State v. Matthews

• Court: Superior Court of Delaware
• Decided: January 3, 2023
• Docket: 1806004163
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) C.A. No.: 1806004163 v. ) ) SHAHEED MATTHEWS, ) ) Defendant. )

Date Submitted: October 20, 2022 Date Decided: January 3, 2023

Opinion and Order Upon Consideration of Defendant’s Pro Se Motion for Postconviction Relief DENIED.

Matthew Bloom, Deputy Attorney General, Delaware Department of Justice, 820 N. French Street, 7th Floor, Wilmington, Delaware 19801.

Shaheed Matthews, Pro Se Defendant, SBI No.: 00617849, James T. Vaughn Correctional Facility, Smyrna, Delaware 19977.

Jones, J. INTRODUCTION A Superior Court grand jury indicted Shaheed Matthews in connection with

the death of Antoine Terry, charging him with Murder First Degree, Possession of a

Firearm During the Commission of a Felony (“PFDCF”), Possession of a Firearm

by a Person Prohibited (“PFBPP”), and Purchase of Ammunition by a Person

Prohibited (“PABPP”). The State later nolle prossed the PABPP charge1 and

severed the person-prohibited charges for separate trials.2

The case against Mr. Matthews proceeded to a jury trial on the Murder First

Degree and PFDCF charges in April 2019.3 The jury convicted Mr. Matthews of

both counts.4 Following the verdict, the Court held a bench trial on the severed

PFBPP charge and found Mr. Matthews guilty.5 The Court sentenced Mr. Matthews

to life plus three years in prison on July 1, 2019.6

Mr. Matthews filed this pro se motion for postconviction relief on November

3, 2021. Mr. Matthews raises four grounds for relief based on ineffective assistance

of trial counsel: (1) his counsel failed to motion the State to disclose pole camera

footage and failed to examine the footage for exculpatory evidence; (2) against his

wishes, his counsel allowed the severance of the PFBPP charge from the Murder

1 See Docket Item (“D.I.”) 19, Superior Court Criminal Docket for Case No. 1806004163. 2 See Superior Court Criminal Docket for Case No. 1712016447. 3 See D.I. 72. 4 See id. 5 See D.I. 75. 6 See D.I. 87 (Sentence Order).

2 First Degree and PFDCF charges; (3) his counsel failed to call Detective Joshuah

Smith as a witness; and (4) his counsel failed to file a motion to suppress the search

and seizure of his cell phone and failed to raise the issue at trial for presentation on

appeal. Additionally, Mr. Matthews raises two grounds for relief based on

ineffective assistance of appellate counsel: (1) his counsel failed to raise

prosecutorial misconduct; and (2) his counsel failed to raise an objection to the

introduction of a reenactment video depicting the shooting. For the reasons stated

below, Mr. Matthews’ motion for postconviction relief is DENIED.

FACTUAL BACKGROUND

The Delaware Supreme Court summarized the underlying facts of this case

in its decision on direct appeal:

At 10:42 p.m. on December 27, 2017, a resident of Briarcliff Drive in New Castle reported gunshots to police. Briarcliff Drive runs parallel to Parma Avenue, where [Antoine Terry] was eventually found. Around the same time, a Parma Avenue resident called police to report being awakened by three or four gunshots and saw from his window a large person in a grey or black hoodie pointing or extending their arm. At 12:25 a.m. on December 28, police responded to a report of someone lying on the ground on Parma Avenue. Police found Antoine Terry unresponsive with multiple gunshot wounds in the area of 245 Parma Avenue. He died from his injuries.

. . . Mr. Terry was friends with Shaheed Matthews, who stayed at 227 Parma Avenue with his girlfriend, Devon Johnson. On December 27, 2017, the evening of the

3 shooting, Mr. Terry, Mr. Matthews, and Ms. Johnson exchanged text messages. Mr. Terry asked Mr. Matthews if he wanted him to “come to his crib.” Mr. Matthews and Ms. Johnson were at home. Mr. Terry, Mr. Matthews, and Ms. Johnson spent the evening together at Ms. Johnson’s house watching basketball. Ms. Johnson testified that Mr. Terry and Mr. Matthews left her house around 10:30 p.m., but she was upstairs at the time and did not see them leave. Around the time of the first report of gunshots, Mr. Matthews called Ms. Johnson and asked her to pick him up at a church around the corner from her house.

. . . Video cameras from the neighborhood showed two people leave 227 Parma Avenue at about 10:38 p.m., walk towards 245 Parma Avenue, stop, and fight. A video showed one man run away while the second man chased him, fired several shots, and then ran away. A video also showed that one of the two people walking out of 227 Parma Avenue appeared to be wearing a white hood and was the same person being chased by the second man firing shots. When police found Mr. Terry, he was wearing a black puffy jacket, white hood, white pants, and pants around his knees.

. . . The police interviewed Mr. Matthews on December 28, 2017. He first denied having a cell phone, then admitted he had one, but he gave police the wrong number. Mr. Matthews eventually surrendered his cell phone to police. The police recovered internet search history and a text message thread from Mr. Matthews’ cell phone revealing that he was looking to purchase a firearm just days prior to the fatal shooting on December 27, 2017.

. . . The State’s ballistics report was inconclusive as to the specific type of firearm used to kill Mr. Terry. The police did not recover the murder weapon. The jacket police seized from Mr. Matthews when they arrested him tested

4 positive for gunshot residue on the right cuff.7

PROCEDURAL HISTORY

Mr. Matthews appealed his conviction to the Delaware Supreme Court.8 On

appeal, Mr. Matthews challenged the admission of internet searches and text

messages extracted from his cell phone that suggested he was shopping for a firearm

in the days leading up to the murder.9 He reasoned the evidence was irrelevant

because the State failed to establish a nexus between the possible purchase and the

actual gun used in the murder.10 The Supreme Court rejected this argument, finding

the evidence relevant “to show Matthews’ motive and plan to kill Terry.”11 The

Court affirmed the judgment on November 9, 202012 and issued its mandate on

December 2, 2020.13 Mr. Matthews timely filed this, his first motion for

postconviction relief pursuant to Superior Court Criminal Rule 61, on November 3,

2021. The Court offered Mr. Matthews postconviction counsel for this proceeding.

Mr. Matthews specifically requested to proceed pro se in response.14

Under Rule 61(g)(2) and Horne v. State,15 the Court directed both trial and

appellate counsel to submit affidavits to be considered as part of the record. As

7 Matthews v. State, 2020 WL 6557577, at *1-2 (Del. Nov. 9, 2020). 8 See id. at *2. 9 See id. 10 See id. 11 See id. at *3. 12 See id. 13 See D.I. 100. 14 See D.I. 104. 15 887 A.2d 973, 975 (Del. 2005).

