J-S29042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KEITH EPPS                            :
                                       :
                   Appellant           :   No. 1526 EDA 2019

           Appeal from the PCRA Order Entered April 16, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0012195-2009

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KEITH EPPS                            :
                                       :
                   Appellant           :   No. 1527 EDA 2019

           Appeal from the PCRA Order Entered April 16, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0012200-2009

 COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
              v.                       :
                                       :
                                       :
 KEITH EPPS                            :
                                       :
                   Appellant           :   No. 1529 EDA 2019

           Appeal from the PCRA Order Entered April 16, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0012204-2009
J-S29042-20


BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                           Filed: August 13, 2020

        Keith Epps (Epps) appeals from the order entered in the Court of

Common Pleas of Philadelphia County (PCRA court) dismissing his timely

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

                                               I.

        This case arises from Epps’ jury conviction at the above-listed docket

numbers of two counts each of second-degree murder and robbery, one count

of burglary and three counts criminal conspiracy1 for the June 27, 2009

shooting deaths of Rian Thal (Thal) and Timothy Gilmore (Gilmore).         The

shootings occurred during a botched robbery inside of an apartment complex

located in the Northern Liberties section of Philadelphia where Thal resided.

Thal was a party promoter and was involved in a cocaine shipment that was

transported by Gilmore and Edward Emerson by tractor-trailer from Texas to

Philadelphia. Thal’s business partner, Leon Woodard (Woodard), arranged the

drug deal and moved the cocaine into Thal’s apartment, accompanied by

Vernon Williams (Williams). Unbeknownst to Thal or Woodard, Williams2 told


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(b), 3701, 3502 and 903.

2   Williams died in a car accident one month after the shootings.


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Epps about the cocaine and the money tied to it and they hatched a plan to

steal it.

       Epps contacted a friend who lived in Thal’s building, Katoya Jones

(Jones) and she agreed to provide access to the building in exchange for a cut

of the drug proceeds.3 Epps coordinated with Donnell Murchison (Murchison),

Langdon Scott (Scott) and Edward Daniels (Daniels) to carry out his plan.

Scott initially participated under the impression that he was purchasing drugs

only. He refused to be a part of the plan once he learned of the robbery.

Antonio Wright (Wright) became involved instead.

       Wright, Murchison and Daniels entered the apartment building at about

5:00 p.m. to wait for Thal and Gilmore.          Epps waited in a van and called

Murchison as the two victims entered the building. When Thal and Gilmore

exited the elevator, Wright and his co-defendants announced the robberies.

Wright shot Gilmore when he resisted. Murchison shot Thal in the head, killing

her instantly. Murchison then shot Gilmore twice in the head after he noticed

that Gilmore was still alive.4 The men fled the building and entered Epps’ van

____________________________________________


3 Jones entered a guilty plea to two counts of third degree murder and robbery
and one count of conspiracy and burglary in exchange for her cooperation in
this case.

4 Murchison provided a statement to police and pled guilty to first-degree
murder in connection with this case. Because of concerns for his safety and
that of his family, he was housed in federal prison instead of in Philadelphia.
He was uncooperative at trial and refused to answer questions because of
threats against his family.



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without the money or cocaine. Police recovered four kilos of cocaine and over

$100,000.00 from Thal’s apartment.               They arrested Epps and his co-

conspirators after examining surveillance video footage, cell phone records

and ballistics tests.5

       On December 1, 2011, a jury convicted Epps, along with Wright and

Daniels, of the above-mentioned charges. The trial court sentenced Epps to

consecutive life terms for second-degree murder, with concurrent sentences

on the remaining charges. On direct appeal, this Court vacated two of the

three conspiracy convictions but affirmed the judgment of sentence in all other

respects. (See Commonwealth v. Epps, 2015 WL 7571700, Pa. Super. filed

Nov. 24, 2015) (unpublished memorandum).              Our Supreme Court denied

Epps’ petition for allowance of appeal on May 24, 2016.

