J-S02026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
NAEEM JONES
Appellant No. 1432 EDA 2016
Appeal from the PCRA Order April 28, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0006591-2007
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 19, 2017
Appellant, Naeem Jones, appeals from the April 28, 2016 order
entered in the Court of Common Pleas of Philadelphia County (“PCRA
court”), denying his petition for collateral relief pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we
affirm.
The procedural history of the matter is undisputed. Following a jury
trial from August 18-25, 2008, Appellant was found guilty of first-degree
murder and possessing instruments of crime (“PIC”).1 Appellant was
sentenced to life without parole on the murder charge. After having his
direct appellate rights reinstated on November 19, 2010, Appellant appealed
____________________________________________
1 18 Pa.C.S.A. §§ 2502(a) and 907, respectively.
J-S02026-17
to this court. On November 15, 2011, this Court affirmed Appellant’s
judgment of sentence. See Commonwealth v. Jones, 3389 EDA 2010,
Unpublished Memorandum at 11 (Pa. Super. Filed Nov. 15, 2011). Our
Supreme Court denied Appellant’s petition for allowance of appeal on April 4,
2012. Appellant filed a timely pro se PCRA petition on December 21, 2012.
The PCRA court appointed counsel, who filed an amended PCRA petition on
August 12, 2015, an addendum to the petition on October 15, 2015, and a
motion to supplement evidence on January 20, 2016.
The PCRA court held a hearing on January 21, 2016, and April 1, 2016.
Following post-hearing briefs by the parties, the PCRA court denied the
petition on April 28, 2016. Appellant filed a timely appeal on May 4, 2016.
The PCRA court did not direct Appellant to file a concise statement; however,
the PCRA court filed a Pa.R.A.P. 1925(a) opinion on May 24, 2016.
Appellant raises three questions on appeal, which we quote verbatim.
I. Was trial counsel ineffective for failing to request an alibi instruction where counsel presented alibi testimony and argued that alibi in his closing? Was this failure the cause of significant prejudice to Appellant’s cause?
II. Was trial counsel ineffective for failing to object to the introduction of bad acts evidence, including a police photo, that met none of the exceptions of a Pa.R.E. 404§(b)(1)? Was this failure the cause of significant prejudice to Appellant’s cause?
III. Was after discovered evidence that was wholly exculpatory, credible and compelling enough to warrant a new trial?
Appellant’s Brief at 1 (sic).
3
J-S02026-17
Our standard of review of a PCRA court’s denial of a PCRA petition is
well settled.
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
After careful review of the record, the briefs, and the relevant case
law, we find that the PCRA court’s May 24, 2016 opinion, thoroughly and
adequately addresses all of Appellant’s claims. See Trial Court Opinion,
5/24/2016, at 4-12. The PCRA court’s findings are supported by the record
and are free of legal error. We direct that a copy of the PCRA court’s May
24, 2016 opinion be attached to any future filings in this case.
Order affirmed.
4
J-S02026-17
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/19/2017 ,--- .. --· .. Circulated 03/23/2017 01:00 PM
IN IN THE
THE COURT OF COMMON
COURT OF COMMON PLEAS
PLEAS
FIRST FIRST JUDICIAL DISTRICT OF JUDICIAL DISTRICT OF PENNSYLVANIA PENNSYLVANIA
CRIMINAL CRIMINAL TRIAL
TRIAL DIVISION
DMSION
COMMONWEALTH OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA : CP-51-CR-0006591-2007 CP-51-CR-0006591-2007
v. FILED FILED
Comm. v. Jones,
CP-51-CR-QoQ659127 Comm CP,51.CR-0006591-2007 Jones Naoam Naeem
MAY 2 4 2016 MAY 2016 e>p;r;on Opiron
NAEEM JONES NAEEM JONES Criminal Appeals Unit Criminal Appeals Unit
First Judicial Distrtct of PA First Judicial District PA of
II 111111111111111111111
7451116811 7451116811
,I OPINION OPINION
McDermott, McDermott J. May May 24
24, 2016
2016
Proceduralllistory Procedural History
On On November
November 8, 2006, 2006 the
the Petitioner,
Petitioner Naeem
Naeem Jones,
Jones was
was arrested·
arrested and
and charged
charged with
with
Murder and Murder and related
related offenses. On August offenses On August 25,
25 2008,
2008 before the Honorable before the Honorable Carolyn Carolyn Temin,
Temin a jury
jury
returned guilty returned guilty verdicts
verdicts to First-Degree Murder to First-Degree Murder and and Possession
Possession of an Instrument of an Instrument of
of Crime
Crime
PlC On ("PIC"). On December
December 18
18, 2008,
2008 Judge
Judge Temin
Temin imposed
imposed a term
term of imprisonment of
of imprisonment of life without without life
1
The Petitioner
parole for First-Degree Murder. The parole for First-Degree Murder.1 Petitioner did did not
not file an
an appeal.
appeal file
On May On 13, 2009,
May 13 2009 the the Petitioner
Petitioner filed
filed a Post-ConvictionRelief Post-Conviction Relief Act PCRA petition, Act ("PCRA") petition
seeking reinstatement of seeking reinstatement of his appellant rights.· his appellant rights OnOn November November 19,
19 2010,
2010 the
the Petitioner's
Petitioners direct
direct
appeal appeal rights
rights were
were reinstated.
reinstated On December
On December 9, 2010,
2010 the
the Petitioner
Petitioner filed
filed an
an appeal
appeal with
with Superior
Superior
Court Court alleging
alleging that
that the
the evidence
evidence was insufficient insufficient to
to support
support First-Degree
First-Degree Murder.
