Com. v. Real, F.

Opinion

J-S28023-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

FERNANDO REAL :

:

Appellant : No. 3430 EDA 2019

Appeal from the PCRA Order Entered November 8, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008511-2008, CP-51-CR-0008526-2008

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

FERNANDO REAL :

:

Appellant : No. 3431 EDA 2019

Appeal from the PCRA Order Entered November 8, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008511-2008, CP-51-CR-0008526-2008

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 1, 2022

Appellant, Fernando Real, appeals from the November 8, 2019 Order of

the Court of Common Pleas of Philadelphia County, which dismissed without

a hearing Appellant’s first petition filed pursuant to the Post Conviction Relief

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-S28023-21

Act, 42 Pa.C.S. §§ 9541-46. Appellant’s PCRA counsel, John M. Belli, Esquire,

has filed a Turner/Finley1 “no merit” letter and Application to Withdraw as

Counsel. After careful review, we affirm the court’s denial of PCRA relief and

grant counsel’s Application to Withdraw.

In the early morning hours of September 9, 2002, Appellant used a nine-

millimeter pistol to shoot and kill Byron Story and Marcus Herbert.2 Story and

Herbert had been sitting on the front porch of a home occupied by Herbert’s

stepfather, Karl May. Hearing the gunshots, May went to a window and

witnessed the shooter fleeing the scene. May told police immediately after the

shooting that he witnessed a black male fleeing but, as discussed below, May

testified at trial that the shooter was a Hispanic male matching Appellant’s

description.

At the time of the shooting, Appellant’s companion, Terrell Boyd, was

acting as lookout around the corner. The pair returned to their car where

Appellant informed Boyd that he had shot two men.

Two days later, on September 11, 2002, Appellant shot and killed Levon

Wilson.3 Brian Heard and Ronald Milburn witnessed the shooting. Police Officer

Christine Hilbert immediately responded to the shooting and saw Appellant

____________________________________________

1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

2Story died at the scene, and Herbert died from his injuries approximately a year later.

3 A jury convicted Appellant of Wilson’s murder in a separate proceeding on June 28, 2005. Wilson’s murder is not at issue in this appeal.

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fleeing from the scene. Police recovered the murder weapon—a nine-

millimeter pistol—and determined it was the same pistol used to shoot Story

and Herbert two days earlier.

Appellant’s consolidated jury trial for Story and Herbert’s murders began

on February 18, 2014.4 The Commonwealth presented testimony from 24

witnesses. Karl May, victim Herbert’s stepfather, testified to witnessing a

Hispanic male fleeing the scene of the shooting and Appellant’s counsel cross-

examined May using his prior inconsistent statement to police. Officer Hilbert

testified to her identification of Appellant running away from the Wilson

murder and investigation involving the firearm used in the three murders.

In addition, the court permitted Heard and Milburn,5 the witnesses to

the unrelated Wilson shooting, to testify generally that they saw Appellant fire

the pistol on September 11, 2002. The court, however, did not permit them

to testify that Appellant shot and killed Wilson. The trial court also allowed

Milburn to testify that he saw Appellant fire the same gun into the air a week

before the Story and Herbert murders. When charging the jury, the court gave

a specific limiting instruction that the jury could consider Heard’s and Milburn’s

____________________________________________

4 It is not clear from the record why Appellant’s trial occurred over 10 years after his arrest. The timeliness of Appellant’s trial is not at issue in this appeal.

5 At some point between Appellant’s preliminary hearing and trial, Milburn suffered a severe brain injury in an automobile accident. As a result, the court found Milburn unavailable to testify at Appellant’s trial and allowed the Commonwealth to introduce his preliminary hearing testimony into evidence pursuant to Pa.R.E. 804.

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testimony only for purposes of establishing Appellant’s access to the murder

weapon.

On February 25, 2014, a jury convicted Appellant of, inter alia, two

counts of First-Degree Murder for killing Story and Herbert. On May 1, 2014,

the court imposed two consecutive life sentences. This Court affirmed

Appellant’s Judgment of Sentence and, on May 10, 2016, our Supreme Court

denied allowance of appeal. Commonwealth v. Real, 134 A.3d 499 (Pa.

Super. 2015) (unpublished memorandum), appeal denied 138 A.3d 4 (Pa.

2016).

On July 15, 2016, Appellant pro se filed the instant, timely PCRA

Petition, his first.6 Appellant thereafter pro se filed several amended petitions,

which the court accepted.

On November 18, 2019, after issuing a notice pursuant to Pa.R.Crim.P.

907, the court dismissed Appellant’s petition without a hearing. On the same

day, the court appointed counsel to represent Appellant on appeal.

Appellant timely filed a Notice of Appeal.7 Through the course of a

complex procedural history not relevant here, Appellant’s counsel, on January

27, 2021, filed a Statement of Intent to file a no-merit letter pursuant to

____________________________________________

6After a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the PCRA court permitted Appellant to proceed pro se.

7The Commonwealth charged Appellant separately at docket numbers 8511- 2008 and 8526-2008 for Story and Herbert’s murders. Appellant filed separate Notices of Appeal at both dockets, each listing both docket numbers in compliance with Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc).

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Pa.R.A.P. 1925(c)(4), indicating that Appellant wished to raise numerous

issues of ineffective assistance of counsel (“IAC”), Brady8 violations, after-

discovered evidence, and PCRA court error. The PCRA court filed a responsive

Rule 1925(a) Opinion comprehensively addressing each of Appellant’s issues.

In this Court, counsel has filed a Turner/Finley letter addressing the

following issues:

[1.] The PCRA court committed an abuse of discretion by denying Appellant’s discovery request.

[2.] Did the PCRA court commit an abuse of discretion by failing to grant relief or an evidentiary hearing relating to [newly]- discovered evidence provided by witness Brian Heard?

[3.] Did the PCRA court commit an abuse of discretion by failing to grant relief or an evidentiary hearing on his Brady claim relating to the Commonwealth’s failure to disclose exculpatory evidence, namely, the recantation of witness Brian Heard, identification information concerning an alleged eyewitness named Lisa, statements allegedly made by Herbert regarding what he allegedly told his mother, and contact information concerning Milburn’s mother?

[4.] Did the PCRA court commit an abuse of discretion by failing to grant relief or an evidentiary hearing on the following claims asserting that trial counsel provided Appellant with ineffective assistance of counsel for the following reasons:

[A.] Trial counsel did not investigate appellant's alibi defense. []

[B.] Trial counsel did not properly prepare for trial because he did not investigate or interview witnesses named “Lisa,” an alleged eyewitness, three friends of co-defendant Terrell Boyd who would have stated that appellant and Boyd were not friends or a[c]quaintances, and Karl May who told police that he knew a female witness.

____________________________________________

8 Brady v. Maryland, 373 U.S. 83 (1963).

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[C.] Trial counsel failed to retain a DNA expert to test the hat collected by police, the gun, and any and all physical evidence.

[D.] Trial counsel failed to attack the completeness and reliability of the investigation conducted by police by presenting evidence that the police did not: (a) interview “Lisa” despite having her description; (b) interview a second female witness identified by Karl May; (c) compare Boyd’s DNA to that found on the hat; and (d) consider Boyd as the shooter and primary suspect despite word on the street that he was the shooter; and (e) show Appellant’s photograph to “Lisa,[”] Lane, and Herbert.

[E.] Trial counsel failed to object when the Commonwealth called Karl May as a witness because May broke sequestration.

[F.] Trial counsel failed to object to the identification of Appellant made by police officer Christine Hilbert because it was deemed unconstitutional by another judge during the litigation of a PCRA petition involving Appellant’s other unrelated murder conviction.

[G.] Trial counsel failed first to move to prohibit the Commonwealth from introducing evidence of an unrelated crime indicating that Appellant fired a gun in the air a week prior to the incident in the instant matter and second, for not objecting to closing comments made by the prosecutor during closing argument.

[H.] Trial counsel failed to make a Batson objection to the use of peremptory challenges by the Commonwealth to strike all potential Hispanic voir dire persons.

Turner/Finley Ltr. at 7-9 (capitalization omitted, reordered for ease of

analysis). Counsel has also filed an Application to Withdraw as Counsel.

On July 6, 2021, Appellant filed a response to counsel’s Turner/Finley

Letter in which he raised, verbatim, the following two issues:

[1.] Cumulative material weight of the suppressed evidence;

[2.] Cumulative effect of errors denied Appellant a fair trial.

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Response to Turner/Finley Ltr. at 18, 26.

Counsel’s Application to Withdraw

Before we consider Appellant’s issues, we must review counsel’s request

to withdraw. Counsel is required to review the record and submit a “no merit”

letter (1) detailing the nature and extent of his or her review; (2) listing each

issue the petitioner wishes to have raised on review; and (3) explaining why

the petitioner’s issues are meritless. Commonwealth v. Pitts, 981 A.2d 875,

876 n.1 (Pa. 2009). Counsel must also send to the petitioner: “(1) a copy of

the ‘no merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and

(3) a statement advising petitioner of the right to proceed pro se or by new

counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)

(citation omitted).

Counsel has complied with each of the above requirements. Counsel has

presented a comprehensive review of the issues Appellant seeks to raise on

appeal, the appropriate standard of review, and addressed the PCRA court’s

analysis where appropriate. Turner/Finley Ltr. at 10-11, 16-41. Counsel

concludes that Appellant’s claims are without merit. Id. at 43-44. In addition,

counsel sent Appellant copies of the Turner/Finley letter and his Application

to Withdraw, and he advised Appellant of his rights in lieu of representation.

See Application to Withdraw as Counsel, 4/15/21, Exh. 1.

Once we determine that counsel has complied with the Turner/Finley

requirements, this Court must conduct an independent review of the record

to determine the merits of Appellant’s claims. Wrecks, 931 A.2d at 721. As

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discussed below, our independent review confirms that Appellant’s issues are

without merit.

Standard/scope of review

We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super.

2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)). “This

Court grants great deference to the findings of the PCRA court if the record

contains any support for those findings.” Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted).

Discovery request

Appellant’s first issue involves the PCRA court’s denial of Appellant’s

discovery request. Pa.R.Crim.P. 902(E)(1) prohibits discovery in PCRA

proceedings “except upon leave of court after a showing of exceptional

circumstances.” What constitutes an exceptional circumstance is within the

trial court’s discretion to determine, and we will not disturb that determination

unless the court has abused its discretion. Commonwealth v. Frey, 41 A.3d

605, 611 (Pa. Super. 2012).

After a thorough review of the certified record, briefs of the parties,

applicable law, and PCRA court’s opinion, we conclude that there is no merit

to Appellant’s claim. The Honorable Glenn B. Bronson has authored a

comprehensive and well-reasoned analysis addressing this claim with

reference to the record and relevant legal authority. Accordingly, we adopt

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the PCRA court’s opinion in part as our own and affirm the court’s denial of

relief on these claims. See PCRA Ct. Op., 3/12/21, at 29 (explaining that

Appellant’s discovery request was inadequate to establish exceptional

circumstances, as it was “comprised entirely of conjecture”).

Newly discovered evidence

In his second issue, Appellant asserts that a recantation by Heard in the

unrelated Wilson murder is newly discovered exculpatory evidence for which

the PCRA court should have held a hearing in the instant case. See Petition,

7/15/16, at 2-3; Turner/Finley Ltr. at 19-21.

To obtain relief based on newly discovered evidence, the petitioner must

prove, inter alia, that the new evidence would likely change the verdict at a

new trial. Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018). In

addition, to prevail on a claim that the PCRA court should have held a hearing,

the petitioner must prove the existence of an issue of fact that would entitle

him to relief. Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).

After a thorough review of the certified record, briefs of the parties,

applicable law, and PCRA court’s opinion, we conclude that there is no merit

to Appellant’s claim. The Honorable Glenn B. Bronson has authored a

comprehensive and well-reasoned analysis addressing this claim with

reference to the record and relevant legal authority. Accordingly, we adopt

the PCRA court’s opinion in part as our own and affirm the court’s denial of

relief on these claims. See PCRA Ct. Op. at 8 (explaining that Heard’s

recantation of his eyewitness testimony in the unrelated trial would not have

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changed the verdict in the instant case because, among other things, it did

not exculpate Appellant of the instant murders and Heard’s testimony in the

instant case only proved Appellant’s access to the murder weapon).

Brady claims

In his third issue, Appellant asserts that the Commonwealth committed

multiple Brady violations by withholding four pieces of allegedly exculpatory

evidence. “To establish a Brady violation, [the] appellant must demonstrate

[that]: the evidence at issue was favorable to him, because it was either

exculpatory or could have been used for impeachment; the prosecution either

willfully or inadvertently suppressed the evidence; and prejudice ensued.”

Commonwealth v. Walker, 36 A.3d 1, 9 (Pa. 2011) (citation omitted). To

satisfy the prejudice prong, the evidence must have been material to the

appellant’s guilt or punishment. Commonwealth v. Cam Ly, 980 A.2d 61,

76 (Pa. 2009). Evidence is material if there is a reasonable probability that,

had the Commonwealth disclosed it to the defense, the result of the

proceeding would have been different. Id.

Finally, in the PCRA context, an appellant “must establish that the

alleged Brady violation ‘so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.’”

Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012) (quoting

42 Pa.C.S. § 9543(a)(2)(i)).

After a thorough review of the certified record, briefs of the parties,

applicable law, and PCRA court’s opinion, we conclude that there is no merit

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to Appellant’s Brady claims. The Honorable Glenn B. Bronson has authored a

comprehensive and well-reasoned analysis addressing each of these claims

with reference to the record and relevant legal authority. Accordingly, we

adopt the PCRA court’s opinion in part as our own and affirm the court’s denial

of relief on these claims. See PCRA Ct. Op. at 8-14 (explaining that Appellant

failed to prove that he suffered prejudice from the Commonwealth’s alleged

suppression of evidence that was either not exculpatory (Heard’s recantation

of unrelated murder testimony), non-existent (“Lisa” or any statement by

Herbert), or “that the Commonwealth had knowledge of any contact

information for Milburn’s mother that was not available to the defense.”).9

Ineffective assistance of counsel

In his fourth issue, Appellant asserts eight IAC allegations. The law

presumes counsel has rendered effective assistance. Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he burden of

demonstrating ineffectiveness rests on [the] appellant.” Id. To satisfy this

burden, the appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and (3) but for counsel’s ineffectiveness,

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9 Appellant asserts that he suffered prejudice from the cumulative effect of these Brady claims. See Response to Turner/Finley Ltr. at 18. “The cumulative impact of meritless Brady claims cannot be grounds for relief.” Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005). As discussed above, each of Appellant’s Brady claims is meritless and, thus, this claim fails.

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there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003) (citation omitted). Failure to satisfy any prong of the test

will result in rejection of the appellant’s claim. Id.

Several of Appellant’s IAC claims relate to counsel’s decision not to

investigate certain issues or interview and call certain witnesses to testify at

trial. Where a petitioner alleges ineffectiveness for failure to call a witness,

the petitioner must prove that (1) the witness existed and was available and

willing to testify; (2) counsel knew or should have known of the witness; and

(3) there is a reasonable probability that the witness’s testimony would have

led to a different outcome at trial. See Commonwealth v. Dennis, 17 A.3d

297, 302 (Pa. 2011); Commonwealth v. Pander, 100 A.3d 626, 639 (Pa.

Super. 2014).

After a thorough review of the certified record, briefs of the parties,

applicable law, and PCRA court’s opinion, we conclude that there is no merit

to Appellant’s IAC claims. The Honorable Glenn B. Bronson has authored a

comprehensive and well-reasoned analysis addressing each of Appellant’s first

six claims with reference to the record and relevant legal authority.

Accordingly, we adopt the PCRA court’s opinion in part as our own and affirm

the court’s denial of relief on these six claims. See PCRA Ct. Op. at 16

(concluding that Appellant provided mere conjecture that he was at work at

the time of the murders and, therefore, failed to prove the arguable merit of

his underlying alibi defense); 16-18 (Appellant failed to prove that “Lisa,” a

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different “female witness” allegedly known to May, or Boyd’s friends were

available and willing to testify and that their individual testimonies would have

changed the outcome of trial); 19-23, 28-29 (Appellant failed to prove that

trial counsel’s decisions (1) not to retain a DNA expert to conduct testing when

the Commonwealth’s expert did not incriminate Appellant; (2) to attack the

adequacy of certain elements of the police investigation, (3) to cross-examine

May using May’s prior, inconsistent statement rather than seeking to strike

May’s testimony, and (4) not to lodge a meritless objection to Officer Hilbert’s

trial testimony, were unreasonable and caused Appellant to suffer prejudice).

