Com. v. Scott, O.

• Court: Superior Court of Pennsylvania
• Decided: January 24, 2025
• Docket: 164 WDA 2023
• Status: Unpublished

Opinion

J-S29019-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : OBATAIYE SCOTT : : Appellant : No. 164 WDA 2023

Appeal from the PCRA Order Entered February 1, 2023 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0000962-2018

BEFORE: DUBOW, J., KING, J., and BENDER, P.J.E.

MEMORANDUM BY KING, J.: FILED: January 24, 2025

Appellant, Obataiye Scott, appeals pro se from the order entered in the

Fayette County Court of Common Pleas, which denied his petition filed

pursuant to the Post Conviction Relief Act.1 We vacate and remand for further

proceedings.

The relevant facts and procedural history of this case are as follows.

The Commonwealth charged Appellant with attempted homicide and related

offenses in connection with a shooting that took place at a housing complex

named South Hills Terrace. At trial, Jennifer Mapstone (“Victim”) testified that

on July 9, 2017, she was standing outside her residence at South Hills Terrace,

speaking with Cedric Harrison, when her niece’s car drove into the housing

complex. Appellant exited her niece’s car and approached Mr. Harrison.

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1 42 Pa.C.S.A. §§ 9541-9546. J-S29019-24

Appellant and Mr. Harrison got into a verbal argument, which escalated into a

physical fight that lasted for a couple of minutes. Appellant then walked

towards Victim’s niece’s car and ran back with a gun. Appellant began

shooting towards where Mr. Harrison and Victim were standing. Victim was

struck by a bullet in the arm and the stomach. Victim was transported to

UPMC Presbyterian Hospital, where she underwent multiple surgeries to treat

her injuries.

In the middle of cross-examining Victim, Appellant’s counsel and the

prosecutor had a conversation with the court at sidebar. Appellant’s counsel

inquired whether the Fayette County District Attorney’s Office (“DA’s Office”)

agreed to reduce charges filed against Victim’s daughter, Justice Mapstone, in

exchange for Victim’s testimony against Appellant. The prosecutor

acknowledged that Victim’s daughter had a case against her but stated that

the proceedings in that case had nothing to do with Appellant’s case. In

reliance on the prosecutor’s assertion, Appellant’s counsel decided not to

pursue cross-examination as to any agreement between Victim and the DA’s

Office. Multiple other witnesses testified that Appellant was at South Hills

Terrace at the time of the shooting, but Victim provided the only testimony

that identified Appellant as the shooter. Appellant did not testify, nor did he

call any witnesses in his defense.

On March 4, 2020, the jury convicted Appellant of attempted murder,

simple assault, recklessly endangering another person, possession of a

firearm prohibited, firearms not to be carried without a license and two counts

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of aggravated assault. The court sentenced Appellant to an aggregate term

of 9 to 18 years’ incarceration on May 8, 2020. Appellant initiated a direct

appeal but subsequently filed a pro se motion to discontinue his appeal. On

March 31, 2021, this Court granted Appellant’s motion to discontinue his direct

appeal.

On April 19, 2021, Appellant filed a timely pro se PCRA petition. The

court initially appointed counsel but Appellant subsequently acquired private

counsel, who filed an amended PCRA petition on September 9, 2022. The

amended petition alleged various claims that trial counsel provided ineffective

assistance of counsel. Appellant alleged, in part, that trial counsel failed to

call witnesses that would have provided exculpatory evidence and failed to

use available evidence to impeach Victim’s testimony.

On January 10, 2023, the court conducted a PCRA hearing. PCRA

counsel called Megan Adams to testify, who stated that she saw Appellant at

South Hills Terrace on the night of the shooting and did not see him possess

or shoot a firearm that night. She further testified that a car pulled into South

Hills Terrace and two unknown individuals exited the car immediately prior to

when she heard gunshots. When questioned whether she saw who fired the

shots, Ms. Adams testified as follows:

Q. Did you see who fired the shots?

A. I didn’t.

Q. Did you see [Appellant] fire a firearm?

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Q. The individuals that pulled up in the vehicle, did you see them with firearms?

