J-S16039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : YUSEF WASHINGTON, : : Appellant : No. 1012 EDA 2018
Appeal from the PCRA Order March 16, 2018 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008855-2008
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: April 30, 2020
Yusef Washington (“Washington”) appeals from the Order denying his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
In a prior appeal, this Court set forth the relevant history of this case as
follows:
[On t]he morning of June 7, 2006, there were two rival gangs located in the area of 11th and Warnock Streets, Philadelphia. [Washington], Braheem Burke [(“Burke”)] and Rachman Jenkins [(“Jenkins”)] were in one [group], while Eric Carter (“Carter”) and Keith McClain [(“McClain”)] belonged to a second one. Jenkins and McClain started to argue when Burke sucker-punched Carter while Carter was speaking on his cell phone with his friend, Niall Saracini [(“Saracini”)]. A police car passed the area, and the two rival groups ceased their fight. Carter and McClain then left the area and walked to Carter’s home, where they told [] Carter’s brother, Charles Carter (Carter and
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1 42 Pa.C.S.A. §§ 9541-9546. J-S16039-20
Charles Carter collectively referred to as “the Carters”), about the incident.
Carter and McClain, accompanied by Charles Carter, then returned to the area of 11th and Warnock Streets. Meanwhile, Saracini, who had been on the cell phone with [Carter] when [Carter] was punched, arrived at the scene in a[ Chevrolet] Impala. The Carters and McClain intended to engage in a fistfight with the opposing [group]. To that end, [] Carter punched Jenkins. In response, [Washington] and Burke each pulled out a gun and began to fire shots at the Carters and Saracini, who were all located near the Impala, and also at McClain, who was fleeing.
Charles Carter was shot in the head and died the following day. Saracini, who also died, was shot in the back of the neck, left shoulder blade, upper right back, and left arm. The wounds in his back were fired from a distance of two to three feet. [] Carter remained unwounded as he hid in the Impala, which was bullet ridden. McClain, who survived, was shot once.
[] Carter testified at trial and stated that no one in his group was armed. While [Carter] refused to identify [Washington] and Burke as the shooters at trial, his preliminary hearing testimony [identifying Washington] and Burke as the perpetrators of the shooting was presented at trial, as was an identical, verbatim statement [that Carter] gave to police immediately following the incident. Philadelphia Detective Michael Walter established that [Washington] fled the jurisdiction after the murders. For several months, the entire Philadelphia [P]olice [D]epartment searched for [Washington] in the Philadelphia area, to no avail. Area newspapers contained articles indicating that [Washington] was a fugitive and asking for assistance in locating him. Almost two years after the crimes, on April 12, 2008, [Washington] was arrested in North Carolina.
Based on this proof, [Washington] was convicted of first- degree murder in connection with the deaths of Charles Carter and [] Saracini[,] … [the] aggravated assault of [] Carter and []
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McClain[,] as well as conspiracy and possession of an instrument of crime….[2, 3]
Commonwealth v. Washington, 62 A.3d 462 (Pa. Super. 2012)
(unpublished memorandum at 1-3) (footnotes added). The trial court
imposed the mandatory sentence of life in prison. This Court subsequently
affirmed Washington’s judgment of sentence, after which the Pennsylvania
Supreme Court denied allowance of appeal. See id. (unpublished
memorandum at 9), appeal denied, 69 A.3d 602 (Pa. 2013).
On April 7, 2014, Washington filed a timely, pro se, PCRA Petition. The
PCRA court appointed counsel, who filed an Amended PCRA Petition and
Supplements to the Amended PCRA Petition. Following the issuance of a
Pa.R.Crim.P. 907 Notice to Washington, who filed responses to the Notice, the
PCRA court denied the Petition without an evidentiary hearing. Thereafter,
Washington filed the instant timely appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Washington presents the following claims for our review:
[1. Whether] Kevin Smith’s (“Smith”) and Larry Polk’s (“Polk”) statements and non-identifications of [] Washington either constitute newly-discovered facts or [whether] trial counsel [was ineffective for] fail[ing] to identify, interview, and present their observations and non-identifications at [] Washington’s trial[?] ____________________________________________
2 See 18 Pa.C.S.A. §§ 2502(a), 2702, 903, 901.
3In September 2008, a jury convicted Burke of two counts of third-degree murder and possession of an instrument of a crime. See 18 Pa.C.S.A. §§ 2502(c), 907.
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[2. Whether] [t]rial counsel was ineffective for failing to develop and present photographic evidence to the jury undermining [] Carter’s unrecorded interrogation statement[?]
[3. Whether] [t]rial counsel was ineffective for not requesting a Kloiber[4] instruction[?]
[4. Whether] [t]he cumulative impact of trial counsel’s errors rendered [] Washington’s trial fundamentally unfair[?]
