Com. v. Smith, J.
Opinion
J-S89026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JAMAL L. SMITH
Appellant No. 1103 EDA 2016
Appeal from the PCRA Order April 1, 2016 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0007676-2009
BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED MARCH 15, 2017
Jamal L. Smith appeals from the April 1, 2016 order of the Bucks
County Court of Common Pleas denying his petition for relief under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Smith’s counsel has
also filed with this Court a Turner/Finley1 no-merit letter and a petition to
withdraw from representation. We affirm the PCRA court’s order and grant
counsel’s petition to withdraw.
On August 20, 2010, after a four-day trial, a jury convicted Smith of
second-degree murder, robbery, and possession of an instrument of crime. 2
____________________________________________
* Former Justice specially assigned to the Superior Court. 1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 2 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), and 907(a), respectively. J-S89026-16
On October 14, 2010, the trial court sentenced Smith to an aggregate term
of life in prison without the possibility of parole.
The PCRA court set forth the factual history underlying Smith’s
convictions in its May 10, 2016 opinion, which we adopt and incorporate
herein. See Opinion, 5/10/16, at 1-12 (“1925(a) Op.”).
Smith did not file post-sentence motions. On October 15, 2010, Smith
timely appealed to this Court, which affirmed his judgment of sentence on
March 29, 2012. On September 13, 2012, the Pennsylvania Supreme Court
denied Smith’s petition for allowance of appeal.
On October 18, 2012, Smith filed a pro se letter with the PCRA court,
which the PCRA court treated as a timely PCRA petition. After the
appointment of counsel, Smith filed amended PCRA petitions on March 4,
2013 and February 8, 2016.3 On February 9 and March 28, 2016, the PCRA
court held an evidentiary hearing at which Smith and his trial attorneys,
Keith J. Williams and John Fioravanti, Jr., testified. On April 1, 2016, the
PCRA court denied Smith’s petition.
3 Between the filing of the first and second amended PCRA petitions, the PCRA court ordered three mental health evaluations to determine whether Smith was competent to participate in the PCRA proceedings. The record shows that Smith suffers cognitive and hearing impairments and had the assistance of sign-language interpreters during the trial and PCRA proceedings. Each mental health evaluation resulted in a determination that Smith was competent to understand the proceedings against him and assist in his own defense. PCRA counsel also verified that he was “satisfied [that Smith] was competent to proceed with the PCRA proceedings.” No-Merit Letter at 8 (unpaginated).
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On April 7, 2016, Smith filed a timely notice of appeal. On April 11,
2016, the PCRA court directed Smith to file a Pennsylvania Rule of Appellate
Procedure 1925(b) statement of errors complained of on appeal within 21
days. In lieu of a Rule 1925(b) statement, Smith’s PCRA counsel filed a Rule
1925(c)(4) statement, notifying the court that he intended to file a no-merit
letter and a petition to withdraw from representation due to the lack of
meritorious issues for appeal. Thereafter, on July 5, 2016, counsel filed with
this Court a no-merit letter and a petition to withdraw from representation.
Before we may address the merits of Smith’s appeal, we must
determine whether his PCRA counsel has satisfied the requirements for
withdrawal under Turner/Finley. Counsel must file a “no-merit” letter detailing the nature and extent of his review and list[ing] each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012) (internal
citation omitted). Counsel also must serve copies of the petition to withdraw
and no-merit letter on the petitioner and advise the petitioner that he or she
has the right to proceed pro se or with privately retained counsel.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).
In his no-merit letter, PCRA counsel states that he reviewed the record
and applicable law, identified the issues Smith wished to raise, and explained
why those issues are meritless. He also mailed a copy of the petition and
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no-merit letter to Smith and informed Smith of his right to proceed pro se or
with private counsel.4 We conclude that PCRA counsel has complied with the
dictates of Turner/Finley.
Because Smith did not file a pro se brief or a brief by private counsel,
we will address the merits of the claims raised by PCRA counsel.
PCRA counsel has identified two issues for appeal: (1) whether trial
counsel were ineffective “for not presenting a defense based on the victim’s
having tried to rob [Smith], causing [Smith] to use a knife in self-defense
against the victim, resulting in the victim’s death”; and (2) whether trial
counsel were ineffective “for not discovering [or] removing the influence of
[Smith’s family], which exercised undue influence on [Smith] to avoid
presenting a defense that he acted in self-defense when he killed the
victim.” Second Am. PCRA Pet., ¶¶ 2(b), (c); see No-Merit Letter at 6
(unpaginated).
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Melendez–Negron,
4 Counsel’s initial letter to Smith incorrectly advised Smith that he had the right to proceed pro se or with new counsel if this Court agreed with counsel’s position that the issues on appeal lack merit. Therefore, on July 28, 2016, we directed counsel to file with this Court “a letter addressed to [Smith] advising him of his immediate right to proceed pro se or with privately retained counsel” within 14 days. Super. Ct. Order, 7/28/16. Counsel complied and filed a revised letter with this Court on July 28, 2016. The letter states that counsel mailed the letter to Smith on the same day.
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123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s
factual findings “unless there is no support for [those] findings in the
certified record.” Id.
To prevail on a claim of ineffective assistance of counsel, a PCRA
petitioner must show that: (1) the underlying claim has arguable merit; (2)
counsel had no reasonable, strategic basis for his or her act or omission; and
(3) but for counsel’s act or omission, there is a reasonable probability that
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J-S89026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JAMAL L. SMITH
Appellant No. 1103 EDA 2016
Appeal from the PCRA Order April 1, 2016 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0007676-2009
BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED MARCH 15, 2017
Jamal L. Smith appeals from the April 1, 2016 order of the Bucks
County Court of Common Pleas denying his petition for relief under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Smith’s counsel has
also filed with this Court a Turner/Finley1 no-merit letter and a petition to
withdraw from representation. We affirm the PCRA court’s order and grant
counsel’s petition to withdraw.
On August 20, 2010, after a four-day trial, a jury convicted Smith of
second-degree murder, robbery, and possession of an instrument of crime. 2
____________________________________________
* Former Justice specially assigned to the Superior Court. 1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 2 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), and 907(a), respectively. J-S89026-16
On October 14, 2010, the trial court sentenced Smith to an aggregate term
of life in prison without the possibility of parole.
The PCRA court set forth the factual history underlying Smith’s
convictions in its May 10, 2016 opinion, which we adopt and incorporate
herein. See Opinion, 5/10/16, at 1-12 (“1925(a) Op.”).
Smith did not file post-sentence motions. On October 15, 2010, Smith
timely appealed to this Court, which affirmed his judgment of sentence on
March 29, 2012. On September 13, 2012, the Pennsylvania Supreme Court
denied Smith’s petition for allowance of appeal.
On October 18, 2012, Smith filed a pro se letter with the PCRA court,
which the PCRA court treated as a timely PCRA petition. After the
appointment of counsel, Smith filed amended PCRA petitions on March 4,
2013 and February 8, 2016.3 On February 9 and March 28, 2016, the PCRA
court held an evidentiary hearing at which Smith and his trial attorneys,
Keith J. Williams and John Fioravanti, Jr., testified. On April 1, 2016, the
PCRA court denied Smith’s petition.
3 Between the filing of the first and second amended PCRA petitions, the PCRA court ordered three mental health evaluations to determine whether Smith was competent to participate in the PCRA proceedings. The record shows that Smith suffers cognitive and hearing impairments and had the assistance of sign-language interpreters during the trial and PCRA proceedings. Each mental health evaluation resulted in a determination that Smith was competent to understand the proceedings against him and assist in his own defense. PCRA counsel also verified that he was “satisfied [that Smith] was competent to proceed with the PCRA proceedings.” No-Merit Letter at 8 (unpaginated).