Failure to object to testimony by Milburn

In his seventh IAC claim, Appellant alleges that his trial counsel was

ineffective for failing to object to Milburn’s testimony that he saw Appellant

firing the murder weapon into the air outside of a bar a week before the Story

and Herbert murders. See Petition, 4/26/18, at 12-14; Turner/Finley Ltr. at

42-46. See also N.T. Trial, 2/24/14, at 130-31, 137-40.

At trial, Milburn testified that, in addition to seeing Appellant with the

murder weapon a week before the Story and Herbert’s murders, he also

witnessed Appellant shoot the same pistol at a craps game on September 11,

2002, after the murders.10 N.T. Trial, 2/24/14, at 131-37, 140-41. Milburn’s

testimony, therefore, proved that Appellant possessed the firearm used to kill

____________________________________________

10 We affirmed the admissibility of Milburn’s testimony regarding the September 11, 2002 shooting on direct appeal. See Real, 2015 WL 7354731 at *2, *9-10. At issue presently is Milburn’s testimony that he saw Appellant with the gun a week before the Story and Herbert murders.

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Story and Herbert both before and after their murders and, thus,

demonstrated that Appellant had access to the murder weapon.11 See PCRA

Ct. Op. at 26.

At the close of trial, the court instructed the jury to consider Milburn’s

testimony “only for [the] limited purpose” of demonstrating access to the

murder weapon and not that Appellant was a person of bad character:

[You may consider Milburn’s testimony only] for the purpose of showing defendant’s alleged access to the weapon that was allegedly used to kill the decedents in this case. This evidence must not be considered by you in any other way other than for the purpose I just stated. You must not regard this evidence as showing that the defendant is a person of bad character or criminal tendencies from which you might be inclined to infer guilt.

N.T. Trial, 2/25/14, at 27-28.

Appellant alleges that counsel’s failure to object to Milburn’s testimony

that he had fired the murder weapon in the air the week before using it to kill

Story and Herbert invited the jury to consider Appellant’s past deeds as

evidence of his bad character, causing Appellant to suffer prejudice. Petition,

4/26/18, at 12-13.

We disagree. A cautionary jury instruction may ameliorate the

prejudicial effect of evidence of a defendant’s relevant prior conduct.

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11 Pa.R.E. 404(b)(1) precludes evidence of a crime, wrong, or other act to prove that a person acted in accordance with a particular character trait. This evidence may be admissible for another purpose, however, such as proving identity. Id. at 404(b)(2). Appellant does not challenge the relevance of Milburn’s testimony to establish Appellant’s identity as Story and Herbert’s killer.

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Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014). This is because

“[j]urors are presumed to follow the trial court’s instructions.” Id.

The trial court’s cautionary instruction in this case ameliorated any

chance that Milburn’s testimony caused Appellant to suffer prejudice because

the court specifically instructed the jury not to consider Milburn’s testimony

as evidence of Appellant’s bad character and we presume that jurors follow

court instructions. As a result, we conclude that Appellant has failed to prove

that counsel’s inaction caused him to suffer prejudice and this claim fails. 12

Failure to make second Batson objection

In his final IAC claim, Appellant alleges that his trial counsel was

ineffective for not objecting to the Commonwealth’s use of a preemptory

challenge to strike a Hispanic juror. See Petition, 4/26/18, at 11-12;

Turner/Finley Ltr. at 38-42.

In total, the Commonwealth used four preemptory challenges to remove

several prospective jurors who were Hispanic from the jury panel.

Turner/Finley Ltr. at 38-39; PCRA Ct. Op. at 25. After the Commonwealth

____________________________________________

12Appellant also alleges that his counsel was ineffective for failing to object to the Commonwealth’s statement during closing that Milburn’s testimony proved Appellant’s access to the murder weapon. Turner/Finley Ltr. at 44- 45. See N.T. Trial, 2/24/14, at 249-50, 275-76. Since Appellant has failed to prove that Milburn’s testimony was inadmissible, however, Appellant has not established that the Commonwealth’s commentary on Milburn’s testimony was improper. Appellant has, therefore, failed to prove the underlying merit of this IAC claim and, as a result, it fails.

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struck the third Hispanic juror, Appellant lodged a Batson13 objection, arguing

that the Commonwealth struck the jurors based on race. PCRA Ct. Op. at 25.

The court overruled Appellant’s objection, finding that the Commonwealth

provided race-neutral reasons for each preemptory challenge. Id. (citing N.T.

trial, 2/11/14, at 224-36). The Commonwealth later exercised an additional

preemptory challenge to strike a fourth Hispanic juror. Id. Appellant’s trial

counsel did not assert a second Batson objection.

Appellant is critical that his counsel did not lodge a second Batson

objection when the Commonwealth struck a fourth Hispanic juror because it

resulted in a fully non-Hispanic jury. See Petition, 4/26/18, at 12;

Turner/Finley Ltr. at 40.

Where, as here, a petitioner alleges ineffective assistance of counsel for

failure to make a Batson challenge, the petitioner “must prove actual,

purposeful discrimination by a preponderance of the evidence[.]”

Commonwealth v. Sepulveda, 55 A.3d 1108, 1132 (Pa. 2012) (citation

omitted). Critically, “mere disparity of number in the racial make-up of the

jury, though relevant, is inadequate to establish a [Batson claim].”

Commonwealth v. Wilson, 649 A.2d 435, 443 (Pa. 1994) (citation omitted).

Appellant makes no effort to prove actual, purposeful discrimination.

Instead, he simply alleges that because “every juror was white or black[,]”

then the Commonwealth must have violated Batson and his trial counsel

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13Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting the use of racebased preemptory challenges).

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should have objected. Petition, 4/26/18, at 12 (unnecessary capitalization

omitted). Since racial disparity is inadequate to establish a Batson violation,

Appellant has not proved the underlying merit of this IAC claim. As a result,

this claim fails.

Cumulative prejudice

In his pro se reply to counsel’s Turner/Finley Letter, Appellant argues

generally that he suffered prejudice from the cumulative effect of the alleged

ineffectiveness of his trial counsel. See Petition, 4/26/18, at 15-16; Response

to Turner/Finley Ltr. at 26.

Beyond citing to case law recognizing that a claimant may potentially

suffer cumulative prejudice, Appellant has failed to set forth any factually and

legally supported argument for his claim. An appellant must develop claims

with citation to the record and relevant case law, and a failure to do so will

result in waiver. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009).

See Pa.R.A.P. 2111 and 2119 (listing argument requirements for appellate

briefs), 2101 (explaining that substantial briefing defects may result in

dismissal of appeal). Appellant’s failure to develop this issue renders it waived.

Conclusion

Based on the foregoing, we affirm the PCRA court’s denial of relief. The

parties are instructed to annex the PCRA Court’s March 12, 2021 Opinion to

any future filings.

Application to Withdraw as Counsel granted. Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/1/2022

02:02 PM

Circulated 01/07/2022 02.02

IN THE COURT OF COMMON PLEAS FIRST FIRST JUDICIAL

JUDICIAL DISTRICT OF PENNSYLVANIA PENNSYLVANIA

CRIMINAL TRIAL DIVISION

COMMONWEALTH OF COMMONWEALTH OF CP-5I -CR-0008511-2008 CP-51-CR-0008511-2008

PENNSYLVANIA CP-51-CR-0 008 526-20 08 CP-51-CR-0008526-2008

V.

Received MAR 12 702

12 202-i

FERNAND FERNANDOO REAL

REAL

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01 Judlclal Raa0*

Adi0la Records et irial

AWSIOPOBITM Appal

OPINION OPINION

BRONSON, J. BRONSON, I March 12, 2021

On February On February 25, 2014, following 25, 2014, following a capital murder a capital jury trial murder jury trial before

before this

this Court, defendant

Court, defendant

Fernando Real Fernando was convicted Real was convicted of

of two

two counts

counts of

of first

first degree

degree murder (18 Pa.C.S.

murder (18 Pa.CS, $§2502), 2502), two

1wo

counts of robbery counts of robbery (18 Pa. C.S. § (18 Pa.CS, 3701), one $ 3701), one count of conspiracy count of conspiracy to

to commit robbery (18

commit robbery (18 Pa.CS.

Pa. C.S. $§

903), 903), and one count and one count of

of carrying

carrying aafirearm without a firearm without license (18 a licnse (18 Pa.C.S.

Pa.CS. $§6106).

6106). On

On February

February 28,

28,

2014, the 2014, the jury jury returned

returned aaverdict of life verdict of life in

in prison on both

prison on counts of

both counts of first

first degree

degree murder.

murder. The

The

Court deferred the Court deferred the imposition of sentence imposition of and ordered sentence and ordered a

a presentence report and

presentcnce report and mental health mental health

I

evaluation. On evaluation, On May 1, 2414, May I, before the

2014, before the commencement commencement of sentencing, defendant of sentencing, defendant asked asked to

to

represent himself at represent himself at sentencing sentencing; and

and on

on appeal.

appeal. After

After a

a hearing, the Court

hearing, the Court granted granted defendant's

defendant's

I ! request request to proceedliro proceed pro .re.

se. The Court thereafter imposed aggregate sentence of two imposed an aggregate

I

I

consecutive life consecutive sentences plus life sentences 21 to plus 21 to 67

67 years

years incarceration in state incarceration in state prison.

prison. Defendant

Defendant filed

filed post-

sentence motions, which sentence motions, which the Court denied the Court on August denied on August 15,

15, 2014.

2014,

On November On November 20, 2015, the 20, 2015, the Superior Court affirmed Superior Court defendant's judgment affirmed defendant's judgment of scntcirce.

of sentence.

On May On 10, 2016, May 10, 2016, the the Supreme Court denied

Supreme Court denied defendant's defendant's petition

petition for

for allowance of appeal.

allowance of appeal. On

On

July July 15, 15, 2016, 2016, defendant filed a

defendant filed a pro se petition petition under the Post

under the Post Conviction Conviction Relief Act (PCRA")

Relief Act ("PCRA").

David David S.

S. Rudcrrstein, Esquire was Rudenstein, Esquire appointed to was appointed to represent defendant on represent defendant July 12, on July 12, 2017.

2017. On

On

January 18, January 2018, ME.

18, 2018, Mr. Rudenstein Rudenstein filed an amended PCRA petition.

petition. Defendant f led a filed amotion to

waive counsel and waive counsel and proceed proceed pro

pro se on April

se on 26, 2018. That April 26,2018. That same same day, defendant filed day, defendant filed aapro pro se

se

amended PCRA petition amended PCRA ("Amended petition ( Amended Petition").

Petition"), The

The Court

Court held

held aaGrazier hearing [on Tuly Grazier hearing' July 20, 20,

2018, and 2018, defendant's motion to proceed and defendant's proceed prase pro se was granted. Thereafter, Thereafter, defendant filed several

supplemental PCRA petitions supplemental petitions as well as replies replies to two motions

motions to dismiss filed

filed by the

the

Commonwealth. On Commonwealth. On September September 23,

23, 2019, reviewing all 2019, after reviewing all of the pleadings, this Court ruled ruled

that the that the claims claims set set forth

forth in defendant's petition in defendant's petition were without merit, merit. That day,

day, pursuant

pursuant to

to

Pa. R.Critn.P. 907, Pa.R.Crim.P, 907, the Court issued notice of its intent to dismiss defendant's PCRA petition

without without a a hearing ("907 Notice"), hearing (907 Notice"). On On October

October 7,

7, 2019,

2019, defendant

defendant filed

filed aaresponse to the

response to the 907

907

Notice ("907 Response"). Notice (907 On November Response"). On 8, 2019, November 8, 2019, the

the Court

Court entered

entered an

an order

order dismissing

dismissing

defendant's PCRA defendant's PCRA petition.

petition. Because

Because defendant

defendant had

had informed

informed the Court that

that he

he wished to

to have

counsel counsel for for an appeal if his an appeal his petition petition was

was dismissed,

dismissed, the

the Court appointed Douglas Court appointed Douglas L. Dolfman, L. Dolfman,

Esquire, to represent Esquire, represent defendant on appeal appeal.

On November 18, On November 18, 2019, defendant filed 2019, defendant filed aapro pro se

se Notice

Notice of

of Appeal

Appeal from

from the Court's

the Court's

dismissal of his PCRA Petition. On December 6, 2019, the Court issued an order pursuant to dismissal

Pa.R.A.P. Pa.R.A.P, 1925(b) ("l 925(b) order")

1925() (1925(b) order") directing directing defense counsel to file aaConcise Statement of

Errors Errors Complained of on Complained of on Appeal ("Statement of Appeal ("Statement of Errors")

Errors") by

by December

December 27,

27, 2019,

2019, Mr.

ME. Dolfinan

Dolfian

failed to to file file aaStatement

Statement of Errors,

Errors, leading

loading this Court to Eind find that all issues had

had been

been waived

waived in

opinion filed an opinion iled on on January

January 27,

27, 2020.

2020.

AAGrazier Grazier hearing hearing isis aahearing

hcuring to determine whether aadefendant has properly waived his right to counxel counsel and may

lawfully proceed lawfully pro se.

proceed pro se. See See Commonwealth

Cornrnontis°ealth v. Crazier,713 • Grater, 713 A.2d

A.2d 81

8I (Pa.

(Pa. 1998).

1998)

On September On September 28, 2020, The Superior 28, 2020, Superior Court removed Mr. Dolfinan Dolfman as counsel after

repeated failures repeated failures to to file

file a

a brief

brief. On December 22,

On December 2420, after 22, 2020, remand from after remand from the Superior Court, the Superior Court,

the the trial court appointed trial court appointed John Belli, Esquire Esquire to represent defendant on appeal, appeal. 2

On January On 27, 2021, Mr.

January 21,2021, Mr. Belli filed filed a

a statement of intent to Ule file aano-merit

no-merit letter on

appeal pursuant appeal pursuant to to Rule

Rule 1925(c) of the

1925() of Pennsylvania Rules the Pennsylvania Rules of Appellate Procedure, of Appellate Procedure, on on the

the

ground that ground that the the clainns raised by

claims raised by defendant defendant were "wholly frivolous were "wholly and the frivolous and the record

record contains

contains no

no

other meritorious other meritorious issues."

issues." Matters

Matters Complained

Complained of

of on Appeal ("Statement Matters"). In his (Statement of Matters"). his

Statement of Statement of Matters, Matters, Mr.

Mr Belli sets forth the following following issues that defendant wishes to raise on

appeal: A) appeal: A) the PCRA Court erred by failing to grant by failing grant relief or an evidentiary hearing on

defendant's after-discovered evidence claim relating defendant's relating to witness Brian Heard; B)

I) the PCRA Court

erred by erred by failing failing to grant grant relief or an evidentiary evidentiary hearing

hearing on defendant's claims relating to the

Commonwealth's failure Commonwealth's failure to to disclose exculpatory

exculpatory evidence

evidence in

in violation of Brady u.

v. Maryland, 373

U.S. U.S. 83, 87 (1963 83,87 (1963); 3 C)

C) the PCRA Court

Count erred by

by failing to grant relief or an evidentiary hearing

on defendant's claims that on defendant's that trial trial counsel was ineffective for: 1) failing for: I) failing to

to investigate

investigate defendant's

alibi defense, 2) alibi defense, failing to properly 2) failing properly prepare for trial due prepare for due to

to his

his failure to interview

failure to and investigate interview and investigate

potential potential witnesses, 3) failing witnesses, 3) failing to

to retain aaDNA expert, 4)

DNA expert, 4) failing

failing to attack the

the completeness

completeness and

reliability reliability of the police investigation, 5)

police investigation, 5) failing failing to object

object to the Commonwealth calling Karl May

as as aawitness witness after after he violated sequestration, 6) failing to raise a sequestration, 6) aBatson abjection, objection, 7) failing to

move to prohibit move to prohibit the the Commonwealth

Commonwealth from

from introducing evidence of introducing evidence of an an unrelated

unrelated crime and failing crime and failing

to object to to object to comments comments shade

made in the Commonwealth's in the Commonwealth's closing argument relating closing argument relating to to that unrelated

that unrelated

crime, and 8) crime, and 8) failing failing to object

object to the identification of defendant made by Police Officer Christine

' Before Mr. Belli Before Belli was appointed, appointed, the Court had

the Court had appointed Jaynes F.

appointed Janes Berardinelli, Esquire, E. Berardinelli, to replace Esquire, to replace Mr.

