortly after the murder, which corroborated Griffith’s account. The police obtained the [CSLI], with respect to both Ellis’ and Griffith’s phones, via a court order.
Commonwealth v. Ellis, 240 A.3d 153, *1 (Pa. Super. Aug. 11, 2020) (non-
precedential decision).
Based on the above facts, in July 2017, the Commonwealth charged Ellis
with first-degree murder, robbery, criminal conspiracy, aggravated assault,
burglary, criminal trespass, recklessly endangering another person,
discharging a firearm into an occupied structure, criminal use of a
communication facility, and possession with intent to deliver a controlled
substance (collectively, “the murder charges”) at docket number CR 1880-
2017. The Commonwealth also filed various criminal charges against Ellis’ co-
conspirators, Griffith and Green.
Subsequently, Griffith pleaded guilty to third-degree murder and agreed
to testify as a Commonwealth witness against Ellis in exchange for a sentence
of fifteen to thirty years in prison. Ellis threatened to shoot Griffith, prompting
the Commonwealth to initiate a second case against Ellis at docket CR 773-
2018 with charges of intimidation of a witness and retaliation against a witness
(collectively, “the intimidation charges”).2
The two cases against Ellis as well as Green’s case were joined together
for trial. Prior to trial, the trial court continued the case several times at Ellis’
2 18 Pa.C.S. §§ 4952(a)(1), 4953(a).
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request. Some of the continuances were to accommodate Ellis’ changes in
counsel. Initially, Ellis was represented by Attorney Robert Donaldson. After
Attorney Donaldson withdrew in late July 2018, Ellis elected to proceed pro
se. He later requested counsel, and the trial court appointed Attorney Forr to
represent him in late September 2018.
A few days after Attorney Forr’s appointment, Ellis pro se filed an
omnibus pretrial motion. Notwithstanding the rule prohibiting hybrid
representation, approximately one week after he was appointed, Attorney Forr
argued the omnibus pretrial motion on Ellis’ behalf. The trial court denied the
motion, as well as a motion in limine filed by Attorney Forr several weeks
before trial. The trial court also denied Ellis’ motion for a continuance filed
four days before the scheduled jury selection in January 2019.
Initially, the Commonwealth intended to try Ellis and Green together.
In anticipation of their joint jury trial, Ellis and Green split their preemptory
strikes when selecting the jury. At the inception of trial, Green entered into a
plea agreement with the Commonwealth, leaving the Commonwealth to try
Ellis alone with the jury that had been jointly selected.3
Following a five-day trial, where, among other things, Griffith testified
that Ellis masterminded the robbery and shot and killed Hackney in his
bedroom in her presence, the jury convicted Ellis of the murder charges and
3 Green did not testify at Ellis’ trial.
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the intimidation charges. On April 16, 2019, the trial court sentenced Ellis to
life in prison without the possibility of parole on the murder conviction. On
the intimidation charges, the court also imposed an aggregate sentence of
twenty-three-and-a-half to forty-seven years in prison, to run consecutively
to the murder conviction sentence. This Court affirmed his judgment of
sentence in each case, and our Supreme Court denied allowance of appeal.
Ellis, 240 A.3d 153, appeal denied, 250 A.3d 1160 (Pa. 2021).
Ellis filed a timely pro se PCRA petition, his first, on June 14, 2021,
pertaining to his convictions at both dockets. Following the appointment of
counsel, Ellis filed an amended PCRA petition on September 30, 2022. The
PCRA court conducted an evidentiary hearing on June 16, 2023, wherein Ellis
and Attorney Forr testified. In an order and opinion entered on November 27,
2023, the PCRA court denied Ellis’s petition in its entirety.
Ellis timely appealed from the PCRA court’s denial of collateral relief.4
Both Ellis and the PCRA court complied with Pa.R.A.P. 1925.