5 contemplated by Rule 61(f)(1)16 and (g)(3),17 the Court directed the State to respond,

and, consistent with Rule 61(f)(3) and (g)(3), the Court gave Mr. Matthews leave to

reply to the lawyers’ and the State’s submissions. Former trial counsel filed an

affidavit on May 23, 2022,18 and former appellate counsel filed his affidavit on

August 4, 2022.19 The State filed a response on August 26, 2022. Mr. Matthews

replied via handwritten memorandum on October 20, 2022.

STANDARD OF REVIEW

Before addressing the merits of any postconviction claim, the Court must first

determine whether the claims pass through the procedural filters of Rule 61.20 This

Court will not address the substantive aspects of Mr. Matthews’ claims if the claims

are procedurally barred.21 Rule 61 imposes four procedural requirements on Mr.

Matthews’ motion: (1) the motion must be filed within one year of a final order of

conviction; (2) any basis for relief must have been previously asserted in any prior

postconviction proceedings; (3) any basis for relief must have been asserted at trial

or on direct appeal as required by court rules; and (4) any basis for relief must not

have been formerly adjudicated in any proceeding. Under Rule 61(i)(5), a defendant

may avoid the first three procedural imperatives if the claim is jurisdictional or is a

16 Super. Ct. Crim. R. 61(f)(1). 17 Super. Ct. Crim. R. 61(g)(3). 18 See D.I. 110 (Hereinafter “Trial Counsel Aff.”, May 23, 2022). 19 See D.I. 111 (Hereinafter “Appellate Counsel Aff.”, Aug. 4, 2022). 20 See Younger v. State, 580 A.2d 552, 554 (Del. 1990) (“This Court applies the rules governing procedural requirements before giving consideration to the merits of the underlying claim for postconviction relief.”). 21 See id.

6 “colorable claim that there was a miscarriage of justice because of a constitutional

violation.”22 Further, challenges based on ineffective assistance of counsel may only

be raised during a defendant’s first Rule 61 proceeding.23 Upon review, the Court is

satisfied Mr. Matthews’ motion is timely and procedurally proper.

Ineffective assistance of counsel claims are governed by the two-prong test

set forth in Strickland v. Washington.24 The Strickland test requires the defendant to

prove “counsel’s representation fell below an objective standard of reasonableness”

and “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”25 Evaluating

counsel’s conduct begins with a “strong presumption” the representation was

reasonable.26 This presumption is meant to avoid the “distorting effects of

hindsight.”27

ANALYSIS

As noted supra, Mr. Matthews presents six (6) arguments in support of his

motion for postconviction relief. The Court will take each in turn.

A. The Ineffective Assistance Claims Against Trial Counsel

22 Super. Ct. Crim. R. 61(i)(5). 23 See Wing v. State, 690 A.2d 921, 923 (Del. 1996). 24 See Albury v. State, 551 A.2d 53 (Del. 1988). 25 Strickland v. Washington, 466 U.S. 668, 688 (1984). Per Strickland, the Court is to begin its analysis under the strong presumption that the conduct of defense counsel constituted sound trial strategy. See id. at 689. 26 Albury, 551 A.2d at 59. 27 Id. at 60. The Strickland Court explained that an error by trial counsel, even if professionally unreasonable, does not warrant setting aside the judgment of conviction if the error had no effect on the judgment. See Strickland, 466 U.S. at 691.

7 a. Trial Counsel Did Not Fail to Disclose or Investigate the Pole-Camera Video

Mr. Matthews first claims his trial counsel was ineffective for failing to share

a pole-camera video with him before trial and not investigating the video further.28

At trial, the State submitted Mr. Terry’s shooting occurred outside 241 Parma

Avenue, between the intersection of Ms. Johnson’s residence at 227 Parma Avenue

and Bizarre Drive. To corroborate this claim, the State introduced footage from: (1)

a home surveillance camera at 19 Briarcliff Drive, which captured the area in front

of Ms. Johnson’s residence; (2) a home surveillance camera at 241 Parma Avenue,

which captured the shooting from behind; and (3) a New Castle County Police pole

camera, which captured the intersection of Parma Avenue and Bizarre Drive.29

All told, the 19 Briarcliff footage showed two people30 exit Ms. Johnson’s

residence and walk southeast on Parma Avenue towards Bizarre Drive.31

Approximately seven seconds later, the 241 Parma video captured someone chasing

Mr. Terry on Parma Avenue, shooting him, and fleeing in a northeasterly direction.32

A few minutes after the shooting, Mr. Matthews called Ms. Johnson and asked her

28 See D.I. 101. Mr. Matthews’ filing is a single docket entry, but consists of three documents: a cover letter, a motion on the form provided by the Court, and a handwritten memorandum of law in support of the motion. Mr. Matthews explains all his grounds for postconviction relief in the supporting memorandum. Thus, when citing to Mr. Matthews’ arguments, the Court will refer to the memorandum using the abbreviation “Matthews Mem.” 29 See Trial Tr. 27-29, Apr. 10, 2019. 30 The footage allegedly depicted Mr. Matthews and Mr. Terry. 31 See Trial Tr. 18-23, Apr. 10, 2019. 32 See Trial Tr. 19-23, Apr. 10, 2019.

8 to pick him up at a church a few blocks northeast of the shooting scene.33

Subsequently, the 19 Briarcliff camera captured one person (apparently Ms.

Johnson) leave Ms. Johnson’s residence.34 Ms. Johnson’s vehicle then traveled

toward the church.

Ms. Johnson testified she picked up Mr. Matthews at the church and took him

to the home of his sister, Channelle Brooks.35 After visiting with Ms. Brooks, Ms.

Johnson stated she and Mr. Matthews returned to the Parma Avenue residence

together.36 According to Ms. Johnson, Ms. Brooks’ car was parked in front of the

Parma Avenue residence when they arrived at Parma Avenue.37

Ms. Brooks, however, told police a different story. According to her version

of events, she parked her car in front of her residence and Ms. Johnson dropped off

Mr. Matthews to borrow it.

Ultimately, the pole-camera footage captured Ms. Johnson’s vehicle turn into

the Parma Avenue residence at 11:31 p.m.38 Twenty-six minutes later, the camera

depicted Ms. Brooks’s vehicle turn into Parma Avenue at 11:57 p.m.39 The State

interpreted the video as showing Ms. Johnson and Mr. Matthews return to the

33 See Trial Tr. 121-22, Apr. 10, 2019. 34 See Trial Tr. 24-25, Apr. 10, 2019. 35 See Trial Tr. 137, Apr. 10, 2019. 36 See Trial Tr. 139-40, Apr. 10, 2019. 37 See id. 38 See Trial Tr. 30, Apr. 10, 2019. 39 See id.

9 residence at different times in different cars, thereby corroborating Ms. Brooks’s

statement to police.40 At trial, the State argued this discrepancy in testimony was

one of several instances in which Ms. Johnson attempted to mislead investigators.41

Mr. Matthews, unsurprisingly, has a different view of the facts. He claims the

pole-camera video is a “zoomed in version” of the footage and the unaltered video

would have revealed: (1) he returned with Ms. Johnson in her vehicle, consistent

with her testimony, and (2) his clothing did not match the clothing worn by the

shooter.42 If trial counsel had shared the unedited video with him prior to trial, Mr.

