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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
JAMAR STAMPS
Appellant : No. 1030 EDA 2016
Appeal from the PCRA Order March 4, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010438-2009, CP-51-CR-0010439-2009, CP-51-CR-0010440-2009
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY BOWES, J.: FILED JUNE 22, 2018
Jamar Stamps appeals from the order that dismissed his petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We affirm.
The underlying facts of this case are as follows.
On July 24, 2009, Eric Jones was working as a plumber in the Raymond Rosen Manor Homes, a Philadelphia Housing Authority development located on the 2000 block of North Judson Street. At approximately 1:30 p.m., Mr. Jones went outside to look for a part so that he could complete his assignment inside one of the houses on that block. When he came outside, he noticed a red truck in the middle of the street. Mr. Jones walked behind the truck, stepped into the middle of the street with his back facing the truck, and asked another Housing Authority employee at the corner of Judson and Diamond Streets whether a garbage disposal unit was available from the maintenance office. Hearing two gunshots very close to him, Mr. Jones turned and saw an arm extended outside the passenger window of the red truck. The passenger pointed and fired a semi -automatic handgun at
* Retired Senior Judge Assigned to the Superior Court. J -S02015-18
Gregory Smith, who was approximately ten to twelve feet away from the passenger's right side.
As the shooter fired an additional five to six times, Mr. Jones saw smoke coming out of the gun. Having been shot in the chest a couple of times, Mr. Smith spun around and fell to the ground. Still, the passenger continued to fire his gun. When the shooting stopped, the truck drove the wrong direction on the one-way street. Mr. Jones ran down the street to find Housing Authority police. When he returned to the scene, Philadelphia police officers had already arrived.
Police Officers Dominic Mathis, Kevin Overton, Kenneth Emmett, and Joseph Caruso were on summer beat patrol in this high crime area. As they stood on the southeast corner of Judson and Norris Streets, they also heard several gunshots coming from one block away. Hearing those gunshots, Officers Overton, Emmett, and Caruso ran north on Judson Street. As they headed in that direction, they saw a bright red Ford pickup truck with tinted windows speed past them, going south on Judson Street. Looking through the truck's front windshield, Officers Mathis and Caruso saw two black men inside the truck and noticed that the front passenger was larger than the driver. The passenger weighed approximately 200 to 250 pounds. The truck then turned right and headed westbound on Norris Street.
When Officers Overton, Emmett, and Caruso arrived at the shooting scene, they encountered a frantic crowd of people who were yelling, screaming or running into their homes or onto their porches. They found Mr. Smith lying on the sidewalk in front of 2056 North Judson Street. . .As the other officers tried to .
control the crowd, several people started yelling, "Get the red truck. Get the red truck. Get the guys in the red truck." Officer Overton placed this information about a red truck over police radio. . .After Mr. Smith was taken to the hospital, Officers .
Overton, Emmett, and Caruso secured the crime scene and found fired cartridge casings in that area. They also attempted to find eyewitnesses, but no one was willing to cooperate.
While Officers Overton, Emmett, and Caruso tended to the gunshot victim, controlled the crowd, and preserved the crime scene, Officer Mathis ran after the red truck, which was travelling westbound on Norris Street toward 25th Street. When Officer Mathis lost sight of the truck at 25th and Norris Streets, he alerted
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other officers of a red Ford truck with license plate YYD2101 and asked police travelling in that area to stop the truck. Officer Shanna Moore was travelling in the area of 29th and Diamond Streets when she heard Officer Mathis' description of the truck over police radio. Minutes later, she saw a red truck matching this description on the 2500 block of Page Street, a small street between Norris and Diamond Streets, and signaled for the truck to stop. It did not stop, and Officer Moore gave chase. During this pursuit, the truck disregarded stop signs and traffic signals and drove in the wrong direction on many one-way streets.