4 Initially, Ellis filed one notice of appeal referencing two lower court docket numbers and purporting to appeal from a November 17, 2023 order that reinstated April 16, 2019 orders imposing his judgments of sentence. Because the November 17, 2023 order simply denied his PCRA petition without reinstating any prior orders, this Court ordered Ellis to show cause as to why we should not quash the appeal at 1435 WDA 2023 as untimely filed to the extent that he was attempting to file a direct appeal. Ellis responded, explaining that he solely intended to appeal from the denial of collateral relief, not his original judgments of sentence, which rendered his appeal timely filed. Because Ellis’ filing of a single notice of appeal from an order pertaining to two trial court dockets violated Commonwealth v. Walker, 185 A.3d 969 (Pa. (Footnote Continued Next Page)
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On appeal, Ellis asks this Court to decide whether the PCRA court abused
its discretion by determining that Ellis failed to prove that Attorney Forr
provided him with ineffective assistance at trial in five areas: (1) failing to
“investigate” Kelsey Bergmann (“Bergmann”),5 a potential witness who may
have contradicted Griffith’s testimony, “adequately and thoroughly”; (2)
failing to preserve a challenge to suppress the CSLI pursuant to Carpenter v.
United States, 585 U.S. 296 (2018); (3) failing to present a specific claim
pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (4) stipulating to the
authentication of cellphone evidence instead of challenging the authenticity at
trial; and (5) failing to file a motion to strike the jury jointly selected with
Green after Green accepted a plea deal. See Ellis’ Brief at 4-5.6, 7
2018), we entered an order directing Ellis to correct this defect pursuant to Commonwealth v. Young, 280 A.3d 1049 (Pa. Super. 2022) (holding that when there is a Walker defect in an appeal to which Pa.R.A.P. 902 applies, this Court’s default position is to allow correction of the defect unless the opposing party demonstrates good cause). As directed, Ellis filed an amended notice of appeal regarding the murder charges at 1435 WDA 2023, and an amended notice of appeal regarding the intimidation charges, which we docketed at 421 WDA 2024. This Court sua sponte consolidated the two appellate dockets pursuant to Pa.R.A.P. 513. We discharge the rule to show cause and amend the original caption at 1435 WDA 2023 to reflect the changes.
5 We note that Kelsey Bergmann’s first and last names have alternative spellings in the record, including “Kelsi,” “Kelsie,” and “Bergman.” For ease of review, we refer to Bergmann by the spelling used by Ellis in his brief.
6 We have reordered the issues presented by Ellis for ease of disposition.
7 We note with disapproval that the Commonwealth did not file a brief.
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When reviewing the denial of PCRA relief, we abide by the following
standard. Our review is limited to determining whether “the PCRA court’s
conclusions are supported by the record and free from legal error.”
Commonwealth v. Johnson, 289 A.3d 959, 979 (Pa. 2023). Because the
PCRA court hears the evidence and assesses credibility firsthand, we defer to
its factual findings. Id. Our review of a PCRA court’s legal conclusions,
however, is de novo. Id.
To obtain PCRA relief, the petitioner must establish, by a preponderance
of the evidence, that the conviction or sentence resulted from one or more of
the enumerated errors set forth in 42 Pa.C.S. § 9543(a)(2). One such error
is the ineffective assistance of counsel, which “so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” Id. § 9543(a)(2)(ii). A petitioner must also show the
claim has not been previously litigated or waived, and that “the failure to
litigate the issue prior to or during trial, ... or on direct appeal could not have
been the result of any rational, strategic[,] or tactical decision by counsel.” 42
Pa.C.S. § 9543(a)(3), (a)(4).
When reviewing a claim that counsel rendered ineffective assistance,
“we begin, as we must, with the presumption that counsel acted effectively.”
Johnson, 289 A.3d at 979. To overcome this presumption, a petitioner must
establish that: “(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s action or failure to act; and (3) the petitioner
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suffered prejudice because of counsel’s error, with prejudice measured by
whether there is a reasonable probability the result of the proceeding would
have been different absent the error.” Id. A petitioner’s failure to establish
any one of these three prongs results in failure of the claim. Commonwealth
v. Rizor, 304 A.3d 1034, 1050-51 (Pa. 2023).