       On February 1, 2017, Epps filed this counseled PCRA petition followed

by several court-permitted supplements raising multiple claims of ineffective

assistance of counsel as well as an after-discovered evidence claim relating to

Brady v. Maryland, 373 U.S. 83 (1963).6 On April 16, 2019, the PCRA court


____________________________________________


5 Scott identified Murchison and Daniels as the men on surveillance video. He
was stabbed 11 times in prison after the preliminary hearing. Scott entered
an open guilty plea to charges of robbery, conspiracy and burglary in exchange
for his testimony in this case.

6 In Brady, the United States Supreme Court held that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at 87.


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entered its order dismissing the petition without a hearing after it issued a

Rule 907 notice. See Pa.R.Crim.P. 907(1). Epps timely appealed and he and

the PCRA court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).

                                               II.

       Epps’ contends, for many reasons, that his trial counsel was ineffective.

See 42 Pa.C.S. § 9543(a)(2)(ii) (listing ineffective assistance of counsel as

basis for PCRA relief).7 “To be entitled to relief on an ineffectiveness claim, a

PCRA petitioner must establish that: (1) the underlying claim has arguable

merit; (2) no reasonable basis existed for counsel’s action or failure to act;

and (3) he suffered prejudice as a result of counsel’s error, with prejudice

measured by whether there is a reasonable probability the result of the

proceeding would have been different.”               Commonwealth v. Treiber, 121

A.3d 435, 445 (Pa. 2015) (citation omitted). We presume that counsel has

rendered effective assistance. See id. Counsel cannot be found ineffective

for failing to raise a baseless or meritless claim. See id.

       Additionally, “[a] petitioner is not entitled to a PCRA hearing as a matter

of right; the PCRA court can decline to hold a hearing if there is no genuine



____________________________________________


7 “We review an order dismissing a petition under the PCRA in the light most
favorable to the prevailing party at the PCRA level.” Commonwealth v.
Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citation omitted). “This review
is limited to the findings of the PCRA court and the evidence of record.” Id.
(citation omitted). “We will not disturb a PCRA court’s ruling if it is supported
by evidence of record and is free of legal error.” Id. (citation omitted).


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issue concerning any material fact, the petitioner is not entitled to PCRA relief,

and   no   purpose    would    be   served     by   any   further   proceedings.”

Commonwealth v. Adams-Smith, 209 A.3d 1011, 1019 (Pa. Super. 2019)

(citation omitted).    A PCRA court’s decision to deny a request for an

evidentiary hearing will not be overturned absent an abuse of discretion. See

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

                                        A.

      Epps raises myriad claims contending that trial counsel was ineffective

for failing to object to certain comments made by the prosecutor during his

jury trial. He argues that counsel should have objected when the prosecution:

improperly vouched for the credibility of Commonwealth witnesses by arguing

that they were telling the truth; argued and elicited testimony that its

witnesses feared for their safety, even though the threats of harm could not

be connected to Epps; emphasized in his opening statement that some co-

defendants had already entered a guilty plea; expressed his personal

disagreement with defense counsel by stating “There are a lot of things I

disagree with him [defense counsel]”; compared Epps’ rights at trial with

those of the victims and their families; and commented on the defendants’

collective decision not to testify at trial.   We will address these arguments

which, when reduced to their core center on allegations of prosecutorial

misconduct, together for ease of disposition.




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      Generally, a prosecutor’s arguments to the jury do not constitute

reversible error unless the unavoidable effect of such comments would be to

prejudice the jury, forming in their minds a fixed bias and hostility towards

the defendant which would prevent them from properly weighing the evidence

and rendering a true verdict. See Commonwealth v. Poplawski, 852 A.2d

323, 327 (Pa. Super. 2004). “A prosecutor must have reasonable latitude in

fairly presenting a case to the jury and must be free to present his or her

arguments with logical force and vigor.” Id. (citation omitted).

      “Our review of prosecutorial remarks and an allegation of prosecutorial

misconduct requires us to evaluate whether a defendant received a fair trial,

not a perfect trial.”   Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa.

Super. 2009) (citation omitted). We must keep in mind that comments made

by a prosecutor must be examined within the context of defense counsel’s

conduct, and that the prosecutor may fairly respond to points made by the

defense. See id. Moreover, prosecutorial misconduct will not be found where

statements were based on the evidence or proper inferences therefrom or

were only oratorical flair. See id.