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On April 7, 2016, Smith filed a timely notice of appeal. On April 11,
2016, the PCRA court directed Smith to file a Pennsylvania Rule of Appellate
Procedure 1925(b) statement of errors complained of on appeal within 21
days. In lieu of a Rule 1925(b) statement, Smith’s PCRA counsel filed a Rule
1925(c)(4) statement, notifying the court that he intended to file a no-merit
letter and a petition to withdraw from representation due to the lack of
meritorious issues for appeal. Thereafter, on July 5, 2016, counsel filed with
this Court a no-merit letter and a petition to withdraw from representation.
Before we may address the merits of Smith’s appeal, we must
determine whether his PCRA counsel has satisfied the requirements for
withdrawal under Turner/Finley. Counsel must file a “no-merit” letter detailing the nature and extent of his review and list[ing] each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit.
Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa.Super. 2012) (internal
citation omitted). Counsel also must serve copies of the petition to withdraw
and no-merit letter on the petitioner and advise the petitioner that he or she
has the right to proceed pro se or with privately retained counsel.
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa.Super. 2011).
In his no-merit letter, PCRA counsel states that he reviewed the record
and applicable law, identified the issues Smith wished to raise, and explained
why those issues are meritless. He also mailed a copy of the petition and
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no-merit letter to Smith and informed Smith of his right to proceed pro se or
with private counsel.4 We conclude that PCRA counsel has complied with the
dictates of Turner/Finley.
Because Smith did not file a pro se brief or a brief by private counsel,
we will address the merits of the claims raised by PCRA counsel.
PCRA counsel has identified two issues for appeal: (1) whether trial
counsel were ineffective “for not presenting a defense based on the victim’s
having tried to rob [Smith], causing [Smith] to use a knife in self-defense
against the victim, resulting in the victim’s death”; and (2) whether trial
counsel were ineffective “for not discovering [or] removing the influence of
[Smith’s family], which exercised undue influence on [Smith] to avoid
presenting a defense that he acted in self-defense when he killed the
victim.” Second Am. PCRA Pet., ¶¶ 2(b), (c); see No-Merit Letter at 6
(unpaginated).
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Melendez–Negron,
4 Counsel’s initial letter to Smith incorrectly advised Smith that he had the right to proceed pro se or with new counsel if this Court agreed with counsel’s position that the issues on appeal lack merit. Therefore, on July 28, 2016, we directed counsel to file with this Court “a letter addressed to [Smith] advising him of his immediate right to proceed pro se or with privately retained counsel” within 14 days. Super. Ct. Order, 7/28/16. Counsel complied and filed a revised letter with this Court on July 28, 2016. The letter states that counsel mailed the letter to Smith on the same day.
-4- J-S89026-16
123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s
factual findings “unless there is no support for [those] findings in the
certified record.” Id.
To prevail on a claim of ineffective assistance of counsel, a PCRA
petitioner must show that: (1) the underlying claim has arguable merit; (2)
counsel had no reasonable, strategic basis for his or her act or omission; and
(3) but for counsel’s act or omission, there is a reasonable probability that
the outcome of the proceedings would have been different.
Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999). Counsel is
presumed to be effective, and the petitioner has the burden of proving each
of the three prongs by a preponderance of the evidence. Commonwealth
v. Steckley, 128 A.3d 826, 831 (Pa.Super. 2015), app. denied, 140 A.3d 13
(Pa. 2016).
Smith first argues that his trial counsel were ineffective for failing to
present a self-defense theory to the jury when Smith allegedly had told
counsel before trial that he had stabbed the victim because the victim was
trying to rob him.
In a July 18, 2009 interview with police, Smith described the incident
as follows: [Smith] stated that he intended on getting some money from the [victim] but the [victim] told him that he did not have any money . . . . [Smith] stated that he pulled out a small folding knife and the [victim] pulled out a brown switch blade. The [victim] then turned in his seat and began kicking [Smith] in the face causing a cut under [Smith’s] eye. [Smith] dropped his knife and was holding his hands up to his face when the [victim] tried to stab
-5- J-S89026-16
him. [Smith] was able to grab the [victim’s] arm preventing [him] from stabbing him. As they struggled over the knife [Smith] turned his back slightly to the [victim] and the [victim] bit [Smith] on the left back/shoulder blade. They continued to struggle over the knife until [Smith] was able to pull the knife out of the [victim’s] hand. In the course of wresting the knife out of the [victim’s] hand [Smith] received a small laceration to the web of his left hand. . . .
As they continued to struggle [Smith] stabbed the [victim] in the leg and also admitted to stabbing the [victim] in the front shoulder, two times in the back and three times in the chest/stomach area. [Smith] stated that he stabbed the [victim] so many times because he was scared because the guy had tried to stab him.
Trial Ct. Op., 6/10/11, at 7 (quoting Smith’s 7/18/09 statement).
At trial, however, Smith contested the validity of his July 18, 2009
statement to police, stating that “[h]e was popping pills and high during the
interview.” Id. at 14. Smith also denied killing the victim and testified “that
a ‘Blood’ gang member by the name of Corey Talley a.k.a. Corey Mills
committed the murder.” Id. at 13. Smith testified that “he initially told
police that Mills committed the murder, but later told police that [Smith] did
it because he was scared for his safety and the safety of his family,” because
Mills had threated to kill Smith if he told anyone. Id. at 14.
At the PCRA hearing, Smith testified that before trial, he informed one
of his trial counsel, Williams, that he had stabbed the victim because the
victim was trying to rob him. N.T., 3/28/16, at 25-26. Williams, however,
testified that Smith denied stabbing the victim and told him that Corey
Talley had killed the victim. Id. at 48. Williams also testified that he had
advised Smith before trial that “the story he told the police might lead to a
-6- J-S89026-16
better verdict,” id. at 49, but Smith still denied killing the victim. Smith’s
other trial counsel, Fioravanti, also testified that Smith never admitted that
he had killed the victim. Id. at 63.
We agree with the PCRA court that because Smith denied killing the
victim, his attorneys had a reasonable, strategic basis for not presenting a
self-defense theory to the jury.5 Furthermore, as the PCRA court found,
“[e]ven if counsel had presented such a defense, the outcome of the
proceedings would not have been different due to the overwhelming
evidence presented at trial.” 1925(a) Op. at 17-18. We conclude that the
record supports the PCRA court’s findings.
Next, Smith argues that trial counsel were ineffective for failing to
remove the undue influence of his family. This claim lacks merit.
After hearing the testimony of Smith and his trial attorneys at the
hearing, the PCRA court found: According to [Smith], his mother threatened him and told him that if he told the truth during trial, she would kill his kids. Besides this alleged threat, [Smith] testified that his mother said she “could get the reward money” if the appellant lied. He testified that his mother also told him not to say anything when she visited [Smith] at prison. No evidence was presented to support these bald assertions. Thus, without more, [Smith’s] underlying claim is meritless.
5 At the PCRA hearing, Smith testified that he had lied to the jury when he denied killing the victim and implicated Corey Talley in the murder. N.T., 3/28/16, at 40-41.
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According to Mr. Williams, although [Smith’s] mother did not believe that her son killed the victim and might have influenced her son because of this belief, she “tried to be as cooperative as she could be under the circumstances.” Moreover, when [Smith] met with his lawyers with his mother present, she did not tell [him] what to say at trial. However, when [Smith] met with his lawyers alone, he still failed to admit to killing the victim.
1925(a) Op. at 18-19 (citations omitted). The PCRA court credited the
testimony of Williams and Fioravanti and discredited Smith’s testimony.