Failure to Investigate Bergmann as a Witness
In his first issue, Ellis argues that Attorney Forr rendered ineffective
assistance by “failing to adequately and thoroughly investigate the potential
testimony of potential witness [] Bergmann.” Ellis’ Brief at 13. Ellis contends
that Bergmann could have offered testimony that undermined Griffith’s
timeline of events. Id. Ellis claims that Attorney Forr rendered ineffective
assistance by failing to subpoena her to testify. Id. at 16. Ellis contends that
it was unreasonable for Attorney Forr to have relied upon the Commonwealth’s
intent to call Bergmann as a witness, especially considering that Bergmann’s
testimony “was detrimental” to the Commonwealth’s “case in chief.” Id. Ellis
insists that if Bergmann had testified, her testimony would have “substantially
undermined Griffith’s chronology of events,” resulting in a different outcome
in a trial that centered upon Griffith’s testimony implicating Ellis as the
shooter. Id. at 18-19.
Specifically, Ellis directs our attention to police notes of a 2016 interview
with Bergmann, indicating that Bergmann told police that she was present at
Hackney’s residence in the evening leading into the early morning of his
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murder. Id. at 13 (citing Commonwealth Ex. 2 (Incident Report)). When she
arrived, she was greeted by Hackney’s cousin “Atlanta J” as she observed
Griffith coming down the stairs wearing a tank top and black thong underwear.
Id. (citing Commonwealth Ex. 2 (Incident Report)). Ellis maintains that
Bergmann’s statement undermined Griffith’s version of events, as Griffith
denied leaving Hackney’s bedroom except when she unlocked the back door
early in the morning right before the murder, denied seeing Atlanta J when he
came to the house to buy drugs from Hackney, and denied seeing Bergmann
at the house. Id. at 13-14 (citing N.T., 1/30/2019, at 133, 163, 174).
In its opinion, the PCRA court noted Attorney Forr’s efforts to look for
Bergmann and opined that Ellis failed to explain how Bergmann’s testimony
would have undermined Griffith’s testimony. PCRA Court Opinion,
11/16/2023, at 7-8. When asked about Bergmann at the PCRA evidentiary
hearing, Attorney Forr acknowledged his knowledge of her police statement
and indicated that, had he been able to locate her, he would have called her
as a witness to demonstrate that “Griffith was more involved in this situation
than she pretended to be.” N.T., 6/16/2023, at 44, 46. Attorney Forr did not
attempt to locate Bergmann prior to trial because the prosecution listed her
as a witness and he saw her leaving the prosecutor’s office a few weeks before
trial. Id. at 45-46. In the early part of the trial, Attorney Forr learned that
the prosecutor decided not to call Bergmann because he believed that she was
lying. Id. This “threw [him] for a loop.” Id. at 45. With this new information,
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the defense attempted to issue a subpoena, and a defense investigator looked
for Bergmann for three or four days during the trial but she “was nowhere to
be found.” Id. at 46, 56.
Ellis frames this issue as a failure to investigate claim, but his argument
frequently veers into Attorney Forr’s failure to ensure that Bergmann was
present to testify. A claim that a lawyer failed to interview or investigate a
witness is distinct from a claim that a lawyer failed to call a witness to testify.
Commonwealth v. Dennis, 950 A.2d 945, 960 (Pa. 2008). These types of
claims differ “in a subtle but important way.” Commonwealth v. Stewart,
84 A.3d 701, 712 (Pa. Super. 2013).
In some circumstances, it is per se unreasonable for counsel not to
attempt to investigate or interview a known witness. Commonwealth v.
Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014). However, even if counsel’s
failure to investigate or interview a witness is per se unreasonable, the burden
remains for the petitioner to plead and prove that the failure to investigate or
interview a witness resulted in prejudice at trial. Dennis, 950 A.2d at 960-
61.