Mr. Dolfinan.

Dolfinan

However, prior However, prior to the remand, to the remand, the

the Superior Court

Court permitted Mr.

Mr. Brrardinclli

Berardinelli to

to ivithdraw as counsel

withdraw as counsel.

3 Defendant's first Defendant's and second first and claims have second claims have been reordered for been reordered for ease

ease of analysis.

analysis.

3

l

Hilbert; Hilbert;¢ and and D) the PCRA

D) the PCRA Court erred by by denying

denying defendant's discovery request.

request. Statement of o Matters at Matters ¶1 A-D. For atA-D. the reasons For the reasons set

set forth below, defendant's forth below, defendant's claims claims are without merit, are without and the merit, and thc

Court's order dismissing Court's order defendant's PCRA dismissing defendant's PCRA petition should should be

be affirmed.

affirmed

I1. FACTUAL ACK

BACKGROUND

GROUND

The facts The facts of of this case were

this case werc set forth in set forth this Court's in this Court's Rule

Rule 1925(a)

1925(a) Opinion

0pinion filed in defendant's filed in defendant's

direct direct appeal as follows:

appeal as follows

At trial, At trial, the the Commonwealth

Commonwealth presented

presented the

the testimony

testimony ofof Philadelphia Philadelphia Deputy

Deputy Sheriff

Sheriff Bilin

Bilin

Cabrera, Philadelphia. Cabrera, Philadelphia Police Police Detective

Detective James

James Burke,

Burke, Philadelphia.

Philadelphia Police

Police Officers

Officers James

James

Putro, Willian] Whitehouse, Putro, William Christine Hilbert, Whitehouse, Christine Craig Perry, Hilbert, Craig Perry, John John Cannon,

Cannon, William

William Lackman,

Lackman,

Lamont Lamont Fox, and Theresa Fox, and Theresa Paris, Paris, North

North Hampton

Hampton Township

Township Police Officer Ryan Police Officer Share, Ryan Share,

Federal Federal Bureau Bureau of Tnvestigation Agent of Investigation Edward Frimel, Agent Edward Frimel, New New Jersey State Police Jersey State Detective Police Detective

Louis Louis Kinkle (Ret.), New Kinkle (Ret.), New Jersey Jersey State

State Police Lieutenant Mark Police Lieutenant Mark Rowe, [Maple Shade], Rowe, [Maple Shade], New New

Jersey Police officer Jersey Police Officer James James Gillespie,

Gillespie, Medical

Medical Examiners

Examiners Dr.

Dr. Marlon

Marlon Osbourn

Osbourne and

and Dr.

Dr. Ian

Ian

Hood, Lissette Vega, Hood, Lissette Brian Heard, Vega, Brian Heard, Terrell Boyd, Willie Terrell Boyd, Willie Hines, Hines, Karl May,

May, and

and Gabriel

Gabriel

Piorko. Defendant presented Piorko. Defendant presented by stipulation stipulation the

the testimony

testimony of

of James

James Lane

Lane and

and Philadelphia

Philadelphia

Police Officer Alebert Revel. Police Officer Revel. Viewed in the light light most favorable to the Commonwealth as the the verdict verdict winner, winner, the

the evidence

evidence established

established the

the following.

following

1n the In the early morning hours early morning of September hours of September 9, 9, 2002, 2002, defendant

defendant and Terrell

Terrell Boyd,

Boyd, who had

who had

known each other known each other since since childhood,

childhood, were

were driving

driving around

around the

the Frankford

Frankford section

section of

of Philadelphia

Philadelphia

looking looking for for someone to robs

rob.' N.T.

N,T, 2/19114

2/19/14 at 19-21.

19-21. While driving in defendant's white Ford Taurus, Ford Taurus, defendant defendant showed

showed Boyd

Boyd a

a nine

nine millimeter

millimeter firearm.

firearm. N.T. 2119/14 at N.T, 2/19/14 at 21-22;

21-22,

2124114 2/24/14 atat 93-94.

93-94. AtAt approximately approximately 4:30 a.m., after 4:30 a.m., one failed after one failed robbery robbery attempt, defendant attempt, defendant

and and Boyd Boyd drove drove to Hawthorne Street. N.T.

N,T. 2118114

2/18/14 at 150; 2119114 2/19/14 at 23-24.

23-24. Upon arriving at at Hawthorne Street, Boyd Hawthorne Street, Boyd agreed agreed to stand

stand watch for for defendant at the corner of Hawthorne the corer Hawthorne and and Bridge Bridge Street.

Street. N.T.

N.T, 2/19/14

2/19/14 at

at 25,

25, 44,

44, 153,

153, 235. Boyd

Boyd did

did not

not wish

wish to

to be

be seen

seen on the

on the

block, block, as as his children's

children's mother

mother lived

lived in that location

in that location at the time at the time and

and Hoyd

Boyd feared that he feared that

could be could be recognized.

recognized. N.T.

NT. 2/19114

2/19/14 at

at 24-25.

24-25

Leaving Leaving Boyd Boyd at the corner,

at the comer, defendant

defendant approached

approached Marcus

Marcus Herbert

Herbert and Byron Story, and Byron Story, who who

were sitting were sitting on on the

the porch

porch outside

outside of

of Herbert's

Ilerbert's home.

home. N.T.

N,T 2119/14

2/19/14 at

at 153,

153, 232.

232. Defendant

Defendant

initiated initiated aaconversation conversation with Story

Story and

and Herbert,

Herbert, asking

asking if they

they had

had any marijuana to

any marijuana to sell.

sell

N.T. 2119/14 at NT. 2/19/14 at 153.

153. Defendant then shot Defendant then shot Story once ;at Story once, at close

close range,

range, in the head.

in the head. N.T.

N.T.

2119/14 2/19/14 a1at 153;

153; 2/20/14 ata 75-77. Once Story 75.77. One Story had been shot, Hcrbert Herbert attempted to run, whereupon whereupon defendant defendant shut

shot Herbert

Herbert twice

twice in the

the back.

back. N.T.

NT, 2/19114

2/19/14 at 153;

at 2124114 at

153; 2/24/14 at 112,

112,

114-116. 114-116

Aofficer Christine Offieer Christie Hilbert was was previously

previously named

named Christine Vincent. Defendant's Christine Vincent. Defendant's Statement of Matters Statement of Matters refers refers to her

to her

as Christine Vicent, as Christine Vincent, Statement Statement of

of Matters

Matters at 1C(8),

at4€(8)

'Defendant was 'Defendant also known as was also as "T".

T, NTN.T. 2119/14

2/19/14 at 19. Boyd was also known as Joey .1oey Black.

Blacic. NT

N:1'. 2/19114

2/19/14 at 2U.

20.

Upon Upon hearing hearing the three

three gunshots, Boyd ran back to defendant's parked car and gunshots, Boyd and awaited defendant's defendant's return.

retum. N.T.

N.T, 2/19114

2/19/14 at 27-28,

27-28, 154. Shortly thereafter, defendant returned toto the thc

car. car, N.T.

NT. 2119/14 2/19/14 at 28-29, 233-234. Boyd at 28-29,233-234. told defendant Boyd told defendant notnot to slam the to slam the car door shut, car door shut,

fearing fearing that that someone

someone would look in in the

the direction of the noise and and see defendant's

defendant's vehicle.

vehicle

N.T. 2/19/14 N.T, 2/19/14 at at 28-29.

28-29. Defendant

Defendant and and Boyd

Boyd then

then left the area.

left the NX. 2/19/14 area. N,T, 2119114 at

at 29.

29. While

While

driving away driving from Iawthorne away from Street, defendant Llawthome Street, defendant told told Boyd that he

Boyd that he bad

had shot one person

shot one person inin the the

head head and and one

one person

person twice

twice in

in the

the back

back as

as the

the person

person tried

tried to

to run.

run. N.T.

N.T 2/19/14

2/19/14 at

at 29-30.

29-30

]Defendant further Defendant further stated stated that

that he had taken a a small amount of money and acid some marijuana from the people shat. N.T.

people he had shot. 2/19114 at NT 2/19/14 at 30.

30.

Shortly after Shortly after the the shooting,

shooting, police responded to the police responded the scene observed Story lying on the scene and observed the porch, bleeding from the head. N.T. 2118/14 at 151; 2/19/14 at 234. Police porch, bleeding from the head. N,T. 2/18/14 at 151; 2/19/14 at 234. Police also encountered also encountered Herbert lying on the Herbert lying the ground ground in front of the house,house, bleeding bleeding; from back. N.T.

from his hack. N,T. 2118114 2/18/14 at

151. Herbert 5L. Herbert informed informed police

police that

that he had been shot by a a Hispanic male with short cropped hair, hair, wearing wearing aawhite

white shirt

shirt and blue jeans, and blue and carrying jeans, and carrying a black handgun.

a black handgun. NI.T.

N.T. 2/18114

2/18/14 at at

1.52. 152. flerbert Herbert was

was transported

transported to Hahnemwin Hahnemamnn University Hospital Hospital for treatment,

treatment, while Story Story

was pronounced was pronounced dead at at the scene. N.T. 2118/14 scene. N.T 2/18/14 at 152-153. Police recovered two fired fired9 millimeter cartridge cases millimeter cartridge cases at at the the scene

scene of the shooting.

of the shooting. N.T. 2/18114 at N,T, 2/18/14 at 172.-173, 172-173, 185.

185

Herbert Herbert died on on October 2, 2003, more 2, 2003, more than

than one

one year after the

year after the shooting, due to multiple shooting, due

recurring recurring infections infections as a

a result of the gunshot gunshot wounds he had had received.

received. N.T.

N.T 212.4/14 at

2/24/14 at 11.7-

117-

118. 1I8

On September On September 11, 2002, in 11, 2002, the Whitehall in the Whitchall Projects the Frankford Projects in the Frankford section of of Philadelphia,

Philadelphia,

two days two days after the shooting after the shooting of Story Story and Herbert, defendant was seen by Ronald Milburn at the scene of the scene of a acraps

craps game

game firing

firing aanine millimeter

millimeter firearm

firearm multiple

multiple times.

times. N.T.

N.T. 2/20114

2/20/14 atat

138-139, 151-153, 138-139, 151-153, 166; 2124114 at 166; 2/24/14 130, 144.

at 130, 144.6 Milburn

Milburn had seen seen defendant defendant in in a bar

a bar

approximately approximately one week earlier in possession possession of

of what appeared

appeared to be

be that same

same weapon.

weapon

N.T. 2/24114 at N,T, 2/24/14 130-131. At at 130-131. At the

the time

time that

that defendant fired the defendant fired the gunshots gunshots at at the craps game, the craps game,

Police officers Police officers Christine Christine Hilbert'

Hilbert' andand Stanley

Stanley Galiczynski

Galiczynski were parkedparked in in aamarked marked police cat'

police car

on the 4900 block of Cottage Street, They heard the gunshots corning on the 4900 block of Cottage Street. They heard the gunshots coming from the Whitehall from the Whitehall Projects immediately to their south. N.T. Projects immediately N.T. 2/19/14 2/19114 at 177-178. As the officers approached the area, area, Officer Hilbert saw defendant run from the area where the shots had been fired. N.T. NT, 2119114 2/19/14 at at 179, 207; 2124/14 179, 207; 2/24/14 at 131, 144.

at 131, 144. Upon

Upon seeing

seeing the

the police

police vehicle,

vehicle, defendant

defendant flattened

flattened

hi nself against himself against a a wall until Officer Hilbert exited the vehicle, at which time defendant fled.

N.T. 2/19114 at N.T. 2/19/14 179-180. Ollieer at 179-180, Officer Hilbert was unableunable to locate defendant, but did recover aa firearm firearm from the location from the where defendant location where defendant had had fled. N.T. 2119114 fled. N.T. 2/19/14 atat 109, 180, 200, 109, 180, 200, 206.

206.

Police recovered 13 Police recovered 13 nine-millimeter nine-millimeter fired fired cartridge casings from cartridge casings frorn the the area

area where defendant

where defendant

had been had been seen seen firing a

a

firing gun.gun. N.T.

NT 2114/14

2/19/14 at

at 104;

104; 2120114

2/20/14 at

at 49-50.

49-50. Analysis

Analysis of the fared

fired

ear-tridge casings cartridge casings found at at both

both the

the Hawthorne

Hawthome Street

Street shouting

shooting of

of Herbert

Herbert and

and Story

Story the

and the

GMilburn actually Milburn saw more than deteendant actually saw merely firing defendant merely airing a gun, He saw a gun. saw dcrcndant shoot and kill one Levon Wilson defendant shoot

with the with the gun gun after after aadispute

dispute at at the craps game. Because, as discussed below, the gun used craps game. used by defendant to shoot I.evon Wilson cvon Wilson turned out to turned out to be the

the murder

murder weapon in the

weapon in the killings

killings here

here at issue, the

at issue, the Commonwealth commonwealth proved

proved that

dcrcndant tired defendant tined the the gun on September

gun on September 1I, 11, 2062, 2062, to

to establish

establish his

his access

access to the murder

murder weapon.

wcapon. However,

However, because

because

dcrcndant was not on trial fur defendant Cor the killing of Wilson in tthe he case at bar, the Commonwealth Commonwealth agreed not to present any evidence that evidence that the the gun had been used

gun had used on September 11, 2002., September II, 2062, in in a murder. Defendant was convicted of murdering a murder, murdering Wilson hr a separate trial, as is more fully discussed Wilson in a separate trial, as is more fully discussed below, below. f)rficer Hilbert 0/%&er Hilbert was previously named was previously named Christine Vincent.

Vincent. N.T. (Motion Hearing)

NT (Motion 2118114 at Hearing) 2/1/14 22.

at 22.

s

66

Whitehall Whitehall Projects Projects shouting

shooting determined

determined that all

all the

the casings

casings had been fired

had been fired in

in the

the firearm

firearm

recovered recovered by by Officer

O[leer Hilbert

Hilbert from

from the

the location

location from

from which

which defendant

defendant had

had fled.

fled. N.T.

N.T 2120114

2/20/14

at at 58, 63-64.

Police made numerous Police made numerous attempts attempts to locate defendant to locate defendant fifrom om late - late 2002

2002 until

until September 2003.

September 2003,

N.T. 2/24/14 N.T. 2124114 at at 34-43, 34-43. Defendant

Defendant was ultimately

ultimately located

located and

and apprehended

apprehended on September

September 30,

2003 2003 atat the the Rodeway

Rodeway Inn

Inn in

in [Maple

[Maple Shade],

Shade], New

New Jersey,

Jersey, where

where he

he had

had registered

registered under

under an

an

alias. alias. N.T.

N.T, 2/24114

2/24/14 at 41-43, 50,

at 41-43, 50, 65. Defendant Defendant asked what what he was was under

under arrest for, to

to which

the arresting the arresting officers officers stated

stated "[f]or

"[flor some

some shootings."

shootings." N.T.

NT 2124/14

2/24/14 at at 71.

7L. Defendant

Defendant

responded that responded "[he] liked that [he] liked shooting shooting people."

people." N.T. 2/24/14 at N,T, 2/24/14 71-72. Defendant at 71.72. fulther Defendant further

provided provided a a different

different alias

alias at

at the

the time

time of

of his

his arrest.

arrest. N.T.

NT 2124114

2/24/14 at

at 79.

78.

On On February 7, 2004, February 7, 2004, while while incarcerated, defendant was incarcerated, defendant involved in was involved an incident in an in the

incident in the

ceflblock. cellblock. N.T.

N,T, 2/24114

2/24/14 at

at 100-101.

100-101. When

When asked

asked by

by a

a corrections

corrections officer,

officer, "[w]hy

"[w]hy do

do you

yo

keep doing these keep doing these things?" defendant responded things? defendant "I don't responded "I don't give

give aashit,

slut ;IIgot

got two bodies, I'm

two bodies, Tm

going to die in prison, going prison, I I don't care." N.T.