Murder On November
15, 15 2011,
2011 Superior
Superior Court
Court affirmed
affirmed his
his judgment
judgment of
of sentence.
sentence On December
On December 7, 2011,
2011 the
the
Petitioner Petitioner filed
filed a Motion
Motion to
to Vacate
Vacate and/or
and/or Reconsider
Reconsider Fines,
Fines Costs,
Costs and
and Restitution,
Restitution which
which Judge
Judge
Temin Temin denied
denied on
on December 21 On
December 21. On April
April 4, 2012,
2012 the
the Supreme
Supreme Court
Court denied
denied Petitioner's
Petitioners
I The The Petitioner received
received no
Petitioner no further penalty penalty on ftrther on the PIC
PlC charge.
the charge
Petition for Allowance Petition for Allowance of Appeal. On
of Appeal On December
December 21, 2011, the
21 2011 Petitioner filed the Petitioner filed PCRA -petition.
a PCRA petition
On August 122015 On August 12, 2015, appointed PCRA appointed PCRA counsel
counsel, Susan
Susan Burt
Burt, Esquire, filed an
Esquire filed Amended Petition an Amended Petition
alleging layered alleging layered claims claims of
of ineffective
ineffective assistance
assistance and
and a claim
claim of after-discovered evidence of after-discovered evidence. Qn On
October 15 October 2015, PCRA 15, 2015 PCRA counsel
counsel filed an addendum filed an addendum to
to that petition. On
that petition December 28 On December 2015 the
28, 2015, the
Commonwealth Conunonwealth filed Motion to filed a Motion to Dismiss, Dismiss but
but did not oppose
did not an evidentiary oppose an hearing with evidentiary hearing with regard regard
to the Petitioners after-discovered to the Petitioner's after-discovered evidence evidence claim.
claim
On January On January 20 2016, PCRA 20, 2016 PCRA counsel
counsel filed
filed a Motion
Motion to
to Supplement
Supplement Evidence of
Evidence of
Ineffectiveness Ineffectiveness of Trial of Trial Counsel,
Counsel arguing
arguing an
an additional claim. On
additional claim On January January 21,
21 2016, this Court
2016 this Court
held an evidentiary hearing, in held an evidentiary hearing which Robert in which Robert Corbin
Corbin testified
testified concerning
concerning after-discovered after-discovered
evidence. The evidence The hearing hearing was
was bifurcated,
bifurcated with Corbin testimony with Corbin's testimony concluding on April concluding on 2016 April 1, 2016.
Trial counsel, Trial counsel Fred Harrison, Esquire Fred Harrison Esquire also also testi:~ed on this
testified on this date. On April date On April 21,
21 the·
the
Commonwealth filed Commonwealth filed a Post-Hearing Post-Hearing Brief
Brief requesting this Court requesting this Court to
to deny the
the Petitioner PCRA
Petitioner PCRA
relief. On relief On April April 25,
25 2916, the Petitioner
2016 the filed a Supplemental Petitioner filed Supplemental Brief Brief in
in Support
Support of New Trial.
of a New Trial
On On April 28 April 28, this Court dismissed the Petitioner's claims. Ori this Court dismissed the Petitioners claims On May May 4, 2016,
2016 the Petitioner filed the Petitioner filed a
Notice Notice of of Appeal
Appeal to
to Superior
Superior Court.
Court
Facts
In In its November
its November 15,
15 2011
2011 opinion,
opinion the
the SuperiorCourt
Superior Court summarized the facts summarized the facts as
as follows:
follows
On the On the evening
evening ofof February
February 20,20 2006,
2006 thethe victim
victim [Steven Bartley]
Bartley and and
his Mend his
friend, Terrance Speller ("Speller"), Terrance Speller Speller went went to
to the
the Big
Big Fells'a
Fellsa sports
sports bar
bar
at 33rd and Reed Streets in Philadelphia. at 33rd and Reed Streets in Philadelphia Although Although Speller
Speller was treating
treating
the bar's patrons the bars
patrons toto thinks
drinks, hehe and the victim and the victim were notnot warmly warmly received.
received
Testimony Testimony was was presented presented that
that [the Petitioner]
Petitioner argued
argued with
with Speller
Speller about
about
the use of the juke box in the bar. Additionally, the use of the juke box in the bar Additionally one of [the Petitioner's]
one of Petitioners
friends, Mends Charles='Biggie"
Charles Biggie Waters Waters had Waters ("Waters"), had a heated heated argument
argument withwith
the the victim when the
victim when the victim victim tried
tried to
to talk
talk to
to a woman whom whom Waters Waters stated
stated
was was there with him
there with him and
and the
the [the Petitioner].
Petitioner
Later Later that evening, Kamira that evening Kamira Woods Woods was Woods ("Woods") screaming in was screaming in the the
mens men's bathroom. James Frager bathroom James Frager ("Frager")
Frager and others rushed in and found and others rushed in and found
Speller Speller with
with his
his pants
pants and
and belt
belt open.
open Speller
Speller had
had his
his hands
hands around Woods
around Woods'
2
·t
3
neck. neck [The Petitioner Petitioner] had dated Woods had dated Woods for for five five years
years but but they
they broke
broke up up
the year the
year before
before, as as she
she alleged
alleged he he had
had hit
hit herher and threated her and threated her. Frager Frager
testified that testified that [the Petitioner Petitioner] and and the other men the other men argued argued with with Speller
Speller and and
the victim about this incident until the bartender announced "last call the victim about this incident until the bartender announced last call" andand the bar the bar patrons
patrons thereafter
thereafter wentwent outout onto onto thethe street
street. .
Frager testified Frager testified that when he that when he left the left
the bar
bar, [the Petitioner
Petitioner] was was standing standing
outside with the victim, Speller outside with the victim Speller, Waters, and Curtis Scott. A police Waters and Curtis Scott police officer officer
driving to the scene driving to the scene of an of an unrelated accident observed the victim talking unrelated accident observed the victim talking emphatically to emphatically to another another man man outside
outside the bar. As
the bar As Frager
Frager got got into
into his
his carcar[,]
he heard he heard gunshots
gunshots, but but did did notnot observe anything. Frager observe anything Frager then then observed observed
[the Petitioner
Petitioner] and and others others standing
standing over over thethe victim victim inunediately
immediately after the after the
shooting. shooting
Testimony was Testimony was presented presented that that the
the victim
victim died died of of multiple multiple gunshot gunshot
wounds and wounds and the the manner manner of of death
death was homicide. Dr was homicide Dr. Gregory Gregory McDonaldMcDonald
stated that the stated that the victim victim sustained
sustained approximately
approximately nine nine toto twelve twelve gunshots
gunshots[,]
fired from at least two semi-automatic weapons fired from at least two semi-automatic weapons. The victim was The victim was shotshot
twice in the face at close range twice in the face at close range. Those bullets penetrated Those bullets penetrated his skull his skull, brain
brain
stem, stem and and cerebellum
cerebellum[,] and and immediately immediately destroyeddestroyed his his ability ability to move
to move
volitionally. The volitionally The victim victim waswas also shot in the back, arms, legs, and chest.