A. Yes.

Q. Were you able to identify those individuals?

A. No, sir.

Q. Were they male or females?

A. I couldn’t decipher between the two.

Q. What type of vehicle were they driving?

A. It was a dark SUV.

Q. Did you ever see [Appellant] return fire?

A. No.

Q. Did you see anyone else fire a weapon that night?

A. Those people that got out of the vehicle.

Q. Other than those two individuals?

(N.T. PCRA Hearing, 1/10/23, at 15). Ms. Adams further testified that she

spoke with Appellant’s trial counsel prior to trial, provided him with a written

statement of what she witnessed, informed him that she would be willing to

testify to those facts at Appellant’s trial, but was not called to testify.

Appellant admitted into evidence Ms. Adams’ written statement, which was

dated 6/27/19 and stated that she witnessed two unknown individuals exit a

car at South Hills Terrace and shoot at Appellant on the night in question.

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Additionally, PCRA counsel admitted into evidence a social work

progress note from UPMC Presbyterian Hospital which stated that Victim

reported that an unknown individual drove by and shot her. PCRA counsel

further admitted DNA analysis reports which tested the DNA found on shell

casings recovered from the scene. The report concluded that the DNA

recovered from the casings of a 380 Auto WIN firearm was consistent with an

unidentified female and that Appellant could not be included as a contributor

to the DNA profile. Trial counsel did not introduce these documents at

Appellant’s trial. The Commonwealth stipulated that the social work progress

note and the DNA analysis reports were authentic and provided to Appellant’s

trial counsel prior to trial. PCRA counsel did not call Appellant’s trial counsel

to testify. On February 1, 2023, the court denied Appellant’s PCRA petition,

concluding, in part, that Appellant failed to put forth evidence to establish his

claims.

Appellant timely filed a notice of appeal on February 9, 2023. On

February 16, 2023, the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

timely complied on March 7, 2023. On September 18, 2023, Appellant filed a

pro se motion in this Court seeking to remand. Appellant raised claims of

PCRA counsel’s ineffectiveness pursuant to Commonwealth v. Bradley, 669

Pa. 107, 261 A.3d 381 (2021) and requested to proceed pro se pursuant to

Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). On October 5,

2023, Appellant’s PCRA counsel filed a motion to withdraw as counsel. In

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response to both motions, this Court remanded the matter to the PCRA court

to rule on the motion to withdraw and conduct a Grazier hearing.

The PCRA court held a hearing on December 8, 2023, at the conclusion

of which the court granted PCRA counsel’s motion to withdraw and permitted

Appellant to proceed pro se on appeal. The court did not hear evidence or

argument on Appellant’s Bradley claims. On March 7, 2024, Appellant filed

an application for relief in this Court, seeking a remand so that he can raise

an additional claim based on newly discovered evidence of a Brady2 violation.

On April 19, 2024, this Court denied Appellant’s request for remand but

permitted Appellant to file a supplemental brief in support of his claim that the

Commonwealth violated Brady. Appellant timely complied on May 6, 2024.3

Appellant raises the following issues on appeal:

Whether the PCRA court erred in denying [Appellant’s] PCRA petition for ineffective assistance of counsel when trial counsel failed to call a material eyewitness favorable to the defense to testify at trial?

Whether the PCRA court erred in denying [Appellant’s] PCRA petition for ineffective assistance of counsel when trial counsel failed to confront Mapstone with a statement made to a hospital caseworker that was inconsistent with her trial testimony?

Whether the PCRA court erred in denying [Appellant’s] PCRA ____________________________________________

2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)

(holding prosecution’s suppression of evidence favorable to accused, when requested, constitutes due process violation).

3 The Commonwealth did not file a brief in response to Appellant’s principal or

supplemental brief.

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petition for ineffective assistance of counsel when trial counsel failed to call the forensic DNA scientist to testify at trial that the DNA found on the shell casings at the scene did not match [Appellant] and failed to introduce the DNA analysis into evidence?