N.T, 224/14

2/24/14 at 101.

10I

Trial Trial Court Opinion, filed Court Opinion, December 9, 2014 filed December 2014 at pp. 2-6 at pp. 2-6.

II. IL. DISCUSSION

DISCUSSION

An appellate An curart's review of aaPCRA court's grant or denial of relief "is appellate court's "is limited to

determining determining whether whether the court's findings findings are supported by the are supported the record record and the court's

court's order is

otherwise, free otherwise free of legal error."

of legal C'onaanonwecalth v.

error." Commonwealth v. Green, Green, 14

14 A.3d

A.3d 114, 116 (Pa.

114, 1H6 Super. 2011)

(a. Super. 2011)

(internal (internal quotations omitted). The reviewing quotations omitted). reviewing court "will not disturb findings that are supported

by by the record." Id.

record." Id

A. A. After-Discovered After-Discovered Evidence

Defendant first Defendant first claims claims that the Court

that the court erred

erred in

in failing

failing to grant him

to grant him an

an evidentiary hearing

evidentiary hearing

regarding after-discovered evidence regarding after-discovered evidence in in the

the form of an

form of affidavit from an affidavit from witness witness Brian Heard.

Brian Heard

Statement Statement of Matters at B.

¶B. 'This

This claim is without merit.

At defendant's At trial, the defendant's trial, the Commonwealth presented presented the

the testimony

testimony of Brian

Brian Heard.

Heard. Heard

Hcard

testified that testified that on on the evening

evening of September 1H,

of September 11, 2002, two days 2002, two days after

after the murders at

the murders at issue

issue in

in the

the

instant case, he instant case, he saw defendant fire saw defendant fire a

a handgun

handgun and

and then saw defendant

then saw defendant flee

flee the

the scene,

scene, escaping

escaping

through the Whitehall through the Projects. 8 N, Whitehall Projects.' T. 2/20/2014 at 131, 139. It was ultimately N,T. ultimately determined that that

the handgun the handgun that that Heard

Heard saw

saw defendant fire was

defendant fire was the

the same

same weapon

weapon used to murders in to commit the murders in

the the instant case. N.T.

instant case. N.T, 2/2012014 2/20/2014 at 63-64. Accordingly, Heard's at 63-64. Heard's testimony testimony established

defendant's access defendant's access to to the

the firearm.

firearm.

In In an affidavit attached

an affidavit attached to defendant's Amended Amended Petition, Heard recanted his testimony, Heard recanted testimoty,

claiming that he claiming that only heard he only heard the sound

sound of gunsliots on

of gunshots on September September 11,

1. 1, 2002

2002 and

and did not see

did not see the

the

shooter. Amended shooter, Amended Petition, Petition, dated 4/2612 018 at dated 4/26/2018 p. 15, at p. 15 ;Exhibit

Exhibit 1. Moreover, Heard L. Moreover, claimed that Heard claimed that

he; he and and another Commonwealth witness, another Commonwealth witness, Ronald Ronald Milburn, conspired to pin Milhurn, conspired pin the the shooting on

shooting on

defendant so defendant that they so that get off they could get off of probation.

probation. Id. Huard claimed Id. Finally, Heard claimed that he he told

told an

an

Assistant District Assistant District Attorney ("ADA") this Attorney (ADA") this information information in

in 2005;

2005; however,

however, the ADA told

the ADA told Heard

Hcard not

not

to to tell tell anyone that or anyone that or the ADA would the ADA send Heard

would send Heard to

to jail

jail for

for a long time.

a long time, Id.

Id. Heald

Heard failed to

failed to

identify the ADA identify the spoke to in ADA he spoke in 2005,

2005, describing

describing him

him only as

as a

a "short white

white man."

man," Id.

1d. 4

To obtain To relief under

obtain relief under the

the PCRA based on

PCRA based after-discovered evidence, on after-discovered defendant must evidence, defendant must

plead plead and and prove prove that

that the evidence: I)

1) could not

not have

have been obtained

obtained prior to

to the conclusion of

the conclusion of the

trial trial by the exercise by the reasonable diligence;

exercise of reasonable diligence; 2)

2) it is not merely cumulative; 3) will not 3) will be used

not be used

solely to impeach solely to impeach the the credibility

credibility of a

awitness; (4) would likely compel a witness; and (4) adifferent verdict. 42

Pa.C.S. Pa.CS. § 9543(a)(2)(vi); Commonwealth •v. D'Atnaro, $ 9543(3)026vi); D 'Amato, 856 A.2d 806, 856 A.2d 806, 823

823 (Pa.

(Pa. 2004).

2004)

aHeard actually saw Heard actually savv more than defendant merely merely firing

firing aagun.

gun. He save'

saw defendant shoot and kill one Levon Wilson Wilson.

However, because defendant was not on trial for the However, [lie killing of of Wilson in thc

the instant case, the Commonwealth agree agreed

not to tot present any to present any evidence evidence that the gun

gun was u.scd

used in a murder, Defendant was convicted of murdering Wilson in a a murder, a separate trial. See CP-51-CR-0207721 separate CP-51-CR-0207721-2004. -2004 I 9In addition addition to submitting Heard's affidavit in th to submitting the instant PCRA petition, defendant also presented the the affidavit as newly-discovered newly-discovered evidence evidence in

in a

a PCRA

PCKA petition

petition that

that he

he filed in

in his

his murder conviction stemming stemming frorn

from the September

the

11, 1I, 2002 2002 shooting, shooting, which was dismissed as untimely by the Honorable Rose Marie DeFino-Nastasi, De'ino-Nastasi. See

See PCRA

PCR.A

Court Opinion Court Opinion at CP-51-CR-0207721-2044, filed October 117, at docket number CP-1-CR-0207721-2004, 7, 2016, 2016. Specifically, Judge DeFino-

Nastasi Nastasi concluded concluded thatthat defendant defendant could have obtained the information from Heard at an earlier date if he had acted with due diligence, with due diligence, sincc affidavit was sine the affidavit was not not submitted

submitted until

until approximately ten years years after defendant's trial trial in

in that

case, but case, but defendant had known of of Heard since sine atat least 2005, Id, Ad at

t Exhibit A. The Superior Court affirmed the dismissal, agreeing dismissal, agreeing that defendant's "bare declaration of bald ignorance does not meet the burden to plead and prove prov why the why the information information now

no proffered

proffered as after-discovered after-discovered `evidence'

'evidence' could not have been known known and obtained earlier by the exercise by the exercise of of due diligence." See Commonwealth duc diligence," Collivronwealth ».v. !real, No. 2514 EDA Real, No,2514 EDA 2016 (Pa.

(Pa. Super. March 4, 2009) at9- at 9-

14 (unpublished memorandum IQ mcrnoranduin opinion).

opinion)

Ilerc, Ilere, even true, Heard cven if true, ,srecantation Heard's recantation does not not entitle defendant to relief because it fails

to to meet meet the the requirement requirement that it would likely likely result in aadifferent verdict at aanew trial. In

determining whether after-discovered determining after-discovered evidence evidence would result

result in

in a

a different

different verdict, a

a court is

is to

to

"consider the "consider integrity of the alleged the integrity alleged after-discovered evidence, the the motive

motive of those

those offering the

the

evidence, and evidence, and the the overall

overall strength

strength of the supporting the the evidence supporting the conviction." Commonwealth v.

v

Padillas, Padiltas, 997 A.2d 356, 365 (Pa.

A.24 356, (Pa. Super.

Super. 2010),

2410), app.

app. denied, 14 A.3d

A.3d 826 (Pa. 2010) (citing 826 (Pa.

Commonivealth ». Commonwealth v, Parker, 431 A.2d 196, 200 (Pa. 19$1)).

(Pa. 1981))

First, Fiest, it it is

is well

well established that such recantations are "extremely unreliable." See

Co mtizonivealth v. Commonwealth S•ncall, 189 v. Small, A.3d 961,977 189 A.3d 961, 977 (Pa.

(Pa. 2018) (noting that

2018) (noting there is that there is "no reliable "no less reliable

form for of proof, proof, especially especially where it involves an admission of perjury").

perjury"). Moreover, Heard's IIeard's

testimony merely testimony established defendant's merely established defendant's access to the access to the murder weapon, as murder weapon, as Heard

Heard was only

was only

permitted to testify permitted to that he testify that saw defendant he saw defendant firing

firing the weapon on

the weapon on September

September 11, 2402, and was I1, 2002, was

barred harred from testifying that from testifying that those shots shots resulted

resulted in

in aathird

third murder

murder in addition to

to the two murders at

al

issue issue in the case.

the instant case

Moreover, the recantation did Moreover, did not exculpate defendant, not exculpate defendant. While Heard Heard now

now says lie

he did

did not

not

sec soc defendant defendant firing firing the gun, he still acknowledges the gun, acknowledges that he heard shots at the time the gun was

allegedly fired allegedly fired by by defendant.

defendant, Therefore,

Therefore, even Heard's recantation even if Heard's recantation were were found

found to

to be credible, it

be credible, it

would would still consistent with still be consistent with defendant having having possession

possession of the

the murder weapon two

murder wcapon two days

days alter

alter

the the murders here at issue.

issue

Most Most importantly, importantly, the Commonwealth presented the Commonwealth presented additional additional evidence

evidence regarding

regarding the

September September 11, 2002 shooting that indepcndently 2002 shooting defendant's access to the murder independently established dcfendant's inurder

weapon. weapon., At trial, trial, Officer Christine Hilbert Hilbert testified

testified that on

on September 1

11,l,2002,

2002, she and her

partner partner were on patrol were on patrol in in the Whitehall Projects Projects when they heard the sound of gunshots, gunshots. MT.

N.T.

99

2/19/2014 2/19/2014 at at 177-78. As they

177.78. As they were driving driving towards

towards the area where

the area where the

the gunshots

gunshots were coming

were coming

from. Officer Hilbert from, Officer Hilbert saw saw a male running

a male from the

running from the scene.

scene. N.T.

N,T. 2/19/2014

2/19/2014 at

at 179.

179. When the

When thc

male spotted male spotted the officers, he flattened his body the officers, body against against a

abuilding.

building. Id. Once Officer Hilbert

exiled exited the police vehicle, the police the man vehicle, the man ran away. 1d.

ran away. She thereafter Id. She thereafter went to the went to scene to

the scene assist. N.T.

to assist. NT,

2/19/2014 at 180. 2/19/2014 at 180. After After the scene was

the scene was secured, Officer Hilbert secured, Officer retraced her Hilbert retraced steps to her steps to where

where she

she

saw saw the the male male running running to see

see if she

she could

could locate

locate him.

him. N.T.

N.T. 2/1912.014

2/19/2014 at 2.00.

200, When

When she

approached approached the the buildings

buildings where

where she saw the

the male

male hiding,

hiding, she observed a

a gun

gun on the ground next

next

to to aatree.

tree. Id. This was the gun This was gun that

that was

was ultimately determined to ultimately determined to be the wcapon be the weapon used

used in

in the

the

September 11, 2002 September 11, 2002 shooting shooting and

and in the instant

in the instant murders, as described murders, as described above. N.T. 2/20/2014 above. N.T, 2/20/2014 at

at

63-64. 63-64,

1n addition In addition to to her testimony regarding her testimony regarding the September 11, the September 11, 2002

2002 shooting,

shooting, Officer

Officer Hilbert

Hilbert

testified that testified that approximately one month approximately one month following following the

the shooting,

shooting, she saw a

she saw awanted

wanted poster at her

poster at her

police district and police district recognized defendant, and recognized defendant, the the person in the

person in the poster, as the poster, as the person sine saw person she saw fleeing

fleeing

the scene of the scene of the shooting.

shooting. N.T.

N,T 2/19/2014

3/19/2014 at 208-09.

208.09. Moreover, at trial, Officer Hilbert

identified identified defendant as the defendant as the perpetrator.

perpetrator. Accordingly, Officer Hilbert's Accordingly, Officer Hilbert's testimony provided testimony provided

compelling evidence compelling evidence that defendant defendant had access to the murder murder weapon

weapon used

used in

in the instant

instant case.

Brian Heard Brian and Officer Heard and Hilbert were Officer Hilbert were both corroborated by both corroborated by Ronald Milburn, who was Ronald Milburn, was

also present also at the present at scene of the September the scene September 11, shooting and 11, 2002 shooting and had known known defendant for

for many

years. The years. The Commonwealth Commonwealth presented

presented to the jury

to the jury Milburn's

Milburn's preliminary

preliminary hearing

hearing testimony

testimony in

in

which he which he too too identified identified defendant

defendant as

as the

the shooter.

shooter, N.T.

N.T, 2/20/2014

2/20/2014 at

at 138-39,

138-39, 151-53, 166; N.T.

151-53, 166; N.T.

2/24/2014 2/24/2014 at 130, 144.

at 130, 144.

Finally, the Commonwealth Finally, the Commonwealth presented presented additional evidence that additional evidence that overwhelmingly overwhelmingly

established established defendant's guilt. First, defendant's guilt. First, Terrell Terrell Boyd

Boyd testified that on

testified that the night on the night of

of the

the murders at

murders at

issue in issue the instant in the case, he instant case, he and defendant were were driving around the

the liFrankford

rankford section

section of

of

Philadelphia Philadelphia and and looking someone. N.T.

looking to rob someone, 2/1912014 at 20-21, N,T. 2/19/2014 20-21. When the pair parked on

Mulberry Street, Mulberry Street, they they got

got out of

of the car and walked to Hawthorne Ha•vthorne Street, N.T. 2/19/2014 at 26 26.

Boyd stopped Boyd stopped at at the

the corner while defendant corner while defendant walked walked around

around the

the corner.

corer. N.T.

NT, 2/1912[114

2/19/2014 at 25-27.

at 25-27.

Boyd testified Boyd that he testified that then heard he then heard the

the sound

sound of

of gunshots

gunshots being

being fired,

fired, so

so he

he ran

ran back

back to

to the car, and

the car, and

defendant followed defendant followed soon soon after.

after. N.T.

N,T, 2/19/2014 at 27-28.

2/19/2014 at 27-28. As they fled As they fled the scene, defendant the scene, defendant told told

Boyd he had Boyd he had shot one person shot one in the

person in the head and one head and one person twice in person twice in the back

back as

as the person tried

the person tried to

to

run away. run away, N.T.

N.T, 2/19/2014 29-30. In addition to Hoyd's 2/19/2014 at 29-30. Boyd's testimony, testimony, the

the Commonwealth

Commonwealth also

also

presented evidence presented evidence that following following the shooting,

shooting, defendant evaded capture by fleeing to New

Jersey. Jersey. N.T. 2/24/2414 a( N,T 2/24/2014 a[ 41-43.

41-43, NA'lien

When defendant

defendant was

was ultimately

ultimately arrested,

arrested, he told

told police

police that

that

"[he] likeld] shooting "[he] like[d] people." N.T.

shooting people." 2/24/2014 at N.T. 2/24/2014 at 71-72, Finally, while 71-72. Finally, while incarcerated, incarcerated, defendant

defendant

purportedly purportedly confessed to murder, telling to the murder, telling a

a corrections officer: "T don't give a officer: " ashit, IIgot got two

two

bodies, going to die in prison, bodies, I'm going prison, IIdon't care." N.T.

N,T. 2/24/2014 at 101.

101. Due to the

overwhelming amount of evidence, independent overwhelming independent of Heard's testimony, testimony ;establishing defendant's

guilt, it is guilt, it is without question that the without question the information contained in information contained in Heard's Ileard's affidavit,

affidavit, even

even if true,

true,

would not would changed the verdict. Accordingly, not have changed Accordingly, Heard's recantation does not constitute after-

discovered evidence discovered evidence that that would give rise

would give to relief rise to relief under

under the PCRA.

the PCRA.

B. B Brady Violation

Defendant Defendant next claims that next claims the Court that the Court erred

erred in dismissing his

in dismissing his petition petition without

without aahearing on

hearing on

defendant's claims pursuant defendant's claims to Brady pursuant to v. Maryland, 373 Brady • U.S. 83, 373 U.$, 83, 87 (1963). Statement 87 (1963). Statement of Matters of Matters

at at T A.