also shot in the back arms legs and chest
Those bullets Those bullets pierced pierced his spine, liver, kidney, and lungs.
his spine liver kidney and lungs
The Commonwealth presented The Commonwealth presented evidence evidence that that later later thatthat day,
day [the
Petitioner] Petitioner called his friend, called his Mend Vincent Dickerson ("Dickerson"), Vincent Dickerson Dickerson and and stated stated
that there that there had had been been a problem problem with Woods at with Woods at the the bar.
bar [The Petitioner]
Petitioner
stated that W stated that Woodscods had had been prostituting herself been prostituting herself and and that that hehe shot
shot a man man that
that
was trying to was trying to get get involved involved on Woods behalf on Woods' behalf [The Petitioner]'
Petitioner told told
that he thought the police were looking for him and that he did Dickerson Dickerson that he thought the police were looking for him and that he did not know not know where where to to gogo oror what what to to do.
do.22 TheThe police
police encountered
encountered [the Petitioner] Petitioner later later that night in that night in an
an unrelated
unrelated incident;
incident he he was in in a car car with with
Biggie Biggie and and others.
others The police The police stopped
stopped the car due to a suspicion the car due to suspicion of of
marijuana The marijuana The car was searched and [the Petitioner]
car was searched and Petitioner was arrested for drug was arrested for drug
possession. possession
Woods gave Woods gave a statement statement to to the police on February 21, 2006 the police on February 21 2006 and and
November 3, 2006. November 2006 In her first statement, In her first statement she she omitted omitted reference
reference to to [the
Petitioner]; Petitioner in in thethe second second [statement], she she overcame overcame her her fear
fear of of him
him andand
his his history
history of
of violence
violence and
and described
described his his participation participation in
in thethe murder.
murder
Woods told Woods police that told police that she she observed
observed [the Petitioner]
Petitioner point point a gun gun at at the the
victim, victim stretch
stretch out out his
his arm,
arm and
and shoot
shoot at
at the
the victim
victim numerous times.
times When
When
[the Petitioner]
Petitioner learned learned that Woods gave that Woods
gave a statement
statement to to thethe police police on on
February February 21, 21 2006,2006 he he sought sought her her out
out the
the next
next dayday toto ask
ask if if the·
the detectives
detectives
mentioned mentioned his his name, name whosewhose picture
picture theythey showed
showed her, her and and whose whose names names
the police the had
police had. Thereafter, in early Thereafter in early November, Dickerson also provided November Dickerson also provided a
2 Dickerson testified that the statement testified statement presented that the presented by by the Commonwealth
Commonwealth that the Petitioner confessed the that the confessed Petitioner was fabricated was fabricated
by by police.
police
I
statement to
statement to the police detailing [the Petitioner's]
the police detailing Petitioners involvement .in involvement the in the
murder. murder.3
3 [The Petitioner] was arrested Petitioner was arrested onon November November 8, 2006. 2006
A Cobra
Cobra Arms
Arms M-lM-11 semi-automatic semi-automatic weapon
weapon was found in
was found in an
an abandoned
abandoned
house around the comer from 33rd street. Officer Ernest Bottomer;a house around the corner from street Officer Ernest Bottomer forensic forensic
ballistics expert, testified that the gun ballistics expert testified that the was one
gun was of the murder one of the murder weapon.
weapon Officer
Officer
Bottomer testified that there was a least Bottomer testified that there was least one
one other
other gun used in
gun used in the
the murder.
murder
The The defense presented the testimony of Debbie Royster ("Royster'').
defense presented the testimony of Debbie Royster Royster Royster testified that when the shots Royster testified that when the shots rang out she rang out[,] was in she was in the
the ladies'
ladies room
room
of the bar with [the Petitioner]. of the bar with Petitioner Royster averred Royster averred that
that she
she and
and [the Petitioner]
Petitioner
were doing were doing cocaine
cocaine together
together at that
at time and
that time and exited
exited the
the bathroom
bathroom upon
upon
hearing the hearing the gunshots.
gunshots
Commonwealth Commonwealth Naeem Jones, v. Naeem Jones 3389 EDA 2010 3389 EDA 2010 (November
November 15,
15 2011) (non-precedential 2011 non-precedential
decision) (internal decision citations omitted).
internal citations omitted
Discussion Discussion
The Petitioner The raises four layered ineffective assistance of counsel claims along with a Petitioner raises four layered ineffective assistance of counsel claims along with
claim of after-discovered evidence. To claim of after-discovered evidence To obtain relief based obtain relief based on
on a claim
claim of
of ineffective
ineffective assistance
assistance of
of
counsel, a petitioner counsel must show petitioner must that such show that ineffectiveness "in such ineffectiveness in the the circumstances
circumstances of
of the
the particular
particular
case, so undermined the truth-determining process case so undermined the truth-determining process that that no
no reliable
reliable adjudication
adjudication of
of guilt
guilt or
or
innocence innocence could have taken could have taken place
place." Commonwealth
Commonwealth v. Jones,
Jones 912 A.2d 268,
912 A.2d 268 278
278 (Pa.
Pa 2006);
2006 42
42
PaC.S. Pa.C.S § 9543(aX2Xii).
9543a2ii Counsel
Counsel is strongly
strongly presumed
is
to have
presumed to rendered effective have rendered effective assistance assistance and
and
made made all significant significant decisions
all
decisions in
in the
the exercise of reasonable exercise of reasonable professional professional judgment.
judgment Strickland
Strickland v.
Washington 466 U.S Washington, 466 U.S. 668 1984 Commonwealth 668 (1984); Commonwealth v. Weiss, 81 A.3d Weiss 81 A.3d 7_67,
767 783
783 (Pa.
Pa 2013).
2013
To overcome this To overcome this strong
strong presumption
presumption, the
the Petitioner
Petitioner has
has to
to satisfy
satisfy the
the performance
performance and
and
prejudice test forth in set forth Strickland v. Washington, prejudice test set in Strickland Washington 466
466 U.S.
U.S 668
668 {1984).