[5. Whether] [t]rial counsel was ineffective for misrepresenting the plea negotiations to [] Washington[?]
[6. Whether] [t]he PCRA court erred by not granting an evidentiary hearing[?]
Brief for Appellant at 3 (footnote added).
As our Supreme Court has directed,
[u]pon reviewing an order in a PCRA matter, we must determine whether the findings of the PCRA court are supported by the record and whether the court’s legal conclusions are free from error. The findings of the PCRA court and the evidence of record are viewed in a light most favorable to the prevailing party. The PCRA court’s credibility determinations, when supported by the record, are binding; however, this court applies a de novo standard of review to the PCRA court’s legal conclusions. We must keep in mind that the petitioner has the burden of persuading this Court that the PCRA court erred and that such error requires relief. Finally, this Court may affirm a valid judgment or order for any reason appearing of record.
Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations
omitted).
4 See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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Washington first argues that the PCRA court improperly rejected his
claim of newly-discovered evidence, which was based upon the eyewitness
accounts of the incident by Smith and Polk. Brief for Appellant at 27.
According to Washington, Smith and Polk came forward shortly after seeing
an “Investigation Notice” posted in the neighborhood in 2016. Id. at 28. Both
told PCRA counsel that they would have testified at Washington’s trial, had
they been interviewed and subpoenaed. Id. at 28. In this regard, Washington
includes a claim of ineffective assistance of trial counsel for not interviewing
and subpoenaing Smith and Polk for trial. Id.
Washington explains that at trial, Carter and McClain both testified that
they had observed Washington at the corner of Warnock and Louden Streets
immediately before the shooting. Id. at 28. Neither Carson nor McClain saw
Washington with a gun or firing a weapon. Id. However, the Commonwealth
impeached both witnesses with their prior statements and testimony. Id. at
28-29. Washington contends that the testimony of Polk and Smith, under this
scenario, would have been relevant and exculpatory. Id. at 29.
Under the PCRA,
where a petition is otherwise timely, to prevail on an after- discovered evidence claim for relief under [42 Pa.C.S.A. §] 9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory evidence has been discovered after trial and could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a different verdict. Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806, 823 (Pa. 2004); see [Commonwealth v.] Cox, 146 A.3d [221,] 227-28 [(Pa. Super. 2016) ([stating that] “[o]nce
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jurisdiction has been properly invoked, … the relevant inquiry becomes whether the claim is cognizable under [Section 9543] of the PCRA.”).
Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (citation omitted).
In its Opinion, the PCRA court addressed Washington’s claim and
concluded that it lacks merit. See PCRA Court Opinion, 3/25/19, at 7. We
agree with the sound reasoning of the PCRA court, as set forth in its Opinion,
and affirm on this basis with regard to Washington’s first claim. See id.
We next address Washington’s related claim of ineffective assistance of
trial counsel. Washington claims that his trial counsel rendered ineffective
assistance by not interviewing, and presenting as trial witnesses, Polk and
Smith. Brief for Appellant at 38. Washington argues that the
Commonwealth’s case was dependent upon the credibility of the
eyewitnesses. Id. at 39. Washington argues in his brief that
the Commonwealth tasked the jury with deciding between the unrecorded interrogation statements and trial testimony of [] Carter, [] McClain, and Rasheed Ali [(“Ali”)]. Consequently, the jury had to determine which of t[hem] presented as more credible and believable. The Commonwealth forcefully and repeatedly argued that their unrecorded interrogation statements were more credible and presented the truth.
Id. According to Washington, the Commonwealth’s intentions were
foreseeable, based upon the way in which the testimony proceeded at Burke’s
trial. Id. Washington asserts that trial counsel “had a duty to pursue avenues
of investigation that could [ha]ve potentially produced evidence calling into
question the credibility and veracity of [the witnesses’] unrecorded
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statements.” Id. at 40. Washington argues that “trial counsel should [ha]ve,
at the very least, knocked on several more doors to see if anyone saw
anything.” Id. at 42.
To prove that counsel was ineffective, a petitioner must demonstrate
that (1) the underlying legal issue has arguable merit; (2) counsel’s actions
lacked an objective reasonable basis; and (3) he was prejudiced by counsel’s
act or omission. Commonwealth v. Cousar, 154 A.3d 287, 296-97 (Pa.
2017). The failure to prove any prong of this test will defeat an ineffectiveness
claim. Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).
Moreover, to establish ineffectiveness of counsel based on the failure to
call a witness, a petitioner must show that (1) the witness existed; (2) the
witness was available to testify for the defense at trial; (3) counsel knew of,
or should have known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the witness’ testimony
was so prejudicial as to have denied the petitioner a fair
trial. Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008).