Matthews submits he could have excluded a separate reenactment video of the

shooting,43 had the charges against him dismissed for failure to prove identity, and

“raised serious questions of malicious prosecution.”44

Upon careful review, the Court is satisfied trial counsel did not perform

deficiently in this regard. For one, trial counsel obtained the video in discovery,

reviewed it with Mr. Matthews, and investigated Mr. Matthews’ version of events.45

Indeed, trial counsel received “special permission” from the Department of

Corrections to bring a laptop into prison so he could review the video with Mr.

40 See Trial Tr. 31-32, Apr. 15, 2019. 41 See Trial Tr. 25-32, Apr. 15, 2019. 42 Matthews Mem. at 3-4. 43 The Court will address the merits of Mr. Matthews’ claims related to the reenactment video later in this opinion. 44 Matthews Mem. at 3. 45 See Trial Counsel Aff. at 1-2.

10 Matthews.46 He even went so far as to dispatch an Office of Defense Services

investigator to explore the information Mr. Matthews provided about what occurred

the night of the shooting.47

Further, Mr. Matthews produced no evidence to support the allegation the

video was “zoomed in.” To be sure, the pole-camera video provided limited

coverage and the State concedes the footage was isolated for the purpose of creating

trial exhibits. Mr. Matthews, however, has failed to prove the video was otherwise

edited.

The Court will not fault trial counsel for failing to obtain or utilize evidence

that does not exist.48 Mr. Matthews’ arguments about what additional footage might

have shown are too speculative to demonstrate deficient performance or actual

prejudice under Strickland. Accordingly, this claim must be denied.

b. Trial Counsel Was Not Deficient in Consenting to Case Severance and Failing to Impeach Detective Reid

Mr. Matthews next argues trial counsel was ineffective for consenting to sever

the person-prohibited charge from the murder case.49 Here again, the Court finds

Mr. Matthews’ claim unavailing.

46 Trial Counsel Aff. at 1-2. 47 See Trial Counsel Aff. at 2. 48 See Cf. Fletcher v. State, 2006 WL 1237088, at *2 (Del. Super. May 9, 2006) (finding defense counsel acted reasonably by not hiring firearms expert to test a gun that did not exist). 49 See Matthews Mem. at 8-12.

11 During a search of Ms. Johnson’s residence in December of 2017, police

located nine-millimeter ammunition in Mr. Matthews’ bedroom.50 The officers

subsequently arrested Mr. Matthews for only the PABPP charge.51 Six months later,

a grand jury returned an indictment against Mr. Matthews that joined the PABPP

charge with new charges for Murder in the First Degree, PFDCF, and PFBPP.52

With agreement from the State and Mr. Matthews’ trial counsel, the Court ordered

the person-prohibited charges to be tried separately from the murder charge.53

According to Mr. Matthews, “[u]n-linking the two cases prejudiced [him]

because it destroyed any hope of using the false [PABPP] arrest report and

documents provided to counsel … for impeachment purposes in the murder trial.”54

Specifically, Mr. Matthews takes exception to the PABPP report’s indication that he

lived with Ms. Johnson on Parma Avenue, instead of his residence in Pennsylvania.55

Mr. Matthews argues “it was absolutely imperative that the jury heard of the false

police report” because the State tied the majority of its evidence to Detective Reid,

the author of the PABPP arrest report.56

This issue previously arose during a December 2018 scheduling conference.57

50 See D.I. 1 (Initial Crime Report for Compl. No. 32-17-122020). 51 See id. 52 See Shaheed Matthews Indictment ¶ 1. 53 See D.I. 19. The Court “unlinked” the PABPP charge and severed the PFBPP charge. 54 Matthews Mem. at 9. 55 See Matthews Mem. at 8-9. 56 Matthews Mem. at 11-12. 57 See Scheduling Conference Tr. 12-18, Dec. 18, 2018.

12 At the conference, Mr. Matthews complained trial counsel did not intend to use

documentation obtained from his Pennsylvania probation officer during the murder

trial.58 Mr. Matthews argued trial counsel should have used the documentation to:

(1) impeach Detective Reid and (2) prove Mr. Matthews lived in Pennsylvania at the

time of the murder, instead of Parma Avenue. Trial counsel responded: “[I]t is

absolutely correct that I told him that … it wouldn’t be in [his] best interest to bring

in a probation officer to testify that [he was] living [in Pennsylvania] when upon

cross examination the reason that you’re involved with that probation officer is a

gun charge.”59

The Court is satisfied trial counsel made a reasonable strategic decision to

minimize Mr. Matthews’ connections to firearms by severing the person-prohibited

charges. As the Delaware Supreme Court recently announced in Justiniano v.

State,60 “[t]he purpose of severance in person-prohibited cases is to prevent a jury

from inferring a criminal disposition based on a defendant’s criminal history.”61

Further, confronting Detective Reid with his report would have yielded

minimal (if any) impeachment value for Mr. Matthews. After the murder, Ms.

Johnson told police Mr. Matthews had lived with her at the Parma Avenue residence

58 See Scheduling Conference Tr. 14-16. 59 Scheduling Conference Tr. 18. 60 2018 WL 2072816 (Del. May 2, 2018). 61 Id. at *2.

13 “on and off” for two years,62 and Mr. Matthews admitted he was at the Parma

Avenue residence on the night of the murder.63 Thus, whether Mr. Matthews legally

resided in Pennsylvania at the time of the PABPP arrest is of no significance to this

case.

In sum, the Court finds the PABPP report error would not have made a

difference at trial. Trial counsel reasonably pursued a strategy to avoid mention of

Mr. Matthews’ history with firearms, and Mr. Matthews has failed to produce

sufficient evidence to undermine confidence in the basis of this decision. Therefore,

the claim is denied.

c. Trial Counsel Was Not Deficient in Failing to Call Detective Smith to Testify About a Statement in His Police Report

Next, Mr. Matthews argues trial counsel was ineffective for failing to call and

question Detective Joshuah Smith about an allegedly false statement in his police

report.64

In his supplemental police report, Detective Smith wrote: “[Ms. Johnson]

62 Johnson Int. Tr. (Dec. 29, 2017) at 6-7. 63 See generally Matthews Int. Tr. (Dec. 28, 2017). Mr. Matthews argues this piece of evidence, taken with Detective Reid’s statement in his report that a video depicted two individuals engaged in an altercation, bolsters the credibility challenge against Detective Reid. This is nonsensical. First, trial counsel sufficiently cross-examined Detective Reid on whether the video showed two people in an altercation. Second, any doubts of Detective Reid’s credibility based on the report are (at best) speculative. Third and finally, it is clear trial counsel balanced the benefit of using this “impeachment material” against the risk associated with the jury hearing Mr. Matthews was a person prohibited from possessing firearms and made a strategic trial decision to not use it. This is exactly the type of decision the Court will not overturn in hindsight. 64 See Matthews Mem. at 12-15.