1984 TheThe Strickland
Strickland test
test
applies by applies looking to by looking to three
three elementswhether
elements-whether:(1) the
the underlying· claim has underlying claim has arguable arguable merit;
merit (2)
·1
no reasonable basis no reasonable basis existed existed for
for counsel's
counsels actions or failure actions or failure to
to act;
act and
and (3) the
the petitioner
petitioner has
has
shown shown that he that
he suffered
suffered prejudice
prejudice as
as a result
result of
of counsel's
counsels lapse, i.e., that lapse i.e that there
there is a reasonable
reasonable
is
3At trial, Woods 3At Woods did trial not contradict her did not her statement, but indicated that she statement but
contradict indicatedshe did not remember did not that remember the incident due the due to
incident to ckug
drug
use. use
5
probability that probability that the result of the result of the would have the proceeding would have been different. Commonwealth been different Commonwealth v.
Bennett 57 A.3d 1185 Bennett, 57 A.3d 1185, 119596 Pa 2012 1195-96 (Pa. (citing Commonwealth 2012) citing Commonwealth v. Pierce 527 A.2d Pierce, 527 A.2d 973
973, 975
975
(Pa. 1987 Pa 1987)). Failure Failure to
to satisfy
satisfy any
any prong
prong of this test
of this test for
for ineffectiveness
ineffectiveness will require rejection of will require rejection of
the claim. Commonwealth v. Fulton the claim Commonwealth Fulton, 830 830 A.2d 567, 572
A.2d 567 Pa Super
572 (Pa. 2003 If
Super. 2003). If
claim fails under a claim under fails
any necessary element of the Strickland test, the court may proceed any necessary element of the Strickland test the court proceed to to that element first. Bennett, that element first Bennett
57 A.3d at 1196 57 A.3d 1196. A claim at "claim has arguable merit has arguable merit where
where the
the factual
factual avennents, if accurate, averments if accurate could could
establish cause establish for relief cause for relief." Commonwealth Commonwealth v. Pander,
Pander 100
100 A.3d 626, 631
A.3d 626 Pa Super.
631 (Pa. 2013
Super 2013).
An An adequate and properly layered claim must contain more than boilerplate assertions of adequate and properly layered claim must contain more than boilerplate assertions of
prior counsels prior counsel's ineffectiveness, because "[sjuch an ineffectiveness because an undeveloped argument, which undeveloped argument which fails to to fails
meaningfully meaningfully discuss and apply discuss and the standard apply the standard governing governing the
the review
review of
of ineffectiveness
ineffectiveness claims,
claims
simply does not satisfy Appellant's burden of simply does not satisfy Appellants burden of establishing establishing that
that he
he is entitled
entitled to
to any
is any
. .
relief." Commonwealth v. Rivera relief Commonwealth Rivera, 816 A.2d 282 816 A.2d 282 (Pa.
Pa Super. 2003) (quoting Super 2003 quoting Commonwealth Commonwealth v.
Abdul-Salaam, 808 Abdul-Salaam 808 A.2d 558 A.2d 558 (Pa. 2001).
Pa 2001 A layered
layered claim
claim also
also cannot
cannot be
be sustained
sustained where
where the
the
. . .
underlying-claim underlying claim is unmeritorious.
unmeritorious Commonwealth is Commonwealth v. Williams, Williams 950
950 A.2d
A.2d 294,
294 300
300 (Pa.
Pa 2008);
2008
Commonwealth Commonwealth v. McGill, McGill 832
832 A.2d
A.2d 1014 102 122 (Pa.
1014, 1021-22 Pa 2003).
2003 This Court finds
This Court finds that
that the
the
Petitioner has submitted Petitioner has submitted properly properly layered
layered claims.
claims
In In his
his first issue
first
issue, the
the Petitioner
Petitioner claims
claims that his first PCRA counsel that his counsel was first was ineffective ineffective for
for
. failing failing to to raise the issue that trial counsel raise the issue that counsel did did not trial not request
request records
records for
for a landline
landline phone
phone at at
Dickerson's home. Dickersons 4 In his statement, Dickerson told police that the Petitioner called him on the home.4 In his statement Dickerson told police that the Petitioner called him on the
phone phone after after the the shooting
shooting and told him
and told that Woods
him that Woods had
had been
been prostituting
prostituting herself
herself at
at a bar,
bar and
and that
that
he he shot man who shot a man who was trying trying to
to get
get involved
involved on
on her
her behalf.
behalf The
The Petitioner
Petitioner also
also told
told Dickerson
Dickerson
that he that he thought the police thought the police were were looking
looking for
for him
him and
and that
that he
he did
did not know where
not know where to
to go.
go N.T.
N.T
4 This claim This claim was added was added by
by the Petitioner in his January the Petitioner January 20, in his 20 2016
2016 Motion
Motion to Supplement
to Supplement Evidence
Evidence of
of Ineffectiveness
Ineffectiveness
of of Trial Counsel.
Trial Counsel
6
8/21/2008 at 18890 8/21/2008 at ~ 88-90. At At both
both the
the preliminary hearing and preliminary hearing and at trial, Dickerson at trial Dickerson refuted refuted his
his
statement and statement and said said that
that he
he did not own
did not own a landline phone at 1518 landline phone 1518 Conies Corlies Street
Street at
at
the time at the time of
of the
the
call. N.T call N.T. 5/29/2007 5/29/2007 at 67; N.T
at 67 N.T. 8/21/2008 at 193 8/21/2008 at 193. From
From a records
records subpoena
subpoena issued
issued to Verizon in
to Verizon in
2015, 2015 the Petitioner maintains the Petitioner maintains that that there
there was
was no
no record
record of
of a landline
landline at Dickerson's home in Dickersons homeat
in
2006 2006.5 Petitioner argues Petitioner argues that
that because
because trial counsel
counsel knew
knew about
trial
about this
this issue
issue from the preliminary from the preliminary
hearing, he hearing he should should have
have issued
issued a subpoena before trial to subpoena before to verify that Dickerson verify that Dickerson did trial
did not
not have
have a
landline phone landline phone.