The failure to call a witness, on the other hand, cannot be per se
unreasonable because the decision involves matters of trial strategy. Pander,
100 A.3d at 638-39. Accordingly, to establish a claim that counsel was
ineffective for failing to present a witness, a petitioner must satisfy the
performance and prejudice prongs. Id. A petitioner may do so
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by establishing 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 willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Sneed, 45 A.3d 1096, 1109 (Pa. 2012). To demonstrate
prejudice, the petitioner must show “how the uncalled witnesses’ testimony
would have been beneficial under the circumstances of the case” and “helpful
to the defense.” Id.
Under either framework, Ellis must plead and prove sufficient prejudice,
which, in the PCRA context, is a reasonable probability that the outcome of
trial would have been different had counsel interviewed and/or subpoenaed
Bergmann earlier. See Dennis, 950 A.2d at 961. This Ellis did not do.
Bergmann’s statement, if believed, would not negate Griffith’s testimony that
she saw Ellis shoot Hackney three times in his bedroom. Further, Ellis failed
to establish that Bergmann would have testified on his behalf (then or now)
and that her testimony would have been consistent with her interview
statement to police in 2016. See id. at 965. Accordingly, Ellis’ first issue
warrants no relief.
Failure to Preserve a Carpenter Suppression Challenge
Ellis argues that Attorney Forr rendered ineffective assistance by failing
to preserve a challenge to the Commonwealth’s warrantless acquisition of
CSLI data pursuant to Carpenter v. United States, 585 U.S. 296, 310
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(2018).8 Ellis’ Brief at 20. Ellis contends that the Commonwealth obtained
the CSLI from his Sprint cell phone without a warrant in violation of the Fourth
Amendment,9 and by not amending the omnibus pretrial motion or otherwise
timely challenging the introduction of the CSLI, Attorney Forr deprived him of
a meritorious claim without a reasonable basis. Ellis’ Brief at 25-26. Without
the CSLI placing him around Hackney’s residence at the time of the murder
to bolster Griffith’s eyewitness testimony, Ellis insists, the outcome of the trial
would have been different. Id. at 27-29.
The PCRA court provided two reasons for denying Ellis’ claim, neither of
which is supported by the record. First, the PCRA court decided that this claim
lacked merit because Attorney Forr testified that he did raise a Carpenter
challenge in a motion in limine filed two or three weeks prior to trial. PCRA
Court Opinion, 11/16/2023, at 9; see also N.T., 6/16/2023, at 29-31. The
record reflects, however, that Ellis’ failure to adequately raise a Carpenter
8 The Carpenter Court held that individuals have a legitimate expectation of privacy in the record of physical movements captured through CSLI, and as such, the Fourth Amendment requires law enforcement officials to obtain a warrant supported by probable cause prior to obtaining historical CSLI from a third-party carrier. Carpenter, 585 U.S. at 316.
9 In his argument pertaining to his third point of error, Ellis explains that instead of obtaining a warrant, in 2014, the Commonwealth obtained the CSLI data by applying for a court order pursuant to section 5743 of the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”), 18 Pa.C.S. §§ 5701- 5782. See Ellis’ Brief at 39-42. Despite not being entitled a search warrant, it is possible for the substance of an application for historical CSLI pursuant to the Wiretap Act to fulfill the requisites for a valid warrant. Commonwealth v. Rivera, 316 A.3d 1026, 1037 (Pa. Super. 2024).
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challenge has already been judicially determined. The trial court ruled that
neither the omnibus pretrial motion nor the motion in limine specifically
preserved a claim that the CSLI should have been suppressed prior to
Carpenter. Ellis, 240 A.3d 153, at *10. This Court agreed with the trial
court that Ellis “waived this issue” for direct appeal “because he failed to timely
raise a claim implicating Carpenter prior to his post-sentence motion.” Id.;
see Pa.R.Crim.P. 581(b) (providing that, generally, a suppression of evidence
issue is waived if not raised in an omnibus pretrial motion).
