J-A21024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMIN GIBBS : : Appellant : No. 3426 EDA 2019
Appeal from the PCRA Order Entered November 12, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004779-2013, CP-51-CR-0004781-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AMIN GIBBS : : Appellant : No. 3427 EDA 2019
Appeal from the PCRA Order Entered November 12, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004779-2013, CP-51-CR-0004781-2013
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: Filed: December 23, 2021
Appellant Amin Gibbs appeals from the order denying his timely first
Post Conviction Relief Act1 (PCRA) petition without a hearing. Appellant ____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546. J-A21024-21
contends that his trial counsel was ineffective for failing to challenge the
discretionary aspects of his sentence, and for declining to introduce evidence
that Appellant did not own a cell phone that linked him to the crime scene.
Appellant also argues that he is entitled to relief based on after-discovered
evidence relating to the misconduct of former Detective Philip Nordo. We
affirm.
A previous panel of this Court summarized the facts and procedural
history of this case as follows:
On October 24, 2012, [Appellant] had an argument with Devoun Handy outside West Park Homes, a housing project located at 300 Busti Street in West Philadelphia. During the altercation, [Appellant] pulled out two firearms and began shooting at Handy. Handy fled, and escaped unharmed.
* * *
Devoun Handy gave a statement to police in which he described the October 24, 2012, shooting. Handy stated he and [Appellant] “had words at 300 Busti Street. [Appellant] came back out of the building with two handguns and he told me to stop playing with him. I started backing up and he started shooting at me. I ran and he ran off.” Anthony Wells also told the police he saw [Appellant] shoot at Handy on October 24, 2012. . . . [Subsequently,] several witnesses gave statements to the police indicating they were aware [Appellant] had attempted to shoot Handy . . . at 300 Busti Street.
Other evidence corroborated the witnesses’ statements. At around 5:10 p.m. on October 24, 2012, police received multiple reports of a shooting. [When the police arrested Appellant, they recovered a cell phone with the phone number (267) 290-0026 from the residence in which they arrested Appellant. N.T. Trial, 12/4/14, at 23; N.T. Trial, 12/5/14, at 82-83, 91. Police later obtained a warrant for cell phone records from T-Mobile and to forensically examine that phone’s contents. N.T. Trial, 12/4/14, at 18-21.] The FBI’s analysis of cell phone records placed [Appellant] near the location of the shooting on that date.
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Further, [Appellant] sent several text messages shortly after the shooting indicating he was the perpetrator and he was hiding from the police. For instance, [Appellant] sent the following text messages to a contact listed as “Nye-Nye” the night of the shooting: “My name in the air. Heavy. Like on the tip. 5-0. No.”; “He been asking for it. He begged for that. He lucky my s--t locked up on me.”; “Last thing do the cops know my handle?” Nye-Nye also sent [Appellant] a text message stating: “UK . . . anything I hear and who is snitching, I got your back, cuz. Just be safe out there, please, and I love you.” On October 28, 2012, [Appellant] sent the following text message: “They talking still, Nye-Nye?” Nye-Nye responded: “Nah, they not talking. I don’t think the cops looks for you either. And Winky says call her.”[2]
Commonwealth v. Gibbs, 1711 EDA 2016, 2018 WL 1516366, at *1, *4 (Pa.
Super. filed Mar. 28, 2018) (unpublished mem.) (citations and footnote
omitted).
In the early morning hours of November 17, 2012, another shooting incident occurred on Holden Street outside West Park Homes, where Handy was attending a party. While Handy was standing outside with several others, a Chevrolet Impala approached them and an individual in the passenger seat started firing a gun in their direction. One of the people in the group, Zykia Sanders, was fatally struck by a bullet. In statements to
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2 In several of the text messages sent from the cell phone with the number ending in 0026, the sender identifies himself as “Min.” N.T. Trial, 12/5/14, at 107-08. Several witnesses testified that Appellant has the nickname “Min”, also spelled “Meen”. N.T. Trial, 12/2/14, at 160; N.T. Trial, 12/3/14, at 205, 216, 220; N.T. Trial, 12/4/14, at 135. Bruce Gibbs, a relative of Appellant’s, voluntarily turned his cell phone over to the police for examination. The number (267) 290-0026 was saved in Bruce Gibbs’s contacts under the nickname “Meen”. N.T. Trial, 12/4/14, at 16-18. Bruce Gibbs did not testify because he had passed away prior to Appellant’s trial. N.T. Trial, 12/3/14, at 252.