Whether the PCRA court erred in denying [Appellant’s] PCRA petition for ineffective assistance of counsel when trial counsel failed to request a mistrial following Trooper Schmid’s testimony referencing [Appellant] invoking his constitutional right to remain silent?

Whether the PCRA court erred in denying [Appellant’s] PCRA petition for ineffective assistance of counsel when trial counsel failed to request a mistrial following the prosecutor’s statement in closing arguments that [Appellant] did not cooperate with police?

Whether the PCRA court erred in denying [Appellant’s] PCRA petition for a violation of his constitutional rights when trial counsel threatened to withdraw as counsel if [Appellant] exercised his right to testify in his own defense?

Whether the PCRA court erred in denying [Appellant’s] PCRA petition for ineffective assistance of counsel when trial counsel failed to object to the admission of Mapstone’s shirt when the chain of custody of the shirt was not properly established?

Whether the PCRA court erred in denying [Appellant’s] PCRA petition for ineffective assistance of counsel when trial counsel failed to object to Trooper Schmid’s testimony regarding gun shot residue when Trooper Schmid was not qualified as an expert in gun shot residue?

Whether the PCRA court erred in denying [Appellant] the opportunity to appear in person for the PCRA hearing?

Whether this Court should remand this matter back to the PCRA court for a determination as to whether the PCRA court has jurisdiction based upon newly discovered evidence and, if so, direct the PCRA court to hold an evidentiary hearing concerning the same?

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Whether PCRA counsel was ineffective for failing to raise or properly develop Appellant’s claims at the PCRA hearing by showing evidence through testimony or argument that trial counsel was ineffective?

Whether PCRA counsel was ineffective for eliciting inconsistent testimony from Megan Adams at the PCRA hearing during direct examination and for failing to correct his line of questioning?

Whether PCRA counsel was ineffective for failing to object to the PCRA court’s ruling denying [Appellant] the opportunity to appear in person at the PCRA hearing knowing that [Appellant’s] absence would cause a direct conflict of interest between [Appellant] and PCRA counsel?

(Appellant’s Brief at 12-13).

As a preliminary matter, we observe that “a PCRA petitioner may, after

a PCRA court denies relief, and after obtaining new counsel or acting pro se,

raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so,

even if on appeal.” Bradley, supra at 141, 261 A.3d at 401. “Bradley [does]

not guarantee a PCRA petitioner substantive review of claims of PCRA

counsel’s ineffectiveness, nor [does] it create an absolute right to remand for

development of those claims.” Commonwealth v. Lawrence, 309 A.3d 152,

155 (Pa.Super. 2024). Our Supreme Court has clarified that a remand is

appropriate under the following circumstances:

In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider such claims as an initial matter. Consistent with our prior case law, to advance a request for remand, a petition would be required to provide more than mere

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boilerplate assertions of PCRA counsel’s ineffectiveness; however, where there are material facts at issue concerning claims challenging counsel's stewardship and relief is not plainly unavailable as a matter of law, the remand should be afforded.

Commonwealth v. Parrish, ___ Pa. ___, 273 A.3d 989, 1002 (2022)

(citations and quotation marks omitted).

To establish a claim of ineffective assistance of counsel, a petitioner

must plead and prove each of the following: “(1) that the underlying claim is

of arguable merit; (2) that counsel’s course of conduct was without a

reasonable basis designed to effectuate his client’s interest; and (3) that he

was prejudiced by counsel’s ineffectiveness, i.e. there is a reasonable

probability that but for the act or omission in question the outcome of the

proceeding would have been different.” Lawrence, supra at 155 (citation

omitted). To be entitled to a remand, the appellant must “[explain] to this

Court how further development of the factual record would satisfy all three

prongs of this test as to each of prior PCRA counsel’s alleged failings.” Id. at

156.