In its Opinion, the PCRA court concluded that Washington failed to
establish this ineffectiveness claim:
[A]t no point does [Washington] attempt to prove that these witnesses were available, wanted to come forward and would have been willing to testify. Furthermore, [Washington] does not address whether counsel had a strategic decision in not calling these witnesses, nor does [Washington] address how the calling of these witnesses would have, with reasonable likelihood, changed the outcome of trial. Accordingly, this claim lacks merit.
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PCRA Court Opinion, 3/25/19, at 9. Our review of the record confirms the
PCRA court’s analysis and conclusion. See id.
In addition, we conclude that Washington failed to establish that counsel
lacked a reasonable basis for not subpoenaing or interviewing Polk and Smith:
Mere conclusory allegations, without some proffer as to what counsel would say in response to the allegations[,] are insufficient to establish entitlement to relief. Thus, a supporting document from counsel stating his reasons for the course chosen is generally necessary to establish potential entitlement to a hearing. See, e.g., Pa.R.Crim.P. 902(A)(12)(b) ([stating that a] PCRA petition shall contain facts supporting each ground for relief; if supporting facts do not appear of record[,] “affidavits, documents and other evidence showing such facts” [should] be identified).
* * *
… Although [the Supreme] Court has dismissed claims of ineffectiveness where [the] appellant has not provided counsel’s affidavit, we have indicated we may overlook the failure where appellant adequately explains why he did not submit it. See Commonwealth v. Marshall, []571 Pa. 289, 812 A.2d 539, 547-48 (Pa. 2002) ([stating that a] significant factor in finding [that] appellant did not establish [that] prior counsel had no reasonable basis for inaction was appellant’s failure to provide [an] affidavit, or explanation as to why he was unable to procure [an] affidavit).
Cousar, 154 A.3d at 300.
Here, Washington failed to establish that counsel lacked a reasonable
basis for inaction or explain why he was unable to procure an affidavit from
counsel. See id. For this reason, and for the reasons set forth in the PCRA
court’s Opinion, we cannot grant Washington relief on this claim. See id.;
see also Commonwealth v. Birdsong, 650 A.2d 26, 32 (Pa. 1994) (stating
that to establish ineffective assistance of counsel, the appellant must
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demonstrate, not just allege, that counsel had no reasonable basis for his or
her conduct).
In his second claim, Washington asserts that his trial counsel rendered
ineffective assistance by not developing and presenting photographic evidence
to the jury undermining Carter’s unrecorded interrogation statement. Brief
for Appellant at 50. In support, Washington argues the following:
At trial, [Carter] testified that he crawled under the Impala when the shooting began[,] and then crawled into the Impala. [Carter] testified, though, [that] he didn’t look at the gunmen when he was under the Impala, and even if he had, he would’ve been unable to see the gunmen because of where and how he was positioned under the Impala. The Commonwealth, however, introduced his [prior] statement where he claimed [that] he had an unobstructed view of the gunmen and he saw [] Washington and [] Burke shooting.
Id. According to Washington, counsel should have obtained a 2004 Impala,
parked in its exact location at the time of the shooting, crawled under the
vehicle, and taken pictures capturing Carter’s field of vision. Id. at 50-51.
Once again, to support his ineffectiveness claim, Washington baldly
asserts that counsel had no reasonable basis for not taking such photographs
and presenting them at trial. Washington fails to demonstrate counsel’s lack
of a reasonable basis beyond bald assertions. Because such claims are not
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self-proving, we cannot grant him relief on this claim.5 See Cousar, 154 A.3d
at 300; Birdsong, 650 A.2d at 32.
In his third claim, Washington argues that trial counsel rendered
ineffective assistance by not requesting a Kloiber instruction. Brief for
Appellant at 61. Washington contends that at trial, Carter, Ali and McClain
each testified that they did not see the gunmen at the time of the shooting.
Id. Washington states that, in response, the Commonwealth presented the
three witnesses’ prior statements identifying Washington as the gunman. Id.
According to Washington, he “was entitled to a Kloiber instruction informing
the jury that it had to view the three in-court identifications with caution
because of [the witnesses’] failure and/or refusal to identify Washington
during their trial testimony.” Id. On this basis, Washington argues that his
trial counsel rendered ineffective assistance by not requesting a Kloiber
instruction. Id.
“A Kloiber charge is appropriate where there are special identification
concerns: a witness did not have the opportunity to clearly view the
defendant, equivocated in his identification of a defendant, or had difficulty
making an identification in the past.” Commonwealth v. Reid, 99 A.3d 427,
448 (Pa. 2014) (citations omitted).
5 Even if Washington had established that counsel lacked a reasonable basis for not taking such photographs, we would conclude that the claim lacks arguable merit, for the reasons set forth in the PCRA court’s Opinion. See PCRA Court Opinion, 3/25/19, at 10-11.