14 stated she picked up [Mr. Matthews] in the area of the ‘trashcans’ described as the

area known as Parma and Bizarre.” Mr. Matthews acknowledged this statement put

him in the direct vicinity of the shooting,65 but argued other available evidence

contradicted it.66 According to Mr. Matthews, the inclusion of this “false” statement

in the report constituted malicious prosecution, and trial counsel should have used

the statement to impeach the credibility of the investigating officers.67

This argument defies logic. For one, the report explicitly couches the

summary as statements Ms. Johnson made, rather than independently proven facts.68

And, as Mr. Matthews admits, Ms. Johnson did tell detectives she picked up Mr.

Matthews near the trashcans:

[Detective Reid]: Okay? What I’m really interested in is you – you said you picked up [Mr. Matthews] at the corner, where – where is – where – where at?

[Ms. Johnson]: Almost to the corner right where the trashcans are.69

Because the statement in the report was not false, trial counsel could not have used

it as a basis to impeach the credibility of the investigators. Thus, the Court is

satisfied trial counsel’s decision to not call Detective Smith as a defense witness was

65 See Matthews Mem. at 13. 66 See Matthews Mem. at 13-15. 67 Matthews Mem. at 15. 68 See Detective Smith’s Feb. 2, 2018 Supplemental Report for Compl. No. 32-17-121392, at 006. 69 Johnson Int. Tr. at 34.

15 a reasonable one, and Mr. Matthews did not suffer prejudice as a result of it. This

claim is denied.

d. Trial Counsel Was Not Deficient in Handling the Cell Phone Evidence

At trial, the State admitted internet searches and text messages that suggested

Mr. Matthews shopped for a firearm in the days before the murder.70 Mr. Matthews’

phone contained searches for “Ruger 45” and “Ruger P97” (a brand and calibers of

firearms) in the days leading up to the shooting.71 Additionally, a week before the

murder, Mr. Matthews texted an unknown individual, “how much.”72 The person

replied, “450” with a picture of an item with the logo of Taurus, a firearm

manufacturer, on it.73 Mr. Matthews responded, “That’s too much.”74

The State also introduced a text conversation between Mr. Matthews and Ms.

Johnson the day after the murder.75 In the conversation, Ms. Johnson wrote to Mr.

Matthews, “I love you so much and I can’t lose you” and “[c]hanges have to be made

now.”76 Ms. Johnson testified she was expressing fear she may lose Mr. Matthews

to violence;77 however, after the murder, Ms. Johnson told police the comment was

70 See Trial Tr. 78-83, Apr. 12, 2019. 71 Trial Tr. 80, Apr. 12, 2019. These internet searches had been deleted before Mr. Matthews turned over his phone to police, but officers were able to recover them. 72 Trial Tr. 82-83, Apr. 12, 2019. 73 Trial Tr. 82-83, Apr. 12, 2019. 74 Trial Tr. 83, Apr. 12, 2019. 75 See Trial Tr. 38-41, Apr. 10, 2019. 76 Trial Tr. 154, Apr. 10, 2019; see also Trial Tr. 39, Apr. 15, 2019. 77 See Trial Tr. 154-155, Apr. 10, 2019.

16 about troubles in their relationship.78 The State used these messages to question

when and how Ms. Johnson learned of Mr. Terry’s murder.79

In his motion, Mr. Matthews argues: (1) trial counsel rendered ineffective

assistance by failing to challenge the cell phone search warrant in a motion to

suppress, and (2) even if the cell phone evidence was admissible, trial counsel was

ineffective in preparing to address the evidence at trial. The Court will address each

claim individually.

1. The Motion to Suppress

Mr. Matthews first contends the police downloaded the contents of his phone

under a general warrant, in violation of the Fourth Amendment of the United States

Constitution and Article I, § 6 of the Delaware Constitution.80 He argues the search

warrant must have lacked probable cause, particularity, and a nexus between the

crime and his phone because the police could not have developed probable cause

given the facts known at the time of the search.81

Trial counsel disagrees. In his Rule 61 affidavit, trial counsel notes he

objected to certain portions of the cell phone evidence.82 He did not, however, see

a basis for excluding the cell phone evidence as a whole.83 For the following reasons,

78 See Trial Tr. 157-158, Apr. 10, 2019. 79 See Trial Tr. 38-39, Apr. 15, 2019. 80 See Matthews Mem. at 17-18. 81 See Matthews Mem. at 17-20. 82 See Trial Counsel Aff. at 3. 83 See id.

17 the Court must side with trial counsel.

I. The Particularity Requirement

The United States Constitution “specifies only two matters that must be

‘particularly describe[ed] in warrant: ‘the place to be searched’ and the persons or

things to be seized.’”84 However, given the unprecedented volume of private

information stored on electronic devices, warrants directed to digital information

present unique challenges in satisfying the Fourth Amendment particularity

requirement.85

The United States Supreme Court articulated this complexity in Riley v.

California.86 In considering a warrantless search of a cell phone, the Riley Court

observed that, much like a computer search, “[a cell] phone not only contains in digital

form many sensitive records previously found in the home; it also contains a broad

array of private information never found in a home in any form….”87 Thus, as Riley

observed, top-to-bottom digital searches permit the government access to “far more

than the most exhaustive search of a house.”88

Although the Delaware Supreme Court has hesitated to prescribe rigid rules

governing cell phone search warrants, the Court did outline the minimum

84 United States v. Grubbs, 547 U.S. 90, 97, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (alteration in original). 85 See Wheeler v. State, 135 A.3d 282, 299 (Del. 2016). 86 --- U.S. ----, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). 87 Id. at 2491. 88 Id. (emphasis in original).

18 requirements to procure such a warrant in State v. Wheeler:89

Federal Courts of Appeal have concluded that warrants lacking temporal constraints, where relevant dates are available to the police, are insufficiently particular. . . . Striking the correct balance when protecting against generality and overbreadth requires vigilance on the part of the judicial officers who are on the front lines of preserving constitutional rights while assisting government officials in the legitimate pursuit of prosecuting criminal activity. Where . . . the investigators had available to them a more precise description of the alleged criminal activity that is the subject of the warrant, such information should be included in the instrument and the search and seizure should be appropriately narrowed to the relevant time period so as to mitigate the potential for unconstitutional exploratory rummaging.90

As mentioned above and discussed below, Mr. Matthews argues the search warrant

for his cell phone was an unconstitutional general warrant. His concern bears

scrutiny.

In its warrant application, the police requested to perform a “forensic

examination” on “any and all” digital contents of Mr. Matthews’ cell phone.91 This

examination broadly “include[d] but [was] not limited to call logs, SMS (text)

messages, MMS (media) messages, internet browsing history, images and/or videos,

any and all information that may identify suspects and/or co-conspirators, [and] any

89 135 A.3d 282. 90 See id. at 306. 91 Detective Rau’s December 29, 2017 Application and Affidavit in Support of Search Warrant for Contents of Shaheed Matthews’ Cell Phone, Compl. No. 32-17-121392 (hereinafter “Rau Warrant”) at 02.