Because the record supports the PCRA court’s credibility determinations, we
are bound by them. See Commonwealth v. Roane, 142 A.3d 79, 86
(Pa.Super. 2016). Accordingly, we conclude that the PCRA court properly
denied Smith’s PCRA petition.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/15/2017
-8- . ····~· .. -· ..-· . _.,. ·-·-----·- - .. -~.. -_.,.,-..Circulated . ·-··-····-·02/14/2017 02:07 PM
IN TH'.E COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVAN1A •,_ CRI1VIINAL DIVISlON
COMMONWEALTH OF PENNSYLVANIA No. CP-09-CR-0007676-2009
v. JAMAL L. SMITH
OP lN'r ON
On appeal, the appellant, JamalL. Smith, challenges this Court's April I, 2016 Order
denying relief under the Post.Conviction Relief Act (hereinafter "PCRA'} The appellant's
PCRACounsel has filed a Statement Pursuant to Pa.R . .App.Pro. 1925(<;)(4) due to lack of any
meritorious issues supporting the appellant's appeal. This Court files this opinion pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
~-. "-'· I. FACTS ANDPROCEDURE
The following is.a summary of the relevantfacfs and procedural history as set forth in our
opinion. filed on June I 0, 2011 :
.. , In the early morning hours on July 8, 200Q, Debra Reynolds called police to report a dead body lying outside of a white Jeep in the parking lot of'the Marion Village Apartment Complex. N;T. 8/ 17/10, p. 29. Located between the Delaware Canal, Edgely Road, and Bristol Pike (RoutelS). in Bristol Township, Bucks County, Pennsylvania, this apartment complex is described as a high-drug, high-crime area. N.T. 8/18/10, p. 105; N'.T, 8/1_7/lO; pp, ~6, 57; Exhs. C-10, C-. ll, C-l2. OfficerPeter Hollenezer, art. officer with the Bristol Township Police Department Who has twenty-two years of experience,tespondedto the call. N.T. 8/17/1 o, pp. 25-26. Upon his arrival, Officer Hollenczerfound an elderly white male lying outside of a white Jeep with one leg still inside the driver's door of the vehicle. N;T. ~/17/10, p. 26; EJ:Chs. G-1, C-6, C-7. The body was directly in frontof the 800 building. N .T..8/17/JO, p. 51. As the officer approached, he saw blood around the stomach and neckline, but could not see any apparent injuries. N.T, 8/17/JO, p. 2 7; Exhs, C-l, C-6, C-7, C-8. The man.did nothave a pulse and the rescue squad confirmed that he was, in fact; deceased. N.T; 8/l7/l0i pp. 27-28.
l . '·- . ., . ·- . ··..--· .. .. . . . . . ~ -·~- _... : ·- ·-. - .. ··--. ~ .-.- .
Reynolds> her son, Joseph Slater, and his fiancee, Amanda Cliver, told police that they did not know whathad happened, N.T. 8/17/10; pp. 30.,_31.
At 5.:47 a.rn., William O'Keefe, a detective with the Bristol Township Police Department who has seventeen years ofexperience-responded to the parking lot of'the apartment complex fora possible homicide investigation. N~T. 8/17/10, pp. 49 ...50, 67. The victim's body was still located between the white Jeep and black BMW and it was covered with a White sheet. N.T. 8/17/10, pp. 5l-52;Exhs. C-4, C-5, C-6, C- 7, C-8. The coroner showed police multiple stab wounds on the victim's back. N.T. 8/17/10, p. 56; Exh, C-9. No wallet was found onthe victim, N.T, 8/17/10, p, 56.
The Jeep and nearby black BMW were secured and taken.to the Bristol Township Police evidence garage; N.T. 8/17/10, pp. 65"66.
Police investigation revealed that the victim was a homeless man by the name of John "Jack'' Reil, N .T. 8/17/101 pp. 35, 67i Exhs. C-2, C;.15. Reil had permission to sleep in his.friend Susan Kowalick's 1989 white Jeep Cherokee. N.T. 8/17/10, pp. 34-35, 37; Exh. C-3. Kowalick resides in the .800 building of the apartment complex and parked her Jeep directly outside of her apartment's windows .. N.T. 8/17/101 pp. 34, 37. When Kowalick last saw Reil at·7;30 a.m. on July 7,2009, she gave him ten dollars, which he put in his walle], N.T, 8/17/10, p. 45. ·
On July 14, 2009 and Julyl5, 2009/Bristol Township Police Department Detectives Gregory Beidler and.Jack Slattery, who possess twenty-two years and seven years of experience respectively, secured a search warrant and searched the white Jeep and black BMW .. N.T. 8/18/10, pp. 205, 210~11, 213;.N.T. 8/17/10, p. 217; Exhs, c . 57, C-60, C-61, C'-64. Timothy Fuhrman, ij detective with the Bristol Township Police Department who has twenty years of experience, also assisted with the processing ofthe vehicles. N.T 8/19/10, pp. 64-66.
The two-door Jeep had two front seats that were separated by a flo_or-rnounted gear shifterand a rear bench seat. N,T. 8./18/10, p. 216. The Jeep contained a large amount of blood in the front passenger area. N ,T, 8/1-8110, p. 216; N. T. 8/17/10, p, 63; Exhs. C-13, C· 14, C-57, C-61. Blood was located on both front seats, both door panels, the headliner, and the backseat. N.T. 8/18/10, pp. 216-17; N.T. 8/17/10, p. 63; Exhs. C.;;13, C'-14, C~57, C-61. The passenger's side door of the Jeep was locked. N,T. 8119/10, p, 106.
Police recovered fingerprints from the vehicles. Fingerprints Were found on the Jeep's driver's door interior window. N.T. 8/18/101pp. 220-:23; EXh1l. c ..53, C- 56, C"60. Police also recovered prints on the exterior of the BMW and the exterior ofthe Jeep's passenger side. N.T. 8/19/1.0, pp. 68-69, 71-72; N.T. 8/l&/10, p. 231.
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The-victim's wallet was not recovered from the Jeep. N.T. 8/18/10, pp. 2TI, 227.
On July 17, 2009, police interviewed Joseph Slater, N.T. 8/18/lOJ p. 180. During the .interview Slater broke down, started crying, and told police what happened on the night of the murder. N.T. 8!17/10, p. 107. Because Slater is dyslexic, police memorialized the interview into a statement which Slater amended and then signed. N.T. 8/18/10, p.181; Exh, C-17: The statement is as follows:
Joseph was interviewed at the Bristol Township Police Station at 1340 hours. Joseph was tok{ that during a previous interview he stated that he went to the Seven Eleven on July 8, 2009. at approximately 3:00 a.rn. Joseph was told that the video surveillance from Seven Eleven proved that he did not go to the Seven Eleven that night. Joseph then said he went to the Ball Park Tavern but found· the bar was closed. Joseph said he lied because he did not want his wife to know he was gqingto the Ball Park, Again Joseph was told that we did not believe his story, .
Joseph then started tearing up and stated I just need to tell you "Maly" did it. Joseph said Maly admitted to me that he stabbed the guy.
Joseph was told to explain what happenedthatnight, Joseph said he was outside of building 800·at about 8':00 p.m, the night before the murder (July 7) with his flancee, Amanda. Joseph said Maly came up.and started hanging out with them and Joseph asked Amanda and Maly if they wanted to go to the Ball Park to buy some beer. Joseph saidthe three walked to the Ball Park and-Amanda was pushing her stroller with their daughter, Amanda waited outside with their daughter and Joseph and Maly went inside and purchased three forty ounce bottles of'beer, They all walked backto building 800 and sat outside on the step drinking beer. Joseph said Maly pulled a knife out of his side pocket Joseph stated that Maly said that if he was fighting wfth someone, he would. stab them, While making stabbing motions with the knife .. Joseph stated that Maly then dropped the knife on the ground accidentally. Joseph said he told Maly to put the knife awaybecause .he was drunk and Maly put the knife in his right front pocket. Joseph described the knife as seven or eight inches long, with a wood handle and silver blade.