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the police, witnesses identified [Appellant] as the shooter in both incidents.[3]
On November 23, 2012, police went to arrest [Appellant] at the home of his girlfriend, Rasheedah Malone. When Malone answered the door, the arresting officer heard [Appellant] run upstairs. The officer ordered [Appellant] to return downstairs. [Appellant] complied and was taken into custody. The police subsequently secured and executed a search warrant at the residence. They recovered from the second–floor front bedroom a .22–caliber revolver, a sawed-off shotgun, a black [cell phone] in a blue rubber case, and mail addressed to [Appellant]. [One of the officers involved in this search was now-former Detective Nordo.]
The Commonwealth charged [Appellant] with aggravated assault, persons not to possess firearms, carrying a firearm on a public street in Philadelphia, and related offenses in connection with the October 24, 2012, shooting (Docket No. 4781–2013); murder and related offenses in connection with the November 17, 2012, shooting (Docket No. 4782-2013); and persons not to possess firearms and prohibited offensive weapons with respect to the firearms recovered during the November 23, 2012, search of Malone’s house (Docket No. 4779-2013). . . . Following a consolidated trial, a jury convicted [Appellant] at Docket No. 4781-2013 of aggravated assault, persons not to possess firearms, and carrying a firearm on a public street in Philadelphia. At Docket No. 4779-2013, the jury convicted [Appellant] of the separate charge of persons not to possess firearms. [Appellant]
3 At Appellant’s trial, J.C. Buford, a witness to the shooting on November 17, 2012, recanted his statement to the police identifying Appellant as the shooter and testified that he did not see who the shooter was. N.T. Trial, 12/3/14, at 107, 114-21; see also Commonwealth’s Ex. 9 (Buford’s November 24, 2012 statement). Buford claimed that detectives questioned him continuously for about thirty-five hours. N.T. Trial, 12/3/14, at 130-32. Buford denied signing his name and writing the date and time on the last page of the statement. Id. at 133. According to Detective John Golphin, now-former Detective Philip Nordo took part in the questioning of Buford, and Nordo had spoken to Buford before Buford came to the Homicide Unit to give a statement. N.T. Trial, 12/5/14, at 35-38, 46; see also Commonwealth’s Ex. 9 at 1. Nordo did not testify at Appellant’s trial.
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was acquitted of all other charges[, including all charges at Docket No. 4782-2013 arising out of the November 17, 2012, shooting].
On April 8, 2015, the trial court sentenced [Appellant] to an aggregate term of 17½ to 35 years’ imprisonment. [Appellant] filed a timely post-sentence motion challenging the weight of the evidence. The motion was denied by operation of law on August 11, 2015. [Appellant did not file a direct appeal.] On February 5, 2016, [Appellant] filed a timely [PCRA] petition . . . requesting reinstatement of his direct appeal rights nunc pro tunc. The PCRA court reinstated [Appellant’s] direct appeal rights on May 6, 2016.
Id. at *1-2 (footnote omitted).
Appellant filed a timely appeal and Appellant’s counsel subsequently
filed an Anders4 brief discussing the sufficiency and weight of the evidence,
the denial of Appellant’s motion to suppress, and the discretionary aspects of
Appellant’s sentence. Id. at *1. This Court concluded that Appellant’s
discretionary sentencing claim was waived because he failed to raise that issue
“at sentencing or in a timely filed post-sentence motion.” Id. at *8. Appellant
filed a response to counsel’s Anders brief, raising several additional issues,
including that the Commonwealth fabricated text messages associated with
Appellant’s cell phone number. Id. at *9. Ultimately, this Court concluded
that Appellant’s claim of fabricated evidence was meritless because it relied
on a mischaracterization of the record, and Appellant did not present any
evidence to support his allegation. Id. This Court affirmed the judgment of
sentence on March 28, 2018, and granted Appellant’s counsel leave to
4Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
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withdraw. Id. Appellant did not file a petition for allowance of appeal with
our Supreme Court.