19 and all information related to the crime….”92

The Court agrees with Mr. Matthews that the warrant application itself is void

of the temporal constraints prescribed by Wheeler. As an illustration, the affidavit

states Mr. Terry allegedly shot Mr. Matthews’ girlfriend two years ago.93 The

application, however, makes no effort to limit the search back to the date of the

alleged shooting.

Wheeler recognizes that a warrant – no matter its target – must both “describe

the things to be searched with sufficient particularity and be no broader than the

probable cause on which it is based.”94 The State has failed to argue, much less

argue convincingly, the cell phone warrant satisfied this particularity requirement.

Because of this, the Court finds the cell phone warrant to be a general warrant – that

scrouge of executive overreach “abhorred by the colonists” that permitted “a general,

exploratory rummaging in a person’s belongings”95 for vaguely-defined categories

of contraband.96

II. Voluntary Consent

The validity of the search warrant notwithstanding, Mr. Matthews provided

92 Id. 93 See id. at 2. The Court presumes the authoring officer included this allegation in the affidavit to provide the issuing magistrate with Mr. Matthews’ motive for the shooting. 94 Wheeler, 135 A.2d at 299. 95 Id. at 296 (internal citations omitted). 96 See United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 149 (3d Cir. 2002) (Alito, J.).

20 police with an independent basis to search his phone when he consented to the

search.

In Scott v. State,97 the Delaware Supreme Court held searches conducted

pursuant to “valid consent” are excepted from the Fourth Amendment warrant

requirement.98 The Scott Court found consent to be “valid” when it is voluntarily

offered by a person with authority to do so.99

In this case, police visited Mr. Matthews after learning he was with Mr. Terry

on the night of the murder. The officers asked Mr. Matthews for his contact

information, and Mr. Matthews stated he did not own a cell phone.100 Later in the

conversation, however, Mr. Matthews told police he and Mr. Terry exchanged text

messages the night of the murder.101 When reminded that he claimed not to own a

cell phone, Mr. Matthews admitted to owning a phone but explained he did not want

to “give the number out.”102 In response, an officer told Mr. Matthews he was being

“funny” about his cell phone and cell phone number.103 Mr. Matthews then offered

to provide his phone to police.104

The officers accepted this offer. It bears mention that Mr. Matthews made the

97 672 A.2d 550, 552 (Del. 1996). The Scott Court, in essence, articulated the holding of the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 221-22 (1973). 98 See id. 99 Id. 100 See Matthews Int. Tr. at 1. 101 See Matthews Int. Tr. at 7-8. 102 Matthews Int. Tr. at 8. 103 Matthews Int. Tr. at 12. 104 See Matthews Int. Tr. at 12. Specifically, Mr. Matthews told the officer “[Y]ou can have it.”

21 offer before officers notified him they had already obtained a warrant for the

phone.105 Subsequently, police told Mr. Matthews they planned to connect the phone

to a computer and “dump the contents of it.”106 Mr. Matthews agreed to this proposal

and offered to retrieve his phone from his brother’s house for the police.107 He

suggested the officers follow him to the house and volunteered his phone’s passcode

to them.108

As the owner of the phone, Mr. Matthews possessed authority to give consent.

He clearly did so voluntarily. Mr. Matthews spoke with police at Ms. Johnson’s

residence on Parma Avenue – not at police headquarters or a similar custodial

setting. At no point during the conversation was Mr. Matthews taken into custody;

in fact, officers encouraged Mr. Matthews to leave so he could retrieve the cell

phone. He initiated consent without prompting and unaware of the search warrant

officers had already obtained. Even after learning officers planned to “dump” his

phone, Mr. Matthews did not withdraw or limit his consent.

Recently, this Court confronted a similar factual scenario in State v.

Blackwood.109 In sum, officers in Blackwood obtained an overly broad warrant to

search the defendant’s cell phone.110 Nevertheless, police also obtained the

105 See generally Matthews Int. Tr. at 1-12. 106 Matthews Int. Tr. at 12. 107 See Matthews Int. Tr. at 13. 108 Rau Warrant at 5-6 ¶ 10. 109 2020 WL 975465, at *6-7 (Del. Super. Feb. 27, 2020). 110 See id. at *3-5.

22 defendant’s consent to search the cell phone.111 The Blackwood defendant: (1)

confirmed the seized phone belonged to him; (2) told police they would find alibi

information on the phone; (3) volunteered the phone’s passcode; and (4) physically

unlocked the phone for police.112 In its final analysis, Blackwood concluded the

defendant was not coerced and appeared “willing to cooperate with the police of a

desire to prove his innocence.”113

Here, as in Blackwood, Mr. Matthews was cooperative with police.114 He

volunteered his phone to the officers and helped them access it, knowing they

intended to download its entire contents. In light of this consent, a motion to

suppress based on defects in the search warrant would have been futile. Trial counsel

did not perform deficiently by failing to file one.

III. Actual Prejudice

Further, even if the consent was defective, the cell phone evidence had no

bearing on the outcome of the case. The State submitted the evidence to prove Mr.

Matthews’ intent, but the surveillance video showing the suspect chasing down and

shooting Mr. Terry from behind more than adequately proved that element of the

crime. The video evidence, combined with Ms. Johnson’s statements, leaves the

111 See id. at *6-7. 112 See id. at *6. 113 Id. 114 Whether this cooperation stemmed from Mr. Matthews’ belief that police would not find the deleted searches for firearms is not for the Court to say.

23 Court with no room to reasonably conclude anyone other than Mr. Matthews could

have been the shooter.

To review, three people were together at 227 Parma Avenue on the night of

the murder: Mr. Matthews, Mr. Terry, and Ms. Johnson. Each of the three left the

residence at around 10:30 p.m. According to Ms. Johnson, Mr. Matthews and Mr.

Terry left first.

The 19 Briarcliff footage confirms Ms. Johnson’s version of events. As noted

supra, it shows two people leave 227 Parma Avenue together, walk southeast along

Parma Avenue, stop at the edge of the frame, and get into a fight before continuing

in the same direction. The 241 Parma video picks up approximately seven seconds

later, showing a person in a hooded jacket and black sneakers chase Mr. Terry

southeast on Parma Avenue, shoot him, and flee northeast through a cut between the

blocks of townhomes. A few minutes after the shooting, Mr. Matthews called Ms.

Johnson and requested she pick him up a few blocks northeast of the shooting scene.

Immediately after the call, the cameras capture a third person leave 227 Parma

Avenue and Ms. Johnson’s vehicle travel towards Mr. Matthews’ location. The

footage does not reveal anyone else traveling from the area of 227 Parma Avenue to

Mr. Matthews’ location during this time.

Indeed, Ms. Johnson did pick Mr. Matthews up from a location in the same

direction the shooter fled. Shortly thereafter, police seized a hooded jacket and

24 sneakers from Mr. Matthews that matched the suspect’s clothing in the 241 Parma

video. The right cuff of the jacket tested positive for gunshot residue.