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Our case law makes clear that the need for a Kloiber charge focuses on the ability of a witness to identify the defendant. Our Commonwealth’s decisional law has long held that prior inconsistent statements based upon fear of endangerment do not equate to a prior failure of ability to identify a defendant.
Id. at 449 (citations omitted). “Unlike the typical Kloiber situation, where
there is a damaging in-court identification of the accused, the same type of
concerns are not present where a witness declines to identify the defendant
in court.” Commonwealth v. Sanders, 42 A.3d 325, 335 (Pa. Super. 2012).
As Washington acknowledges in his brief, the three witnesses each
testified that they did not see the gunmen, “either because they were hiding
in or under a car or running away from the shooting ….” Brief for Appellant at
61. Because the witnesses provided no in-court identification, a Kloiber
instruction was not warranted. See id. Consequently, there is no arguable
merit to Washington’s underlying claim and his claim of ineffective assistance
of counsel fails. See Cousar, 154 A.3d at 296-97; Fears, 86 A.3d at 804.
In his fourth claim, Washington argues that cumulative prejudice caused
by counsel’s errors rendered his trial fundamentally unfair. Brief for Appellant
at 64. However, Washington’s cumulative prejudice claim is predicated on the
prior claims of ineffective assistance of counsel. See id. Because we
concluded that those claims lack merit, Washington’s claim of cumulative
prejudice cannot be sustained.
In his fifth claim, Washington claims that trial counsel rendered
ineffective assistance by misrepresenting the plea negotiations to Washington.
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Id. According to Washington, the Commonwealth offered to drop the first-
degree murder charges in exchange for Washington tendering a guilty plea to
two counts of third-degree murder. Id. The Commonwealth further agreed
not to seek a sentence of life in prison. Id. Washington asserts that he asked
trial counsel to make a counteroffer. Id. The counteroffer would have
required the Commonwealth to join plea counsel in requesting that the two
third-degree murder sentences be imposed concurrently. Id. According to
Washington, counsel represented that the prosecutor checked with her
supervisor and rejected the counteroffer. Id. at 65-66. However, Washington
claims that at an unrecorded sidebar, it became apparent that his counsel
never tendered the counteroffer to the Commonwealth. Id. at 66.
Washington argues that trial counsel’s misrepresentation deprived him of the
opportunity to consider and accept the original plea offer. Id. Washington
claims that the PCRA court improperly denied him an evidentiary hearing to
develop this claim. Id. at 67. Washington directs our attention to the United
States Supreme Court’s decision in Lafler v. Cooper, 566 U.S. 156 (2012),
to support his claim. Brief for Appellant at 67.
In its Opinion, the PCRA court addressed this claim, and concluded that
it lacks merit. See PCRA Court Opinion, 3/25/19, at 12. We agree with the
sound reasoning of the PCRA court and affirm on this basis with regard to
Washington’s fifth claim. See id.
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Finally, in his sixth claim, Washington argues that the PCRA court
improperly denied his PCRA Petition without an evidentiary hearing. Brief for
Appellant at 68. Washington’s claim relies upon the allegations raised in his
prior issues. See id. Because we conclude that his prior claims lack merit,
we discern no abuse of discretion by the PCRA court in not conducting an
evidentiary hearing. See Pa.R.Crim.P. 907(1) (stating that “[i]f the judge is
satisfied from … review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-conviction collateral
relief, and no purpose would be served by any further proceedings, [after
giving notice of its intent to dismiss,] the judge thereafter shall order the
petition dismissed[.]”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/30/20
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e IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COMMONW.EALTH OF PENNSYLVANIA CP-51-CR-0008855-2008
v.
YUSEF WASHINGTON, Appellant
OPINION OF THE COURT
Appellant, Yusef Washington, appeals from this Court's denial of relief pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa. C.S.A. §9541 et seq. For the reasons set forth below,
this Court's Order denying relief should be affirmed.
From May 3, 2010 through May 13, 2010, Appellant was tried in a jury trial before this
Court. At the conclusion of the trial, the jury found Appellant guilty of two counts of First
Degree Murder, Aggravated Assault, Conspiracy and related offenses for the June 7, 2006
killings of Charles Carter and Niall Saracini and the wounding of Keith McClain near Warnock
and Louden Streets in Philadelphia.
On October 22, 2010, this Court sentenced Appellant to life imprisonment for each
murder, and concurrent terms of 10-20 year terms of imprisonment for aggravated assault and
conspiracy, and 1-2 years for possessing an instrument of crime. Timely post sentence motions
were filed and denied. A timely appeal was filed. On October 22, 2012, the Superior Court
affirmed the judgment. On July 2, 2013, the Supreme Court denied allocatur.
