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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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Unpublished Memorandum at 11 (Pa.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).
-2- 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.
-3- J-S02026-17
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/19/2017
-4- ,--- .. --· .. 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'
·t 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
3 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
4 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
5 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
6 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
7 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
8 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). 2006
9 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
10 10 ----···· ----·
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 . 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
12 12