On February 22, 2017, after his direct appeal rights were reinstated
nunc pro tunc and while his direct appeal was still pending, Appellant filed a
pro se first5 PCRA petition. In his petition Appellant raised a general claim
that the trial court committed an abuse of discretion; Appellant also
specifically claimed that the trial court erred by improperly imposing
consecutive sentences for aggravated assault and carrying a firearm on a
public street in Philadelphia when the offenses arose from the same act, and
that the trial court imposed illegal fines and costs without considering his
ability to pay, among other issues. Pro Se PCRA Pet., 2/22/17, at 3, 53, 62-
64 (renumbered). Appellant filed an amended pro se PCRA petition on August
8, 2017. On March 27, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice
of intent to dismiss the petition which stated that Appellant’s PCRA petition
had been prematurely filed.
After this Court affirmed Appellant’s judgment of sentence, the PCRA
court appointed Valerie Palazzo, Esq., to represent Appellant for his PCRA
proceedings. Appellant filed a motion to proceed pro se on May 21, 2018. ____________________________________________
5 A PCRA petition filed after the reinstatement of an appellant’s direct appeal rights nunc pro tunc is considered a first PCRA petition for timeliness purposes. See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013) (explaining “when a PCRA petitioner’s direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be considered a first PCRA petition for timeliness purposes” (citations and footnote omitted)).
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The PCRA court conducted a hearing pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998), on June 8, 2018, and granted Appellant’s request to
proceed pro se.6
Appellant then filed several amended pro se PCRA petitions. In the
petition filed on September 20, 2018, Appellant asserted that his sentence
was based on “evid[ence] that the Com[monwealth] knew or should have
known as false[.]” Am. Pro Se PCRA Pet., 9/20/18, at 3. In the accompanying
memorandum of law, Appellant raised, among others, a claim of ineffective
assistance of trial counsel for not introducing evidence that Appellant was
incarcerated at the time the cell phone with the number ending in 0026 was
activated. Pro Se Mem. of Law in Supp. of PCRA, 9/20/18, at 5-6. Appellant
also raised a claim of after-discovered evidence regarding former Detective
Nordo’s misconduct. Id. at 7-8.
The Commonwealth filed several answers to Appellant’s amended PCRA
petitions. On October 10, 2019, the PCRA court filed its Rule 907 notice of
intent to dismiss the petition without a hearing. Appellant filed a timely
response to the 907 notice. The PCRA court dismissed Appellant’s PCRA
petitions on November 12, 2019.
6 The certified record does not contain a transcript of the June 8, 2018 Grazier hearing. However, the order permitting counsel to withdraw states “Grazier hearing held. [Appellant’s] motion to proceed pro se is granted. Attorney Palazzo is withdrawn.” Order, 6/8/18 (formatting altered). Because Appellant is not challenging the PCRA court’s ruling in the Grazier hearing, the absence of the transcript does not impede our review.
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Appellant then filed timely pro se notices of appeal at each of the trial
court dockets.7 The PCRA court did not order Appellant to file a concise
statement of issues pursuant to Pa.R.A.P. 1925(b). The PCRA court filed an
opinion pursuant to Rule 1925(a), addressing Appellant’s claims that trial
counsel was ineffective for failing to challenge the admissibility of cell phone
records from T-Mobile and that trial counsel secretly undermined Appellant’s
case on behalf of the Commonwealth. See PCRA Ct. Op., 5/19/20, at 3, 5-6.
The PCRA court also addressed Appellant’s claim of after-discovered evidence.
See id. at 6-7.
Appellant subsequently filed an application with this Court requesting
appointed counsel. This Court remanded the matter to the PCRA court and on
September 30, 2020, the PCRA court appointed Daniel A. Alvarez, Esq., to
represent Appellant.8
Appellant raises three issues for our review:
1. Was trial counsel ineffective for failing to preserve the sentencing issue in a motion to reconsider sentence where the trial court abused discretionary aspects of sentencing, whereas it fashioned a sentence on three charges that were the statutory maximums and upward departures to the Sentencing Guidelines, and whereas they were entered consecutively to one another, creating an excessive aggregate sentence?