      In this case, the PCRA court rejected Epps’ claims of ineffectiveness for

counsel’s failure to object to the prosecutor’s instances of alleged misconduct,

explaining:

            There is no indication in the parts of the record to which
      [Epps] refers that the prosecutor sought to convince the jury that
      its witnesses were more believable than any other witnesses
      based on information known only to the Commonwealth. [Epps’]

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        argument assumed that the prosecutor improperly vouched for his
        witnesses in this case, without any consideration of the context of
        those comments or the fact that the goal of defense counsel in
        this matter was to convince the jury that the cooperators were not
        telling the truth. At no time did the prosecutor provide assurances
        of the credibility of its witnesses based on either the prosecutor’s
        personal knowledge or other information not contained in the
        record. Clearly then, [the prosecutor’s statements] did not
        amount to vouching. See Commonwealth v. Fisher, 813 A.2d
        761, 768 (Pa. 2002) (finding no merit in claim challenging that
        prosecutor improperly vouched for credibility of prosecution
        witness, because when read in context it was clear prosecutor was
        only attempting to counter defense counsel’s attack on their
        testimony.) Counsel, thus had no basis for objecting to the cited
        testimony.

               To the extent that [Epps] argues that counsel should have
        objected because the jury could have inferred from testimony
        given by Jones, Scott and Murchison that they had been
        threatened that they were telling the truth, the record does not
        support his claim. With regard to Jones, she testified that she was
        afraid because, “I don’t know what the outcome [of the trial] is
        going to be” and that she was, therefore, worried about her safety
        and that of her ex-fiancé and family. (N.T. Trial, 11/15/11, at
        192-93). Concerning Scott, he testified that [Daniels] stabbed
        him and in no way implied that [Epps] played any role in the
        assault.    (See N.T. Trial, 11/16/11, at 88-92).         Regarding
        Murchison, this Court instructed the jury to strike Murchison’s
        testimony in toto. (See N.T. Trial, 11/21/11, 20-26). See
        Commonwealth v. Brown, 987 A.2d 699, 712 (Pa. 2009) (A
        pillar upon which our system of trial by jury is based is that juries
        are presumed to follow the instructions of the court.”) (citation
        omitted). There is nothing in the record showing that the jury
        failed to follow this court’s instruction.

              It is further noted that with regard to Murchison, the record
        shows that a [Darryl] Shuler threatened him, not [Epps]. (See
        N.T. Trial, 11/18/11, 29, 51, 57-58).[8] Finally, this court cured
        any harm the testimony may have endangered by instructing the
        jury that [Epps] had no involvement in the stabbing. Given the
____________________________________________


8   Shuler was close to Thal and was involved in the robbery. (See id. at 58).


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      foregoing, it is clear that no prejudice inured to [Epps] due to
      counsel’s alleged inaction.

            In addition, this court rejected [Epps’s] subclaims because
      [he] failed to provide any meaningful discussion regarding the
      prejudice prong of the ineffectiveness test. . . . He failed to
      explain why the verdict would have been different or that prior
      counsel’s ineffectiveness overrode the reams of evidence
      Commonwealth presented establishing [Epps’s] guilt. It included
      evidence that both directly and circumstantially established
      beyond a reasonable doubt and [Epps] was part of the scheme to
      rob Thal including the testimony of cooperating witnesses and
      phone records that tied [Epps] to both the general area where the
      crime occurred and to his co-actors.

                                  *    *    *

            This Court’s review of the record indicates that the
      prosecutor did not cross the line applicable to a prosecutor’s
      closing argument. The record shows that in addition to saying
      that two people were dead and there were two families grieving,
      the prosecutor also stated that the defendants had the right to
      exercise their rights to a trial thereby curing the harm, if
      any[.] . . . In addition . . . the jury already knew that two persons
      were dead and that two families were grieving. The remarks
      complained of in no way sought to engender sympathy for the
      victims and merely reiterated a well-known fact.

(PCRA Court Opinion, 8/26/19, at 10-12, 23; some citations omitted; citation

formatting provided).

      After review of the record, we agree with the PCRA court’s assessment.