The truck slowed down on the 1600 block of Natrona Street, where Officer Moore observed the passenger exiting the vehicle. Officer Moore informed other officers of the passenger's exit over police radio and described the passenger as a "black male, light- complected [sic], approximately 6'3", 300 pounds, [wearing] tan pants, white shirt." She could not tell which direction the passenger fled because he was still standing on the street when she continued to follow the truck. As she continued to pursue the truck, Officer Moore continued to inform the other responding officers of her location and progress over police radio. The truck essentially drove in a circle and returned to the 1700 block of Natrona Street, about one block from where the passenger exited the truck. When the truck stopped, the driver exited on the 1700 block of Natrona Street. The truck crashed into a parked vehicle and was later held by other responding officers for investigation. [The driver, co-defendant King, was ultimately caught and arrested after a chase.]
After co-defendant King's arrest, Officer Moore met Officer Ivan Rosado who helped search for the passenger in the surrounding area. Based on information Officer Rosado received from construction workers near Natrona and Turner Streets, he and Officer Moore walked south on Natrona Street toward Turner Street. Within seconds, Officer Moore observed the passenger standing on the corner using a cell phone. She pointed toward the intersection of Natrona and Turner Streets and yelled, "There he is . . That's him, that's him." Officers Moore and Rosado . .
then chased the man down the 3200 block of Turner Street, but they lost sight of him.
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Dawn Cheatham, a resident on the 3200 block of Turner Street, had earlier observed a police vehicle following the red truck as it drove in the wrong direction on Natrona Street, going toward Oxford Street. About five to ten minutes later, Ms. Cheatham saw an unknown man walking back and forth on her block. Appearing to be fidgety, the man approached and asked her if he could use her bathroom. As she told him no, police were coming around the corner. The man, later identified as [Appellant], walked past her and entered her home, where her sixty -year -old mother and eleven -year -old son were found.
As Officer Rosado turned the corner, he saw Ms. Cheatham and two other women waving and yelling at him. When he and Officer Moore reached 3219 Turner Street, Ms. Cheatham told them that an unknown large black male had run into her home without permission. As they tried to open the locked door, Officer Moore heard screaming from inside the home. Officer Rosado kicked open Ms. Cheatham's door to gain entry, and found Ms. Cheatham's mother and son inside the house. Ms. Cheatham's mother appeared upset, and her son was crying and asking for help. Officers Moore and Rosado found [Appellant] standing inside the back bedroom.
They arrested [Appellant] and took him outside. For safety reasons, Officer Rosado searched the immediate area where [Appellant] stood in the back bedroom. No gun was recovered from that room or from [Appellant's] person. [Appellant's] cell phone was confiscated by Officer Moore. Due to [Appellant's] large size, he was transported in a police wagon.
At approximately 5:20 p.m., Officer Christopher Reed arrived and processed the shooting scene, collecting and photographing evidence. . .
Officer Reed recovered nine fired cartridge casings and four bullet fragments from the scene. . [He also recovered a wool . .
hat with eye holes cut into it near where Mr. Smith was shot.]
After surveying the crime scene, Detective Domenic went to the 1700 block of Natrona Street, where the truck crashed. Detective Domenic examined the truck's interior and exterior. There was no indication that the truck had been shot at because
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it had no bullet holes. Detective Domenic lifted two fingerprints from the exterior passenger door and three fingerprints from the interior passenger door of the red Ford F-250 pickup truck. On September 11, 2009, he submitted five fingerprint cards to Patrick Reytik, a latent fingerprint examiner from the Records and Identification Unit, and requested a comparison of those fingerprints to those obtained from co-defendant King and [Appellant]. At trial, Mr. Reytik concluded with a reasonable degree of scientific certainty that one fingerprint from the interior passenger door was co-defendant King's right thumb. The remaining four fingerprints were unidentifiable due to smudges and partial fingerprints.
Detective Domenic also recovered two photographs from the truck, one of which was printed on July 22, 2009 and depicted the victim, Gregory Smith, with his two brothers. . On October . .