On April 7, 2014, Appellant timely filed a pro se PCRA petition. Current counsel entered
his appearance on November 8, 2014. On May 1, 2017, Appellant filed an amended PCRA
petition. On January 18, 2018, Appellant filed a supplement to his amended PCRA petition. The
Commonwealth filed a Motion to Dismiss. Subsequently, after reviewing the pleadings, the record and the law, and after complying with the procedural requirements of Pa.R.Crim. P. 907,
this Court denied the petition as meritless without granting a hearing. The instant timely appeal
followed.
The facts as found by the jury as fact finder can be summarized as follows: Police Officer
Stanley Davis testified that at approximately 12:35 P.M. on June 7, 2006 while in an unmarked
vehicle he heard gunshots and saw pigeons flying. He drove around the corner to 4800 Warnock
Street and saw a male lying on the sidewalk suffering from a gunshot wound to his forehead. He
also saw a silver Impala pulling away from the scene. Eventually, the officer together with other
marked vehicles stopped the Impala. In that car was another gunshot victim who appeared to be
shot in the neck. The officer also observed bullet holes in the driver's side of the car. N.T.
5/5/10, 44-59.
Police Sergeant Edward Schikel processed the scene, which was the intersection of
Warnock and Louden Streets. He found eight (8) .9 millimeter fired cartridge casings near a
cement barrier. In another location he found a cluster of .380 fired cartridge casings. He also
collected various projectiles and pieces of projectiles, as well as a baseball cap with what
appeared to be a bullet hole and a sample from what appeared to be a blood stain on the
pavement. N.T. 5/5/10, 68-114.
Thomas Bunting testified that at the time of the incident he was at 11th and Louden
Streets delivering beer to a deli. He saw two groups of males totaling approximately seven (7)
people arguing and fighting. One of the males was sucker punched in the face. Eventually the
altercation ended. One group went towards Warnock Street and the other group which included
the male who sucker punched the other went towards Broad Street. Approximately ten (10)
minutes later three men came back from the Broad Street side and were continuing towards
2 Warnock Street. They were dressed differently from the men who previously left going towards
Broad Street. About a minute or two later he heard gunfire and called 9-1-1. N.T. 5/5/10, 131-
147.
Rasheed Ali, who was incarcerated at the time he testified after being convicted of
numerous violent felonies, testified that he was the owner of the Impala and had loaned the car to
Niall Saracini earlier that. He further testified that later that day he needed the car back and went
to 11th and Louden where the car was parked and heard gunshots. Charles Carter and Niall
Saracini were shot. He put Saracini into the Impala and drove towards Einstein Hospital. Before
the jury he denied any further involvement in the incident. However in prior sworn testimony
given on September 22, 2008 and in a prior verbatim statement given to police on June 7, 20061,
he stated that when he came upon the scene he saw two people shooting into his car. When they
stopped shooting the shooters ran up Warnock Street towards Rockland Street. Mr. Ali ran
towards his car and saw the two victims. He tried to put Carter into his car but the victim was
bleeding too badly. He was able to get Saracini into the car and drove towards Einstein Hospital.
In his police statement Ali identified photographs of Appellant and Appellant's cousin, Braheem
Burke as the shooters. N.T. 5/5/10, 161-220; 5/6/10, 5-26.
The medical examiner testified that both victims died from gunshot wounds. Specifically
Carter received two gunshot wounds. The fatal wound entered his forehead and exited the back
of the head. He also received a shrapnel type injury to the back of his right arm which was
consistent with a bullet passing through a car door. Saracini received a gunshot wound through
his neck. He also received a gunshot wound to his shoulder blade and another to his back in
I The jury properly was instructed under what circumstances it may consider evidence of prior testimony and prior verbatim statements as substantive evidence. N.T. 5/12/10, 132-134.
3 which the bullets were recovered. He also had two gunshot wounds through his arms. He died
from these multiple gunshot wounds. N.T. 5/6/10, 118-140.
Eric Carter testified that he knew Appellant and his cousin, Braheem Burke, whom he
called "Newsy." On the day of the shooting the witness was with his cousin, Keith McClain2
and a third person named Ty. The witness and his "brothers' were part of a group that
congregated at 11th and Louden Streets. Appellant and Newsy were part of a group that
congregated on Warnock Street. Shortly before the shooting the groups met and an argument
ensued between Keith and one of Appellant's cousins. The witness observed the argument and
called Niall Saracini. The witness then became involved in a fistfight with Newsy. Police came
to the neighborhood and the fight broke up. The groups separated: Appellant's group went
towards Warnock Street and the witness' group went towards 13th Street. The witness' group
later went back towards the scene of the eventual shooting and saw Niall Saracini drive up in the
Impala. Charles Carter got into the car. The witness kept walking towards Warnock Street and
saw Appellant and his group on the corner. As the groups met, the witness punched a member of
Appellant's group named Rachman. The witness further testified that shots then rang out and the
witness jumped in the car with the two victims. The witness and members of his group were
unarmed. In his testimony he gave no further details about the incident. However in prior
testimony and in a verbatim statement given to police a few hours after the shooting the witness
provided further details. Specifically he stated that his initial encounter with Newsy was that
Newsy sucker punched 3 him. He also stated that he saw the shooting and identified both
Appellant and Newsy as the shooters. N.T. 5/10/10, 12-79.