The Petitioner The Petitioner has
has failed to
failed to meet
meet his
his burden
burden in demonstrating that in demonstrating that the the underlying
underlying claim
claim
has arguable merit Based upon the evidence provided has arguable merit Based upon the evidence provided, this this Court cannot conclude Court cannot conclude that that
Dickerson did Dickerson did not have a landline not have landline phone. In April phone In April 2015,
2015 the Petitioner subpoenaed Verizon the Petitioner subpoenaed Venizon
requesting "[ a]ny and requesting and all records records of
of a telephone all telephone number
number issued to 1518
issued to 1518 S. Corlies Corlies Street,
Street
Philadelphia PA Philadelphia, PA during 2006 On during 2006." April 2, 2015, On April 2015 Verizon's Verizons Legal
Legal Compliance Office
Office
responded by responded by stating stating that
that the subpoena was "being returned ...
the subpoena was being returned [as] no accounts, documents, no accounts documents
records, records or or other other materials were responsive materials were responsive to to the
the legal
legal 'r equest, based
request based upon
upon the
the information
information
provided," provided Verizon Verizon added
added that,
that "land
land line
line records are telephone"
records are telephone number number driven."
driven (emphasis
emphasis
added Verizon added). Verizon's response response did
did not attest
attest that there w_ere not landline phones at 1518 that there were not landline phones 1518 S. Corlies Corlies at
Street Street Rather, Rather their their response
response plainly
plainly indicated.
indicated that the
that the subpoena
subpoena was
was insufficient
insufficient as
as the
the
Petitioner Petitioner needed to provide needed to provide more
more information
information to
to fulfill the
the request.
request Moreover,
Moreover even fulfill even if'Verizon if Verizon
could could attest that it did attest that did not not have it have any
any landline
landline ·phones
phones at
at the
the subject
subject address,
address that
that information
information
would would still not not be stillbe dispositive
dispositive as
as Verizon
Verizon was not
not the
the sole
sole provider
provider for
for landline
landline phones
phones in
in
Philadelphia Philadelphia in 2006 For in 2006. For these
these reasons;
reasons this
this 'claim is dismissed.
claim dismissed is
s The The Petitioner attached attached Verizon's
Petitioner Verizons subpoena subpoena response
response to his January
January 21, to his 21 2006
2006 Motion
Motion to Supplement
Supplement Evidence
to Evidence ofof
Ineffectiveness of Ineffectiveness of Trial Counsel.
Counsel Although Trial Verizons response Although Verizon's response was was dated
dated April
April 2, 2015, Ms Burt
2015 Ms. Burt stated that she statedshe did
that did
not receive the response not receive response until January the January 15,
until 2016, because
152016 because it was
was directed to an
it an address
address where
directed to where she she no
no longer
longer received
received
mail. mail
7
The The Petitioner asserts that his first PCRA Petitioner asserts that his PCRA counsel
counsel failed first
failed to raise trial counsels to raise counsel's failure trial
to
failure to
to evidence
object to object evidence that
thatthe small amount Petitioner was arrested for a small the Petitioner was arrested for amount of
of drugs within a day drugs within day of
of the the
murder murder. At
At trial Officer Gamble
trial, Officer Gamble testified that testified
that he small amount found a small he found amount of of marijuana
marijuana on
on the
the
Petitioner during Petitioner
during a vehicle
vehicle stop
stop, about
about twenty
twenty hours
hours after
after the
the shooting.6 N.T 8/21/2008 shooting.6 N.T. 8/21/2008 at 234 at 234.
At sidebar At sidebar, the
the judge
judge sought
sought the relevancy the relevancy of
of the
the· officer's
officers testimony. The Commonwealth testimony The Commonwealth stated stated
that the testimony that the testimony was relevantto was relevant to show that the show that the description description of
of the Petitioner's clothing the Petitioners clothing at the the at
time of the stop matched his time of the stop matched clothing from his clothing from the
the shooting.
shooting Defense counsel stated Defense counsel that he stated that he was
was
cross-examining the officer to show that the Petitioner did not attempt to flee from police during cross-examining the officer to show that the Petitioner did. not attempt to flee from police during .
the stop the stop. Id
Id. at 25 152
251-52. at
This This Court
Court finds that the
finds that the Petitioner's claim is without Petitioners claim merit as without merit as trial counsel is counsel offered
trial offered a
reasonable basison the reasonable basis-on the recordon record-on why he did
why he did not
not object
object to
to the.officer's
the officers testimony.
testimony Further,
Further
II. the drug reference the drug was minimal reference was minimal and and no~ dwelled onby
not dwelled the Commonwealth on by the Commonwealth. For For these
these reasons..
reasons
I I the Petitioner cannot the Petitioner cannot show show that
that without this testimony without this testimony about about a small
small amount
amount of
of marijuana,
marijuana a
i reasonable probability -existed reasonable probability existed that the result that the result of
of the
the proceeding
proceeding would have been would have been different.
different See
See
Commonwealth Commonwealth v. Weiss, Weiss 81 A.3d 767
81 A.3d 767 (Pa.
Pa 2013)
2013 (finding
fmding a minimal
minimal drug reference that-was drug reference that was not not
dwelled on by dwelled on by the
the Commonwealth
Com.tnonwealth did
did not
not amount
amount toprejudice).
to prejudice
The The Petitioner
Petitioner also
also claims
claims that
that his PCRA counsel his first PCRA counsel failed firstfailed to·
to raise
raise trial counsel's
counsels trial
failure failure to
to object
object to the jury
to the seeing the
jury seeing the Petitioner's Petitioners photograph
photograph related
related to
to the
the marijuana
marijuana arrest.
arrest At
At
trial, when questioning trial when questioning a witness witness (James
James Frager)
Frager about
about hispolice
his police statement,
statement the
the Commonwealth
Commonwealth
showed showed the
the Petitioner's
Petitioners photograph
photograph related
related to·
to the
the marijuana
marijuana arrest.
arrest At
At sidebar,
sidebar trial counsel
counsel trial
·) indicated indicated
that that he
he did not object
did not object because
because the
the Petitioner
Petitioner was arrested
arrested later
later that
that day
day for
for the
the subject
subject
homicide. N.T 8/21/2008 homicide N.T. 8/21/2008 at 54S at.54-55.
6 The
The drug charge was
drug charge dismissed prior to trial.
was dismissed prior to trial
8
ThePetitioner The Petitioner fails to fails
to show
show prejudice
prejudice as
as courts
courts have
have held
held that
that an
an arrest
arrest photo
photo itself does
does itself
not infer that the Defendant is a criminal not infer that the Defendant See Commonwealth criminal. See
is
Commonwealth v. Lawrence 596 A.2d Lawrence, 596 A.2d 165, 169 165 169
(Pa. Super Pa Super. 1991 1991) abrogated
(abrogated on
on other
other giound by Commonwealth ground by Commonwealth v. Jette 23 A.3d Jette, 23 A.3d 1032
1032 Pa
(Pa.