12, 2009, that photograph was submitted to Mr. Reytik for comparison and identification. Two fingerprints on the back right side of the photograph were identified as co-defendant King's left index finger and left thumb. One fingerprint toward the back center of the photograph was identified as co-defendant King's left thumb. Mr. Reytik was unable to identify any other fingerprints on the photograph due to smudges and partial fingerprints.
PCRA Court Opinion, 5/3/17, at 2-7 (citations omitted).
Upon this evidence, Appellant was convicted of and sentenced for, inter
alia, the attempted murder of Gregory Smith. Our Supreme Court denied his
petition for allowance of appeal after this Court affirmed in part and vacated
in part his judgment of sentence. Commonwealth v. Stamps, 47 A.3d 1244 (Pa.Super. 2012) (unpublished memorandum) (vacating conviction for fleeing
and separate sentence for aggravated assault; affirming in all other respects),
appeal denied, 49 A.3d 443 (Pa. 2012).
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Appellant timely filed a pro se PCRA petition, counsel was appointed, an
amended petition was filed, new counsel entered an appearance, and a
supplemental amended petition was filed. The PCRA court thereafter issued
notice of its intent to dismiss Appellant's petition without a hearing based upon
lack of merit. Appellant filed a response highlighting, inter a/ia, the issues he
argues in this appeal. The PCRA court dismissed Appellant's petition by order
of March 4, 2016. Appellant filed a timely notice of appeal, and both Appellant
and the trial court complied with Pa.R.A.P. 1925.
Appellant presents this Court with the following claims of error.
[1.] Trial counsel performed deficiently for not seeking pre-trial DNA testing on the wool cap and for not consulting with [Appellant] regarding the possibility of conducting pre-trial DNA testing on the wool cap. The PCRA erred in holding otherwise and in not granting DNA testing and the funds to pursue such testing so [Appellant] could develop additional facts to prove prejudice[.]
[2.] Trial counsel performed deficiently for not retaining an independent fingerprint examiner to examine the four allegedly unidentified fingerprints lifted from the interior and exterior of the red truck's passenger side door and for not consulting with [Appellant] regarding the possibility of retaining a fingerprint examiner to examine the four allegedly unidentified fingerprints. The PCRA erred in holding otherwise and in not granting access to the fingerprints and the funds to retain an independent fingerprint examiner so [Appellant] could develop additional facts to prove prejudice[.]
Appellant's brief at 5.
Our standard of review is whether the PCRA court's decision is free of
legal error and supported by the record. Commonwealth v. Rivera - Figueroa, 174 A.3d 674, 677 (Pa.Super. 2017).
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As Appellant contends his trial counsel rendered constitutionally -
deficient representation, the following principles apply.
It is well -established that counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves all of the following: (1) the underlying legal claim is of arguable merit; (2) counsel's action or inaction lacked any objectively reasonable basis designed to effectuate his client's interest; and (3) prejudice, to the effect that there was a reasonable probability of a different outcome if not for counsel's error. The PCRA court may deny an ineffectiveness claim if the petitioner's evidence fails to meet a single one of these prongs. Because courts must presume that counsel was effective, it is the petitioner's burden to prove otherwise.
Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018) (citations and quotation marks omitted).
We first consider whether the PCRA court erred in concluding that
Appellant is entitled to no relief on his claim that trial counsel was ineffective
in failing to obtain DNA testing of the wool cap that was found at the crime
scene. Appellant contends that the claim has arguable merit because the
identity of the passenger/second gunman was at issue and that counsel lacked
a reasonable basis for foregoing testing or consulting with Appellant about
whether to test. Appellant's brief at 24-32. Further, Appellant maintains that
he requires DNA testing of the cap in order to prove that he was prejudiced
by counsel's deficient performance. Id. at 35-36. Appellant's arguments are largely based upon our Supreme Court's
decision in Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006).
However, an examination of the differences between the facts of that case
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and those herein reveals that the PCRA court properly determined that
Appellant's claim lacks merit.