The PCRA court’s second explanation for denying the claim is that
Attorney Forr had a reasonable basis for failing to present a Carpenter
challenge, as he planned to present an expert to challenge the accuracy of the
location of the CSLI. PCRA Court Opinion, 11/16/23, at 9 (citing N.T.,
6/16/2023, at 63). Ellis contends that this mischaracterizes Attorney Forr’s
testimony. Ellis’ Brief at 26. We agree. The reason cited by the PCRA court
was provided by Attorney Forr to explain why he did not challenge the
authenticity of the Sprint cell phone records, including the CSLI data, not why
he failed to present a Carpenter challenge to suppress the introduction of the
information in the first place. See N.T., 6/16/2023, at 52-53, 62-63
(explaining that he did not challenge the authenticity of the CSLI or other cell
phone data because he thought he would have better success challenging the
accuracy of the data through an expert). Indeed, as we just noted, Attorney
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Forr claimed that he did try to present a Carpenter challenge. See N.T.,
6/16/2023, at 29-31.
Nonetheless, our disagreement with the PCRA court’s rationale does not
mean that Ellis is entitled to relief. The law is clear that we are not bound by
that rationale and may affirm on any basis supported by the record. See
Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012).
In addition to finding that Ellis failed to present and preserve a
Carpenter challenge with specificity on direct appeal, this Court agreed with
the trial court’s alternative analysis, which was that even if Ellis had preserved
a suppression claim based upon Carpenter, it would lack merit “because any
error in admitting the CSLI evidence was harmless given the totality of the
other overwhelming evidence” against Ellis. Ellis, 240 A.3d 153, at * 10. The
other uncontradicted and untainted evidence against him included Griffith’s
eyewitness testimony identifying Ellis as the mastermind of the conspiracy
and the person who shot Hackney three times, CSLI information from Griffith’s
phone placing her at Hackney’s house, and post-arrest statements made by
Ellis. See id. (citing Trial Court Opinion and Order, 9/20/2019, at 32-33).10
10 The post-arrest statements included a confession to his cellmate Travis Denny (“Denny”) and a statement made during a phone call Ellis made from prison to someone named Jarell Smith (“Smith”). Trial Court Opinion and Order, 9/20/2019, at 32-33. Denny testified that Ellis told him that he had shot a person named Steve three times who he had met through his girlfriend Taylor. Id. According to Denny, Ellis told him that he had shot Steve for money, but that he dropped the money as he ran out of the back door of the (Footnote Continued Next Page)
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Thus, this Court has already determined that even if Ellis had preserved a
Carpenter challenge prior to trial, and even if Ellis then established that the
Commonwealth violated the Fourth Amendment by obtaining the CSLI without
a warrant, admission of the tainted CSLI evidence at trial did not affect the
outcome.
Given this alternative holding, we are constrained to conclude that Ellis
failed to establish prejudice for PCRA purposes. Because the Commonwealth
already satisfied the “lesser standard” of prejudice for purposes of harmless
error, Ellis cannot use the same error to demonstrate the “more exacting
‘actual prejudice’ test” for purposes of the PCRA. See Commonwealth v.
Spotz, 84 A.3d 294, 315 (Pa. 2014). Put another way, Ellis cannot use the
erroneous admission of evidence that this Court has already deemed to be
harmless on direct appeal to demonstrate that there is a reasonable
probability that, but for Attorney Forr’s failure to preserve a Carpenter
challenge, the result of the trial would have been different. See Kimmelman
v. Morrison, 477 U.S. 365, 375 (1986) (holding that to establish prejudice
relative to a suppression motion, the litigant must establish that the “Fourth
Amendment claim is meritorious and that there is a reasonable probability
house. Id. The jury also heard a recorded phone call between Ellis and Smith. Id. Upon hearing that police recovered a cell phone dropped by Green near the scene, Ellis stated that it was over for him because he knew that Green was going to testify against him. Id.
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that the verdict would have been different absent the excludable evidence”).
Accordingly, Ellis’ second claim of error garners him no relief.
Failure to Adequately Request a Franks Hearing
In his third issue, Ellis contends that Attorney Forr rendered ineffective
assistance by failing to request, with the requisite specificity, a hearing to
challenge the veracity of statements made by former Detective Matthew S.