Epps fails to explain how the effect of the prosecutor’s challenged comments

was to prejudice the jury so as to form in their minds a fixed bias and hostility

towards him, thereby preventing them from objectively weighing the evidence

and rendering a true verdict. See Poplawski, supra at 327. The trial court

made clear to the jury that it was the Commonwealth’s burden to establish


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guilt beyond a reasonable doubt and that they were the sole judges of the

facts of this case. The court also instructed that Epps had the constitutional

right to remain silent and the jury could not draw any adverse inferences from

the fact that none of the defendants testified. (See N.T. Trial, 11/30/11, at

25-30). As the PCRA court noted, the jury is presumed to have followed the

court’s instructions. Additionally, the prosecutor expressly told the jury during

closing argument: “If I say anything about the law that differs from the Judge,

you forget about me because he is the master of the law. If I say anything

about the facts that differs from your recollection, you forget about me[.]”

(N.T. Trial, 11/29/11, at 118).    Because Epps has failed to show that the

prosecutor’s conduct affected the fairness of his trial, the PCRA court properly

denied him relief on this issue.

                                       B.

      Epps also challenges trial counsel’s failure to object to the trial court’s

limitation on the scope of cross-examination of Scott regarding the details of

his plea agreement.     According to Epps, this limitation violated his Sixth

Amendment right to confront the witnesses against him.

            As this Court has explained, the Sixth Amendment of the
      United States Constitution provides that, [i]n all criminal
      prosecutions, the accused shall enjoy the right to be confronted
      with the witnesses against him.         This protection has been
      incorporated into the Fourteenth Amendment and thus is
      applicable in state court prosecutions.

           In the context of cross-examining a testifying witness, this
      Court has explained that a defendant’s right to confrontation
      means more than being allowed to confront the witness physically.

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     Indeed, the main and essential purpose of confrontation is to
     secure for the opponent the opportunity of cross-examination. Of
     particular relevance here, the Supreme Court of the United States
     has recognized that the exposure of a witness’[s] motivation in
     testifying is a proper and important function of the constitutionally
     protected right of cross-examination. It does not follow, of
     course, that the Confrontation Clause of the Sixth Amendment
     prevents a trial judge from imposing any limits on defense
     counsel’s inquiry into the potential bias of a prosecution witness.
     On the contrary, trial judges retain wide latitude insofar as the
     Confrontation Clause is concerned to impose reasonable
     limits on such cross-examination based on concerns about,
     among other things, harassment, and prejudice, confusion of the
     issues, the witness’ safety, or interrogation that is repetitive or
     only marginally relevant. . . . [T]he Confrontation Clause
     guarantees an opportunity for effective cross-examination, not
     cross-examination that is effective in whatever way, and to
     whatever extent, the defense might wish.

Commonwealth v. Akrie, 159 A.3d 982, 988 (Pa. Super. 2017) (emphasis

added).

     Instantly, Scott testified as follows on cross-examination regarding the

implications of his plea agreement when reviewing its terms with counsel:

     Q: The Defendant [Scott] understands that he can and will be
     prosecuted for perjury if he makes any false statements under
     oath; right?

     A: Yes.

     Q. So they can still prosecute you for perjury, right?

     A. Yes.

     Q. You agree that completeness of the Defendant’s cooperation in
     these matters as it relates to the terms and conditions of this
     agreement is solely within the discretion of the Commonwealth.
     Did I read that right?

     A. Yes.


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                                 *     *      *

     Q. The only thing the Judge gets to decide is what sentence to
     impose; right?

     A. Yes.

     Q. Truthfulness, completeness, whether or not what you said on
     the stand is consistent, that’s for them to decide; right?

     A. Yes.

     Q. Now, what happens if they decide that you haven’t been
     truthful?

     [The Commonwealth]: Objection, hypothetical.

     The Court: Well. I think it is beyond the scope. I think once they
     decide exactly what they would do, he wouldn’t know. Obviously
     they would bring it to the attention of the Court but go ahead.

(N.T. Trial, 11/16/11 Vol. II, at 19-21). Scott then testified he understood

that he could not withdraw his guilty plea and that the Commonwealth had

agreed not to bring any additional charges against him stemming from the

shootings. (See id. at 22-23).