2 The witness was Charles Carter's brother. During his testimony he also referred to the second decedent and to Keith McClain as his brothers also. 3 Carter used the word "snuck."
4 Keith McClain also testified. He testified that he also received a gunshot wound that
Appellant and Newsy were present at the scene of the shooting, but the witness denied seeing
who fired the shots. In his verbatim statement given to police and in prior testimony the witness
said that Newsy pointing a black revolver. N.T. 5/11/10, 7-75; 117-131 (Testimony of Detective
Fetters).
Detective Michael Walter testified to Appellant's flight from the jurisdiction following
the murder. A warrant for Appellant's arrest was obtained on June 8, 2006. Over the next few
weeks and months police went to various locations looking for Appellant with negative results.
Surveillances were conducted with negative results. Wanted posters were prepared and
distributed to police throughout the city with negative results. Newspapers ran stories about
Appellant being a fugitive and requested the public's assistance in locating Appellant. On April
12, 2008, almost two years after the arrest warrant was obtained and about a month after the last
public plea for help published in the Daily News, Appellant was arrested in North Carolina.
Forensic Scientist Gamal Emira examined the clothing taken from the decedent Niall
Saracini. He observed two bullet holes in the back shoulder area of a shirt. He was able to
determine the presence of gunpowder particles around the holes which indicated that the muzzle
of the gun was within two to three feet of the shirt when fired. N.T. 5/10/10, 171-201.
Firearms Examiner Kenneth Lay examined twenty-eight (28) items of ballistic evidence.
The fired cartridge casings were from two distinct guns; a .9 millimeter and a .380. The
evidence was consistent with the shooters moving either towards or away from a target. Bullets
recovered from the car were fired from a .380. Another bullet fragment was recovered which
was consistent with being fired from a revolver. Six bullet jackets were recovered which also
were consistent with being fired from a revolver.
5 In Appellant's instant petition, Appellant raised six claims for consideration. Appellant's
first claim is a claim that after discovered evidence serves as a basis for a new trial. Appellant's
next five claims are claims of ineffective assistance of counsel. Appellant's first ineffective
assistance of counsel claim is a claim that counsel was ineffective for failure to interview the
residents of the 4800 block of Warnock Street. Appellant's second ineffective assistance of
counsel claim is a claim that counsel was ineffective for failure to present evidence to the jury
undermining Eric Carter's statement. Appellant's third ineffective assistance of counsel claim is
a claim that counsel was ineffective for failure to request a Kloiber instruction. Appellant's
fourth ineffective assistance of counsel claim is a claim for cumulative prejudice. Appellant's
final claim for ineffective assistance of counsel is a claim that counsel was ineffective for
misrepresenting a plea offer. We will address each claim individually in the order in which they
were presented.
Appellant's first claim is a claim involving after-discovered evidence. The after-
discovered evidence Appellant alleged warranted a hearing involved statements made by two
individuals, Larry Polk and Kevin Smith. The substance of these statements involved the
following: Both stated they saw Appellant without a gun immediately before and after the
shooting and neither saw him shooting at anyone. Appellant claimed the statements provided by
these two individuals, if heard by the jury, would have likely resulted in a different verdict. As a
result, Appellant believed these statements should qualify as admissible after-discovered
evidence, which should result in at least an evidentiary hearing. However, Appellant is
misguided.
In order for after-discovered evidence to be the basis for a new trial, four elements must
be met. After discovered evidence must: (I) be discovered after trial and could not have been
6 obtained any sooner by the exercise of reasonable diligence; (2) not be merely corroborative or
cumulative; (3) not be used solely for impeachment purposes; and (4) be of such a nature and
character that a different verdict will likely result if a new trial is granted. Commonwealth v.
Johnson, 841 A.2d 136, 140-141 (Pa. Super. 2003). Appellant has failed to meet all of the
required factors.
In Appellant's instant petition, Appellant makes no reference to being able to meet the
first factor. Appellant preemptively assumed they would not be able to meet this standard due to
the fact Appellant has not provided any reasoning as to why these statements could not have
been obtained before trial. Appellant, instead, indicated that his ineffective assistance of counsel"
claim for failure to adequately investigate might be the appropriate place for this argument to
potentially be discussed. However, that is not an adequate argument to meet the first element of
the test set forth in Johnson.