The State’s case was strong. That is so, even without the cell phone evidence.

The Court thereby finds Mr. Matthews suffered no actual prejudice from the

admission of the phone activity. This claim is denied.

2. The Handling of the Cell Phone Evidence in Trial

Mr. Matthews next submits that even if the cell phone evidence was

admissible, trial counsel was unprepared to rebut or impeach it. The Court examines

each claim related to the phone evidence in turn.

I. The Trial Strategy

In sum, this claim arises from the sidebar discussion of trial counsel’s

objection to the firearm-related cell phone evidence.115 At trial, counsel for Mr.

Matthews informed the Court he had received substantial productions from the State

“at the tail end of the discovery.”116 Although the State identified the cell phone

evidence as a possible trial exhibit, a miscommunication with prosecutors led trial

counsel to assume the State would also flag any evidence it intended to admit under

Delaware Rule of Evidence 404(b).117 Operating under this assumption, trial counsel

believed that because the State did not flag the firearm messages as 404(b) evidence,

115 See Trial Tr. 143-52, Apr. 11, 2019; Trial Tr. 19-50, Apr. 12, 2019. 116 Trial Tr. 49, Apr. 12, 2019. 117 See Trial Tr. 33-34, Apr. 12, 2019.

25 it would redact those messages from the exhibits or otherwise not seek to admit

them.118 As trial counsel stated, “[M]aybe that was my mistake in assuming.”119

Nevertheless, trial counsel still timely objected to the firearm-related cell

phone evidence under 404(b).120 Counsel stated that if he knew the State would

introduce the evidence, he “possibly” would have altered the defense theory and

argued Mr. Matthews was someone “into firearms” to explain the gunshot residue

on his jacket.121 This Court overruled the objection.

Based on this exchange, Mr. Matthews argues trial counsel dismissed the cell

phone evidence out of hand and was unprepared to rebut the meaning of the text

conversation between he and Ms. Johnson, the implication that his phone history

showed no remorse or sadness over Mr. Terry’s murder, and the importance of the

searches and text messages about a possible firearm purchase.122

Then, in what is almost stream of consciousness, Mr. Matthews offers a string

of things trial counsel could have done had he devised a proper strategy: (1) shown

Mr. Matthews and Ms. Johnson were discussing their relationship problems; (2)

found social media messages expressing pain over Mr. Terry’s death; (3) argued the

firearms Mr. Matthews sought were different in caliber from the murder weapon; (4)

118 See Trial Tr. 24, Apr. 12, 2019. 119 Trial Tr. 24, Apr. 12, 2019. 120 See Trial Tr. 35-36, Apr. 12, 2019. 121 Trial Tr. 149, Apr. 11, 2019. 122 See Matthews Mem. at 21.

26 discovered Mr. Matthews and Mr. Terry were searching for firearms together

because Mr. Terry received death threats; (5) uncovered Mr. Matthews searched for

firearms just “to see what [they] looked like”; and (6) discovered Mr. Matthews

deleted the entire search history from his phone because it included pornography.123

The Court is skeptical trial counsel’s strategy would have changed based on

the miscommunication with the State. It would have been against the interest of Mr.

Matthews for trial counsel to present him – a person prohibited from possessing

firearms – as someone who was “into firearms.” Further, trial counsel did, in fact,

address many of the issues at trial similarly to how Mr. Matthews suggests he should

have.

For example, trial counsel did argue the text conversation between Mr.

Matthews and Ms. Johnson concerned problems in their romantic relationship.124

Had trial counsel introduced more of the conversation, however, he would have

contradicted the trial testimony of Ms. Johnson, who told the jury the conversation

was about her concern she may lose Mr. Matthews to violence after learning of Mr.

Terry’s death.125

Furthermore, trial counsel relayed to the jury that Mr. Matthews deleted more

than just the firearm searches from his cell phone history and never possessed the

123 Matthews Mem. at 26-27. 124 See Trial Tr. 62-63, Apr. 15, 2019. 125 See Trial Tr. 154-155, Apr. 10, 2019.

27 firearms he searched for.126 As trial counsel stated during closing arguments, “[T]he

text messages about Mr. Matthews inquiring about a firearm, [they] actually show[]

you he didn’t buy it.”127 The additional avenues Mr. Matthews suggests trial counsel

should have explored would have provided marginal additional value, as the State

presented the texts and searches to show preparation and intent – not to specifically

identify the murder weapon.

II. The Social Media Posts

Next, Mr. Matthews takes issue with trial counsel’s failure to use his social

media posts to rebut the State’s implication that he did not show emotion upon

learning of Mr. Terry’s death.128 This argument fails for two reasons.

First, the posts would have been inadmissible at trial. Delaware Rule of

Evidence 801(d)(2) excepts hearsay statements made by party opponents.129 Mr.

Matthews faults trial counsel for not introducing the posts, but the posts clearly

would not fit into the party-opponent exception unless offered by the State.130

Moreover, even if it were proper to consider the social media, the argument

would still fail because the posts did not rebut the State’s evidence. As the State

argued in closing, the cell phone evidence revealed Mr. Matthews did not attempt to

126 See Trial Tr. 56-57, Apr. 15, 2019. 127 Trial Tr. 57, Apr. 15, 2019. 128 See Matthews Mem. at 22. 129 See D.R.E. 801(d)(2) (emphasis added). 130 See generally id.

28 determine if Mr. Terry was safe, despite learning of a shooting outside his

girlfriend’s home. Implicit in this argument was not that Mr. Matthews lacked

remorse, but rather, that he lacked ignorance. Mr. Matthews did not need to

investigate Mr. Terry’s well-being because he knew Mr. Terry was already dead.

Mr. Matthews has not persuasively disputed this point. Therefore, his

argument is rejected.

III. The Decision Not to Testify

Finally, Mr. Matthews argues he would have chosen to testify in his own

defense had trial counsel performed differently. Once again, the record evidence

proves fatal to his claim.

The decision on whether to testify ultimately belongs to the defendant, not his

trial counsel.131 If the defendant waives the right to testify after appropriate colloquy

with the Court, then the defendant’s own decision precludes a finding of cause or

prejudice under Strickland and its progeny.132 The record clearly establishes the

Court conducted a waiver colloquy with Mr. Matthews and determined his decision

not to testify was knowing and voluntary:

THE COURT: Do you understand that you have a constitutional right to testify or not testify in this trial?

MR. MATTHEWS: Yes.

131 See Erkskine v. State, 2013 WL 1919121, at *2 (Del. May 7, 2013). 132 See id.; see also State v. Taye, 2014 WL 785033, at *5 (Del. Super. Feb 26, 2014).

29 THE COURT: Do you understand that your attorney and maybe family members can advise you one way or the other, but, in the final analysis, this is a right, or rather a decision, that only you can make. Do you understand that?

THE COURT: Do you understand that if you exercise your constitutional right not to testify, I will instruct the jury that you have a constitutional right not to testify, and that that decision cannot be held against you?