     As can be seen, defense counsel cross-examined Scott extensively

regarding the terms of his plea agreement with the Commonwealth and

exposed his potential bias.   Furthermore, with regard to counsel’s specific

inquiry as to what would happen if the Commonwealth determined Scott’s

testimony was untruthful, it is plain from Scott’s earlier testimony that the

consequence could be a perjury charge.        The trial court exercised its wide

latitude by placing a reasonable restriction on the scope of cross-examination

and counsel was not ineffective for failing to raise a meritless objection

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thereto.   See Commonwealth v. Staton, 120 A.3d 277, 293 (Pa. 2015)

(stating counsel cannot be deemed ineffective for failing to lodge a meritless

objection).9

                                               C.

       Epps next maintains that defense counsel was ineffective for failing to

object to the trial court’s restriction precluding him from mentioning during

closing argument that some of the witnesses had avoided a possible life

sentence by cooperating with the Commonwealth.

       First, we find Epps waived this single-paragraph argument for his failure

to properly develop it with citation to any pertinent legal authority.     See

Pa.R.A.P. 2119; 2101. In any event, it lacks merit.

       It is well-settled that jurors should not be instructed by the court or

advised by counsel during closing argument of the defendant’s potential

sentence if the jury finds him guilty. See Commonwealth v. White, 531

A.2d 806, 808 (Pa. Super. 1987). Because any reference to the witnesses


____________________________________________


9 Epps’ reliance on Commonwealth v. Murphy, 591 A.2d 278, 280 (Pa.
1991), is unpersuasive where the circumstances of that case are readily
distinguishable. In Murphy, counsel failed to cross-examine a key witness on
the basis of her then-existing juvenile probation to show her possible bias.
The Court found that “It was incumbent upon defense counsel to bring to the
jury’s attention the possibility that [the witness] had a motive for testifying
against the defendant, whether based upon a formal agreement with the
prosecution or a subjective belief that she would receive favorable treatment
with regard to her juvenile probation.” The facts of Murphy are inapposite to
the instant case where defense counsel vigorously questioned Scott at length
regarding the terms of his plea agreement with the Commonwealth to show
his possible motive for testifying against Epps.

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facing a life sentence would have made obvious to the jury the penalty Epps

faced, the court imposed this reasonable restriction to prevent the jury from

learning this information. Defense counsel was not ineffective for declining to

raise a meritless objection to this limitation.

                                        D.

      Epps also contends that counsel was ineffective for failing to object to

Philadelphia Police Detective Ohmar Jenkins’ reading of the statement of co-

defendant Wright during direct examination by the Commonwealth. In the

statement, Wright details his own role in the robbery. Relying on Bruton v.

United States, 391 U.S. 123 (1968), Epps claims that reading the statement

violated his Sixth Amendment right to confrontation.       Epps argues that,

although Wright’s statement did not expressly mention him by name, the

Commonwealth connected the statement to him through its questioning of

Detective Jenkins and its guilt by association approach.         Epps further

maintains that the trial court’s instruction regarding Write’s statement was

unclear and left the jurors in a position to use the statement against him.

      In Bruton, in a joint trial, a postal inspector testified that the co-

defendant orally confessed to him that he and the petitioner committed an

armed robbery. The trial court instructed the jury that the co-defendant’s

confession inculpating the defendant had to be disregarded in determining his

guilt or innocence. The United States Supreme Court held that because of the

substantial risk that the jury, despite the instruction, looked to the


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extrajudicial statements in determining the petitioner’s guilt, admission of the

co-defendant’s confession in this joint trial violated the petitioner’s right of

cross-examination under the Confrontation Clause.

      This holding is very narrow, however, and does not apply when a co-

defendant’s confession is redacted to omit any specific reference to the

defendant and can be linked to the defendant only by inferential incrimination.

See Commonwealth v. James, 66 A.3d 771, 777 (Pa. Super. 2013)

(concluding that appellant’s rights under the Confrontation Clause were not

violated by admission of his co-defendant’s statement at their joint trial where

all references to appellant were replaced with the neutral phrase “the other

guy” and the court issued appropriate cautionary instruction).

      Instantly, Detective Jenkins testified with regard to Wright’s statement:

      Q: Detective Jenkins, did Mr. Wright say anything about how he
      was willing to give this statement?

      A. Yes. After viewing the [surveillance] video [with a handgun in
      his hand] he indicated that, again, he would make a statement,
      but only to his involvement only.