Joseph said sometime that night "Boo Boo" and "Man Man11 were outside with them. and Joseph wanted to buy some weed. Joseph said that Maly initially attempted to buy weed from the 900 building of the apartment complex, but was unable to. Joseph said Man Man went over by building 500 and purchased a dime bag of weed. ·..~ .. Joseph said he and Man Man smoked the weed. Joseph said he
J
·-------------------------· -·-·-··-· ····--·----·-·-·-------······--··-· ··· ···· • "'-•·• ,,-~'- d.,,,_.._ .. r, _...... • , 0 ----. •--~---•'-•-•.._,...,..,.-- ....~.
-·-"'<>\
thinks Man Man and Boo Boo went back inside of their apartment about fifteen minutes before his daughter was bumped by the door. Joseph said either a lady or heavy set guy opened the door of building SOO and struck his daughter in the head, Joseph said he grabbed his daughter and went inside apartment 803 and asked his motherto drive them to the hospital. Joseph said they walked past Maly as they Were leaving for the. hospital .and Maly asked if he eould go. When told he couldn't go Joseph said Maly looked sad and lost.
Joseph said he, his mother; fiancee and their daughter all left Lower Bucks Hospital together at about :3:00 a.01. Joseph said they drove directly pack to the apartment and went inside. Joseph said they were up talking and at about 4:00 a.m. they heard a light tapping on the door; Joseph said that his mother initially answered the do or, he but no one was there. Joseph said that then went to the door and did not see anyone around, Joseph said he was going to go outto smoke a cigarette anyway and when he was outside of his apartment, Maly appeared from the laundry room 011 the same floor. Joseph said Maly was motioning for Joseph to come to him and when Joseph walked down fo the laundry room Maly asked him to come .inside, Joseph said he was a little nervous about going inside because it was. dark and he didn't know what Maly was up to . Joseph said he went inside and Maly kept. repeating to Joseph that hejust killed somebody. Joseph said he asked Maly why he killed this person and Maly kept. saying that he grabbed me as he was showing Joseph his neck and pulling his collar from bis neck area. Joseph said he did not notice any injuries on Maly's neck and he .asked Maly why he didn't just run away. Joseph said Maly said he couldn't get away and l stabbed him.
Joseph said he could see the end of a knife handle sticking out of Maly's back pocket. Joseph said he asked Maly what it was and he said nothing. Joseph saidhe asked again and Maly pulled the knife he seen Maly with earlier from his back pocket. Joseph said the knife was in the open position and the blade and most of the handle was wrapped in a tan Dickles button .up wor:k shirt. Joseph said he saw Maly wearing the Dickies shirt earlier that day. Joseph said Maly then unwrapped the knife and put the knife, on top ofthe shirt, on the floor ofthe laundry TOOJil in front of the Washer; Joseph said he could see a little blood on the blade of the knife as well as blood transfer from the blade cm the shirt. Maly stated that there was also blood on Maly' s left hand on the blade of his palm. Joseph said that Maly pointed out of the laundry room windows in the direction of the parking lot when asked where this happened, Joseph said Maly told him it happened by the white car. Joseph stated that Maly asked
-------------------------·••«-·-----------·--·-·-·-«-···--·«•' him to come outto the parking lot to see the victim. Joseph advised 'that he stated that he did not want to see anything and told Maly that he should leave. Joseph said Maly wrapped the knife back in, the shirt and put the knife inhis back pocket still in the opened position. Joseph. said Maly asked him several times if he would tell on him and asked Joseph not to tell on him. Joseph said that Maly stated "I don't like when people tell on me." Joseph described Maly as nervous, shaken up and that he was pacing back and forth and banging his head on the walls of the laundry tcom. Joseph saidMaly was wearing a maroon 'thermal shirt; dark three quarter lengthjean shorts and black and green sneakers. · Joseph said he walked Maly out of the building and -told him to just go as he pointed left, telling Maly to leave the apartments. Joseph said he went back to the apartment and told Amanda and his mother Debra what Maly justtold him. Joseph said his mother continuedto say she .does not believe Maly would do such a thing. Joseph said he and. his fiancee, Amanda walked out in the parking lot and discovered the body by the white Jeep. Joseph said the two immediately became upset and went back to his mother and told her Maly did it and you need to call the police. Joseph said he never made contact with the victim or the vehiclet.however he did see the victim inthe parking lotthe day beforeatabout 7:00p;m. and.shook the victim's hand. Joseph asked if he touched the outside of the vehicle at.all and Joseph said he does not think he did.
Joseph described Maly as a short deaf black male and thinks his real nameis Jamal. Joseph said they call him Maly, Joseph was shown a photograph of Jamal Smith and identified him as Maly.
SignedJoseph W. Slater IV, 7/17/09, 4:46 p.m.
I, Jq~eph Slat~r, swear and affirm that the above statement is, an accurate summary of my interview with Bristol Township Detectives William O'Keefe and Jack Slattery on Friday, July 17, 2009. .
Exh, C-17,
Slaterresides with this mother in the 800 building of the complex. N.T. 8/17/10, pp. 32, 81. Slater's nickname is "Cheech." N.T. 8/17/lOt p, 80. Slater met the defendant, whom he called "Maly' at.the apartment complex a few weeks prior. N,T. 8/17/10, pp. 80~8l . Slater spoke to· police several timesafter the 911 call was made, but did. not initially tell them about his conversation with the defendant because he livedin a "rough area" and he. was scared for the safety of his family.
5 N:T. 8/1'7/10, pp. 104-07, The day after the murderySlater said he received a gang.sign threatening his life. N.T. 8/17/10, p, ll2.
On July 17, 2009, at approximately 9:30 p.m., Detective Beidler arrested Defendantandtransported hi111 to police headquarters, N.T. 8/17/10, pp. 217-18. Defendant was placed in a holding cell and because police knew Defendant had a hearing impairment, police called two certified sign language interpreters. N.T. 8/18/10,pp. 20-25, 53-56; N.T, 8/17/10,p. 218; Exhs. c~27, C-28, C-29, C-30, When the two interpreters arrived they established communication with the defendant through the use of.sign language. N.T. 8/18/10, pp. 25-28, 56-58; N.T. &/17/10, p. 221. Defendant-then agreed to an interview and through the assistance of the interpreters gave a voluntary statement to police in a Lieutenant's office, which was memorialized in a.signed written statement. N.T. 8/18/10; pp. 28-34, 58-63; N.T. 8/17/10~ pp. 222,-55; Exhs. C~18, C~.19, C-20, C-21, C-23. That statement is as follows: ·
Jamal Smith was interviewed at the-Bristol Township Police station at about 0030 hours -on July 18, 2009, Also present during the interview were Joy Harrisand Cren Quigley who are certified.sign language interpreters. Detective Jack Slattery was also present during the interview. At 0041 hours Jamal was advised of his Miranda rights. Jamal understood these rights and he agreed to talk . ........,,, to us without a lawyer present. Jamal acknowledged receiving his Miranda rights by signing the rights form from which his warnings wereread.
In summary Jamal stated that on July 8, 200~, he was in theparking lot of the Marion Village Apartment complex. He saw a black female who he knows to be a prostitute who goes by the name of "Brown Sugar". Brown Sugar got into ajeep occupied by a white male that was parked in front of the 800 building, The black female and the white male sa.t in the jeep and smoked craok and ''fucked". While they were in the jeep the white male was sitting in the passenger front seat· while the black female sat in the front driver's seat. After about thirty minutes the black female opened the driver's door and exited, leaving the door open as she walked away.