7 Appellant complied with our Supreme Court’s decision in Walker by filing separate notices of appeal under each trial court docket number. See Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018). We consolidated these matters sua sponte on February 5, 2020.
8 Attorney Alvarez filed an appellate brief on behalf of Appellant.
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2. Was trial counsel ineffective for failing to introduce evidence that Appellant was in custody at the time the cell phone that was tied to him was activated?
3. Did the PCRA court err in dismissing Appellant’s PCRA petition as Appellant proffers that had after-discovered evidence with regards to disgraced former homicide Detective Philip Nordo been made known to the jury it would have changed the trial’s result?
Appellant’s Brief at 6.
Ineffective Assistance of Counsel - Sentencing
In his first issue, Appellant argues that trial counsel was ineffective for
failing to preserve a challenge to the discretionary aspects of his sentence.
However, before we reach the merits of Appellant’s claim, we must determine
whether he has preserved it for review.
Here, the Commonwealth argues that Appellant waived this claim
because he did not raise it before the PCRA court. Commonwealth’s Brief at
11-12. The Commonwealth asserts that Appellant’s “vague and disjointed
references to an abuse of discretion and objections to his sentence do not
create a specific claim that [trial] counsel was ineffective for failing to preserve
a challenge to the discretionary aspects of his sentence.” Id. at 12.
Appellant argues that he raised this issue with the PCRA court in his
February 22, 2017, and September 20, 2018 pro se filings. Appellant’s Brief
at 27-28. Specifically, Appellant refers to his claims that (1) the trial court
committed an abuse of discretion, id. (citing Pro Se PCRA Pet., 2/22/17, at
3); (2) the trial court imposed illegal fines, id. at 28 (citing Pro Se PCRA Pet.,
2/22/17, at 62-64); (3) the trial court imposed consecutive sentences, id.
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(citing Pro Se PCRA Pet., 2/22/17, at 53); and (4) the trial court entered “a
sentence based on evid[ence] that the Com[monwealth] knew or should have
known was false,” id. (quoting Am. Pro Se PCRA Pet., 9/20/18, at 3 (quotation
marks omitted)).
It is well settled that “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a); see also
Commonwealth v. Roney, 79 A.3d 595, 611 (Pa. 2013) (holding that a claim
not raised in the PCRA court was waived on appeal). Further, our Supreme
Court has explained that although “courts may liberally construe materials
filed by a pro se litigant, pro se status confers no special benefit upon a
litigant, and a court cannot be expected to become a litigant’s counsel or find
more in a written pro se submission than is fairly conveyed in the pleading.”
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014).
Our review of the record confirms that, although Appellant challenged
aspects of his sentence and raised trial counsel’s ineffectiveness in his pro se
filings before the PCRA court, he did not specifically raise any claims relating
to the discretionary aspects of his sentence.9 However, even liberally ____________________________________________
9 Appellant raised claims in his pro se PCRA petition related to double jeopardy and merger, which assert that the trial court erred in imposing consecutive sentences for aggravated assault and carrying a firearm on a public street in Philadelphia because these convictions arose out of the same act, and the legislature did not intend to punish the same conduct twice, see Pro Se PCRA, 2/22/17, at 53 (renumbered). See Commonwealth v. Johnson, 231 A.3d 807, 819 (Pa. 2020) (stating that “[t]he Double Jeopardy Clause protects a defendant in a criminal proceeding against multiple punishments . . . for the (Footnote Continued Next Page)
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construing Appellant’s pro se pleadings, we cannot conclude that he preserved
a claim that trial counsel was ineffective for failing to file a post-sentence
motion challenging the discretionary aspects of Appellant’s sentence.
Therefore, because Appellant has raised this issue for the first time on appeal,
it is waived.10 See Pa.R.A.P. 302(a); Roney, 79 A.3d at 611. ____________________________________________
same offense” (citations and quotation marks omitted)); Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009) (explaining that under 42 Pa.C.S. § 9765, offenses merge when they arise from a single criminal act and all of the elements of one of the offenses are included in the elements of the other). Merger is a challenge to the legality of the sentence and not to its discretionary aspects. See generally Baldwin, 985 A.2d at 833 (stating that merger for sentencing purposes involves the legality of a sentence, and the standard and scope of review is de novo and plenary, respectively). The PCRA court did not address this claim in its Rule 1925(a) opinion. Although Appellant asserts merger claims in his pro se PCRA petition, he did not raise these issues on appeal; instead he claims that his trial counsel was ineffective for not challenging the discretionary aspects of his sentence. See Appellant’s Brief at 17-29.