      Q. Meaning what?

      A. He just wanted to say what he did, not say what anyone else
      did.

      Q. Did you and Detective Glenn attempt to convince him to talk
      about his codefendants?

      A. Yes, we did. As you can see, to no avail. He was adamant
      talking about what he did, not about what anyone else did.

      Q. So you agreed to take the statement the way he wanted?


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         A. Correct.

                                      *     *      *

         Q. Going to page 2 [of Wright’s statement], can you tell us why
         you were at 1050 Handcock Street? Answer, I was called down
         there by someone to do a robbery. Question, Antonio, do you
         know how much or what you were going to get from this robbery?
         Answer, I was told there was a lot of money and work inside the
         apartment. Question, Antonio, what do you mean by work?
         Answer, drugs. It was cocaine.

                                      *     *      *

         Question, Antonio, how many people were involved in this
         robbery? Answer, the video shows you everything, me and
         everyone else. . . . Question, Antonio, is it true that you want
         only to admit your involvement in the incident and not implicate
         anyone else? Answer, yes.

(N.T. Trial, 11/16/11, at 287, 289-91).

         The trial court issued the following instruction to the jury at the close of

trial:

               You have heard evidence in this case that several of the
         witnesses made statements earlier or testified earlier at a
         preliminary hearing and their testimony was inconsistent in
         certain aspects with the testimony they gave here at trial before
         you.

                That is for you to determine with each witness whether they
         are inconsistent, to looks at those inconsistencies. You may, if
         you choose, regard the prior statements or the prior testimony as
         proof of the truth of anything that the witness said in an earlier
         statement. You may also consider this evidence to help you judge
         the credibility and weight of the testimony given by the witnesses
         at this trial.

               The Commonwealth has introduced evidence of a statement
         given by the defendant, Antonio Wright, that it claims was made
         by that Defendant. You may consider the statement as evidence
         against this Defendant but before you do so, you must find that,

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     in fact, a crime was committed; otherwise, you must disregard
     the statement.

                                 *     *      *

           . . . [I]f you find that the Defendant made the statement
     voluntarily, then you may consider the statement as
     evidence against the Defendant, and this only applies to
     the Defendant, Wright. You should consider the facts and
     circumstances surrounding the making of the statement along
     with all other evidence in the case in judging its truthfulness in
     deciding how much weight, if any, the statement deserves on the
     question of whether the Defendant has been proven guilty.

(N.T. Trial, at 31-32, 40) (emphases added).

     It is clear that Wright’s statement described only his own actions and he

repeatedly refused to identify the other co-conspirators or even reveal how

many there were. Because Wright’s statement did not directly reference Epps

and the court issued an appropriate cautionary instruction, there was no

confrontation violation.   Contrary to Epps’ assertion, the trial court’s

instruction expressly directed that Wright’s statement could be considered as

to Wright’s guilt only. In light of these circumstances, we conclude counsel

was not ineffective for failing to raise objections relating to Wright’s

statement.

                                      E.

     Epps next argues that trial counsel was ineffective for failing to object

to the testimony of Philadelphia Police Detective Ron Dove, who analyzed the

phone records of the co-conspirators and matched them with available video

surveillance footage.   Specifically, Epps claims that counsel should have


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objected to Detective Dove’s opinion identifying him as the “one central figure”

in the crime. (N.T. Trial, 11/21/11, at 200). Epps asserts that this statement

functioned as an expert opinion on his guilt and relieved the jury of its

obligation to fact-find and assess credibility.

      The PCRA court found this claim lacked merit because defense counsel

did object to this line of questioning. Our review of the record confirms the

same. On direct examination by the Commonwealth, Dove testified:

      Q. Now, from analysis point of view, what were you looking to do,
      what were you looking for when you looked through Mr. Epps’
      phone records?

      A. Based on Katoya [Jones’] interview, she makes it clear that
      [Epps] was the mastermind or organizer of this burglary─

      [Defense counsel]: Objection.

      A. ─this robbery.

      The Court: What is the objection?

      [Defense counsel]: To the characterization, mastermind.

      [The Commonwealth]: He is explaining what he was looking for in
      the records, he did that based on, it is not for the truth. It is for
      why he did what he did.