Jamal.walked up to the driver's door and got into the driver's seat. Jamal stated that he intended on getting some money from the white male but the white male told him that he did not have any money because the black female took $60.00 from him. Jamal stated that he pulled out a small folding knife and the white male pulled out a brown switch blade. The white male then turned in his seat and began kicking Jamal in the face causing a cut under Jamal's eye. Jamal dropped his knife and was holding his hands up to his face: ·\..,_. when the white male tried to stab him. Jamal was able to. grab the
..............-.,....,.~,- .. -- ·---- ·------·---- .. -----·----- ... ., ······-·--------···· ... .,_ ·----~--~--- . ---.. . ..... . ~ ......... __ ··-·:-··
white males- arm preventing the male from stabbing him. As they struggled over the knife Jamal turned his backslightly to the White male and the white male bit Jamal on the-left back/shoulder blade. They continued to struggle over the knife until Jamal was able to pull the knife out of the white males hand. Inthe course of wresting the knife out 9f the white male's hand Jamal received a small laceration to the web of his left hand. Jamal described the cut as small and stated that it bled only alittle bit.
-As they continued to struggle Jamal stabbed the white male in the leg and also admitted fa stabbing the. white male in the 'front shoulder, -two times in the back and three times in the chest/stomach area. Jamal stated that he stabbed the white male so many times because he was scared because the guy had tried to stab him ... Jamal exited the car and ran upto apaitment·803 where a person he ·knows as "Cheech" resides. Afterknocking Qi), Cheech's door, Cheech came out into the hallway and the two talked by the laundry room. Duringthis conversation Jamal toidCheech that he bad just stabbed a white male 01Jt in the parking lot.
Jamal then left Cheech and exited the apartment building. After leaving the apartment he threwthe knife into a trash dumpster that is. in the parking lot in. front. of 800 building. Jamal then tan to his grandmother's house at 12,21 Marie Lowe Drive.
Jamal stated that at the .' time ofthe incident he was wearing a light brown shirt and.light graylong shorts; Jamal statedthathe did have blood on his shorts but his shirt did not have any blood onit. Jamal did not know what happened to the clothes he 'Was wearing at the time but he thinks that his brother may have thrown the clothes away,
Jamal stated that he did not intend to kill the guy when he initially approached the jeep. He only intended on getting some money from the white male. .
I have reviewed my statement as summarized and typed by Detective Greg Beidler of the Bristol Township Police Department. I find the .facts contained in this statement to be a. true, correct, and accurate accounting of my statement to him. I gave and signed this statement voluntarily without promise, threat or duress. ·
Signed'Jamal Sm,ith,7/18/09, 5:l(i a.m,
Bxh. G-23. After the fot~rview, Detective Beidler photographed the areas of Defendant's body where he indicated he-was injured. N.t. 8/l7I10, pp. 256-59;
·------------·----····-- ... --··-··-· ... --··----·--·-··---··--···-·. ... , .. _,... _·-···- .· -·--· ---~ ...... ,.,-,..,.,,,,..,~--- .... _ ... . ,
Exhs, C-24, G-25, C~26. Although Detective Beidler could see a mark on the defendant's right chest, he "could not tell how that mark was made." N.T. 8/17/10, pp. 258~59.
On July 18, 2009, Bristol Township Police-Department Detective Michael Slaughter, who has thirteen years of experience, executeda search warrant at the defendant's grandmother's home, i22J Marie Lowe Drive in Bristol Township, N.T. 8/18/lO, pp .. 94~97; Exh, C-33. During the search police recovered twelve items including a stained reddish maroon thermal long sleeve shirt and pair of "blue jean Capri" pants. which were located on the front porch .. N.T. 8/18/10, pp. 97-98; Exhs. C-16, c.:32, C-33. Detective Slaughter described the borne as beirig packed with items. N.T. 8/18/10, pp. 99-100. Clothing was everywhere and it · was a challenge to clear out each room. N.T..8/18/10, pp. 99-100.
Qn August 1 O; 2009, Detective O'Keefe interviewed. Shawna Lynch, another resident of the Marion Village Apartment Complex. N.T. _8/18/10, pp. 197-99. On July 8, 2009, at approximately 2:30 a.m., Lynch saw Defendant outside of the 800 building, N.T; 8/17/10, p, 199. Lynch said that Defendant did not live in the apartments, hut often hungout there: N.T. 8/17/lO, p. 205. Lynch observed the defendant walk around the Jeep and look in the windows. N.T. 8/17 /l 0, pp. 212- 13. Lynch saw someone in the passenger side ofthe Jeep at that time. N.T. 8117/lQ, p. 204,
Lynch and the defendant discussed Reil while standing alongside of the 800 building., N.T. 8/17/10, pp. 200, 202; Exh. C~ 1 L Defendant told Lynch that he was going to rob Reil and Lynch stated "leave him alone. He doesn't have anything. He's homeless. He doesn't have anything." N. T, 8/i 7/10 pp; 200, 1
203, 207.
During the trial, Defendant identified Lynch as a prostitute named "Brown Sugar." N .T. 8/19/10, pp. 174- 75; Exh. C-68. However, Lynch testified during the trial that she isnot a prostitute and did not smoke crack cocaine with Reil. N.T. 8/17/10,.pp. 206.;07.
On August 8, 2009, while incarcerated at the Bucks County Correctional' Facility and awaitingtrial, Defendant called his family. N.T. 8/18110, p.127; Exhs, C--34, C-35. Defendant spoke to three people during this call and discussed his incarceration, his Upcoming court dates, and told someone to.go into the bathroom; Defendant's family then instructed him to stop speaking. Exhs. C-34, C-35, Itshould be noted that this call took place by telephone without the assistance of interpreters or assistive listening device-equipment, Attimes Defendant asked for words to be repeated but he was able to communicate by telephone.
After hearing this call, on August 13, 2009, Detective O'Keefe executed a second ....._ search warrant at the defendant's grandmother's.home. N.T. 8/18/10, pp; 170-73. '\
8 •.... · . . ·,····--~-·--- --- . --.. . ·- ...- ... ,,.·.,·,_..,,~ .. ~. ..... --,.-·.-· .. .
... ,.,__, Detective O'Keefe, who was also present during the search on July I~. 2009•. testified that the bathroom had been cleared out, the vanity was empty, and that the closet.in the bathroom was completely empty. N.T. 8/J 8/10, p. 174; Exhs, C- 46, C-47. Detective O'Keefe testified thatonly the bathroom had been cleared out and the remaining rooms in the borne appearedthe same asthey had on July 18, 2009. N.T. 8/1.8110, pp.111-7&; Exhs, C-48, C-49. During this search police recovered Defendant's signed library card. N.T. 8/18/10, pp.176~77; Exh. C-50. Defendant's photo identification card and other paperwork revealed his address to be his grandmother's house. N.T. Sfl8/l 0, pp. 180, 207; Exhs. C-'51, C-52.
On January 14, 2010, the Commonwealth med a Notice or Aggravating Circumstances, On January 15, 2010,Defendant was arraigned. OnJune 7, 2010, Defendant filed an Omnibus Pre· Trial Motion. On June 30~ 20 lO, a hearing was held on the pre-trial motions, On July 9, 20l 0, this Court denied Defendant's .suppression motion by written order. Prior to trial, the Commonwealth withdrew its-intentlcn to seek the death penalty.