Starr in an application to obtain disclosure of records concerning Ellis’ Sprint
cell phone pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Ellis’ Brief
at 44.
Our Supreme Court has summarized Franks as follows:
The United States Supreme Court recognized the right to challenge an affidavit’s veracity in Franks v. Delaware, 438 U.S. 154 (1978), which addressed whether a defendant has the right, under the Fourth and Fourteenth Amendments, to challenge the truthfulness of factual averments in an affidavit of probable cause. Id. at 155. The Court held where the defendant makes a substantial preliminary showing the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the affidavit, the Fourth Amendment requires a hearing be held at the defendant’s request. Id. at 155–56. The Court emphasized the defendant’s attack on the affidavit must be “more than conclusory and must be supported by more than a mere desire to cross-examine”; the defendant must allege deliberate falsehood or reckless disregard for the truth, accompanied by an offer of proof. Id. at 171. If the defendant meets these requirements, but the remainder of the affidavit’s content is still sufficient to establish probable cause, no hearing is required. Id. at 171–72. If the affidavit’s remaining content is insufficient, a hearing is held, at which the defendant must establish, by a preponderance of the evidence, the allegation of perjury or reckless disregard. Id. at 156, 172. If he meets this burden, the affidavit’s false material is disregarded; if its remaining content is insufficient to establish probable cause, the
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search warrant is voided, and the fruits thereof are excluded. Id. at 156.
Commonwealth v. James, 69 A.3d 180, 188 (Pa. 2013) (parallel citations
omitted).
In a rather convoluted argument, Ellis contends that because the
Commonwealth’s application for a court order under the Wiretap Act was akin
to a search warrant, he should have been able to test the veracity of the
statements in the application through a Franks challenge. Ellis’ Brief at 43.
In the application, Ellis explains, Detective Starr relied upon a tip received by
an anonymous person who approached Detective DePaolis at the crime scene
to disclose that she heard that Hackney was set up by Griffith and her
boyfriend, Ellis. Id. at 41. Ellis maintains that there is “clearly something
bizarre” about this anonymous tip considering that other police records do not
mention it and the only reference to it is in this application filed by Detective
Starr, who later was discharged for fraud in an unrelated matter. Id. at 48.
According to Ellis, Attorney Forr should have amended the omnibus pretrial
motion or briefed the issue after oral argument to augment the general
allegations about Detective Starr’s propensity for fraudulent behavior with a
mention of the “bizarre” reference to an anonymous tipster. Id. at 46-48.
Ellis presents this argument concerning the anonymous tipster for the
first time on appeal. Before the PCRA court, Ellis averred merely that
“information existed and was known to counsel other tha[n] Detective Starr’s
past indiscretions to warrant a hearing pursuant to Franks.” Amended PCRA
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Petition, 9/30/2022, ¶ 36. At the hearing, the only information that Ellis
introduced regarding the Franks issue was Attorney Forr’s testimony that he
believed that Ellis had a viable challenge to the veracity of the application
because Detective Starr’s statements in the affidavit conflicted with the
statements of another officer. N.T., 6/16/2013, at 41-43. Ellis has therefore
waived this argument by failing to present it to the PCRA court. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”).
Even if we did not find waiver, Ellis’ claim would fail as he did not prove
the merit of the underlying Franks claim. Innuendo regarding the falsity of a
statement by an untrustworthy police officer does not constitute a substantial
preliminary showing of perjury or a reckless disregard for the truth under
Franks. See James, 69 A.3d at 188. Furthermore, Ellis failed to establish
prejudice for PCRA purposes. At best, a successful Franks challenge would
have prevented the Commonwealth from introducing the CSLI; it would not
negated Griffith’s eyewitness testimony. Accordingly, Ellis’ third claim fails.