In any event, Appellant’s merger claims are misplaced. Section 9765 “prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other.” Baldwin, 985 A.2d at 833. Instantly, because these offenses do not have any elements in common, the offenses do not merge for sentencing purposes, even if they arose from a single criminal act. Compare 18 Pa.C.S. § 2702(a)(1) (defining aggravated assault), with 18 Pa.C.S. § 6108 (defining carrying a firearm on a public street in Philadelphia).
10 As noted above, in his pro se PCRA petition, Appellant claimed that the trial court imposed an illegal sentence when it imposed fines and costs without considering his ability to pay. See Pro Se PCRA, 2/22/17, at 62-63 (renumbered). The PCRA court did not address this claim in its Rule 1925(a) opinion. Further, Appellant did not raise this claim on appeal; rather he argues that his trial counsel was ineffective for not challenging the discretionary aspects of his sentence. See Appellant’s Brief at 17-29. A claim that a trial (Footnote Continued Next Page)
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Ineffective Assistance of Counsel - Cell Phone Evidence
In his second issue, Appellant argues that trial counsel was ineffective
for failing to introduce evidence that the cell phone with the phone number
(267) 290-0026 did not belong to Appellant. Appellant’s Brief at 29-32. By
way of background, Appellant notes that, at trial, the cell phone was used to
establish that Appellant was in the vicinity of the October 24, 2012 shooting.
Id. at 29. Appellant claims that phone records establish that the cell phone
was first activated on June 26, 2010, at which point Appellant was
incarcerated for another matter. Id. at 30. Appellant contends that this
evidence would have shown that he did not own the cell phone that the
Commonwealth used to place him at the scene of the October 24, 2012
shooting. Id. Appellant argues the benefits of introducing this evidence
outweighed the potential prejudice of introducing evidence that Appellant had
court imposed a non-mandatory fine without considering the defendant’s ability to pay that fine is a non-waivable challenge to the legality of the sentence, not to its discretionary aspects. See generally Commonwealth v. Ford, 217 A.3d 824, 827 (Pa. 2019). A challenge to the trial court’s authority to impose costs also implicates the legality of the sentence. See Commonwealth v. Lehman, 201 A.3d 1279, 1283 (Pa. Super. 2019), aff’d, 243 A.3d 7 (Pa. 2020).
In any event, our review of the record demonstrates that although the trial court ordered Appellant to pay court costs, it did not impose any fines. Therefore, the trial court did not impose an illegal sentence when it assessed mandatory court costs without holding an ability-to-pay hearing. See, e.g., Ford, 217 A.3d at 827 n.6; Commonwealth v. Lopez, 248 A.3d 589, 595- 96 (Pa. Super. 2021) (en banc), appeal granted, 178 EAL 2021, 2021 WL 3732290 (Pa. filed Aug. 24, 2021) (per curiam order)
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been previously incarcerated. Id. at 31-32. Therefore, Appellant contends
that trial counsel had no reasonable basis for his inaction. Id. Appellant also
claims that he was prejudiced by counsel’s omission of this evidence in light
of several witnesses recanting their testimony that he was the shooter on
October 24, 2012.11 Id.
This Court has explained that
our standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error. The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(citations omitted and formatting altered).
Furthermore, to establish a claim of ineffective assistance of counsel, a defendant must show, by a preponderance of the evidence, ineffective assistance of counsel 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. The burden is on the defendant to prove all three of the following prongs: (1) the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or 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.
We have explained that a claim has arguable merit where the factual averments, if accurate, could establish cause for relief.
11 Appellant does not identify these witnesses by name. Instead, he cites to portions of the notes of testimony where witnesses testified that the statements they gave to the police were not true. Appellant’s Brief at 31 (citations omitted).
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Whether the facts rise to the level of arguable merit is a legal determination.