A. Specifically, Specifically, defendant defendant argues

argues tthat

hat the

the Commonwealth failed

failed to disclose the

the following

following

exculpatory evidence: 1) exculpatory evidence; I) the recantation of of witness Brian fleard;

Heard; 2) identification information

concerning concerning aawitness witness named "Lisa:" 3)

named Lisa;" 3) statements allegedly allegedly made by Herbert's mother regarding what Herbert had what Herbert had told her; and told her; and 4)

4) contact

contact information concerning Milburn's information concerning Milbum's mother.

mother. Statement

Statement

of Matters at of at TA.

A, These

These claims are without merit.

merit.

Under Under Brady Brady v.

• iWaryland,

Maryland, 373 U.S. 83, 87 U,$. 83, 87 (1963),

(1963), exculpatory evidence not not disclosed to

to

the defense will the defense will give rise to give rise to a due process a du process violation

violation and

and will require a

will require anew

new trial

trial if the exculpatory

exculpatory

evidence is evidence is "material" either to "material" either to guilt or punishment.

guilt or punishment, 373

373 U.S.

U.5. at 87; see

at 87; see also

also Pa.R.Crim.

Pa.R.Crim.P,

573(B)(1)(a) (specifying, 5730)(1Ka) (specifying, as as mandatory discovery, "[a[ny mandatory discovery, "[any evidence evidence favorable to the favorable to accused that the accused that

is material is material either either to

to guilt or to

guilt or to punishment,

punishment, and

and is

is within the possession

within the possession or

or control

control of

of the attorney

the attorney

for the for the Commonwealth")

Commonwealth"). if the police If the police possess evidence that is possess evidence favorable to is favorable the defense, to the defense, then

then the

the

Coinrnonwealth Commonwealth isis deemed to be responsible for be responsible for its

its disclosure even

even if it

it is solely in

in the possession

of the police. of the police. ,See Commonwealth •v. Latrzkrl, See Commonwealth Lambert, 884 884 A,2d 848, 853

A,2d 848, (Pa. 2005)

833 (Pa. 2005) (quoting;

(quoting Brady,

Brady, 373

37

U.S, at U.S, 87). Defendant at 87). must therefore Defendant must therefore establish three elements:

establish three elements: (I)

"(1) suppression

suppression by the

by the

prosecution prosecution (2) of evidence, (2) of evidence, whether exculpatory or whether exculpatory or impeaching, impeael}ing, favorable

favorable to the defendant, (3)

to the ()

to the to the prejudice prejudice of defendant." Commonwealth of defendant." Commonwealth v. Tedford, 960 • Tedford, 960 A.2d

A.2d 1, 30 (Pa.

1, 30 (Pa, 2008).

2008).

1, Witness 1. Witness Brian Brian Heard

Defendant claims Defendant claims that that the Commonwealth failed the Commonwealth to provide failed to provide exculpatory exculpatory information

information

provided by provided by Brian Brian Heard,

Heard, the witness whose recantation affidavit is discussed in section II(A),

above. Statement above. Statement ofMatters at ¶A.

of Matters at Specifically, defendant A. Specifically, defendant argues that the argues that the Commonwealth Commonwealth

failed fuailed to to infonii inform the

the defense

defense that

that Heard

Heard had

had told an unnanied

unnamed prosecutor

prosecutor that he

lie was

was going to lie

to lic

about defendant's involvement. about defendant's involvement, Amended Petition, dated 412612018, Petition, dated 4/26/2018, Exhibit 1. This Exhibit I, This claim

claim is

is

without merit. without merit.

As discussed above, As discussed above, in in his

his affidavit,

affidavit, Heard

Heard claimed that in

claimed that in May 2005, he May 2005, he told an ADA

told an ADA

that he that and Milburn he and Milburn had agreed agreed to lie and pin

pin the September 11, 2002 murder on defendant s❑ so

that that they could get they could get off off of

of probation,

probation, and

and that

that the

the ADA

ADA told him not

told him not to

to tell this information

tell this information to

to

11

l

anyone. anyone. See Amended Petition, See Amended dated 4/26/2018, Petition, dated 4126/201$, Fxhibit Exhibit I.I. However,

However, under

under Brady, exculpatory

exculpatory

evidence not evidence not disclosed disclosed to

to the defendant will

the defendant will only

only give

give rise

rise to

to aadue

due process

process violation

violation and

and require

require

a a new trial if new trial if the the evidence is material, evidence is meaning, "when material, meaning, "when there there is aareasonable probability that, reasonable probability that, had had

the evidence been the evidenec been disclosed disclosed to

to the defense, the

thdefense, the result of the result of proceeding would the proceeding would have have been

been

different." To different." ford, 960 A.2d at 30 (internal Tedford, (internal quotations omitted). Here, for the same reasons set quotations omitted). sct

forth forth above in Section above in Section I(A), II(A), above, it is

above, it clear that

is clear even if this that even this information information had been disclosed had been disclosed to

to

defendant, it defendant, it would not have would not have resulted

resulted in adifferent

in a different verdict.

verdict. For that reason, For that reason, defendant defendant is

is entitled

entitled

to to no relief on no relief on his his first

first Brady claim.

claim.

2.2. Identification Information Regarding Identification Information Regarding "Lisa"

"Lisa"

Defendant next Defendant next claims that the Commonwealth never never disclosed

disclosed the full name, address, address, or

statements of statements of a apotential witness known potential witness known as as "Lisa."

"Lisa." Statement

Statement of Matters at'

of Matters at !A.

A. Defendant

Defendant

alleges that alleges that police police received

received information

information from

from Shawn Young and

Shawn Young and Katoria Davis that Katoria Davis that there

there was

was a

a

female witness female witness to to the shooting named

the shooting named"Lisa," Amended Petition, Lisa." Amended dated 4/26/2018 Petition, dated at pp.

4/26/2018 at pp. 2-3,

2-3, 6,

6,

Exhibits A Exhibits & F. Defendant A &F. Defendant further further alleges

alleges that the

the Commonwealth never

never provided

provided him with

with any

statement from statement "Lisa," or from Lisa," or any

any of

of her contact

contact information.

information. Id.

While it is true that both Mr. Young and Ms. Davis told police that someone named

"Lisa" may have Lisa" may witnessed events have witnessed events relevant relevant to the murders,

to the murders, see

see Amended

Amended Petition, dated

Petition, dated

4/26/2018, 4/26/2018, F,xhibits Exhibits AA&

& F,

F, there is nothing in

is nothing in the

the evidence in

in the case, nor in any

any of the

the multiple

multiple

petitions and exhibits petitions and exhibits filed filed by defendant, that

by defendant, that suggests suggests that

that"Lisa" was ever

Lisa" was located by ever located either the by either the

Commonwealth or Commonwealth or the the defense.

defense. Defendant

Defendant failed

failed to

to present

present or

or proffer any evidence

proffer any suggesting evidence suggesting

that "Lisa" had that "Lisa" had been been found,

found, that could somehow that she could somehow exculpate exculpate defendant, or that defendant, or that any

any information

information

about about "Lisa" was was withheld from the defense.

defense, Accordingly, the Court properly denied defendant's

Brady Brady claim regarding regarding "Lisa" without aahearing.

3. 11 Decedent Marcus Herbert's Des&dent Marcus Herbert's Statements his Mother Statements to his

Defendant Defendant next 3. next claims claims that

that the Commonwealth withheld the Commonwealth exculpatory evidence withheld exculpatory evidence regarding regarding

statements made statements made by one of by one of the

the decedents, Marcus Herbert, decedents, Marcus Herbert, to to his

his mother.

mother. Statement of Matters Statement of Matters

at 1iA. at A. Defendant Defendant alleges alleges that Herbert's mother that Herbert's told detectives mother told that her detectives that her son said he son said he "knows what

"knows what

happened to happened to him,"

him," and that the

and that Commonwealth should the Commonwealth should have have disclosed

disclosed the "statements "statements from

from

Herbert or Herbert's Herbert or Herbert's mother," Statement of mother." Statement of Matters at Matters at ¶A;

A; Amended

Amended Petition,

Petition, dated 412612018, dated 4/26/2018,

Exhibit Exhibit F. As stated F. As stated above, above, Herbert

Herbert did

did not

not die

die until more than

until more than one year after one year after the

the shooting.

shooting.

support of In support of his claim, defendant his claim, attaches Detective defendant attaches Detective Bgenlauf's Egenlauf's October 12, 2002, October 12, 2002,

activity sheet, activity sheet, in which the in which the Dctcctive states that Detective states that Herbert's mother had told Herbert's mother told him him that her son

that her son

briefly was briefly was able to communicate able to communicate; while while in

in the

the hospital and said

hospital and that he knew said that knew what

what happened

happened to

to

him, but him, but that she was that she was unable unable to

to interview

interview her

her son any further.

son any Amended Petition, further. Amended Petition, dated dated

4/26/2018, Exhibit 4/2602018, Exhibit F. Defendant also , Defendant also attaches an activity attaches an activity sheet, sheet, dated

dated November

November 26, 2002, in

26, 2002, in

which which Detective Detective Egenlauf Egenlauf states

states that

that he went to Hahnemann Hahnemann Hospital

Hospital to interview Herbert.

Amended Amended Petition, Petition, dated 4/26/2018, 4/26/2018, Exhibit G. At that time, Herbert was awake and alert, but

was unable was unable to communicate any to communicate information. Id.

any information. Id

Nowhere does defendant present Nowhere present or proffer proffer any evidence suggesting that Herbert told his

mother mother anything anything that that would tend to exculpate the to exculpate the defendant, or assist assist the deiensc in

the defense in any manner.

manner.

Accordingly, the Court Accordingly, Court properly properly denied

denied defendant's &ady

Brady claim regarding

regarding Herbert's statements statements

to his his mother mother without without a hearing.

a hearing

4. 4. Contact Information Contact Milburn's Mother laformation of Milbum's Mother

Defendant claims that Defendant claims that the the Commonwealth

Commonwealth withheld the contact withheld the contact information of witness information of witness

Ronald Milburn's Ronald Milburn's mother.

mother. Statement

Statement of

of Matters at I

Matters at A.

A. At

At trial, Ronald

Ronald Milburn

Milburn was unavailable

unavailable

and his and his prior preliminary hearing prior preliminary hearing testimony testimony was

was introduced by the

introduced by Commonwealth, N.T the Commonwealth, N.T.

2/24/2.014 2/24/2014 at at 122-42; N.T. 2120/2014 122-42; N.T 2/20/2014 at 6-1.1, 119-25. Milburn at 6-11, Milburn testified testified at

at the prelinlinary

the preliminary

hearing that be hearing that he witnessed witnessed defendant

defendant shooting

shooting the possible

possible murder weapon at aalocal bar aaweek

prior to prior to the the murders, murders, and that two days days after the murders Milburn again saw defendant shooting

what could have what could have been been the

the murder weapon. N.T,

murder weapon. N.T. 2/24/2014 at 126-42.

2/24/2014 at 126-42, Defendant Defendant alleges that,

alleges that,

had Milburn's had mother been Milbur's mother contacted, she been contacted, she would would have

have refuted

refuted her

her son's testimony.

son's testimony.

Supplemental PC1ZA Supplemental PCRA Petition, dated 8/6/201 Petition, dated 816/2018 at p.

8 at p. 3.

3.

In In particular, defendant alleges particular, defendant alleges that Milburn's Milburn's mother would have have testified that

that Milburn's

testimony was aalie, testimony was lie, and that that the

the Commonwealth violated violated Brady

Brady by

by not

not producing the mother's

contact contact information. Supplemental PCRA information. Supplemental PCRA Petition 81612018 at Petition,;dated 8/6/2018 at p.

p. 3. At trial, defense

counsel stated that counsel stated that defendant's defendant's mother

mother had told

told defense counsel

counsel that

that Milburn's mother

mother had said

said

to her to that Milburn's her that Milburn"s testimony testimony was

was untrue,

untrue. NT,

N.T. 2/19/2014 at 255-5b.

2/19/2014 at However, defendant 255-56. However, defendant

never presented never presented a astatement

statement or witness certification from Milburn's mother mother to show

show that she

she

actually had anything actually had anything to say say that was in

that was in anyway helpful to any way helpful to the defense. Nor the defense. Nor did he present did he present or

or

proffer any evidence that the Commonwealth had kriowledgc proffer any knowledge of any contact information for for

Milburn's Milburn's mother mother that

that was

was not available to the

not available defense. Accordingly, the defense. Accordingly, the the Court

Court properly denied

properly denied

defendant's Brady defendant's Brmly claim regarding regarding contact information for Milburn's mother without a a hearing.

C. Ineffective C Ineffective Assistance of Counsel Assistance of

Defendant Defendant next claims that trial counsel was ineffective on the grounds that: I)

next claims 1) counsel

failed to investigate failed to investigate defendant's defendant's alibi defense;

defense; 2)

2) counsel

counsel failed

failed to properly

properly prepare

prepare for

for trial

because because he did not he did not investigate investigate or intcrview an or interview an alleged

alleged eyewitness

eyewitness named "Lisa,"

"Lisa," three

three friends

friends of

co-defendant Terrell co-defendant Terrell Boyd, and Karl Boyd, and Karl May; 3) counsel May; 3) counsel filed to retain failed to retain aaDNA expert to DNA expert to test the hat test the bat

collected by collected by police, police, the gull, and any the gun, any and all physical physical evidence; 4) counsel failed to attack the

completeness of completeness of the the police

police investigation;

investigation; 5)

5) counsel

counsel failed to object

failed to object when

when the Commonwealth

the Commonwealth

called called furl May as a Karl May awitness after the witness broke sequestration:

sequestration; 6) counsel failed to make aa

Batson objection Batson objection to the use of peremptory perm"ptory challenges by the Commonwealth to strike all

potential potential Hispanic Hispanic voir dire persons;

persons; 7)

7) counsel failed to move to prohibit the Commonwealth

frorn from introducing introducing evidence of an evidence of an unrelated

unrelated crime;

crime; and 8)

8) counsel

counsel failed

failed to

to object

object to

to the

the

identification of identification of defendant defendant made

made by Officer Christine by Officer Christine Hilbert.

Hilbert. Statement Errors at of Errors

Statement of at % C(l)-

C(D)-

C(8). C(8)

Under Under Pennsylvania Pennsylvania law,

law, counsel

counsel is

is presumed to be effective and the burden to prove presumed to

otherwise otherwise lies lies with the petitioner.

petitioner. Commonwealth v.

• Reid, 99 A.3d 427, 435 (Pa.

(Pa. 2014) (citing

Cotntnonivealth • Commonwealth v. Miller, Miller, 819 A.2d 504, 517 (Pa.

A.24 504, (Pa. 2002)).

2002)). To obtain collateral relief based on the

ineffcetive assistance of counsel, ineffective assistance counsel, a a petitioner

petitioner must show that counsel's representation fall fell below

accepted standards accepted standards of advocacy advocacy and that as a

a result thereof, the petitioner was prejudiced.

prejudiced

Strickland Strickland v.P. Washington, Washington, 466 U.S. 668, 694 (1984).

U,$. 668, (1984). In Pennsylvania, the Strickland standard is

interpreted interpreted as requiring proof that:

requiring proof (1) the claim underlying the ineffectiveness claim had that: ()

arguable merit; arguable merit; (2)

(2) counsel's any reasonable counsel's actions lacked any reasonable basis;

basis; and

and (3) the

the inefteetivcness

ineffectiveness of

counsel counsel caused the petitioner caused the petitioner prejudice. Commonwealth v.v. Millet', prejudice Commonwealth 987 A.2d Miller, 987 A.2d 638,

638, 648

648 (a.

(Pa. 2009);

2009);

Cotnmomi ,ealth • Commonwealth v. Pierce, 527 A.24 Pierce, 527 A.2d 973,

973, 975

975 (Pa.

(a. 1987). To satisfy

1987). To satisfy the third prong the third prong of

of the

th test,

test,

the petitioner must the petitioner roust prov prove that,

that, but for counsel's

but for counsel's error,

error, there

there is areasonable

is a reasonable probability probability that

that the

thc

outcome of outcome of the the proceeding

proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067,

1084 (Pa. 2006) 1084 (Pa, (citing Strickland, 2006) (citing Strickland, 466 466 U.S.