Furthermore, Appellant has failed to meet either the second or fourth factor of the test.
Appellant claimed, "Polk's and Smith's observations actually corroborate what Eric and
McClain testified to at trial." Petition, 24-25. As such, this would be considered evidence that is
merely corroborative or cumulative and not grounds for a new trial. In addition, Appellant does
not discuss how this evidence would likely alter the outcome of the trial. Neither of these two
individuals stated that Appellant did not or could not shoot the victim, nor was there any
explanation given as to why these witnesses have not come forward in the past 11 years.
Accordingly, this claim lacks merit.
Appellant's next five claims are claims in which Appellant alleged ineffective assistance
of counsel. "Ineffective assistance of counsel is a mixed question of law and fact that we
4 Significantly Appellant does not claim that counsel lacked a reasonable basis for not pursuing the evidence and provides no analysis to demonstrate how, if at all, he may have been prejudiced by not pursuing this information.
7 review de novo." United States v. Blaylock, 20 F.3d 1458, 1464-65 (1994). The United States
Supreme Court in Strickland v. Washington, 466 U.S. 668, 685 (1984), stated, "[t]he
Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic
elements of a fair trial largely through the several provisions of the Sixth Amendment including
the Counsel Clause." The Supreme Court also stated, "[t]hat a person who happens to be a
lawyer is present at trial alongside the accused, however, is not enough to satisfy the
constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel
because it envisions counsel's playing a role that is critical to the ability of the adversarial system
to produce just results. An accused is entitled to be assisted by an attorney, whether retained or
appointed, who plays the role necessary to ensure that the trial is fair." Id. As a result, the
Supreme Court has acknowledged that the right to counsel is the right to effective counsel. Id. at
686. The law presumes that counsel was effective and, therefore Appellant has the burden to
show that counsel was ineffective. Commonwealth v. Baker, 614 A.2d 663, 673 (Pa. 1993).
Counsel is presumed effective and Appellant bore the burden of proving that counsel
provided ineffective assistance of counsel. Commonwealth v. Rivers. 786 A.2d. 923 (Pa. 2000).
The Strickland Court set out a test where a defendant would have to show that (1) his attorney's
performance was unreasonable under prevailing professional standards and (2) that there is a
reasonable probability that but for counsel's unprofessional errors; the result would have been
different. Strickland v. Washington at 687-690. In reviewing the PCRA, the Pennsylvania
Supreme Court, in Commonwealth v. Douglas, 645 A.2d 226, 230 (Pa. 1994), stated, "[t]o
prevail on such a claim, Appellant must demonstrate that (1) the underlying claim is of arguable
merit; (2) counsel's course of conduct was without a reasonable basis designed to effectuate his
interest; and (3) that he was prejudiced by counsel's ineffectiveness." To show prejudice
8 Appellant must establish that, but for counsel's errors, the outcome of the trial would have been
different. Commonwealth v. Bond, 819 A.2d 33, 42 (Pa. 2002). Appellant's failure to satisfy all
the prongs of the test should result in the dismissal of the ineffective counsel claim.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
"Allegations of the deprivation of the right to effective representation of counsel are not
self-sustaining, The burden of proof of the allegations remains with the claimant, their accuracy
still to be established by his submission of relevant proofs." Com. v. Hentosh, 554 A.2d 20, 24
(Pa. 1989). Without the submission of relevant proofs supporting the claim of ineffectiveness,
summary rejection of the claim is warranted. Id. at 25. If a defendant fails to demonstrate that
counsel's act or omission had an adverse effect on the outcome of the proceedings, the
ineffectiveness claim should be dismissed on that basis alone, and the court need not first
determine whether the defendant has satisfied the first and second prongs of the test.
Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998).
To be entitled to an evidentiary hearing on a claim of ineffectiveness, a defendant must
"set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing
court can conclude ... counsel may have, in fact, been ineffective." Commonwealth v. Priovolos,
715 A.2d 420, 422 (Pa. 1998) (quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.
1981)).
Appellant's first ineffective assistance of counsel claim is a claim that counsel was
ineffective for not finding Larry Polk and Kevin Smith. "[T]o succeed on a claim of trial
counsel's ineffectiveness for failure to call a witness, the appellant must show: (1) that the
witness existed; (2) that the witness was available; (3) that counsel was informed of the existence
of the witness or should have known of the witness's existence; (4) that the witness was prepared
9 to cooperate and would have testified on appellant's behalf; and (5) that the absence of the
testimony prejudiced appellant.'' Fulton, 830 A.2d at 572.