Stipulating to Authenticity of Cell Phone Evidence
In Ellis’ fourth point of error, he argues that Attorney Forr should not
have stipulated to the authenticity of the records from his Sprint phone,
including the CSLI data, and instead should have forced the Commonwealth
to authenticate the records with a witness from Sprint. Ellis’ Brief at 51-54.
We need not dwell upon this claim, as Ellis has not established arguable merit,
no reasonable basis, or prejudice. Ellis simply questions Attorney Forr’s
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strategy and suggests that by failing to force the Commonwealth to prove the
authenticity of the records, Attorney Forr forwent a chance to exclude the
records. See Ellis’ Brief at 53. Ellis does not establish that the records lacked
authenticity or otherwise show that forcing the Commonwealth to prove the
authenticity of the records would have prevented their introduction at trial or
changed the outcome of the proceedings. As already discussed above,
Attorney Forr thought his best chance to undermine the Sprint cell phone
records was by challenging their accuracy, not their authenticity. Accordingly,
Ellis’ fourth claim fails.
Failing to File a Motion to Strike the Jointly Selected Jury
Ellis’ final point of error is that Attorney Forr failed to file a motion to
strike the jury panel jointly selected with his codefendant Green when Green
changed his plea after jury selection but prior to the start of trial. Ellis’ Brief
at 35. Ellis contends that Green’s active participation in voir dire and
subsequent absence at trial improperly allowed the jury to draw its own
conclusions regarding Green’s absence at trial. Id. at 35-36. Further, Ellis
argues that he was deprived of Green’s preemptory strikes because he had to
share the seven preemptory strikes with Green during voir dire. Id. at 36.
He highlights Attorney Forr’s testimony that he “probably should have done
something” about the jury, had he been less focused upon trial preparation.
Id. at 33 (citing N.T., 6/13/2023, at 38). Ellis points out that Attorney Forr’s
reason for not pursuing a motion to strike the jury panel—time constraints
and focus on trial preparation—is incongruous, as a challenge to the jury would
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have afforded Attorney Forr more time to prepare for trial. Id. at 36. He also
argues that despite Attorney Forr’s assertion that Green’s absence gave them
an opportunity to point the finger at Green, Attorney Forr did little to pursue
this particular strategy. Id. at 37. As for prejudice, Ellis asserts the
importance of an impartial jury and repeats the same arguments he set forth
regarding the arguable merit of the claim. Id. at 38.
Crucially, Ellis cites no case law to support the merit of his claim that he
would have been entitled to a new jury panel simply because he had to share
his preemptory strikes with Green or because Green was absent at trial. Had
Attorney Forr objected to proceeding after Green’s absence, rather than
empaneling a new jury, the law provides that trial court could have provided
a cautionary instruction. See Commonwealth v. Boyer, 856 A.2d 149, 155
(Pa. Super. 2004) (noting that “where some of defendants charged jointly
plead guilty, it is incumbent upon trial judge to give adequate and clear
cautionary instructions to jury to avoid ‘guilt by association’ as to the
remaining defendant being tried”) (citation omitted). Ellis does not establish
whether such an instruction was requested or provided here.
Furthermore, Ellis does not articulate how he would have exercised
preemptory challenges differently had he been entitled to all seven challenges
or how he was prejudiced by sharing preemptory challenges with Green. See
Commonwealth v. Morales, 494 A.2d 367, 373 (Pa. 1985) (holding that
trial court did not abuse its discretion in declining to provide codefendants
with the number of preemptory challenges to which they each would have
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been entitled if tried alone “especially where appellant failed to allege, much
less demonstrate, how he would be prejudiced by the limitation of peremptory
challenges”). Pointedly, Attorney Forr testified that he thought Ellis could
receive a fair and impartial trial with the jury he selected. See N.T.,
6/16/2023, at 36. Accordingly, Ellis failed to establish the merit and prejudice
prongs regarding this claim.
Conclusion
Because Ellis did not plead and prove Attorney Forr’s ineffectiveness as
to any of his five claims assailing his stewardship, the PCRA court did not
abuse its discretion in denying his PCRA petition in its entirety.
Order affirmed.
4/9/2025
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