THE COURT: Do you believe that you have had enough time to confer about this with your attorney?

THE COURT: Do you understand that this decision is a final decision, meaning you will not be able to come back at some later time and say that you really did wish to testify, but didn’t realize you had to make the decision right here and now? This will be a final decision. Do you understand that?

THE COURT: Do you believe you are knowingly, voluntarily, and intelligently . . . waiving your right to testify in this trial?

30 THE COURT: [Trial counsel], I meant to ask you this before I started discussing it. Do you believe you’ve had ample time to discuss the pros and cons of testifying with your client?

[TRIAL COUNSEL]: Yes, Your Honor. Just to set a record, we had spoken about it previously in passing and putting strategy together whether or not he would or wouldn’t. I spoke with him uniquely on that situation yesterday for a long period of time after we adjourned here yesterday until the Department of Corrections had to take him back. And then I also spoke with him today during the entire lunch period. Well, I spoke with his family briefly at the beginning of the lunch period, and then used the rest of that time to speak with him on the matter. And I feel as though, yes, we went over all the pros and cons. We went through a lot of information. And I believe that we’ve discussed it appropriately.

THE COURT: Thank you. So I’ll just ask the question again, since there’s a little bit of further factual background with [trial counsel]’s comments. Do you believe you are knowingly, voluntarily, and intelligently waiving your constitutional right to testify?

THE COURT: I find that Mr. Matthews has knowingly, voluntarily, and intelligently waived his constitutional right to testify.133

Of note, this colloquy took place after the State admitted the cell phone evidence

133 Trial Tr. 168-71, Apr. 12, 2019.

31 and Mr. Matthews offered his purported explanations for the phone activity. Faced

with this information, Mr. Matthews still chose to waive his right to testify. The

Court will not attribute the strategic consequences of his own decision to trial

counsel under these circumstances. This claim is denied.

B. The Ineffective Assistance Claims Against Appellate Counsel a. The Prosecutorial Misconduct Claim on Appeal

Mr. Matthews next directs his ire towards appellate counsel. In his first

argument, he claims the prosecutor misled this Court during a sidebar and faults

appellate counsel for not raising a claim of prosecutorial misconduct based on the

alleged deceit.134

During the cross examination of Detective Reid at trial, Mr. Matthews’ trial

counsel asked, “And you’re aware that nothing found at 227 Parma Avenue links

Shaheed Matthews to the death of Antoine Terry, correct?”135 Detective Reid

hesitated to answer, prompting the prosecutor to request a sidebar conference.136 At

sidebar, the prosecutor and the Court had the following exchange:

THE COURT: The Detective obviously hesitated in answering the question.

[THE PROSECUTOR]: Correct, Your Honor. That’s why I asked for the sidebar. The Detective was instructed by [the prosecutors] to not make reference to the ammunition

134 See Matthews Mem. at 27-30. 135 Trial Tr. 118-19, Apr. 12, 2019 136 See Trial Tr. 119, Apr. 12, 2019.

32 found at 227 Parma Avenue. The ammunition is 9- millimeter. The ballistics expert testified yesterday that the deformed projectiles could have been fired from a 9- millimeter. When he was answering [trial counsel]’s questions, I’m assuming Detective Reid’s hesitation was that, in answering the question honestly, he may very well say “not true” and say something we told him not to say.137

Indeed, the State’s ballistics expert testified the previous day:

[THE PROSECUTOR]: You indicate that Items 1 and 2 [the projectiles recovered from the scene of Mr. Terry’s murder] would be the .38 caliber?

[THE EXPERT]: Well, they’re .38 caliber class. A .38 caliber class includes several cartridge designations. When I say .38 caliber, I’m basically referring to the diameter of the bullet. Okay. Now, that can include all of your 9-millimeters, .380’s, your .38’s, and .357 magnums. They’re all very close in diameter. So, therefore, I just give it a caliber class.138

Noticing his question to Detective Reid risked opening the door, trial counsel

rephrased and asked a more pointed question: “Detective, when the officers searched

227 Parma Avenue, there was no firearm found related to [Mr. Matthews]?”139

Detective Reid agreed.140

Essentially, Mr. Matthews’ argument boils down to an erroneous claim that,

as a matter of science, the bullets taken from Mr. Terry’s body could not have been

137 Trial Tr. 119, Apr. 12, 2019. 138 Trial Tr. 136, Apr. 11, 2019. 139 Trial Tr. 121, Apr. 12, 2019. 140 See Trial Tr. 121, Apr. 12, 2019.

33 the nine-millimeter bullets seized from his bedroom on Parma Avenue.141 He

concludes the sudden sidebar on this subject prejudiced him in front of the jury

because it indicated police did find evidence inside 227 Parma Avenue that tied him

to the murder.142

The Court will not address Mr. Matthews’ borderline-incoherent

interpretation of the State’s evidence collection procedures, other than to say it is

plainly incorrect. Mr. Matthews does not allege – nor could he – any other basis to

conclude the prosecutor was deceitful at sidebar.143

The first step in analyzing any claim of prosecutorial misconduct is

determining whether any misconduct occurred.144 If not, the analysis ends.145

Against this background, it is abundantly clear from the record no prosecutorial

misconduct occurred. In fact, the prosecutor requested the sidebar conference so as

to avoid prosecutorial error. Had appellate counsel raised this claim on appeal, the

Delaware Supreme Court’s analysis would have ended at the first step. Appellate

counsel did not perform deficiently by failing to do so, and Mr. Matthews suffered

no prejudice as a result. This claim is denied.

141 See Matthews Mem. at 28-29. 142 See Matthews Mem. at 30. 143 The Court notes the sidebar conference was actually helpful to Mr. Matthews. Had Detective Reid answered the question honestly, he would have revealed there was, in fact, evidence found at Parma Avenue that linked Mr. Matthews to the murder. 144 See Baker v. State, 906 A.2d 139, 150 (Del. 2006). 145 See id.

34 b. The Failure to Challenge the Reenactment Video on Appeal

In his final ground for postconviction relief, Mr. Matthews claims appellate

counsel rendered ineffective assistance by failing to challenge the admission of a

reenactment video depicting the shooting on appeal. Not so.

By way of background, the police seized a pair of black Nike Air Force 1

sneakers and a blue H&M hooded winter jacket from Mr. Matthews at the time of

his arrest.146 When officers examined the jacket, they noticed its dark-blue color

would turn light-gray under infrared light – the same type of light used in the

surveillance footage discussed supra.147 The sneakers still appeared black under the

light.148 In the surveillance footage, the shooter appeared to wear a light-gray

hooded jacket and black shoes.149 With this in mind, the officers created a

reenactment video to determine if the dark-blue jacket matched the clothing worn

by the shooter in the surveillance footage.150

Mr. Matthews brings three problems with the reenactment video to the Court’s

attention: (1) the video was a “scientific comparison” submitted without proper

foundation because the officers who created the video were not experts in crime-

scene reenactment; (2) the prosecutor misrepresented to the Court that “he had

146 See Trial Tr. 66-67, Apr. 9, 2019. 147 See Trial Tr. 154, Apr. 11, 2019. 148 Id. 149 See Trial Tr. 154-55, Apr. 11, 2019. 150 Trial Tr. 155, Apr. 11, 2019.