US. at

at 694).

694), If

If the PCRA

the PCR A court determines that court determines that any any one

one

of the of the three three prongs cannot be prongs cannot be met,

met, then

then the court need

the court need not

not hold an evidentiary

hold an evidentiary hearing hcaring as such aa

as such

hearing hearing would would serve serve no purpose.

purpose. Commonwealth v. ,Jones, 942 A.2d 903, 906 (a.

• Jones, (Pa. Super.), a1•7a.

app

denied, 956 A.2d dented, (Pa. 2049).

A.2 433 (Pa. 2008)

to Investiaatc

1. Failure to Investigate Defendant's Alibi Defense Alibi Defense

Defendant's Defendant's first first ineffective assistance of ineffective assistance of counsel claim js counsel claim is that

that trial

trial counsel

counsel was

was

ineffective ineffective for failing to for failing investigate a to investigate apotential potential alibi

alibi defense.

defense. Statement

Statement of

of Matters

Matters at'

at;-C(I)

C(1).

This This claim is without claim is merit.

without merit.

Defendant alleges Defendant alleges that that trial

trial counsel was

was aware

aware that defendant

defendant had

had aa. part-time job at aa

warehouse warehouse at the time at the time of

of the

the murders

murders and that defendant and that defendant believes believes he was more

he was more than likely at than likely al

work work when the murders when the murders occurred. Amended Petition, occurred. Amended dated 4/26/2018 Petition, dated 4/26/2418 at at pp. 5-6, However,

pp. S-6. However,

defendant also defendant also told told trial

trial counsel

counsel that

that he

he was not absolutely

was not absolutely certain certain that

that lie

he was

was at

at work on that

work on that

Amended Petition, date. Amended dated 4/26/2018 Petition, dated 4/26/2018 at at p. 6.

p.6.

While defendant While defendant alleges alleges that

that he

he might

might have been at

have been at work,

work, he

he failed

failed to

to present or proffer

present or proffer

any any evidence to show evidence to show that that he was

was actually

actually at work at

at the

thc time

time of

of the

the murders,

murders, such

such as potential

potential

alibi witnesses alibi or documentation.

witnesses or documentation, Accordingly, Accordingly, the

the Court

Court properly denied his properly denied his claim claim that

that trial

trial

counsel was counsel was ineffective for failing ineffective for failing to to pursue

pursue an

an alibi

alibi defense.

defense.

2.2.. Failure to investigate and Interview Investigate and Interview Witnesses Witnesses

Defendant next Defendant claims that next claims trial counsel that trial counsel was ineffective for was ineffective for failing failing to

to investigate

investigate and

and

interview witnesses, Statement interview witnesses, of Matters Statement of at11 C(2), Matters at C(2). Those

Those witnesses

witnesses are: "Lisa;" Karl are: Lisa;" May; and Karl May; and

tthree hrce friends of Terrell friends of Terrell Boyd.

Boyd. Id. This

This claim is without

claim is without merit.

merit.

The ['he first first witness, "Lisa," is the purported witness, "Lisa," purported witness, discussed above, above, who was never

located located by either the by either the Commonwealth Commonwealth or

or defense. See Section

defense. See Section IT(B)(2), supra. Because I(Q2), supra. Because

defendant defendant has has neither presented

presented nor

nor proffered that `°I.isa"

proffered any evidence that Lisa" would would have testified

testified to

anything helpful anything helpful to to the

the defense, or that

defense, or that she

she could have been

could have found through been found through reasonable reasonable

investigation, defendant investigation, defendant cannot cannot prove that defense prove that defense counsel counsel was

was ineffective for failing ineffective for failing to to

investigate and interview investigate and interview this witness.

this witness.

The second The second witness, witness, Karl May,

May, who is

is the step-father

step-father of murder victim Marcus Herbert,

testified for testified for the the Commonwealth at

at trial ana was

trial and was cross-examined cross-examined by defense counsel.

counsel. N.T.

N,T

2/19/2014 at 2/19/2014 230-50. While at 230.50, While trial

trial counsel

counsel may not have

may not have interviewed

interviewed May

May before the trial,

before the our

trial, our

appellate appellate courts "have never held that trial counsel is obligated to interview interview every

Commonwealth witness prior Commonwealth witness to trial."

prior to trial." Commonwealth Cnmmonivealth •v. Washington, 927 927 A.2d 586, 598 (Pa.

(Pa.

2007). Where, as here, 2007). Where, here, trial counsel vigorously vigorously cross-examines the Commonwealth's witnesses,

counsel's election not to interview Commonwealth witnesses counsel's election Ainesscs will not render counsel'S counsel's

representation representation to be constitutionally deficient.

be constitutionally deficient. Commonwealth v.

v. SnOth,

Smith, 17 A.3d 873, 888-89 888.89

(Pa. 2011). (Pa. 2011). Moreover, defendant has Moreover, defendant has not presented nor not presented nor proffered any evidence proffered any evidence tending tending to

to prove

prove

that had had trial trial counsel counsel interviewed

interviewed May,

May, some evidence would

would have been uncovered that have becn that could could

have helped the have helped the defense.

defense

his Statement In his of Matters Statement of Matters and

and Amended

Amended Petition, defendant specifically Petition, defendant specifically alleges alleges that

that

May could May could have have led

led trial

trial counsel

counsel to

to another

another relevant witness. Statement relevant witness. Statement of of Matters

Matters 11 C(2);

CQ2);

Amended Petition, Amended dated 4/26/2018 Petition, dated 4/26/2018 at p. 6.

at p. 6. in support of

In support of this contention, defendant this contention, defendant attached attached as

as

an exhibit to his petition, petition, a

a police activity sheet dated August 24, 2004, which indicates that May police activity

told detectives that told detectives that he he knew of an

knew of an unnamed female eyewitness.

unnamed female eyewitness. Amended Amended Petition,

Petition, dated

dated

4/26/2018, Exhibit H. 4/26/2018, Exhibit H. However, However, the

the activity

activity sheet

sheet merely states that

merely states that May

May "has

"has knowledge

knowledge of

of a

a

female eve , %ritness to this

female eyewitness this incident incident who has never been interviewed."

interviewed." Id Defendant Defendant has neither

presented presented nor nor proffered any evidence proffered any evidence that that May ever provided

May ever police, or provided police, or anyone anyone else,

else, with

with any

any

additional information regarding additional regarding this witness. Nor has defendant presented or proffered evidence

that that had trial counsel interviewed had trial interviewed May, May, that

that May

May would

would have provided

provided him

him with

with the contact

information for this witness. information witness, In In addition,

addition, the is devoid the record is of evidence devoid of evidence that this unnamed that this unnamed

witness would witness would have provided any have provided any evidence evidence helpful

helpful to

to the defense.

the defense.

Defendant also alleges Defendant also alleges that his trial that his trial counsel

counsel was ineffective for was ineffective for failing filing to investigate and investigate and

interview three interview throe friends friends of `f'crrelI

Terrell Boyd:

Boyd: Michael Simpson, Maurice McCoy, and Alan Rothwcll.

Rothwell

Statement of Statement of Matters Matters at

at¶C;(2);

C(2); Amended Petition, dated Amended Petition, dated 4/26/2018 4/26/2018 at 6. As

at p. 6. As stated above, stated above,

Terrell Boyd Terrell Boyd was defendant's coconspirator, was defendant's coconspirator, and cooperated with the prosecution, prosecution. Among

Among other

things, things, Boyd Boyd testified testified that

that he

he and defendant were

and defendant were childhood childhood friends

friends who were driving

who were driving around

around on

on

the day the day of of the murders looking the murders looking for someone to for someone to rob. Defendant argues rob, Defendant that Boyd's argues that three friends Boyd's three friends

would would have testified that have testified that Boyd defendant were Boyd and defendant were not not friends

friends and

and that

that Boyd

Boyd disliked defendant.

disliked defendant

Amended Petition, dated Amended Petition, dated 4/26/2018 at p.

4/26/2018 at p. 6

6.

However, However, defendant defendant failed to submit failed to submit affidavits affidavits or

or witness certifications from witness certifications from any any of

of these:

these

three witnesses three witnesses to to prove

prove that they actually would have provided they actually provided evidence helpful to the defense,

and that and that they they were were available

available at

at the

the time of trial

time of trial and

and willing

willing to testify.

testify. Accordingly, defendant Accordingly, defendant

could not could not have proven at have proven at a

a hearing that trial

hearing that trial counsel counsel would

would have developed evidence have developed evidence helpful helpful to

to

the defense had the defense had he he investigated or interviewed investigated or these witnesses.

interviewed these witnesses.

Therefore, defendant Therefore, defendant failed to present failed to or proper present or any evidence profler any evidence to

to show that trial

show that counsel

trial counsel

could have could have assisted by investigating assisted the defense by investigating or interviewing any of the five fv i e witnesses

identified by defendant. identified by defendant. Accordingly, Accordingly, the

the Court

Court properly denied without properly denied without aahearing his hearing his

ineffective assistance ineffective assistance of counsel claim premised counsel claim upon these premised upon witnesses.

these witnesses.

3.3. Failure Failure to Retain a

a DNA Expert

Expert

Defendant next claims Defendant next claims trial trial counsel

counsel was

was ineffective for failing ineffective for failing to to retain

retain aaDNA expert to

DNA expert to

test the hat collected by test the police, the gun, by police, gun, and any and all physical evidence. Statement of Matters

at ¶C(3). at C(3). Defendant claims that Defendant claims that testing testing done

dove by

by a

adefense

defense DNA

DNA expert

expert would

would have eliminated

have eliminated

him as him as a a suspect. Amended Petition, suspect. Amended Petition, dated dated 4/26/2018

4/26/2018 at

at p.

p. 7.7. This

This claim

claim is without

without merit.

merit.

At trial, the Commonwealth trial, the Commonwealth presented presented testimony

testimony from an exper

expert in DNA analysis,

analysis, The

'The

Commonwealth's Commonwealth's DIVA DNA expert

expert testified

testified that

that blood

blood found

found on the

the hat recovered at the

the scene

belonged to belonged to decedent decedent Marcus

Marcus Herbert. N.T,

N.I, 2/20/2014 at 95-96. The expert also testified that

the DNA the taken from DNA taken from the sweatband of the sweatband of the same

same hat

hat was compared ta

was compared to the DNA sample the DNA sample from

from

defendant defendant and and the

the results were inconclusive. N,T, were inconclusive. NX. 2/20/2014 2/20i2014 at 90.-93,

90-93, 95-96. Defendant argues argues

that he that he was was entitled entitled to aadefense

defense DNA expert, and that DNA expert, that aathorough test done thorough test done by

by aadefense

delensc DNA

DNA

expert would have expert would have eliminated defendant's DNA IYom eliminated defendant's any of the from any the physical evidence. Amended physical evidence. Amended

Petition, Petition, dated 4/26/201 Sat dated 4/26/2018 at p. 7.

p. 7

Derendant's Defndant's e claim fails

claim for three

fails for three reasons.

reasons. First,

First, the

the testimony of the DNA

testimony of DNA expert did not expert did not

incriminate the incriminate the defendant.

defendant. Therefore,

Therefore, it was

was unquestionably reasonable for unquestionably reasonable trial counsel for trial counsel 'lot to not to

retain retain aaDNA DNA expert expert to

to conduct

conduct independent

independent testing.

testing. Second, even if further further testing showed that that

the the DNA DNA found on the found on the sweatband of the hat was was conclusively not

not from the defendant,

defendant, that would

not exonerate defendant, not exonerate nor in defendant, nor in a"y

any way

way undermine

undermine the Commonwealth's case.

the Commonwealth's case. Finally, Finally, as

as to the

to thc

gun and gun and "any "any and and all physical evidence," defendant physical evidence," defendant has has neither

neither presented nor

nor proffered any

evidence suggesting evidence suggesting that that a

a DNA test

test regarding

regarding of

of any

any piece of evidence

piece of evidence would

would have

have assisted the

assisted the

defense. defense.

Accordingly, the Court Accordingly, the Court properly denied without properly denied without aahearing defendant's inelectivoe hearing defendant's ineffective

assistance of assistance of counsel counsel claim

claim premised upon counsel's premised upon counsel's failure failure to hire

hire aaDNA expert.

expert

4.4. Failure the Completeness Failure to Attack the Completeness and and Reliability

Reliability

of of the

the Investigation Conducted by Investigation Conducted Police by Police

Defendant Defendant also claims that trial counsel was ineffective for failing to attack the

completeness and reliability completeness and reliability of the investigation of the done by investigation done by police. Statement of police. Statement of Matters Matters at 11 C(4).

at C(4)

Defendant specifically Defendant specifically argues argues that counsel erred that counsel by neglecting erred by to present neglecting to evidence that present evidence that the the police

police

failed to failed to do the following:

do the (a) interview following: (a) interview,"Lisa"; (b) interview "Lisa"; (b) interview the the female witness identified female witness identified by by

Karl Karl May;

May; (c)

(c) compare Boyd's DNA to the DNA on the hat found on the scene;

compare oyd's scene: (d) consider

Boyd to be Boyd to be the the primary

primary suspect;

suspect; and (c) show

and (e) show Boyd's

Boyd's photograph to "Lisa, photograph to Lane and Lisa, Lane and IIerbert.

IHerbert."" "1°

Statement of Matters Statement of at Matters at ¶C(4);

C(4); Amended Petition ;dated 4/26/201 Amended Petition, 4/26/20188 at at pp. 8-9.

pp. 8-9

(a) & (a) & (b) FAurc to Investigate (b) Failure bivestigate and Interview.

Interview "Lisa"

and the

the Witness

Witness Identified

Identified by May

by Mav

As As stated

stated in

in section

section II(C)(2), neither "Lisa," nor the LI(C(2), above, neither the female female witness identified by

Karl May, was Karl May, ever identified was cver identified or

or interviewed.

interviewed. With the record With the devoid of record devoid of evidence evidence that

that either

either

putative putative witness witness would have provided would have provided evidence evidence favorable

favorable to the defense, to the defendant cannot defense, defendant cannot show show

that trial that counsel could trial counsel could have have helped defendant by

helped defendant by attacking attacking the police

police investigation

investigation of these

these two

two

witnesses.

(c) (c) Failure

Failure to Compare

Compare Boyd's DNA to

Boyd's DNA to the DNA

DICTA Found on the Hat

the Ila

As discussed As discussed in section II(C)(3), in section II(Cy3), above, above, defendant

defendant neither presented nor neither presented any nor proffered any

evidence evidence that that additional DNA DNA analysis

analysis would

would have helpful to have been helpful to the

the defense.

defense. Accordingly,

there is no reason to believe that the police police failure to compare the DNA of Boyd to the DNA

found on on aahat hat at

at the scene prejudiced

the scene defendant.

prejudiced defendant

(d) (d) Failum to be the Failure to Consider Boyd to the Primary Primary Suspect

Defendant's Defendant's assertion assertion that police did not that police not adequately investigate Boyd Boyd as

as aasuspect is

is

belied by the record. belied by record. In the course of the police's police's investigation,

investigation, Boyd admitted his involvement

and cooperated with police, and cooperated testifying at trial and ultimately pleading guilty. N,T, police, testifying N.T. 2/19/2014 2/19/2014 at

a

33-37. 33-37. Boyd Boyd testified that he hc was with defendant at the time of the murders, heard hcard the shots, and

that defcndant admitted that defendant admitted to him that he committed the murders afterwards.

afterwards. N,T, 2/19/2014 at 25-

1° The Statement of The Statement of Matters Matters states

states in paragraph C(4e), in paragraph C(4)(c), that that the

the police

police failed

failed to show ""appellant's to show appellant' photograph,"

photograph," not not

Boyd's photograph, Boyd's photograph, to the three witnesses.

witnesses. Ilowever,

IIowever, it is apparent from frorn the section of the pr•a pro se petition cited in the Statement of the Statement of Matters, that defendant's detendant's complaint is that the police that the police failed

failed to show Boyd's

to show Boyd`s photograph photograph to these

to these

witnesses. See witnesses. See Amended Amendcd Petition, dated 4/2602018 p. 8s(na 4/26/2018 at p. (,, no police personnel displayed Boyd's Loyd's photograph to to Lane, Herbert, or `Lisa"').