In Williams, the victim was raped four times in her apartment before
her attacker attempted to kill her by shooting her in the head and slashing her
neck. However, the victim survived because the gun would not fire and the
neck wounds were not fatal. The victim identified the defendant Williams,
whom she had known for nearly a year as the boyfriend of one of her friends,
as her attacker. She identified Williams to the bystander who found her
running down the street bleeding immediately following the attack; she
identified him to police; and she "remained steadfast in her identification of
[Williams] throughout the trial." Id. at 1062.
The Commonwealth offered no physical evidence implicating Williams.
Williams testified that he was elsewhere at the time in question. He also
offered the alibi testimony of his girlfriend, as well as evidence that the victim
had been threatened by her boyfriend with a razor on a prior occasion.
Nonetheless, the jury convicted Williams of, inter alia, rape and attempted
homicide. Id. Williams filed a PCRA petition claiming that his trial counsel was
ineffective "for failing to request DNA testing to show [Williams's] blood did
not match the semen specimens from the vaginal swab, the victim's clothing,
and the victim's bedding." Id. The PCRA court dismissed the petition without
a hearing, determining that it was a waste of money to conduct a test to
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"further prove the identity of" Williams as the perpetrator. This Court affirmed
on the basis that the victim's identification of Williams was "both credible and
unchallenged." Id. at 1063. Our Supreme Court rejected this analysis, noting
that Williams did indeed challenge identification at trial by offering an alibi
defense. Further, because identification was an issue, it found arguable merit
to the claim that counsel was ineffective in failing "to pursue evidence which
may have challenged the victim's identification." Id. at 1064. Acknowledging
that Williams would be unable to prove that he was prejudiced by counsel's
ineffectiveness without obtaining DNA testing, the Court held that the testing
should take place if Williams was able to prove that counsel lacked a
reasonable basis for choosing not to test the DNA evidence. Id. at 1065-66. In addressing the question of reasonable basis, the Court offered the
following discussion of "the dilemma that the two-edged sword of definitive
testing poses for trial counsel." Id. at 1064.
It is easy to say that failing to pursue exculpatory evidence isineffectiveness, but this presumes the evidence will indeed be exculpatory. If counsel were sure the accused's DNA would not be revealed in any relevant samples from the victim or scene, certainly testing would give exculpatory results and should be sought. However, the client's mere claim of innocence or alibi does not always settle the question; effectiveness of counsel is not dependent on accepting the candor of the client. Testing that shows the DNA matches suddenly makes a conviction -one that might have been avoided or less than certain -a sure thing.
That is, subjecting a client to DNA testing is very likely to settle whether there will be a conviction or not. It can demolish the prosecution's case, but it can cast it in concrete as well. It can eliminate the potential of a "not guilty" verdict based on an alibi, or on reasonable doubt, and the less compelling the
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Commonwealth's case, the less compelling is the desire for pre- trial DNA testing. Not seeking testing that has the potential to convict a client may be a very reasonable strategy; strategy is not measured through hindsight against alternatives not pursued, so long as trial counsel had a reasonable basis for the decision made.
Appellant did not claim any affirmative defense (e.g., consent), and there is no record of more than one semen donor; appellant argues the absence of these factors and his self- proclaimed innocence show trial counsel did not have a reasonable basis for not seeking DNA testing. However, counsel knew the victim immediately and repeatedly identified appellant as her attacker. The victim had known appellant eight or nine months prior to the incident, seeing him nearly every day during that period. The possibility she was correct in her identification was significant, yet the absence of physical corroboration gave the defense the chance for a not guilty verdict. Was it ineffectiveness to forgo the risk of creating that corroboration?
Id. at 1064-65 (citation omitted). The Court determined that the answer to
that question could not "readily be answered from the record," and thus
remanded for an evidentiary hearing to address "the nature of [Williams's]
alleged request for DNA testing" as well as "counsel's response to that
request." Id. at 1065.