35 federal case law supporting what the investigating detectives did in the video

reenactment” when, according to Mr. Matthews, “there are no federal cases, to [his]

knowledge, that support a[n] officer removing what was considered evidence from

the police station, transport[ing] it back to the crime scene and us[ing] the physical

evidence to conduct a reenactment”; and (3) the use of his clothing in the video

contaminated evidence, as it was the officers in the video who must have placed the

gunshot residue on his jacket.151 Mr. Matthews is confident his appeal would have

been successful had appellate counsel raised the above issues.152

With Mr. Matthews’ argument thusly framed, the Court evaluates each claim

independently.

1. The “Scientific Comparison”

Although a video reenactment is experimental evidence, it is not necessarily

“expert” evidence.153 Expert testimony refers to testimony based on scientific,

technical, or other specialized knowledge.154 Lay testimony, on the other hand, is

testimony based on perception.155 The Delaware Supreme Court recently

distinguished the two in Jackson v. State.156

151 Matthews Mem. at 30-33. 152 See Matthews Mem. at 30-33. 153 See, e.g., United States v. Baldwin, 418 F.3d 575, 579 (6th Cir. 2005) (“The video reenactment, made for the purpose of demonstrating that [the defendant] was physically capable of unzipping his pants while allegedly bound in his car, is a form of experimental evidence.”). 154 See D.R.E. 702(a). 155 See D.R.E. 701(a). 156 See 2018 WL 936845, at *3.

36 In Jackson, a police officer identified a hole in a window as a bullet hole at

trial, even though he could not locate the bullet because the projectile took an

“unpredictable” path.157 Although the officer based his opinion (at least in part) on

his experience and work in law enforcement, the Jackson Court explained the

testimony was not expert evidence because it “was based on [the officer]’s rational

perception of something he personally observed.”158

Similarly, in this case, the officers did not perform an experiment that required

specialized knowledge. Rather, the police made a reenactment video to see if Mr.

Matthews’ dark-blue jacket would appear light gray on the surveillance cameras.

The basis for the reenactment video was the officers’ own perception.

Moreover, in recognition of the “gray area” between expert and experimental

evidence, federal courts have developed a separate standard for judging the

admissibility of reenactment evidence. Simply put, if the reenactment does not

involve scientific or otherwise specialized knowledge, the courts inquire into

whether officers conducted the reenactment under conditions “substantially similar”

to the actual event.159

Out of an abundance of caution, the police in this case took numerous steps to

157 See id. 158 Id. 159 See, e.g., United States v. Jackson, 479 F.3d 485, 498 (7th Cir. 2007); Baldwin, 418 F.3d at 579-80; United States v. Birch, 39 F.3d 1089, 1092 (10th Cir. 1994); Norton v. Frohnmayer, 1991 WL 279021, at *2 (9th Cir. Dec. 26, 1991).

37 ensure they created the reenactment video under substantially similar conditions to

the footage from the night of Mr. Terry’s murder. First, the officers used the same

home surveillance camera from 241 Parma Avenue that originally captured the

shooting.160 Second, the officers mimicked the natural lighting by performing the

reenactment under the same moon phase.161 Third, the police ensured the weather

conditions were similarly clear and dry.162 Fourth and finally, the officers ensured

the same cars were parked on the street.163

Because the conditions in the reenactment video were substantially similar to

the surveillance footage, the State was not required to provide expert qualifications

for the officers who created it. The Court properly admitted the video. Mr.

Matthews is incorrect.

2. The Federal Caselaw

Next, and contrary to Mr. Matthews’ claims, there is federal precedent for

police using actual evidence from a case in reenactment videos.

For example, in Norton v. Frohnmayer,164 officers used the defendant’s

vehicle, whose splashguard was bent out of position, to reenact the car driving

through a ditch at a murder scene.165 The police realigned the splashguard, drove

160 See Trial Tr. 156-59, Apr. 11, 2019. 161 See Trial Tr. 156-59, Apr. 11, 2019. 162 See Trial Tr. 156-59, Apr. 11, 2019. 163 See Trial Tr. 156-59, Apr. 11, 2019. 164 See 1991 WL 279021, at *2. 165 See id.

38 the vehicle through the ditch, and observed the ditch bent the splashguard out of

position in the same way.166 The United States Court of Appeals for the Ninth

Circuit affirmed admission of the video reenactment, finding the conditions of the

reenactment substantially similar to the day of the murder.167

Likewise, in United States v. Jones, the United States Court of Appeals for

the Third Circuit upheld admission of a reenactment video where an officer walked

through a robbery scene wearing the defendant’s shoes.168 Before Jones, in United

States v. Rodriguez, the Third Circuit affirmed the trial court’s decision to admit a

bank robbery reenactment that depicted an officer wearing the defendant’s red

windbreaker to show it could have been the jacket worn in black and white

surveillance footage.169

The Court will not belabor the point further. Mr. Matthews’ claim is rejected.

3. The Gunshot Residue

In this final claim, Mr. Matthews’ argument sits on a fault line running

through his entire motion. Besides treating assumptions as facts, Mr. Matthews

repeatedly emphasizes small parts and ignores the whole. Here, he (inaccurately)

166 See id. 167 See id. 168 See 737 Fed. App’x 68, 73-74 (3d Cir. 2018). 169 54 Fed. App’x 739, 748-49 (3d Cir. 2002).

39 insists there was a negative test for gunshot residue on his jacket before the positive

test.170

The first “test” Mr. Matthews refers to was merely a scan by police officers

using infrared light.171 As the officer who scanned the jacket testified, gunshot

residue is microscopic and not visible to the naked eye unless clustered in an area.172

The second test, conducted in a laboratory using a scanning electron microscope,

revealed “a population of gunshot residue present on the jacket.”173 This test used

samples collected at the time of Mr. Matthews’ arrest, weeks before police

conducted the reenactment video.174

A claim challenging the admission of the reenactment video would not have

been successful, and the Court is satisfied appellate counsel did not act deficiently

by failing to raise it. Because the claim would not have been successful, there is no

reasonable probability the outcome of Mr. Matthews’ appeal would have been

different. As with the other claims, Mr. Matthews’ argument is rejected.

CONCLUSION

For the foregoing reasons, Mr. Matthews’ Motion for Postconviction Relief

is DENIED.

170 See Matthews Mem. at 32-33. 171 See Trial Tr. 85-86, Apr. 9, 2019. 172 See Trial Tr. 85-86, Apr. 9, 2019. 173 Trial Tr. 74-75, Apr. 11, 2019. 174 See Trial Tr. 66-71, 82-88, Apr. 9, 2019.

40 IT IS SO ORDERED.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge

Original to Prothonotary (Criminal)