'Lisa").

30. Defendant 30, has neither Defendant has neither presented presented nor proffered

proffered any

any evidence to support his claim that had

police police conducted conducted aamore more thorough

thorough investigation,

investigation, it

it would have revealed

revealed Boyd

Boyd to be the shooter

shooter

or led or led to to Boyd being the Boyd being "primary suspect."

the "primary suspect."

{e) (e) Failure

Failure to

to Show

ShowBo d's Photo

Boyd's rah to Witnesses Photograph Witnesses

Defendant neither presented, Defendant neither presented, nor proffered, proffered, any

any evidence to support his claim that

evidence favorable evidence favorable to the defense to the would have defense would been uncovered have been uncovered if police had shown police had shown Boyd's

Boyd's

photograph to photograph to witnesses "Lisa," Lane, witnesses "Lisa," Lane, and and Herber..

Herbert. As discussed

discussed above,

above, "Lisa" was

was never able

to be to be identified identified or or interviewed. Therefore, the police interviewed. Therefore, police could not not have

have shown

shown her any photographs.

In In addition, there is addition, there nothing in is nothing in the

the record

record suggesting that either suggesting that either Lane or Herbert Herbert would

would have

have

identified Boyd as identified Boyd as the shooter had they they been shown Boyd's

Boyd's photograph. defendant photograph. Accordingly, defcndant

has not has proven that counsel was ineffective not proven ineffective for for failing

failing to

to attack the

the Commonwealtl's

Commonwealth's

investigation investigation for for failing photograph.

failing to show witnesses Herbert's photograph

Finally, the Finally, the record

record establishes

establishes that

that trial counsel did

trial counsel aid aggressively aggressively and extensively attack and extensively attack

the Commonwealth's investigation, the Commonwealth's investigation, and did forcefully argue that Boyd was the the shooter. During

During

closing argument, closing argument, defendant's defendant's trial counsel described trial counsel described Boyd Boyd as

as a

a "Cominonwealth

"Commonwealth witness

witness who is

who is

bought and paid bought and paid for for with

with aadeal."

deal." N.T. 2/24/2014 at

N.T. 2/24/2014 at 214,

214, Trial counsel then

Trial counsel went through then went through

Boyd's Boyd's statements statements and his testimony and his illustrating inconsistencies testimony illustrating inconsistencies for for the

the jury. N.T. 2/24/2014

jury, N,T. at

2/24/2014 at

214-17. Trial 214-17, counsel also Trial counsel stated that, "it turns also stated turns out out Terrell

Terrell Boyd set these

Boyd set these guys

guys up," and that

up," and that

anybody who anybody was looking who was looking at at the

the time

time of the incident

of the saw a

incident saw ablack

black male

male running

running away after the

away after the

shots shots were were fired," N.T. 2/24/2014 at 217.

fired,'' N,T, 217, Trial counsel then went through the descriptions from

eye witnesses saying eye witnesses saying they they saw

saw aablack male running, black male and told running, and told the

the jury these people

jury these people were

were

describing: describing Terrell Terrell Boyd.

Boyd, N.T.

N,T. 2/2412414 218-24.

2/24/2014 at 218-24

Ii Boyd is aablack male, while defendant is a Boyd is male.

a Hispanic male

Accordingly, the defendant Accordingly, the defendant has has failed

failed to present or

to present or proffer evidence to prove proffer evidence prove that that

counsel's counsel's failure failure to attack

attack the police

police investigation

investigation in the specific manners set forth in the

Statement of Matters Statement of Matters denied defendant effective denied defendant effective representation. NOrelief representation. No is due.

relief is due.

5. Failure 5. Failure to to Object

Object to Karl

Karl Mav's

May's tcsti-mony after

testimony after

May May Allegedly Violated Seques Sequestration

tration

Defendant claims Defendant claims that that trial counsel was

trial counsel was ineffective ineffective for

for failing

failing to object

object to Karl May's

to Karl May's

testimony on the testimony on the basis basis that

that May

May violated

violated sequestration.

sequestration. Statcinent of "vlatters Statement of Matters atat I( C(5)

C(5), This

This

argumcnt argument is is without without merit.

merit.

May, May, the step-father step-father of decedent Herbert, of decedent Herbert, had given a had given astatement

statement to

to police

police that

that he

he had seen

seen

a black male a black male running running from the scene of the shooting, At trial, the shooting. trial, in in violation

violation of

of a

a sequestration

sequestration

order, he was order, he present during was present during aamorning morning of testimony, including of testimony, including the the testimony

testimony of

of Terrell

Terrell Boyd.

Boyd

When he When he was called as was called as a a Commonwealth witness, he changed Commonwealth witness, changed his his description of the

description of the individual he individual hc

saw running saw running from from the shooting

shooting from

from aablack

black male to a

male to aHispanic

Hispanic male. Defendant now male. Defendant claims that now claims that

counsel should counsel should have have kept

kept May

May off the by objecting the stand by objecting on the ground ground of the

the violation

violation of

sequestration. sequestration.

This argument This argument fails fails for

for two

two reasons.

reasons. First,

First, May's prior statement May's prior statement to police police was

was very

very

helpful helpful to the defense, to the since May's defense, since May's description of the perpetrator description of perpetrator as as a

ablack male tended

black male tended to

inculpate inculpate Boyd Boyd and

and exculpate defendant. Defense counsel exculpate defendant. counsel had had no

no reason

reason to

to know that May

know that May was

was

going to going change his to change his description description during

during his

his trial testimony and had testimony and good reason had good reason to

to believe

believe that

that he

would help the would help the dcfcnse.

defense. In fat,

fact, May

May did help

help the defense, since trial counsel was able to bring

out his out his helpful helpful statement statement to

to police as aaprior

police as prior inconsistent inconsistent statement after May statement after May changed changed his

his

description of the perpetrator. description N.T. 2/19/2014 at 233-35, 238-48.

perpetrator. N.T,

In addition, an In addition, objection based an objection on the based on the sequestration sequestration order would unquestionably order would unquestionably have have

been been denied denied by the Court.

by the Court. Under

Under Pennsylvania Rule of Pennsylvania Rule Evidence 615, of Evidence the Court 615, the Court may order

may order

sequestration sequestration in order to in order to prevent

prevent aawitness

witness from

from learning

learning frorn

from the

the testimony of another

testimony of another witness witness.

The decision whether The dccision or not whether or to permit

not to permit aawitness

witness who

who has

has broken

broken aasequestration order to testify sequestration order testify is is

within the within the sound sound discretion

discretion of the trial

trial judge. Conmmnweallh v,v. Smith, 324 A.2d 483,492(a.

judge. Commonwealth 483, 492 (Pa.

Super. Super. 1974). rn exercising 1974), In exercising its discretion, discretion, the

the trial court should consider, I)

should consider; 1) the seriousness seriousness of

of

the violation, the violation, 2)

2) the

the impact of the

impact of testimony on the testimony on the

the witness, 3) the

witness, ) the probable impact upon probable impact upon the

the

outcome of outcome of the the trial,

trial, 4) whether the

4) whether witness intentionally the witness intentionally violated the court's violated the court's sequestration sequestration order,

order,

and and 5)

5) whether wbether the the calling

calling party

party procured

procured the witness's disobedience. Commonwealth v. Mokluk,

444 A.2d 1214, 444 A.2d 1214, 1216 1216 (Pa.

(Pa. Super.

Super. 1982).

1982).

Here, there Here. there was was no evidence that

no evidence that May

May was

was aware

aware of

of the

the sequestration order or sequestration order or that that his

his

violation violation was was intentional.

intentional. As the step-father of one the step-father one of the decedents, decedents, he

he had

had aagreat interest in

observing observing the trial. Similarly, the trial. Similarly, there was no there was evidence that no evidence the Commonwealth that the Commonwealth was was aware that he

aware that

had been in had been in the courtroom or the courtroom or was

was otherwise

otherwise complicit

complicit in

in the

the violation. In addition, violation, In addition, the Court the Court

pernuttcd defense during permitted the defense during the the trial

trial to

to baring out and

bring out and fully

fully explore

explore the violation to

the violation to minimize minimize any

any

prejudice to the prejudice to the defendant.

defendant. N.T.

N,T, 2/1912014

2/19/2014 at

at 250. Because "[o]nly

250. Because "[o]nly in

in extreme cases of

extreme cases of flagrant flagrant

and intentional violations and intentional violations may may a

a witness be barred from testifying,"

testifying," the Court would would have

have denied

any defense motion any defense motion to keep keep May off the witness

May off stand. See Ohlhaum witness stand. Ohlbuum on the Pennsylvania Rules

of Evidence $§615.09[11 of 615.09[l] (2020 (2020 ed.) (Hon. Daniel

ed.) (Hon. J. Anders, Daniel J. Anders, General General Editor).

Editor)

Accordingly, trial counsel's Accordingly, trial object to May's counsel's failure to objcet May's testimony testimony based on the

the violation of

sequestration sequestration could not have could not have prejudiced defendant and prejudiced defendant and denied denied him

him effective assistance ol effective assistance of

counsel. counsel, No relief is due due.

6. Failure 6. Failure to

to Malce

Make aaBatson Objection

Objection

Defendant Defndant

e claims

claims trial

trial counsel

counscl was

was ineffective for

for failing to make

make aaBatson objection to Batson12objection

the use the of peremptory use of peremptory challenges challenges by

by the Commonwealth to

to strike

strike all potential

potential Hispanic

Hispanic jurors.

jurors.

of Matters

Statement of at¶C(6).

Matters at C(6)

It is well-scttled It is well-settled "that the government denies the government denies a

a defendant equal protection defendant equal protection of the laws of the laws

when when it it `puts 'puts him on trial him on trial before

before aajury

jury from

from which members of

which members of his

his race

race have

have been

been purposefully

purposefully

excluded,"' Comionwealth v.v. Werra. cxeluded."" Commonwealth (Pa. 2004) (citing Ratson Udera, 862 A.2d 74, 83 (Pa. Batson v.

• K(

Kentucky,

476 U.S. 79, 85 (1986)) 476 0,$.79,85 (1986)). Batson established established aalhrce-part inquiry for thrcc-part inquiry evaluating aadefendant's for evaluating defendant's

claim of claim of racial racial discrimination injury discrimination in jury selection:

selection

First, First, the defendant must the defendant make out must make out a

a prima

prima jracie showing that facie showing the prosecutor that the prosecutor has

has

exercised peremptory challenges exercised peremptory challenges onon the the basis of race.

basis of race. Second,

Second, if the

the requisite

requisite

showing showing has

has been

been made,

made, the burden

burden shifts

shifts to

to the prosecutor

prosecutor to articulate articulate a racea

raccneutral

neutral explanation

explanation for striking the jurors for striking jurors inin question. Finally Finally the

the trial court must

must

determine yvliether the determine whether the defendant defendant has carried his has carried burden of his burden of proving

proving purposeful

purposeful

discrimination. discrimination.

Lrderra, 862 A.2d Uderra, 862 A.2d at at 83, citing Hernandez

83, citing Hernandez v. Mee ,York, ». New 500 U.S.

York, 500 U.S. 352,

352, 358-59, C'ominanwealth 1'.

358-59. Commonwealth v

Harris, 817 Harris, A.2d 1033, 817 A.24 1033, 1042 (Pa. 2002).

1042 (Pa. 2002). To satisfy its To satisfy obligations during its obligations during the the second part of

second part the

of the

Batson Batson inquiry, inquiry, the Commonwealth need the Commonwealth need not not provide

provide explanations

explanations that

that are "persuasive or

are "persuasive or even.

even

plausible." Commonwealth plausible." C'ominonwealth v. Roney, 79 v». Roney, 79 A.3d 595,619 A.,3d 595, 619 (Pa.

(Fa. 2013),

2013), quoling Purkett V.

quoting Purkett ». Elem, 514 Elem, 514

U.S. 765, U.S, 765, 767-768 (1995), "Rather, 767-768 (1995). "Rather, the the issue

issue at [thc

[the second] stage

stage `is

'is the

the facial validity of

facial validity of the

the

prosecutor's prosecutor's explanation.

explanation. Unless

Unless aa. discriminatory discriminatory intent

intent is

is inherent in the

inherent in the prosecutor's prosecutoes

explanation, explanation, the reasons reasons offered

offered will be

be deemed race neutral.""

deemed race neutral."" Id. Once race-neutral Id Once race-neutral

explanations arc explanations are provided, provided, the "persuasiveness of the the "persuasiveness the facially facially neutral

neutral explanation proffered proffered by

by

the Commonwealth the Commonwealth is relevant" and is relevant" the court and the court is

is to make

make a

a determination

determination as

as to

to whether the

whether thc

12 Ralson v.

Batson • Kentucky, Kentucky, 476 U.S. 74

4760.8. 79 (1986) (prohibiting the (1986) (prohibiting the use use of

of peremptory race).

peremptory challenges on account of race)

moving party moving party has has proven

proven purposeful

purposeful discrimination.

discrimination. Id,

Id, quoting Commonwealth v.

• Williains,

Williams,

980 A,24 A.2d 510, 529-30 (Pa. 2409).

2009)

Here, trial Here. counsel did trial counsel did raise

raise aaBalson

Batson objection

objection based on the

the Commonwealth's

Commonwealth's use of

Peremptory challenges to strike three Hispanic peremptory challenges Iispanic males:

n}ales: juror 11and 27 from day one of juror numbers 1l of

juror selection, juror selection, and juror juror number 55 from day

day two of

of juror selection. N.T. 2/11/2014 selection, NT, 2!11/2014 at 215-22.

218-22.

After determining Aller determining that that there

there were legitimate race-neutral were legitimate race-neutral reasons reasons for

for striking each of thosc striking each juroi•s, those jurors,

.

the Court denied the Court denied defense defense counsel's

counsel's Batson claim. N.T.

N.T. 2/11/2014 at 224-35, 224-36. Defendant

Defendant now

now

claims that claims that trial trial counsel

counsel was ineffective for failing failing to include in his Batson claim, juror number

98 98 from clay one, from day one, a Hispanic female, a Hispanic female. Amended Petition ;dated Amended Petition, 4/26/2018 a dated 4/26/2018 at P. 11.

p. Il.

The The record refutes defendant's argument.

argument. During the Batson challenge, the Court found

that defendant satisfied that defendant satisfied the first first prong of Batson by

prong of by establishing establishing a facie case a prima facle of

case ol

discrimination in discrimination in that that the

the Commonwealth

Commonwealth used peremptory challenges used peremptory challenges on on three

three out

out of

of threc

three

Hispanic venirepersons. Hispanic venirepersons. Therefore, adding a Therefore, adding afourth challenged challenged Hispanic venireperson could not

have benefited defendant regarding regarding the required prima facte facie showing.

As to As to the the prosecution's

prosecution's requirement requirement to

to present

present aacredible race-neutral race-neutral justification for for the

the

peremptory peremptory challenges, challenges, the record shows that during voir dire, juror number 98 told the Court

that that her her daughter's boyfriend was in daughter's boyfriend in federal federal prison

prison on

on gun charges. N.T.

N.T. 2110/2014

2/10/2014 at

at 250.

250. She

She

described herself described herself as as "kind

kind of close

close with him

him and that he

he had

had been elating

dating her

her daughter for

for 12

I2

years. N.T. years. 2/10/2014 at N.T, 2/10/2014 at 250-51.

250-51. This

This is

is aaclearly

clearly legitimate

legitimate race-neutral justification for race-neutral justification for using using aa

peremptory challenge on peremptory challenge on the juror. As the juror. As a

aresult,

result, including

including this

this juror in defense

juror in defense counsel's counsel's Balson

Batson

challenge would challenge would not not have

have affected the

the outcome of that

that challenge.