      [The Court]: Overruled.

(Id. at 28-29) (emphasis added).

      After Detective Dove painstakingly reviewed the tremendous amount of

phone activity between Epps and the other actors, the Commonwealth elicited

the following testimony:




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       Q: In terms of the people that you identified as being involved in
       the burglary and a robbery, murder, did people speak to each
       other?

       A: No. As you can see─

       [Defense Counsel]: Your Honor, objection. How could he possibly
       tell? The phones had contact.

       [The Commonwealth]: I will rephrase.

       The Court: Rephrase the question. Objection sustained.

       Q: The phones you linked to each of these people, were these
       phones talking with each other or were they all connecting back
       to one or two central figures?

       A: There is clearly one central figure in all of this, every single
       person on there. One thing in common that they all do, they all
       contact or he contacts them, Keith Epps.

(Id. at 200). The detective then detailed the contacts each co-conspirator

had with Epps, including that Jones had contact only with Epps and no other

actor; and Murchison had contact only with Epps and Scott. (See id. at 201).

       Thus, the record reflects that defense counsel did object to the

detective’s characterization of Epps as the mastermind behind the robbery.

The record further bears out that Detective Dove did not render an expert

opinion regarding Epps’ guilt and instead identified him as the common

denominator between all participants in the robbery after his exhaustive

review of voluminous phone records. Epps’ claim merits no relief.10

____________________________________________


10Epps relies on Commonwealth v. McClure, 144 A.3d 970, 977 (Pa. Super.
2016), in which this Court found the trial court erred in allowing a police



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                                               F.

       Epps also maintains that trial counsel was ineffective for failing to

consult or hire a cell phone expert to support the defense theory of the case

that he was at a strip club called Delilah’s Den at the time of the shooting and

was not outside of Thal’s apartment building as the Commonwealth alleged.

At trial, the Commonwealth’s cell phone expert, William Shute, testified that

it was not possible that Epps made the relevant phone calls from Delilah’s,

reasoning that the many walls and lack of windows at the club would have

caused refraction, which was inconsistent with the evidence showing Epps

made the calls from an area with a clear signal. Epps identifies an expert who

he asserts would have effectively challenged this conclusion regarding his

location.

       “Where a claim is made of counsel’s ineffectiveness for failing to call

witnesses, it is the appellant’s burden to show that the witness existed and

was available; counsel was aware of, or had a duty to know of the witness;

the witness was willing and able to appear; and the proposed testimony was

necessary in order to avoid prejudice to the appellant.” Commonwealth v.

Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (citation omitted).




____________________________________________


detective to express opinions that neither he nor a CYS employee believed the
defendant. However, as discussed, Detective Dove in no way testified to the
same effect.

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J-S29042-20


      The PCRA court denied relief on this claim, finding that testimony from

Epps’ cell phone expert that he disagreed with the Commonwealth’s expert

testimony at trial that Epps could not have been at Delilah’s Den because of

“refraction” because it would not have altered the outcome of this case. We

agree that even if Epps had presented evidence challenging Shute’s

conclusion, there is no reasonable probability that the outcome of his trial

would have been different.

      Specifically, the Commonwealth presented the testimony of Jones and

Scott, both of whom identified Epps as the formulator of the plan.       The

Commonwealth also established that Epps had numerous phone contacts with

his cohorts leading up to and on the day of the robbery, further inculpating

him as the central figure in the crime. (See N.T. Trial, 11/21/11, at 32-70).

For example, the records indicated that Epps spoke with Jones 29 times on

the day of the murders; with Scott, 11 times; and with Murchison, 30 times

that day. (See id. at 38-39, 41). The records also shows that Epps made a

phone call to Murchison at 5:14 p.m. just before video surveillance footage

shows Thal and Gilmore enter the apartment building at 5:15 p.m. (See id.

at 52-53).

      In light of the evidence against him, Epps failed to show a reasonable

probability that the result of the proceeding would have differed had such

testimony been presented.      Because he has not established prejudice, his

claim does not merit relief.


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                                     III.