On August 16, 20101 a jury was.selected, Also on August 16, 2010, counsel filed a stipulation, "Jamal Smith has no functional hearing in hls right ear and limited ability to hearin his left ear," We note that during every proceeding, Defendant was provided with two sign language interpreters. Additionally, onAugust 13, 2010, Defendant Was afforded the-opportunity to testthe. assistive listening device ,, in the courtroom, which he wore. during the entire trial. ··'-'- During the defendant's trial, Jan Hood.M .D.,. a forensic pathologist and expert in forensic pathology, testified. Exh. C-42. On July 8, 2009, Dr. Hood performed an. autopsy on Reil's body and determined the cause of death to be multiple stab wounds. N.T. 8/18110, pp. 139, 163; Exhs. C-43, C-44. Dr. Hood testified that Reil was a thin man and that he was approximately six feet tall and weighed one hundred and fifty pounds. N:T. 8/18/10, pp. 132, 139~ 144. Dr. Hood found eighteen stab wounds and two scratches en the victim's body, N:r. 8/18/10, pp. 158-59: Exh. C-AJ.
Reil was stabbed twelve timesin the back. N .T. 8/18/10, pp. 146M47; Exhs, C-38, C-39,.C-43. Eleven of the.twelve stab wounds on the victim's back.penetrated approximately one to two inches until they hit the rib bone, and one stab wound penetrated four inches until it wentthrough the chest wall arid into the victim's I ung, N .T. 8/18/10, pp. 147-48, Exh. C-43~
The victim also had multiple stab woundson.his chest. Exh. C-43. Two wounds were located close to the victim's.rightarmpit. N.T. 8/18/10, pp. 152-53; Exh, C- 40. The one wound was located three inches below the victim's right armpit, and _penetrated until it hit a rib bone. N,T, 8/18/10, p. 153; Exh. C-40. The other wound, the Widest stab wound, penetrated at least four inches deep into the Jobe of the victim's tight lung and caused it to collapse. N.T. 8/18/tO, pp: 152-53; Exh, C-40. The Victim also had two stabwounds on the left side bf his chest.
9 •, ···-~--·-· .,_ ..,~---· ..·-- . , ...... .... -~ ,_ ,' _,.,. _ ........ _~~-·.·-····,·· ···-~· . . -..
Exh, CAL One stab wound penetrated four inches deep into the lower abdomen Wall causing a. significant hemorrhage of'the Ieftliverlobe amounting to approximately twenty cubic centimeters (cc), N.T: 8/18/10, pp. 154-55; Exh, C- 41. Additionally, the most forceful and rapidly fatal stab wound was over the breast bone; where penetration went straight backwards, through the bone, and into the heart, N.T, 8/18/lO, p. 155; Exh. C-41.
The victim alsohad a one inch stab wound 011 his right.lower leg, where the knife stopped when it.hitthe bone; N.T. 8/18/10, pp. 142-43; Exh, C~36. Additionally, Reil had a two to three inch deep stab wound "in his-left middle upper arm area which was consistent wfrh a knife enteringand traveling upward and stopping when it hit the hone. N.T. 8/18/10, pp .. l44~45, Exh .. C-31.
Dr. Hood testified that.all ofthe stab wounds were about one-half inch to three- quarters of an inch in length and were made by a knife that had a relatively thin blade. N.T. 8/18/10, p. 143. Several ofthe stab wounds had slightly torn ends, N.T: 8118/10, p. 143. This is consistent with movement between the knife and the victim. NT. 8/18/10, p, 143. Dr. Hood rioted that the stab wound which entered the heart was rapidlyfatal, but that the combination of the other wounds would haveprovenfatal as the wounds penetrated the victim's chest and punctured his lungs and liver. N.T. 8/18/l 0, p. 156,
A toxicology report revealed that the victim's blood alcohol concentration was 0 ;224 %, but no controlled substances were found.in his system. N. T. 8/ 18/1 O; pp, 162-6\ -Exh. C-45.
Counsel. stipulated that "serology testing was done on the red thermal shirt seized by Bristol Township Police Department at 1221 Marie Lowe Drive, The serology testing confirmed the presence of blood on the front, back, sleeves, and inside cuffsofthe red.thermal shirt seized from 1221 Marie Lowe Drive." N.T. 8/19110, p. 5.
Forensic.Scientist, Lisa Shutkufski, an expert.in DNAanalysis, testified during the trial. N.T; 8JJ9/1Q, pp, 6-51; Exh, C-62. Shutkufski is a DNA analyst with the Pennsylvania State Police; and has over tenyears of-experience, N.T. 8/19/10, pp. 6-7.
Shutkufski testified that the DNA profiles obtained from the left sleeve, left cuff; and right sleeve of the red thermal shirt found on Defendant's frontporch matched the DNA profile of the victim, Reil, N.T. 8119/10, pp.16-18. Shutkufski further testified that the probability ofrandomly selecting an unrelated individual with this combination of DNAtypesis approximately one in 470 quintillion (470,000,000,000,000,000,000) fromthe Caucasian population, one in 91 O sextillion (910,000~000,000,000,000,000,000)from the African American population, and one in l4 sextillion(l4,000.,0QO,OOO,OOO;OOO,OOO,OOO)fromthe Hispanic population. N .T. 8/19/10, pp. 16-17, Sbutkufski further testified that
---------·-----·- ...... , ·.-- .. ·----·--·-· __ ....,...... --- - ~- - . --·-··-·, -·----- -----· · ·--
.-.....,. since there are only six billion people in the world, this figure is larger than the world's population. N,T. 8/19/10, p. 17.
Shutkufski also testified that the DNAprofiles found on the left sleeve, left cuff, and right sleeve of the red thermal. shirt were consistent with a mixture of DNA. N.T. 811'9ll 0, p. I 8. She opined that this isnot unusual because itis common for multiple sources to come into contact with one item, N. T. 8/J 9/10, .p. 18. Shutkufski also testified that the I>NA profile found on another portion the left cuff was not a mixture and fr was consistent with the vfotim's·DNA. N.T. 8/19/lOl p. 19.
Shutkufski also tested the shirt for the presence of Defendant's DNA and found other portions where the-defendant's DNAcould notbe excluded. N.T. 8/19/10, p, 20. · Shutlrnfski explained that. ifsomeone was. Wearing ah undershirt under the red thermal shirt or if the red thermal shirt,had. been washed the amount of DNA found on the shirt would be reduced. N.T. 8/19/10, p, 47.
Detective Fuhrman, an expert in fingerprint andpalm print analysis and .identlfication, testified during the trial, N.T: 8/19/10, pp. 52, 62; Exh. C-63. Detective Fuhrman testified as to the presence of Defendant's fingerprints and palm print, 'The defendant's fingerprints and palm print were found on the exterior passenger side of'the Jeep, to the left of the passenger door's handle. N.T, 8/19/10, pp. 83"86, 94-100; 103; Exhs, C-66, C,.69, The defendant's fingerprints were also found on the interior window ofthe Jeep's driver side door and on the frontright fender oftheBMW. N.T. 8/19/10, pp. Sl, 86-87, 9'.2-94, 100~101, lOJ; Exhs~ C-54, C.;55, C-56, C-65, C-67.