Accordingly, wunsel was Accordingly, trial counsel was not not ineffective

ineffective for

for failing

failing to

to raise

raise aaBatson objection

objection to the

the

fourth fourth Hispanic venireperson. No Hispanic venireperson, No relief is due.

is due,

77. Failure Failure to Move to Prohibit Prohibit Evidence Defendant Defendant Fircd

Fired aaArun

Gun

In the Air One Week

Week Before

Before tthe

he Murders and Failure to Object Failure to

to Prosecutor's to Prosecutor's Closing Comments Regarding Closing Comments Regarding that Ev Evidence

idence

Defendant claims Defendant claims trial counsel was trial counsel was ineffective ineffective for

for failing

failing to

to move

move to prohibit the

to prohibit the

Commonwealth from Commonwealth introducing evidence from introducing evidence of of another

another crime,

crime, that

that is, that defendant

is, that defendant had

had fired aa

gun in gun the air in the air a aweek

week prior

prior to

to the

the incident.

incident. Defendant

Defendant also claims that also claims that trial counsel was trial counsel was

ineffective for ineffective not objecting for not objecting to comments made to comments made by

by the

the prosecutor regarding that prosecutor regarding that evidence during evidence during

her closing argument. Statement closing argument. Statement of of Matters at IC(7).

Matters at These arguments C(7). These arg unents are are without

without merit.

merit.

The The evidence here at issue consisted of preliminary evidence here preliminary hearing testimony of Ronald Milburn,

which which was was read to to the jury

jury since Milburn was unavailable for trial.

trial. In that testimony, Milburn

stated that stated that he had seen he had seen defendant

defendant in

in aabar approximately one bar approximately one week week prior

prior to

to the murders firing

the murders firing aa

gun into gun into the air. According the air. According to to Milburn,

Milburn, that

that gun

gun looked like the

looked like same 99millimeter the same millimeter weapon that weapon that

he also also saw saw defendant defendant shooting

shooting two days

days after the murdcrs,

murders, and which turned out to be the

murder murder weapon.

weapon. N.T. 58, 63-64, N,T. 2/20/2014 at 58, C3-64, 138-39, 151-53, 151-53, 166;

166; N.T.

N.T. 2/24/2014 at 130,

130, 144;

sec see p. 5, supra p.5, supra.

It It is is well-established that evidence well-established that evidence that that "[a]

"[a] weapon shown to

weapon shown to have been in have heen in aadefendant's def'endant's

possession possession may may property

properly be admitted into evidence, even though it cannot positively be

identified identified as as the

the weapon

weapon used in the

used in the commission

commission of

of a particular crime,

a particular crime, if it tends if it tends to prove that to prove the

that the

defendant had defendant had a a weapon similar to

wcapon similar to the one used the one used in the perpetration in the of the perpetration of the crime.

crime. Any uncertainty

Any uncertainty

that that the the weapon the actual wcapon is the actual weapon weapon used in the

used in the crime

crime goes

goes to the weight

to the of such

weight of evidence."

such evidence."

Commonwealth Commonwealth v. Williams, 640 • Williams, 640 A.2d 1251, 1260 A.24 1251, 1260 (Pa.

(Pa. 1994).

1994). Accordingly, evidence that Accordingly, evidence that

defendant defendant possessed possessed a

a gun

gun approximately one week approximately one week prior to the prior to the murders that looked murders that looked like the like the

murder murder weapon wcapon was clearly admissible. As was clearly As aaresult, result, trial counsel could could not

not have been ineffective

failing to object for failing object to that evidence.

As As for for the

the prosecutor's closing, it prosecutor's closing, it is true that is true that the ADA commented the ADA that defendant commented that defendant had had the

the

apparent murder weapon apparent murder weapon in in his

his possession

possession prior the day prior to the day of

of the

the murders. N.T. 2/2412014 murders. N,T. 2/24/2014 at at

275. 275. This was proper This was argument based proper argument based upon upon properly

properly admitted

admitted evidence.

evidence. Therefore,

Therefore, counsel

counscl

could could not have been not have been ineffective for failing ineffective [or failing to to object

object to

to it.

8. 8. Failme to Failure Object to

to Object the Identification to the ofDefendant Identification of Defendant made made by

by Police Officer Christine Police Officer Christine Hilbert Hibert

Defendant claims Defendant claims that trial counsel that trial was ineffective counsel was ineffective for for failing

failing to

to object

object to

to the

the admission

admission

of of Officer Officer Christine Hilbert's identification Christine Hilbert's of defendant.

identification of Statement of defendant. Statement Matters aat I of Matters C(8).

C(8). t

Defendant alleges that Defendant alleges that this this identification

identification was

was previously

previously ruled inadmissible by ruled inadmissible Judge DeFinoby Judge DeFino-

Nastasi. Statement Nastasi. of Matters Statement of at ¶C(8);

Matters at C(8); Amended Petition, dated Amended Petition, dated 4/2012018 at p.

4/26/2018 at p. 14.

I4

The The ruling;

ruling at issue was made by Judge DeFino-Nastasi in the PCRA proceedings by Judge

regarding defendant's separate regarding defendant's separate murder CP-5 1-CR-0207721-20 04, in murder case, at docket number CP-51CR-0207721-2004, in

which he was which was charged charged with

with killing I,evon Wilson at killing Levon at aacraps game game two days after

after the

the murders of

Herbert and Story Herbert and Story here here at issue.

issue, Because ballistics evidence showed that that the same weapon

weapon was

was

used used in all three in all three murder's, the Commonwealth murders, the Commonwealth was was permitted,

permitted, in the case

in the case at

at bar,

bar, to prove that

to prove that

defendant fired the weapon defendant fired weapon at at the craps game,

the craps in order

game, in order to

to show

show that he

he had

had possession of the

possession of the

murder weapon murder weapon used used in

in the

the double

double murder

murder two days

days later.

later. See pp.

pp. 5-6,

5-f, supra'

SU17ra. 13

In both In both trials, trials, officer

Officer Christine Hilbert made Christine Ililbert made an an in-court

in-court identification of defendant identification of as the defendant as the

person person she observed fleeing she observed fleeing from the scene from the scene of

of the

the shooting at the

shooting at craps game.

the craps game. In the PCRA In the PCRA

proceedings proceedings regarding the regarding the Wilson

Wilson murder, .fudge DeFino-Nastasi murder, Judge opined that DeFino-Nastasi opined Officer HilbeWs that Officer Hilbert's

in-court in-court identification of defendant identification of defendant "most likely should "most likely should not have been not have been permitted" dining the permitted" during the

Wilson murder Wilson trial. See Tn7al murder trial. Trial Court Opinion, filed December Court Opinion, December 9, 2014, at p. 15; N.T. (CP-51-

15; N.T

As stated "Ag 13 above, the stated above, Commonwealth was the Commonwealth anlY permitted was only permitted to prove prove that defendant

defendant fired

fired the weapon at the craps game, and was barred game, and was bared fi om from

- proving

proving that

that defendant

defendant used

used the

the gun

gun shoot

shoot and

and kill

kill Wilson at that

that game.

game, See p. n.t

p. S5n G;

supra. sap

CR-0207721-2004) 5/3/2013 CR-0207721-2004) at d, 5/3/2013 a1 13-20. 14 Now 6, 13.-20./ Now defendant defendant claims

claims that

that trial counsel in

trial counsel in the case at the case at

bar was ineffective bar was ineffective for not objecting objecting to Hilbert"s

Hilbert's identification on the basis of Judge DeFino-

Nastasi's opinion. Nastasi's opinion

it It is is true

true that, under the coordinate jurisdiction that, under jurisdiction rule, aajudge is ordinarily bound by hy the

decision of decision of another another judge jurisdiction on judge of coordinate jurisdiction on the same issue.

issue, However, the

the rule

rule only

applies applies to decisions made to decisions made in the same in the same case.

case. See,

See, e,g.,

e.g., Commonweallh

Commonwealth v. Hernandez, 39 A.3d 39 A.3d

406, 412. (Pa. 406, 412 (Pa. Super.

Super. 2012),

2012), app. iL.3d 1244 (Pa.

app denied, 63 A.3d (Pa. 2013). Therefore, an 2013). Thercfore, an objection by

trial counsel based trial counsel on an based on argument that an argument the trial that the trial judge was bound by judge was by Judge

Judge DeFino-Nastasi's

DcFino-Nastasi

decision in decision in another case would another case have been would have been frivolous.

frivolous

Moreover, Judge Moreover, Judge DeFino-Natasi's decision was premised upon aafailure of the

Commonwealth to Commonwealth to disclose disclose to the defense

to the defense aaprior

prior out-of-court

out-of-court identification identification made by Officer made by Officer

Hilbert. In Hilbert. In the the case at bar,

case at bar, however,

however, the

the prier

prior identification was Billy identification was disclosed pretrial.

fully disclosed 'Phis pretrial. This

Court addressed Court addressed the issue as follows in its opinion opinion on defendant's direct appeal:

appeal;' 15

Here, unlike the Wilson Here, unlike Wilson murder murder trial, defense counsel trial, defense counsel had had full

full disclosure

disclosure of of all of the all of the

identifications made by. identifications by Hilbert well before bcfore trial, and was able to raise all of of the

identification identification issues issues in an extensive pretrial pretrial hearing.

hearing. See N.T. (Motion) 2/18/14 2/18114 at 7-92 (hearing (hearing on motion to suppress on motion suppress identification evidence).

evidence). Following the hearing, this Court Court excluded excluded Hilbert's

Hilbert's pretrial

pretrial identification

identification of dcfcndant of defendant in in the

the prep

prep session with the session with the

assistant district assistant district attorney, attorney, but permitted Hilbert but permitted Hilbert to to testify

testify that she had

that she had recognized recognized

defendant on defendant on the poster poster in

in the

the police

police district,

district, and

and allowed

allowed her

her to

to make

make an in-court

an in-court

identification. identification. Nothing in Judge Nothing in Judge Derino-Nastasi's DeFino-Nastasi's decision, decision, which

which was premised upon was premised upon aa.

claim or claim discovery violations arising of' discovery arising at aadifferent trial, barred that decision, decision.

'1'rial Court Trial Court Opinion, Opinion, filed

fifed December 9, 2014 at pp, December 9, pp. 15-16.

15-15. Accordingly, any that trial any objection tbat trial

cotulsel would counsel would have made to the admission of officer Officer Hilbert's in-court identification based on

Notwilhslanding this 'Notwithstanding 14 this finding, finding, Judge

Judge DeFino-Nastasi denied the DeFino-Nastasi denied the PCRA PCRA petition on the ground petition on ground that error that counsel's error

did did not prejudice defendant. Id.

prejudice defendant. Id at at 20-21.

20-21.

' I)efendant 11Defendant set set forth

forth the

the issue

issue of the Hilbert identification testimony in his Statement of Errors for his direct appeal, but decided not but decided to raise not to raise the

the issue

issue in the Superior

in the Superior Court.

Court. See Superior

Superior Court

Court Opinion, dated November Opinion, dated November 20,20, 2015, at p.

2015, at p

2 issues on (listing; the issues 2(listing on direct appeal).

appeal).

Judge Judge DcFino-Nastasi's De'ino-Nastasi's decision decision would

would have been meritless.

have been meritless, Therefore, trial counsel Therefore, trial counsel was was not

not

ineffeetivc ineffective for failing objection.

failing to make such an objection

D. The PCRA Cort D. Courl erred by Denying Defendant's Defendant 's Discovery Request

Delendarit Defendant claims

claims that the Court committed ail an abuse of discretion by denying defendant's

discovery request. discovery request. Statement of Matters at ¶D. This claim is without merit.

Matters at merit

In In defendant's

defendant's Second Supplemental Supplemental Petition,

Petition, he requested

requested "the entire Police Police

investigation file." investigation Second Supplemental file." Second Petition, dated Supplemental Petition, dated 2/8/2019 2/8/2019 at

at p.

p. 5. Defendant

Defendant alleged

alleged that

that

since "the since "the Police Police conducted a

a `shoddy' investigation and the Commonwealth has repeatedly 'shoddy' investigation

withheld exculpatory evidence," withheld exculpatory evidence," defendant defendant was

was entitled to review

entitled to review the

the police investigation file police investigation file in in

order to "discover discover any Id.

any other exculpatory evidence being withheld." Id

In PCRA proceedings [n PCRA proceedings in which the death penalty penalty is not at issue,"

issuC, 16 "no discovery shall be

permitted pemitted at any stage at any stage of the

the proccedings,

proceedings, except upon

upon leave of court after after aashowing of

exceptional exceptional circuanstances."

circumstances." PaKCrim.P.

Pa.R.Crim,P, 902(1;)(1).

90241(1). Our Supreme Court has specifically held held

that aaPCRA that petitioner is not entitled to inspect PCRA petitioner inspect the Commonwealth's files for the purpose of

determining the existence of exculpatory determining exculpatory evidence in support of a a Brady claim. Commonwealth

•v. Tedford, Tedford, 228 228 A.3d

A.3d 891, 909-10 (Pa.

891, 908-10 (Pa. 2020).

2020). 17 Here,

Here, just Tedford defendant's just as in Tedford, defendant's discovery discovery

request rcquest to review all to review all of of the

the police

police files

files "is comprised

comprised entirely

entirely of

of conjecture

conjecture that damaging

that damaging

documents documents may may exist in

in those files." Id. For that reason, defendant's discovery request was

properly properly denied.

16As discussed As above, Nvhile discussed above, the Commonwealth while the Commonwealth sought adeath sought a death sentence

sentence in this case,

in this case, the

the jury

jury returned

returned aaverdict of

verdict of

life in life in prison prison.

1' Because Tedford Because Tedford was was a collateral challenge u collateral challenge to aasentence of death, the Court Cout applied

applied the more permissive permissive

discovery discovery standard standard for

for death penalty

penalty cases,

cases, allowing

allowing discovery tip

uponon a

a showing of "good cause," rather than "exceptional exceptional circumstances."

circumstances." See Pa.R.Crim.P.

Pa.Crim.P, 902(E)(2).

902(EX2). Accordingly

Accordingly, ;the holding of Tedford applies here here a

a

fbrtiori. fortiort

Hl. CONCLUSION II1.

For all 'or all of of the foregoing reasons, the foregoing the Court's reasons, the Court's artier order dismissing defendant's PCRA dismissing defendant's PCRA petition petition

should be affirmed. should be affirmed.

BY THE COURT:

COURT

GLENN GLENN B.

B. BRONSON,

BRONSON, J.

I

Commonwealth v. Commonwealth v. Fernando Fernando Real

Real CP-5L-CR-0008511-2008 CP-51-CH-0008511-2008

Type Type of of Order:

Order: Opinion Opinion CP-51-CR-0048526-2008 CP-51-CR-0008526-2008

PROOF PROO OF

OF SERVICE

SERVICE

I hereby certify I hereby certify that that I

I am this day

day serving

serving the foregoing

foregoing Court Order upon the person(s), and in the inanner the manner indicated indicated below,

below, which

which service

service satisfies

satisfies the requirements the of Pa.R.Crim.P, requirements of 1. 14:

Pa.R.Crim.P.114:

Defense Defense Cuunsel/Party:

Counsel/Party John John Belli, Esquire

Belli, Esquire

2Penn Center, 2Penn Center, Suite 940 Suite 900

Philadelphia, Philadelphia, PA 19102-1532 PA 19102-1532

Type Type of of Service:

Service () Personal (X)

()Personal (X) First Mail () Other, First Class Mail Other, please specify:

specify

District Attorney: Distriet Attorney;

Lawrence Goode, Esquire Lawrence Goode, Esquire Interim Supervisor, Appeals Interim Supervisor, Appeals Unit Unit

Office Office of the District

of the Attorney District Attorney

Three Three South

South Penn Square

Penn Square

Philadelphia, Philadelphia, PA 19107-3499

Type Type of of Service Service () Personal ( ()Personal () First

First Class

Class Mail (X)

(X) Other,

Other, please

please specify:

specify: Intergffce

Interoffice

Additional Counsel/Party: Additional CounseUParty:

Joseph D. Joseph D. Seletyn, Esquire Seletyn, Esquire

Prothonotary Prothonotary Office of Office the Prothonotary of the Prothonotary —Superior Superior Court

Court

530 Walnut 530 Street, Suite Walnut Street, Suite 315 315

.Philadelphia, Philadelphia, PA

PA 19106

19106

Type of Service: Type of Servicc () Personal (X)

(Personal (X) First

First Class

Class Mail () Other, please please specify:

specify:

Dated: March Date«d: March 12, 2021 12, 2021

-Ly_0AC Megur O'Donnell Megani O'Donnell Law Clerk to Hon, Clerk to Glenn B.

Hon. Glenn B. Bronson

Bronson