Here, Appellant claims that PCRA counsel was ineffective for, inter alia,

failing to call trial counsel to testify at the PCRA hearing to establish that trial

counsel did not have a reasonable basis for his actions. On several issues,

the PCRA court determined that Appellant’s claim of trial counsel’s

ineffectiveness failed because Appellant failed to put forth any evidence to

establish the reasonable basis prong. (See PCRA Court Opinion, 4/13/23, at

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6-7). On these issues, the court did not make a finding as to whether

Appellant’s issues had arguable merit and/or resulted in prejudice. Appellant

further claims that PCRA counsel was ineffective for failing to adequately

present evidence and argue his claims at the evidentiary hearing. For several

issues, the court determined that Appellant’s claims failed because Appellant

failed to adequately develop the claim at the evidentiary hearing by testimony

or argument. (See id. at 9-10). Additionally, Appellant claims that PCRA

counsel was ineffective for failing to properly question Ms. Adams to allow her

the opportunity to explain any inconsistencies in her testimony, particularly

about whether she saw who fired the shots on the night in question. On this

issue, the court concluded that Ms. Adams’ testimony was not credible and

would not have changed the outcome of Appellant’s trial due to inconsistencies

in her testimony that she did not see who fired the shots. (See id. at 5-6).

Regarding the claims outlined above, Appellant’s brief sufficiently argues

that his claims of trial counsel’s ineffectiveness would have been meritorious

if they were properly presented and argued. On this record, we cannot

conclude whether Appellant’s underlying claims of trial counsel’s

ineffectiveness would have otherwise been meritorious if not for PCRA

counsel’s alleged ineffectiveness. As such, Appellant has established that

remand is warranted for Appellant to develop his claims that PCRA counsel

was ineffective. See Lawrence, supra (concluding remand is appropriate

where PCRA court’s conclusions are insufficient for this Court to conduct

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proper appellate review of appellant’s Bradley claims).

Additionally, Appellant asserts in his supplemental brief that he received

a letter from the Pennsylvania Innocence Project (“PIP”) on February 21,

2024, which alerted him of an undisclosed agreement between the DA’s Office

and Victim. In support of this claim, Appellant attached the PIP letter, dated

February 21, 2024, which states that it received documents from the Fayette

County Court indicating that the DA’s Office entered into an agreement with

Victim to testify against Appellant. Attached to the letter, PIP enclosed a

document that is titled “Tentative Plea Agreement.” Under terms and

conditions of the agreement, it states that Victim agrees to testify against

Appellant in this case. In return, the DA’s Office agrees to reduce the charges

brought against Victim’s daughter, Justice Mapstone, from involuntary

manslaughter to recklessly endangering another person. The document

appears to be signed by Justice Mapstone and Victim. The other signatures

are redacted. Appellant contends that this document supports a claim that

the Commonwealth committed a Brady violation and requests this Court to

remand this matter to the PCRA court to conduct an evidentiary hearing on

his claim.

Based on the foregoing, we vacate the order denying PCRA relief and

remand this matter to the PCRA court to conduct an evidentiary hearing on

Appellant’s claims of PCRA counsel’s ineffectiveness. See Lawrence, supra.

Additionally, as the undisclosed tentative plea agreement that Appellant

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recently discovered facially provides evidence of a Brady violation, we permit

Appellant to raise this issue on remand so that the PCRA court may evaluate

the claim in the first instance. See Commonwealth v. Shaw, 665 Pa. 126,

247 A.3d 1008 (2021) (reiterating that PCRA court is appropriate forum for

development of evidentiary record as appellate courts do not serve as fact-

finding courts). See also Commonwealth v. Dooley, No. 1802 EDA 2022

(Pa.Super. filed July 30, 2024) (unpublished memorandum)4 (remanding case

to PCRA court where document supporting appellant’s Brady claim was

discovered while appeal was in process).5 Accordingly, we vacate the order

denying PCRA relief and remand for further proceedings.6

Order vacated. Case remanded for further proceedings. Jurisdiction is

relinquished.

4 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this

Court filed after May 1, 2019 for their persuasive value).

5 On August 8, 2024, Appellant filed an application for relief in this Court, seeking various grounds of relief. We grant Appellant’s application for relief to the extent it seeks a remand to develop his Brady claim in the PCRA court. We deny the application for relief in all other respects.

6 As Appellant’s remaining issues may be implicated by the PCRA court’s determinations on remand, we do not further address them.

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1/24/2025

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