Defendant testified during the trial. N.T. 8119/10, pp. 157-201. Defendant denied killing Reil and stated that a ''Blo.od" gang member by the name of Corey Talley a.k.a, Corey Mills committed the murder and the following is the defendant's version ofthe events. N.T. 8/19/10, pp. 159, J63-64, 192. He said he was hanging cut at the 800 building, with Slater and his girlfriend drinking and smoking but they had to go to the hospltal becausetheir daughter got injured. RT. 8/19/10, pp. 1.65·66. He said he stayed behind and was drinking a beer when Mills approached him and told him he wanted to show him something. N.T. 8119/10, pp. 159--60., 166-67. Mills told him: that he stabbed someone while trying to rob him andshowed him the body that had fallen out of the white Jeep. N.T, 8/19/lO, pp. 160-61, 163. He checked the man's neck to see iflle was alive. N.T. 8/19/10, p. T6L Mill~ threatened to kill hi111 and his family if.he told anyone. N. T. 8/19110, p, J63. further, afterhe was threatened, he went to Slater's apartment building and told Slater in the laundry room about what had happened, N.T. 8/19/1 O,.pp . .167, 194-96. He said that Mills fellowedhim home that night and again threatened him. on his front porch. N.T; 8/19/l 0, pp. 168-70 .. Mills then took off his shirt and left it on the front porch. N.T. 8/19/10, p. 170; Exh, C- 32, On the night of his arrest he initially told police that Mills committed the \.,~. murder, butlater toldpolice he did it because he was scared for his safety and the
11 ·-·· ---- . -~ .-.--. ·--·-··..·---~-- . . . ·~·-· .,.,., .. · ····~ ;. ·
safety of his family, N.T. $/19/10, pp. 171-73. After the interview, the \.~.· interpreters did not go over his statement with him, but instead were playing on their phones. N:T. 8/19/10, p. 182. He was popping pills and high.during the interview. N. T. 8/19/10, pp. l89-90. During the recorded call from the prison, he was telling his uncle to get money and crack out ofthe bathroom. N.T. 8/19/10, p, 197; He admitted to seeingShawna Lynch the hight of the murder, but stated that he did not tell her that he was going to rob someone and she did not see him circle around the Jeep. N.T. 8119110, pp. 175~76. He confirmed that the day after the murder he was riding around the apartment complex on Mills' motorcycle. N.T, 8/19/10, pp. 177~79.
The following stipulations were placed on the record:
On January 12, 2009~ thedefendaru.Jamal Smith, was convicted of robbery on criminal information 7203. of 2008 for an incident that occurred in Bristol Township, Bucks County on July 8,2008. The robbery did notinvolve a weapon.
OnJanuary 11, 2008, the defendant, Jamal Smith, was convicted of a retail theft on criminal information 2] 35 of 2007 for an incident that occurred inTullytown Borough, Bucks County, Pennsylvania onDecember 16, 2006.
N.T. 8/19/10, pp. 205-06.
On August 20, 201 O; aftera four-day trial, the jury returned .a verdict of guilty on the charges .of Second-Degree Murder, Robbery,' and Possessing a Criminal . 2 . . . . • . _· .. Instrument. - N. T. 8/20/10, pp. 93M96.
Qn October 14, 2010, Defendant received a total sentence of life imprisonment without the possibly of parole .and a concurrent two and one half years to five years.in a state correctional facility. N.T. J0/14/lO, p. 25, Specifically, Defendant was sentenced to life imprisonment for Count 1 J the murder of John "Jack" Reil. N.T. 10/14/10, p. 25. Defendant received a concurrent sentence of two and one half years to five years for Counf3, Possessing a Criminal Instrument. N.T.1011411 O, p. 25. No further penalty was imposed for Count 2, Robbery.jisit.merged with Count 1. N.T~ 10/14/10, p; 25.
Trial Court Opinion, 6/10/1 i.
i J 8 Pa.C.S. § 370t(a)(l)(i) .. ..,,_ ~- 18 Ra,C.S. § 907(~).
··-··-----·-------------··-··-----··········· ·----- ........... ~ ·-~·--~·-·~ --~·-·. --·-·-. . ·. ~· _ . _ ,
No post-sentence motionswere filed. On October 15,2010, the-appellant filed a Notice
of Appeal to the Superior Court. On March 28, 2012, the Superior Court affirmed this Court's
judgment of sentence. On September 13, 2012, the Supreme Court of Pennsylvania denied the
appellant's Petition for Allowance of Appeal.
O.n March 4, 20 \3, the appellant filed a Motion to Amend Defendant's PCRA Petition.
On February 8, 2016, the appellant filed the Second Motion to Amend Defendant's PCRA
Petition, and PCRA hearings were held on February 9t 2016 and March 28, 2016. On April 1,
2016,the appellant's PCRA Petition was deriied, On April 7, 2016, the appellant filed a Notice
of Appeal to the Superior Court.
II. STATEMENT PURSUANT TO PA.:R.APP.PRO. 192S(c)(4)
The appellant relies on the following grounds for his.PCRA Petition:
[First.] the counsel was ineffective under the 6th and 14th Amendments to the United States Constitution, in Article 1, Section 9 of the Pennsylvania Constitution, for not presenting a defense based on the victim having tried to rob the defendant causing the defendant to use a knifein self-defense against the victim resulting in the victim's death.
[Second.] the counsel was ineffective under the 6th and l4tb Amendments to the United States Constitution, in Article 1, Section 9 of the Pennsylvania Constitution, for not discovering and not removing the influence of'the defendant's family, which exercised undue influence on the. defendant to avoid presenting a defense that he acted in.self-defense when hekilled the victim.
N.T. 2/9/16, pp. 9-10. It should be noted that.the issue with respect to suppression of the
appellant's staternentwaswithdrawn, N:T. 3/28/16, pp; 43, 53.
On April 15, 2016, the appellant's PCR.A counsel, Stuart Wikler, flied. a Statement
.Pursuant to Pa.RAP. 1925(c)(4) as follows, verbatim;
Pursuant to the Court order directing the tiling of'a statement pursuant to \......_. Pa.RApp.Pro, 1925(b), notice ishereby given Pursuant to Pa.R.App.Pro.
13 ............... -... ,-~---- .-·-~ .. ~ .. ; .. ."···---~- -...... ~· . . ..... ·._ ..... _._- ·-···
1925(c)(4) thatthe undersigned will be fillinga no meritletterand and petition to withdraw as counsel pursuant to Commonwealth v. Finley, 479 A.2d 568 (Pa .. Super. 1984) and its progeny with the Superior Court, andtherefore will not be filing a statement of matters complained of, due to the lack of any meritorious issues supporting the Defendant's appeal.
III. DISCUSSION
Pa.R,A.P. 1925(c)(4) permits counsel in a criminal case to file a statement of intent to
withdraw in lieu of filing a statement of matters complained of on appeal. Specifically the Rule
provides as follows:
Ina criminal case, counselmayfile.of record and serveonthejudge a statement ofintent to file an Anders!McClendon brief'in Heu of filing a Statement. If, upon review of the Anders/McClendon brief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court may remand forthe filing ofa Statement, a supplemental opinion pursuant to Rule 1925(a), or both. Upon remand, the trial court may, but is not-required to, replace appellant's counsel.
·;~- Pa,RA.P. l925(c)(4 ). The appellant's PCRA counsel of record filed such a statement of intent
under Rule 1925(¢)(4)J and weconcur thatno meritorious issuessupport.theappellant's appeal.
The standard of review regarding the dismissal ofa petition forpost-conviction relief'is
"whether the determination of the PCRA court is supported by evidence of record and is free of
legal error." Commonwealth. v. Burkett, 5 A.3d 1260, 1267 (PaSuper, Ct. 2010) (citations
omitted). "[The] scope of review is limited to. the findings of the PCRA court and the evidence
of record, viewed in thelightmost.favorable to the prevailingparty atthetriallevel." Id. The
Superior Court "may affirm a PCRA court's decision on any grounds if it is supported by the
record." Id: ''Where the petitioner raises questions oflaw,[theJ standard of review is de novo
·and [the] scope of review plenary." Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. Ct.
2012),
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To be eligible for PCRA relief, a petitioner must.plead and prove by a preponderance of
the. evidence that his et her conviction; or sentence resulted from one or more of the
circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). The Petitioner must also establishthat the
claims of error raised in the PCRA petition "[have] not been previously litigated or wai ved" and
that "the failure to litigate the issue prior to or during trial, during unitary review or on direct
appeal could not have been the result of any rational, strategic or tactical decision by counsel."