      Epps next challenges the PCRA court’s decision to not hold a hearing on

his after-discovered evidence claim asserting a Brady violation. See 42

Pa.C.S. § 9543(a)(2)(vi) (listing after-discovered exculpatory evidence as

basis for PCRA relief).   Specifically, Epps claims that the Commonwealth

withheld exculpatory evidence in the form of an internal affairs investigation

Philadelphia Police Detective William Pitts for misconduct. Although Detective

Pitts did not testify at Epps’ trial, he did interview Commonwealth witnesses

Jones and Scott. Because the internal investigation showed that Detective

Pitts used force, threats of force and other forms of misconduct to coerce

inculpatory statements from witnesses in other cases, Epps argues that a

hearing was necessary to explore whether Detective Pitts used these tactics

in this case. Epps maintains that he would offer this type of evidence to show

that the accusations Jones and Scott made against him were unreliable.

      To be entitled to relief based on a claim of after-discovered evidence

under the PCRA, a petitioner must plead and prove that his conviction or

sentence resulted from “[t]he unavailability at the time of trial of exculpatory

evidence that has subsequently become available and would have changed

the outcome of the trial if it had been introduced.”             42 Pa.C.S. §

9543(a)(2)(vi). A petitioner must establish that the evidence: “(1) could not

have been obtained prior to the conclusion of the trial by the exercise of

reasonable diligence; (2) is not merely corroborative or cumulative; (3) will


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not be used solely to impeach the credibility of a witness; and (4) would

likely    result   in   a   different   verdict    if   a   new   trial   were   granted.”

Commonwealth v. Tedford, 2020 WL 1932768, at *15 (Pa. filed Apr. 22,

2020) (emphasis added; citation omitted). We are also mindful that “a Brady

violation consists of three elements: (1) suppression by the prosecution (2)

of evidence, whether exculpatory or impeaching, favorable to the defendant,

(3) to the prejudice of the defendant.” Id. at *12 n.11 (citation omitted).

         To support his claim of police coercion, Epps points to Jones’ trial

testimony that her initial statement to police did not mention him at all. Jones

named Epps only after the detectives “badger[ed her] with questions” and

showed her a picture of Thal. (N.T. Trial, 11/15/11, at 68).

         A review of Jones’ testimony in full context, however, does not implicate

any police misconduct. Instead, Jones testified that while she initially did not

implicate Epps in the incident, she then wanted to tell the truth and cooperate

with police after they obtained her cell phone records showing her

communication with Epps.           Police also showed Jones a picture of Thal to

humanize the victim. At that point, Jones “broke” and told the truth. (See

id. at 65-73).

         Regarding Scott, Epps points to nothing in Scott’s testimony or anything

in the record to support his claim of possible police coercion affecting Scott’s

testimony. Rather, the record reflects that Scott entered an open guilty plea

to several charges for his role in this case and that, as part of his plea


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agreement, testified in court as a Commonwealth witness. (See N.T. Trial,

11/15/11, at 4-5).

      The PCRA court rejected Epps’ after-discovered evidence claim, finding

that he presented no evidence indicating that Detective Pitts engaged in any

misconduct in this case. (PCRA Ct. Op., at 28). Instead, Jones and Scott

willingly cooperated with the Commonwealth by providing statements and

testifying as its witnesses at trial. Thus, Epps’ claims lack record support.

      Further, as the PCRA court notes, in Commonwealth v. Brown, 134

A.3d 1097 (Pa. Super. 2016), this Court examined in a case on direct appeal

whether evidence that a police detective used aggressive and violent tactics

to pressure witnesses into making false statements could constitute after-

discovered evidence.     The Brown Court found that even assuming the

evidence was admissible, it could be used only to impeach the detective’s

credibility. Because the proposed witnesses would allege that the detective

committed misconduct in other murder cases, “none of the witnesses can

provide any new evidence concerning his conduct in this case.” Id. at 1109

(emphasis added).

      Similarly, in this case, even assuming testimony regarding Detective

Pitt’s misconduct was admissible, it could only be used to impeach the

credibility of Jones and Scott. Therefore, the testimony cannot form the basis

for an after-discovered evidence claim in this case.




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        In sum, after review of the record, we conclude that the PCRA court

properly denied Epps’ PCRA petition without a hearing.

        Order affirmed.

        President Judge Panella joins the memorandum.

        Judge Nichols did not participate in the consideration or decision of this

case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/20




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