Appellant has failed to provide evidence in order to meet this standard. At no point does
Appellant attempt to prove that these witnesses were available, wanted to come forward and
would have been willing to testify. Furthermore, Appellant does not address whether counsel had
a strategic decision in not calling these witnesses, nor does Appellant address how the calling of
these witnesses would have, with reasonable likelihood, changed the outcome of trial.
Appellant's second ineffective assistance of counsel claim is a claim that counsel was
ineffective for not taking a photo from under the car to demonstrate what someone could see
from that angle. One of the witnesses who testified at trial, Eric Carter, testified to watching the
incident from underneath a Chevrolet Impala. Appellant claimed counsel was ineffective for not
renting a 2004 Impala, parking it in the exact location where it was parked during the shooting,
crawling under the car, and taking a quality photo to present to the jury while cross examining
Eric Carter at trial. Appellant believed this would impeach Eric Carter's statement in which he
claimed "that he could see [Appellant] and [ co-defendant] shooting while hiding under the
Impala." Petition, 32. However, Appellant is misguided.
Appellant provided a photo in his instant petition depicting, what he believed to be, the
viewpoint Eric Carter had during the shooting. However, Appellant has not provided any
evidence the photograph provided accurately represents the viewpoint of the witness during the
shooting. Instead, Appellant has used a viewpoint that is favorable for Appellant's argument
without confirming it to be accurate. As such, this photograph provided by Appellant is
extremely speculative, as would any photograph taken by an investigator hired by counsel.
10 Therefore, Appellant is asking for inadmissible, speculative evidence to be used as grounds for a
new trial. Trial counsel cannot be found ineffective for not presenting inadmissible evidence.
Commonwealth v. Harris, 703 A.2d 441, 450 (Pa. 1997). Accordingly, this claim lacks merit.
Appellant's third ineffective assistance of counsel claim is a claim that counsel was
ineffective for not requesting an instruction pursuant to Commonwealth v. Kloiber, 106 A.2d 820
(Pa. 1954) regarding three witnesses' identification testimony. A Kloiber charge instructs the
jury that an eyewitness' identification should be viewed with caution where the eyewitness: (1)
did not have an opportunity to clearly view the defendant; (2) equivocated on the identification
of the defendant; or (3) had a problem making an identification in the past." Commonwealth v.
Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008). Appellant cites Commonwealth v. Sanders, 42
A.3d 325, 334 (Pa. Super. 2012), which states, "It is settled that in-court identification evidence
must be received with caution if the witness in his testimony or at prior times was not positive as
to the identity of the defendant." Petition, 36. However, Appellant is misguided in its application
to his case.
Kloiber instructions are to be given when a jury needs to be alerted to the fact that "a
witness might be physically incapable of making a reliable observation." Commonwealth v.
Collins, 70 A.3d 1245, 1255 (Pa. Super. 2013). Appellant is using the witnesses' refusal to
cooperate in court as if it is the same as a physical ability to observe, which it unequivocally is
not. Appellant has not met any of the three factors that would trigger a Kloiber instruction,
Appellant's fourth ineffective assistance of counsel claim is a claim of cumulative error.
Appellant is combining the prior three ineffective assistance of counsel claims in order to make
the claim of cumulative error. However, the Pennsylvania Supreme Court stated, "this Court has
11 repeatedly held, no number of failed claims may collectively warrant relief if they fail to do so
individually." Commonwealth v. Williams, 896, A.2d 523, 548 (Pa. 2006). Therefore, as
indicated above, since the three prior ineffective assistance of counsel claims lack merit,
Appellant cannot successfully bring a cumulative error claim. Accordingly, this claim lacks
merit.
Appellant's fifth ineffective assistance of counsel claim is a claim that counsel was
ineffective for misrepresenting a plea offer. Appellant claimed counsel told him that he would
check with the prosecution about a counter-offer to a plea offer, yet testimony indicated counsel
told the prosecution a counter-offer would not be worth pursuing with a supervisor. Appellant
claimed this is evidence that counsel misrepresented the plea negotiations; therefore, a new trial
or an evidentiary hearing is warranted. However, Appellant is misguided.
In an effort to prove his claim, Appellant cites Lafler v. Cooper, 566 U.S. 156, 163
(2012), which states:
"Appellant ''must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in the light of intervening circumstances, that the comt would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and the sentence that in fact were imposed."
However, Appellant does not offer evidence in order to prove the requirements set forth in
Lafler. Appellant does not present an offer of proof that would demonstrate the Commonwealth's
willingness to change its offer. When it comes to getting an evidentiary hearing through the
PCRA, it is Appellant's job to support his claims with specificity and to support those claims
with proffers of evidence. Commonwealth v. Miner, 44 A.3d 684 (Pa. Super. 2012).
12 For the reasons set forth above, the Order denying PCRA relief should be affirmed.