2011)). In 2011 InLawrence Lawrence, where a photographic where photographicarray array including
including the
the appellants
appellant's photograph was photograph was
shown to shown to the the jury
jury, the
the court
court held
held that
that "[ajlthough no
no testimony
testimony existed
existed to
to explain
explain police
police
possession of the photo, the possession of the photo the most most that couldbe
that could inferred from be inferred from such
such a reference
reference was
was that
that appellant
appellant
had had prior contact with the police and not a prior had had prior contact with the police and not record or prior record or a previous previous conviction
conviction." 596
596 A.2d
A.2d
at 16970 at 169-70; see see also Commonwealth v. Allen also Commonwealth 292 A.2d Allen, 292 A.2d 272
272 (Pa. 1972) (no
Pa 1972 prejudice found no prejudice found where where
police assembled police assembled a photo photo array
array with
with the
the Petitioner's
Petitioners police photo); see police photo see also Commonwealth v.
also Commonwealth
Brown, Brown 512 A.2d 596 Pa 512 A.2d 596 (Pa. 1986
1986) (where
where "mugshots" were shown mugshots were shown to the jury, to the jury the
the court held that
court held that
''prior contact with the police in itself proves nothing prior contact with the police in itself proves nothing. It doesnot prove a prior does not prove prior record It record or
or
previous crime; previous crime it only only proves
proves a previous
it previous contact.").
contact. Prior
Prior contact with the
contact with the police
police can
can occur
occur
under a variety under variety of of circumstances
circumstances that
that are.
are not
not criminal
criminal in nature including in nature including involvement involvement in
in a motor
motor
vehicle accident vehicle accident or or violation,
violation or
or being
being a witness
witness or
or a victini
victim to
to a crime;
crime Commonwealth
Commonwealth v. Young,
Young
849 849 A,2d A.2d 1152, 1152 1156
1156 (Pa.
Pa 2004). At best
2004 At best, the
the photograph
photograph in
in the
the instant
instant matter
matter indicated
indicated prior
prior
contact contact with with police;
police not
not a prior
prior arrest or conviction."
arrest or conviction.7 Because Because the
the Petitioner
Petitioner cannot
cannot show
show
prejudice, he is not prejudice he not entitled isentitled to
to relief.
relief .
.I The The Petitioner
Petitioner claims
claims that.
that his
his first PCRA
PCRA counsel
counsel was first was ineffective ineffective for
for failing
failing to
to raise
raise trial trial
counsel, counselss failure failure to
to request
request an
an alibi
alibi instruction..
instruction AtAt trial,
trial Royster
Royster testified
testified that
that she
she was in the
was in the
bathroom bathroom doing doing drugs
drugs with
with the
the Petitioner
Petitioner at
at the
the time
time of
of the
the shooting;
shooting and
and that
that after
after hearing
hearing
gunfire, gunfire she she and
and the
the Petitioner
Petitioner ran
ran to
to the
the bar's
bars front
front door,
door which
which was
was locked
locked by
by the
the .b artender,
bartender
7 Even Even if the photograph photograph did
if the did indicate a prior arrest,'
indicate arrest the Petitioner cannot prior the cannot show Petitionershow prejudice
prejudice as the jury
as thejury was
was aware
aware that
that
he he was was arrested for a small arrested forsmallamount
amount of
of marijuana.
marijuana
9
temporarily preventing them from going outside temporarilypreventing N.T 8/22/2008 them from going outside. N.T. 8/22/2008 at 233 233. Defense
Defense counsel
counsel did
did at
not request an alibi instruction; nor was one given in the jury charge. not request an alibi instruction nor was one given in the jury charge
Failure to request Failure to
request an
an alibi
alibi instruction
~nstructio~ is 'not per se not per se ineffectiveness.
is Commonwealth v. ineffectiveness Commonwealth
Hawkins, 894 Hawkins A.2d 716 894 A.2d 716 Pa (Pa. 2006).
2006 For
For counsel to be
counsel to be deemed
deemed ineffective
ineffective for
for failing to request
failing to request
an alibi instruction an instruction, all three alibi three prongs
prongs of
of the all
the Pierce/Strickland
Pierce/Strickland test for ineffectiveness test for ineffectiveness must met.
be met'
must be
Commonwealth Commonwealth v. Sileo Sileo, 32
32 A.3d 753 Pa
A.3d 753 (Pa .. Super
Super. 2011
2011) stating
(stating that
that there must be
there must prejudice for be prejudice for
ineffectiveness regarding ineffectiveness regarding failure failure to
to request
request an
an alibi
alibi instruction
instruction); see
see also Hawkins, 894
also Hawkins 894 A.2d
A.2d 716
716
(if counsel had if counsel had a reasonable reasonable explanation
explanation for failing to for falling to request
request an alibi instruction an alibi instruction, no
no
ineffectiveness is present). ineffectiveness present.88 is ·
At At the evidentiary hearing the evidentiary hearing, trial counsel counsel offered
offered a reasonable trial reasonable explanation explanation for not
for not
requesting an alibi requesting an alibi instruction He articulated instruction. He that he articulated that he did
did not
not request
request one
one because the Petitioner because the Petitioner
was was still on the still the premises
premises at
at the
the time of the
time of the shooting.
shooting Trial
Trial counsel believed an counsel believed argument could an argument could
still be still be made made that the Petitioner that the Petitioner left the left 6869 bar and committed the murder . .N.T.. 4/01/2016 at 68-69.
the bar and committed the murder N.T 4/01/2016 at
Even if trial counsel Even if counsel did trial did not
not have
have a-reasonable
reasonable basis
basis for his inaction,
for his inaction this
this Court
Court still finds
finds still
that the Petitioner that the Petitioner fails to show how to show how counsel's
failscounsels failure
failure to
to request
request an
an alibiinstruction
alibi instruction prejudiced prejudiced
him. him Commonwealth Commonwealth v. Ali AU, 10
10 A.3d
A.3d 282
282 (Pa.