Based upon the fact that the only semen obtained from the victim was
that of her attacker, Williams presented the rare exception to the general
rule that "an absence of evidence is not evidence of absence."
Commonwealth v. Heilman, 867 A.2d 542, 547 (Pa.Super. 2005). In that case, evidence that the semen belonged to anyone other than Williams would
establish that he, in fact, was not the attacker.
The instant case falls within the general rule, not the exception. There
was no suggestion by anyone at trial that the wool cap in question was worn
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by the passenger in the red truck. Accordingly, finding the DNA of someone
other than Appellant on that item would do absolutely nothing to challenge
the identification of Appellant as that passenger. Counsel here was not
presented with the dilemma faced by Williams's trial attorney, as a "favorable"
result to DNA testing would not "demolish the prosecution's case" or in any
way exculpate Appellant. On the other hand, an unfavorable result would
provide physical corroboration to what was a far less iron -clad identification
than that at issue in Williams.
Contrasting the circumstances of Williams with the underlying facts of
the case sub judice, we conclude that Appellant has failed to allege facts that
would establish any of the three prongs of the ineffectiveness test. He has
not shown that the issue has arguable merit because, since the hat was in no
way associated with identification of the passenger, DNA testing would do
nothing to challenge that identification. Similarly, even assuming that testing,
if done, would reveal that Appellant's DNA was not on the hat and someone
else's was, Appellant cannot show that he was prejudiced by counsel's failure
to obtain those results because they cast no additional doubt on his
identification. Finally, unlike in Williams, counsel's basis for failing to obtain
the test in this case is readily apparent from the record. Counsel used the
Commonwealth's failure to test the hat to Appellant's benefit, arguing that the
lead detective on the case ignored "independent, objective, neutral evidence"
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arrested Appellant. Appellant's brief at 28 (citing N.T. Trial, 4/26/10, at 212-
13). Given that there was nothing to gain and everything to lose by actually
testing the hat, the record shows that counsel had a reasonable basis for
opting not to do so and instead using the absence of testing to attempt to sow
another seed of doubt. Therefore, Appellant has not met his burden of
convincing this Court that the PCRA erred in dismissing his DNA claim.
Appellant's second claim, that counsel was ineffective in not obtaining a
fingerprint expert, fails for similar reasons. At trial, the Commonwealth's
fingerprint expert discussed five fingerprints taken from the passenger door
of the truck. One matched co-defendant King, and the others were
unidentifiable. Hence, because the fingerprint evidence played no part in the
Commonwealth's case against Appellant, testimony that the unidentified
prints belonged to someone other than Appellant would not undermine the
prosecution's case.
In contrast to Williams, where only the semen of the attacker was
present and the absence of Williams's semen would show his innocence, the
absence of fingerprint evidence against Appellant in this case would not prove
that Appellant was not the second shooter. Heilman, supra at 546 (holding
forensic testing to show the presence of another man's semen was not
warranted where "the victim was a prostitute and the semen could have been
deposited by anyone"). Hence, the claim lacks arguable merit.
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Along the same lines, Appellant cannot establish prejudice because even
if he obtained an expert to testify that the recovered prints did not belong to
Appellant, that testimony would have no negative impact on the
Commonwealth's identification evidence. Moreover, we agree with the PCRA
court that, since the Commonwealth's fingerprint expert did not inculpate
Appellant and "an additional analysis on the fingerprints ran the risk of
inculpating" him, it is apparent from the record that counsel had a reasonable
basis for not seeking an expert of his own. PCRA Court Opinion, 5/3/17, at
11. Therefore, Appellant has failed to allege facts that would establish any of
the prongs of counsel's ineffectiveness.
Appellant has not persuaded us that the PCRA court erred in determining
without a hearing that his DNA and fingerprint -expert claims lacked merit.
Accordingly, we affirm the order dismissing his petition.
Order affirmed.
Judgment Entered.
J seph D. Seletyn, Prothonotary
Date: 6/22/18
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