The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel’s decisions will be considered reasonable if they effectuated his client’s interests. We do not employ a hindsight analysis in comparing trial counsel’s actions with other efforts he may have taken.
Prejudice is established if there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Boilerplate allegations and bald assertions of no reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s burden to prove that counsel was ineffective. Moreover, a failure to satisfy any prong of the ineffectiveness test requires rejection of the claim of ineffectiveness.
Id. at 1043-44 (citations omitted and formatting altered).
Further, it is well settled that
[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. 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.
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations
and quotation marks omitted), appeal denied, 218 A.3d 380 (Pa. 2019).
Lastly, this Court “may affirm the decision of the [PCRA] court if there is any
basis on the record to support the [PCRA] court’s action; this is so even if we
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rely on a different basis in our decision to affirm.” Commonwealth v. Wiley,
966 A.2d 1153, 1157 (Pa. Super. 2009) (citation omitted).
Here, the PCRA court did not specifically address this claim in its 1925(a)
opinion.12 However, our review of the record confirms that Appellant has
failed to establish that he was prejudiced by trial counsel’s decision not to
introduce evidence that Appellant was incarcerated at the time the subscriber
activated the cell phone with the number ending in 0026. As noted previously,
the evidence presented to the jury showed that police recovered the cell phone
from the residence where Appellant was arrested. Further, text messages
sent from that phone in October 2012 identified the sender as “Min,” which is
Appellant’s nickname. Appellant argues that his trial counsel should have
presented additional evidence to show that the cell phone did not belong to
him, i.e., that Appellant was incarcerated at the time the phone was activated
on June 26, 2010. However, the jurors, as the finders of fact, could conclude
circumstantially that Appellant possessed and used the phone in October
2012. Therefore, on this record, Appellant cannot satisfy the prejudice prong
of the ineffectiveness test, i.e., a reasonable probability that the outcome of
his trial would have been different if counsel had introduced the subject
evidence. See Sandusky, 203 A.3d at 1044. Accordingly, Appellant is not
entitled to relief on this claim. See id. (stating that the “failure to satisfy any ____________________________________________
12 The PCRA court discussed Appellant’s claim that the cell phone data obtained from T-Mobile was not admissible and noted that this Court addressed this claim in Appellant’s direct appeal. See PCRA Ct. Op., 5/19/20, at 3, 5-6 (citing Gibbs, 2018 WL 1516366).
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prong of the ineffectiveness test requires rejection of th[at] claim”); see also
Wiley, 966 A.2d at 1157 (stating that we may affirm the denial of Appellant’s
PCRA petition on any grounds).
After-Discovered Evidence
In his final issue, Appellant argues that the PCRA court erred in denying
his claim of after-discovered evidence with respect to former Detective Nordo.
Appellant’s Brief at 32-35. Specifically, Appellant asserts that “Nordo was
fired in 2017 and criminally charged for his criminal conduct related to
witnesses, [] includ[ing] sexually assaulting male witnesses. Moreover, he
has been accused of using coercive and abusive tactics toward witnesses.”
Id. at 33. Appellant contends that the PCRA court erred in concluding that
Nordo was only tangentially involved in the investigation, given that Nordo
took part in the questioning of and taking a statement from J.C. Buford, who
testified that he was a witness to the November 17, 2012 shooting. Id. at
33-34. At trial, Buford testified that he did not voluntarily go the police station
to give a statement and did not sign the written statement. Id. at 35.
Appellant acknowledges that Buford was a witness to the November 17, 2012
shooting, and that Appellant was not convicted of any charges related to that
shooting. Id. at 34-35. Appellant argues that, even so, evidence of Nordo’s
misconduct is still relevant because Buford’s allegedly coerced statement “was
still part of the totality of the evidence that was heard and considered by the
jury and certainly was not favorable to the Appellant . . . .” Id. at 34.
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In reviewing an after-discovered evidence claim, this Court has
explained:
To establish eligibility on the basis 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 if a new trial were granted. In determining whether the evidence would compel a different verdict, a court should consider the integrity of the alleged after- discovered evidence, the motive of those offering the evidence, and the overall strength of the evidence supporting the conviction.