Pa 2010)
2010 (Petitioner
Petitioner has not suffered has not suffered prejudice.
prejudice ffrom
rom
counsel's counsels alleged alleged deficient
deficient performance
performance unless there is a 'reasonable unless there reasonable probability probability that-the
that the verdict
is verdict
would would have have been been different).
different Trial counsel highlighted Trial counsel highlighted Royster's Roysters testimony
testimony in
in closing
closing arguments
arguments
and and argued argued not not only
only that the jury_
that the jury should
should evaluate
evaluate her
her testimony,
testimony but
but also
also that
that the
the Commonwealth
Commonwealth
had had failed falled to to offer
offer a witness to refute witness to refute her,
her including
including .ssubpoenalng
ubpoenaing the
the bartender
bartender who
who Royster
Royster had
had
testified testified locked locked her
her and
and the
the Petitioner
Petitioner inside
inside the
the bar N.T
bar.. N. T. 8/25/2016
8/25/2016 at 6364 The
at 63-64. The jury's
jurys verdict
verdict
88Hawkins Hawkins found found that counselhad
counsel had a reasonable
that reasonable basis for not not requesting
requesting an
an alibi instruction where basis for where counsel counsel stated that· alibi instruction stated that
where where alibi testimony testimony is weak, alibi weak highlighting that testimony is
testimony explicitly as alibi evidence highlighting that evidence disserves the defendant's explicitly as alibi defendants disserves the
interests. Commonwealth interests Commonwealth v. Hawkins, Hawkins 894
894 A.2d
A.2d 716
716 (Pa.
Pa 2006).
10
indicates that indicates that they
they chose
chose not
not to
to believe
believe Roysters
Royster's testimony
testimony. It is extremely It
extremely unlikely-with is unlikelywith or
or
without an without alibi instructionthat an alibi instruction-thatthe the jury
jury would
would have believed Royster have believed Roysteryet
yet still convicted
convicted the still
the
Petitioner of Petitioner of the the crime
crime.
Moreover, the Moreover the Commonwealth Commonwealth presented
presented overwhelming evidence to overwhelming evidence to support the support the
Petitioner's guilt Petitioners guilt. Two Two witnesses
witnesses placed
placed the
the Petitioner
Petitioner outside the bar outside the bar at the time at the time of the shooting.
of the shooting
Woods Woods told told police
police that
that she
she witnessed the Petitioner witnessed the Petitioner point point a gun
gun at
at the
the victim
victim and
and shoot
shoot him
him
[: numerous times. Frager testified numerous times Frager testified that that when
when he
he left the
the bar, left
the Petitioner
bar the Petitioner was standing outside was standing outside
:
with the victim. Immediately with the victim Immediately after hearing gunshots, Frager saw the Petitioner standing over the after hearing gunshots Frager saw the Petitioner standing over the
· victim victim. In In addition to there
addition to there being
being two
two witnesses,
witnesses the
the Petitioner
Petitioner also
also confessed
confessed to
to the
the murder.
murder
Following the shooting Following the shooting, the the Petitioner
Petitioner told Dickerson of told Dickerson of his
his involvement in the
involvement in the murder murder as
as well
well as
as
his motive for his motive the shooting.
for the shooting For
For these
these reasons,
reasons the
the Petitioner
Petitioner cannot
cannot demonstrate
demonstrate prejudice.
prejudice
Thus, Thus no no relief
relief is warranted.
warranted is
This This Court examined the
Court examined the cumulative prejudicial effect cumulative prejudicial effect of of the alleged errors
the alleged errors of
of trial
trial
counsel, counsel and and finds
finds there
there was no reasonable
was no reasonable probability probability that
that had
had these matters been
these matters been handled handled
differently, differently the the result
result of
of the
the trial would
trial would have
have been
been different.
different None
None of
of the
the Petitioner's
Petitioners claims
claims
necessitates new trial. necessitates a new trial See See Commonwealth Johnson 966 Commonwealth v. Johnson, 966 A2d A.2d 523 Pa 2009 (stating 523 (Pa."2009) stating that that if if
multiple instances of multiple instances deficient performance of deficient performance are are found,
found the
the assessment
assessment of
of prejudice
prejudice properly
properly may
may
be premised upon cumulation). Courts be premised upon cumulation Courts have have consistently
consistently held
held that
that no
no number
number of
of failed
failed claims
claims
may may collectively collectively warrant warrant relief
relief if they
they fail to
if to do
fail so individually.
do so individually Commonwealth Cox 983 Commonwealth v. Cox, 983
A.2d 666 (Pa. A.2d 666 Pa 2009)
2009 (citing
citing Commonwealth Washington 927 Commonwealth v. Washington, 927 A.2d A.2d 586,
586 617
617 (Pa.
Pa 2007)).
2007 This
This
Court Court is satisfied issatisfied that
that no
no cumulative
cumulative prejudice
prejudice relief
relief is warranted.
warranted is
Lastly, Lastly the
the Petitioner
Petitioner makes
makes a claim
claim of
of after-discovered
after-discovered evidence.
evidence The
The Petitioner
Petitioner averred
averred
that that on on June
June J17
7, 20 5nine years
201J 5-nine years after
after the
the murder-he
murderhe became
became aware
aware of
of a witness,
witness Robert
Robert
----···· ----·
Corbin. Corbin Corbin Corbin asserted that he asserted that he witnessed witnessed the
the subject
subject shooting
shooting while
while on
on his
his way
way to
to purchase
purchase .
cigarettes for cigarettes for his his then-fiancé Corbin, who then-fiance. Corbin who knew knew the Petitioner from
the Petitioner from the
the neighborhood
neighborhood, claimed
claimed
that he that he did did not not see
see the
the Petitioner
Petitioner outside
outside the
the bar
bar at
at the
the time
time of
of the
the shooting
shooting and
and that
that two other
two other
men shot men shot the the victim. N.T victim N.T. 1/21/20
1/21/2016 4060
16 40-60.
ForFor a new new trial
trial, based
based on
on after-discovered
after-discovered evidence evidence, the
the Petitioner must show by a Petitioner must show by
preponderance of preponderance of the the evidence
evidence that
that: (1) the
the evidence
evidence has
has been
been discovered
discovered after
after trial and
and it could
could trial it
not have been not have been obtained obtained at
at or
or prior
prior to
to trial through
through reasonable
trial
reasonable diligence;
diligence (2) the
the evidence
evidence is not
not is
cumulative; (3) it is not cumulative it not being
isbeing used
used solely
solely to
to impeach
impeach credibility
credibility; and
and (4) it would
it
likely compel
would likely compel a
different verdict different verdict. Commonwealth Commonwealth v. D 'Amato, 856 A.2d Amato 856 806, 823 A.2d 806 Pa 2004).