42 Pa.C.S. § 9543(a)(3) and (4). An issue has been waived "ff the petitioner could have raised it
but failed· to do so before trial, at trial, during unitary review, on appeal or in a prior state posq-
[conviction proceeding," 42 Pa.C.S. § 9544(b), An issue has been previously litigated jf "the
highest appellate court in which the petitioner could have had review as a matter of right has
ruled on the merits of the issue."42 Pa.C.S. § 9544(a)(2}.
Here, both claims of the appellant concern ineffective assistance of counsel. Claims
arising from ineffective assistance of counsel are cognizable under § 9543(a)(2)(ii) ofthe PCRA,
which requires the petitioner to "plead and. prove ... (t]hat the conviction or sentence resulted
from ... [ijneffective assistance of counsel which, in the circumstances ofthe particular case, so
undermined the truth-determining precessthatno reliable adjudication of guilt or innocence could have taken place."
To prevail in a claim of ineffective assistance-of counsel, a petitioner must overcome the presumption that counsel is effective by establishing a.11 of the following three .elements, as set forth in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76 (1987): (l) the underlying legal claim has arguable merit; (2) counsel had no. reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice because ofcounsel's ineffectiveness. With regard to the.second, reasonable basis prong; we do not question whether there were other mote logical courses of action which counsel could. have pursued; rather, we must examine whether counsel 's decisions bad any reasonable basis; We VJiU conclude that counsel's chosen strategy lacked a reasonable basis· only if Appellant proves that an alternative not chosen offered a potential for success substantially greater thanthe course actually pursued. To establish the third, prejudice prong, the
·-------·----·-·------- ,,., C ,-•"'•'" ' ............ ~ .. ·-. • -- .--- ' • • ...... ' • ...;.., __ ..;._•••••••• .. ;..·--..-,---•u• n-•""•- • '' · . .._
petitioner must show that there is a reasonable .probability that the outcome of the proceedings would have been different but for counsel's ineffectiveness.
Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (internal citations and quotations
omitted}.
During the PCRA hearing, theappellant provided a new version of the incident.
According to the-appellant, he waswalking on the street, and the victim came up to him,
brandished a knife and directed him to get in the car. N. T. 3/28/16, p. 20. The victim managed
to get money from.the appellant.who then tried to get his money back; N.T. 3128/16, p. 14.
After the victim stabbed, kicked and bit.the appellant, the appellant stabbed him, and the fight
continued. N.T. 3/28/16, pp, 14, 21. When the fight ended, the victim was "standing" "outside"
the car and "moving." N.T. 3/Q.8/16, p. 21.
The appellant claims that his counsel was "ineffective for not presenting a defense based
·~ on the victim having tried to rob him causing him to use a knife in self-defense against the victim
resulting in the victim's death." The appellant's claim fails because he did not present sufficient
evidence to satisfy the three requirements set forth in Pierce. The appellant voluntarily denied
the killing to his lawyers, and they were Unable to present such a defense. During the PCRA
hearing, the appellant admitted that he lied to thejury at trial:
BY MR SWEENEY:
Q.. Jamal, are you now admitting that you killed John Reil?
A Yeah, but.I didn't really mean to kin John Reil.
Q. Do you remembertestifyingin.the.jury trial back in 201 O?
A. Yes.
-Q Do you remember telling the jury that you did not kill John Rdl?
--··-----··---·-··--- - - ,,. ,··.., ·~ ._ ·- -._-.
Q, So when you told the jury that, that was a He?
A. Could you repeat that? Q. When you told the jury that you did not kill John Reil, was that a lie?
Q. Do you remember telling the jury that Cory Tally killed John ReH?
A. YeS:
Q. Whenyou told the jury that Cory Tally killed John Reil, was that the truth or was that a lie?
A. Alie, yes.
Q. .Do you remember telling thejury that Cory Tally threatened you and your family?
A. Yes. Q. And that, in fact, was also alie, correct'?
A Yes.
N.T. 3/28/16, pp. 40-41. When the appellant.was asked why he lied, he said, "I was scared."
N .T. 3/28/16~ p. 27. Before the pre-trial hearing, the appellant told Keith Williams, his trial
counsel, that Cory Tally killed the victim. N.T. 3/28/16, ~ .. .'30. Mr. Williams testified that the
appellant never admitted to: killing the victim. N .T. 3128/16, p . 48. Furthermore, Mr. Williams told the appellant that "the story that he told the police might.lead to a better-verdict," N.T.
3/28/16, p, 49... John Fioravanti, Jr., the appellant's co-counsel, testified that the appellantnever
adopted the statement he .gave tothe police, N.T .. 3/28/16, p. 63.
As demonstrated above, trial counsel had .a: reasonable basis not to present the defense
\._. asserted by the appellant during the PCRA hearing. Even if.counsel had presented such a
----··· .. ··- ..·· .... ·--------·--- defense, the outcome of the proceedings would _not have been differentdue.to the overwhelming \ .,">,,.,,,_•· evidence presented at trial. For example, Shawna Lynch, a resident of the Marion Village
Apartment.Complex, testified that in the early morning hours of July 81h of 2009, on the side of
800 building, the appellant stopped Lynch when she walked up, and told her that he was going to
rob ReH. N. T. 8/17110, pp. 199,,.200. During the trial, Dr. Hood described the eighteen stab
wounds and two scratches which were found on the victim's body. N.T. 8/18/10, pp. 158-59.
One stab wound penetrated fourinches into the lowerlobe of the victim's right lung and caused
it to collapse, N. T. 8/18/10, p.153; 'One stab wound went rhrou ghrhe bone and into the heart.
N .T. 8/18/1 Q, p. 153. However, the appellant testified during-the PCRA hearing that when the
fight ended, Reil was "standing" "outside" the car and "moving." N.T. 3/28/16, p. 21. Thus the
evidence supported the appellant's statement given to the police, but it contradicted the
appellants account given inthe PCRA hearing.
111e appellant next claims that his counsel was ineffective for not discovering and not
removing theundueinfluence ofhis family. According tothe appellant, his mother threatened
him and told him that.ifhe told the truth during trial, she would kill his kids. N.T. 3/28/16, p, 32.. Besides this alleged threat, he testified that his mother said she "could get the reward money" if
the appellant lied. N.T. 3/28/16, p. 31. He testified that his mother also told him not to say
anything when she visited the appellant at prison. 'N.T. 3/28/l6, P .. 36. No evidence was
presented to support these bald assertions, Thus, without more, the appellant' s underlying claim
is meritless.
According to Mr. Williams, although the appellant'smother did- net.believe that her son
killed the victim and might have influenced-her son because of'this belief she "tried to be as
cooperative as she could be underthe circumstances," N.T. 3/28/16, p. 51, Moreover, when the ·,.........
18 ,, ...... ·, .•. ··.. · .... • . . . . . ----· .. ---·.•• . ~ ·"'. ~ ··-···-. --·-·---~.. .;-~--' ..... _
r appellant met with his Iawyers with his mother present, she did not tell the appellant what to say ' ""·-···· at.trial. N.T. 3/28116, p. 49. However, when the appellant met with his lawyer? alone, he still
failed to admh to killing the victim. N.T. 3/28/16, p. 42.
IV. CONCLUSION
For the foregoing reasons, we respectfully submit that the issues raised are without merit, and therefore, the appeal should be denied;
DATE: · ·vflt.tu /II . · rr' · / o2, o It,,, BYTHE COURT,
Com. v. Smith, J. (Com. v. Smith, J.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.