Sandusky, 203 A.3d at 1060 (citations and quotation marks omitted).
The after-discovered evidence test “is conjunctive; the defendant must
show by a preponderance of the evidence that each of these factors has been
met in order for a new trial to be warranted.” Commonwealth v. Padillas,
997 A.2d 356, 363 (Pa. Super. 2010) (citations omitted).
After-discovered evidence of an officer’s prior misconduct may compel
a new trial where that officer was the Commonwealth’s only witness at the
defendant’s trial. See, e.g., Commonwealth v. Williams, 215 A.3d 1019,
1026-28 (Pa. Super. 2019). However, this Court has held that the filing of
criminal charges against a detective who testified at the defendant’s
suppression hearing and at trial does not meet the after-discovered evidence
test where the defendant fails to show any nexus between his case and the
detective’s alleged misconduct in an incident that occurred after the
defendant’s trial. Commonwealth v. Foreman, 55 A.3d 532, 537-38 (Pa.
Super. 2012).
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Here the PCRA court addressed Appellant’s after-discovered evidence
claim as follows:
[Appellant’s] after-discovered evidence claim must fail as he is unable to prove that Nordo’s misconduct is of such a nature that this information, if presented to the fact-finder, would have led to a different verdict. In support of this claim, [Appellant] argues that the trial court should not have permitted Officer Golphin to read into the record the interview of J.C. Buford because Nordo typed it. However, [Appellant’s] claim is without merit because Nordo was only tangentially involved in the case. Nordo did not testify at trial nor was he a lead detective on the case. In fact, at trial, Nordo’s name is only mentioned a handful of times: (1) when Officer Golphin read an interview conducted with witness J.C. Buford, Officer Golphin stated that he conducted the interview while Nordo typed; (2) [Detective] Nordo was mentioned again during Officer Krewer’s testimony, where Officer Krewer indicated that he went to arrest [Appellant] at the girlfriend’s house and that Nordo had provided him with the address; and (3) Detective Thorsten Lucke mentioned that Nordo was present at [Appellant’s] house when police executed the search warrant; however, Detective Lucke testified that he searched and recovered all of the firearms himself and made no mention of any further involvement by Nordo. Based upon Nordo’s limited involvement in the investigation and the fact that he did not even testify at trial, [Appellant] is unable to show that his [after-]discovered evidence regarding Nordo on the “do not call” list would have changed the outcome of his trial in any way. Therefore, this [c]ourt properly dismissed [Appellant’s] claim as meritless.
PCRA Ct. Op. at 6-7.
Based on our review of the record, we find no error in the PCRA court’s
conclusions. See Sandusky, 203 A.3d at 1060. As noted by the PCRA court,
it is unlikely that evidence relating to Nordo’s misconduct would compel a
different verdict if a new trial was granted, especially because Nordo did not
testify at Appellant’s trial. See PCRA Ct. Op. at 6; compare Williams, 215
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A.3d at 1026-28. Further, Appellant did not present any evidence linking
Nordo’s misconduct to the questioning of Buford; therefore, Appellant cannot
establish a nexus between Nordo’s misconduct and Appellant’s case. See
Foreman, 55 A.3d at 537-38. Finally, as Appellant acknowledges, Buford was
a witness to the shooting on November 17, 2012, and Appellant was acquitted
of all charges related to that shooting. Therefore, Appellant cannot establish
that evidence of Nordo’s alleged misconduct would compel a different verdict
at a new trial in the instant matter.13 Accordingly, Appellant is not entitled to
relief on this claim. See Sandusky, 203 A.3d at 1060; Padillas, 997 A.2d
at 363.
For these reasons, we affirm the PCRA court’s order denying Appellant’s
PCRA petition without a hearing. See Maddrey, 205 A.3d at 328.
Order affirmed.
13 Appellant notes that Nordo was involved in Appellant’s arrest and the subsequent search of his residence. Appellant’s Brief at 34-35. However, Appellant has not argued that the evidence recovered during that search would have been suppressed if evidence of Nordo’s misconduct had been presented. See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en banc) (holding that “the failure to develop an adequate argument in an appellate brief may result in waiver of the claim under Pa.R.A.P. 2119” (citation and formatting altered)).
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/23/21
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