823 (Pa. PCRA court 2004 A PCRA court is is
tasked with assessing a witnesss tasked with assessing witness's credibility credibility PCRA hearing at a PCRA
at hearing, and
and its credibility
its credibility
determinations should be determinations should be provided great deference provided great by a reviewing deference by reviewing court.
court Johnson,
Johnson 966
966 A.2d
A.2d at at
539 one of 539 ("one the primary of the primary reasons PCRA hearings reasons PCRA hearings are are held
held in the first place
in the place is so
first so that
that credibility
is credibility
determinations can be made; determinations can be made otherwise, issues of otherwise issues of material material fact
fact could
could be decided on
be decided pleadings and on pleadings and
affidavits alone."). affidavits alone.
This This Court finds Corbins Court finds Corbin's testimony testimony contrived,
contrived inconsistent,
inconsistent and incredible. First, and incredible First
Corbin's Corbin story story on on why
why he
he waited
waited nine
nine years
years to
to come
come forward.
forward lacked
lacked believability.
believability Corbin
Corbin
testified that he testified that he failed failed to
to come
come forward
forward at
at his mother's request.
his mothers N.T 4/1/2016 request N.T. 4/1/2016 at 4142 A year at 41-42.
year
later later when when his his motherdied,
mother died Corbin
Corbin again
again failed
failed to
to come
come forward,
forward even
even though
though he
he knew
knew the
the
wrong wrong man man had had been
been arrested
arrested for
for the
the murder-he
murderhe claimed
claimed that
that his
his father prevented him
father prevented him from from
doing doing so. When his so When father moved away his father moved
away a few
few years
years later,
later Corbin
Corbin failed
failed to
to come
come forward
forward yet
yet
again In again. In the the
subsequent subsequent years,
years no
no longer
longer afraid
afraid nor
nor under
under his
his parents'
parents control-and
controland admittedly
admittedly
still able still able to to identify
identify the
the two
two shooters-Corbin
shootersCorbin still failed failed to
to go
still go the
the police
police or
or inform
inform anyone
anyone of
of
what what he he saw saw that that night.
night N.T.
N.T 1/21/2016
1/21/2016 at
at 59;
59 N.T.
N.T 4/1/2016
4/1/2016 at 4549
at 45-49.
11
11 .
12
Next, Corbin Next Corbin's testimony
testimony was
was inconsistent
inconsistent. The record
The record reflects that the shooting occurred reflects that the shooting occurred
right after last right after "last call
call," at
at or about 2 a.m
or about In Corbins a.m. In Corbin's statement statement attached
attached to
to the
the Petitioners
Petitioner's
petition, Corbin petition Corbin asserted asserted that
that he
he was
was outside
outside the bar at 145
the bar a.m when 1 :45 a.m. when he
he witnessed
witnessed the
at
shooting.
the shooting
·! Yet at the Yet the evidentiary
at evidentiary hearing
hearing, Corbin
Corbin stated
stated that
that he
he was
was outside the bar
outside the 1240 a.m at 12:40
bar at a.m. N.T
N.T.
I
1/21/2016 at 43 1/21/2016 43. This
atThis Court
Court finds
finds this
this disparity even more
disparity even more glaring glaring since Corbin testified that he since Corbin testified that he
knew knew what
what time
ti.me the bar closed2 the bar closed-2 a.m.because the bar a.m.-because the "bar close[ close d] at the same
at the same time
time every night."
every night
N.T N.T. 4/01/2016 at 9 (emphasis 4/01/2016 emphasis added).
at added.99
Finally, Corbin's testimony Finally Corbins testimony also also conveniently eliminated all of conveniently eliminated of the people who the people who were
were all
outside the outside the bar
bar at
at the
the time
time of
of the
the shooting
shooting. As
As noted above, Corbin
noted above Corbin stated that he stated that he still could could still
identify the two identify the two shooters shooters; yet
yet when
when shown
shown photographs
photographs at the evidentiary hearing the evidentiary of Terrance hearing of Terrance
at
Speller, Steven Barkley Speller Steven Barkley the (the victim), Curtis Scott, victim Curtis Scott Charles Charles "Biggie" Waters, as Biggie Waters well as as well as James
James
the aforementioned people and the Petitioner outside the bar 10Corbin Frager-who Fragerwho witnessed witnessed the aforementioned people and the Petitioner outside the bar10-Corbin
failed to identify any failed to identify of them any of them as
as being
being present
present outside
outside the bar at
the bar at the time of
the time of the
the shooting.
shooting Id.
Id at
at
22-25, 48-49, 2225 4849 54.
54 Because Corbin Because Corbin was unable was unable to identify any to identify any of the participants of the participants outside outside the bar,
the bar
this this Court
Court finds
finds it exceedingly
exceedingly unlikely
it unlikely that
that he
he could
could say
say with
with any
any level
level of
of certainty
certainty that
that the
the
Petitioner was Petitioner was not
not one of those participants.
of those participants Accordingly, Accordingly this
this Court
Court finds
fmds Corbin's
Corbins testimony
testimony
unlikely unlikely to
to compel
compel a different
different verdict
verdict.
For the foregoing For the foregoing reasons, reasons these
these claims
claims are DENIED
are DENIED.
BY THE COURT, BY THE COURT
., i I Barbara Barbara A. McDermott,
McDermott J
9
This This Court
Court is not
isnot persuaded
persuaded by
by the fact that Corbin
the fact Corbin later gave that gave an
an accurate time later time for the shooting accurateshooting on
on day
day two for thetwo of
of the the
bifurcated evidentiary hearing bifurcated hearing. 1°
evidentiary
Frager testified that everyone Frager testified everyone he that he saw
saw inside the
the bar inside bar that night
night was
thatwas outside when
when he
he left the bar outside bar right before before the left the right the
shooting. shooting N.T.
N.T 8/21/2008
8/21/2008 3031 Woods
at 30-31.
at Woods also told police that Frager also told Frager was police was outside the bar that bar atthe time time of
outside the of the at the the
shooting. shooting N.T.
N.T 8/2212008
8/22/2008 at 56.
56at