J   -A15019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

     COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                      Appellee

                 v.

     REGGIE WILLIAMS

                      Appellant                       No. 1090 EDA 2018

              Appeal from the Judgment of Sentence August 17, 2018
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0000754-2009

BEFORE:       BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                        FILED AUGUST 09, 2019

        Appellant, Reggie Williams, appeals from the reinstated judgment of

sentence entered in the Philadelphia County Court of Common Pleas, following

remand and the denial of his request for        a   new trial, based upon after -

discovered evidence. We affirm.

        The relevant facts and procedural history of this case are as follows. In

the early morning of March 29, 2008, Appellant and his cohort, Bruce Lee,

repeatedly kicked and stomped on Victim's head and face. Victim died from

his injuries that same day.       The Commonwealth charged Appellant and Mr.

Lee separately for Victim's murder. When Appellant proceeded to a        jury trial
in   February 2011, Mr. Lee refused to testify, and the trial ended in   a   mistrial

due to   a   hung jury. Subsequently, Mr. Lee entered on February 22, 2012,        a


guilty plea to third-degree murder for the death of Victim and received            a




      Retired Senior Judge assigned to the Superior Court.
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sentence of seven (7) to fourteen (14) years' incarceration.            Appellant

proceeded to     a   retrial in July 2013, and Mr. Lee again refused to testify on

Appellant's behalf.

        A prior memorandum decision of this Court sets         forth the relevant

testimony at Appellant's retrial as follows:

          On March 29, 2008, sometime before      3:20 a.m., [Victim]
          and his friend Harvey Tilghman went to Club 121, an after-
          hours nightclub at 35th and Wharton Streets in South
          Philadelphia. When [Victim] arrived at the nightclub he was
          met by Jana Perry, a female friend whom he had invited
          earlier. A short time after Ms. Perry entered the nightclub,
          she joined a line dance on the second floor of the
          establishment. While Ms. Perry was dancing, Mr. Tilghman
          and [Victim] stood on the left side of the dance floor and
          watched the dancers. [Appellant] and Bruce Lee were
          standing to the right of Mr. Tilghman and [Victim]. They
          were also watching the line dancers. Mr. Tilghman spoke to
          the two men and introduced them to [Victim]. While Ms.
          Perry was dancing, Bruce Lee tugged at her about three
          times. Toward the end of the dance, Bruce Lee reached his
          hand out to Ms. Perry. [Victim] also reached his hand out
          to her. Ms. Perry chose [Victim].

          [Victim] was then knocked to the floor and rendered
          unconscious, lying flat on his back. His face was swollen
          and he was barely breathing. Mr. Tilghman kneeled to the
          floor and attempted to aid his friend. As Mr. Tilghman
          attended to [Victim], [Appellant] and Bruce Lee proceeded
          to stomp on [Victim]'s face at least twice. [Appellant] was
          6'2" tall and weighed 215 pounds. Bruce     Lee was 6'5" tall
          and    weighed 260 pounds.        Both men were wearing
          Timberland boots. During the assault on [Victim], Mr.
          Tilghman and [Appellant] engaged in a shoving match with
          each other. [Appellant] pushed Mr. Tilghman, causing him
          to fall over [Victim] who was still lying on the floor. Mr.
          Tilghman rose and said: "I told you that was my friend, what
          did you do?" [Appellant] yelled back: "He disrespected me."
          Within seconds, security responded and separated the two
          men. The nightclub patrons scattered and some left the

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          establishment. [Appellant] fled the scene.     Minutes later,
          police arrived on the scene.

          [Victim] was pronounced dead at the Hospital of the
          University of Pennsylvania on March 29, 2008, at about 4:10
          a.m.    At trial, Dr. Gary Collins, deputy chief medical
          examiner, testified as the Commonwealth's forensic
          pathology expert. After conducting an autopsy of [Victim],
          Dr. Collins concluded to a reasonable degree of medical
          certainty that the cause of death was [a] blunt impact facial
          injury.    [Victim] sustained a palpable fracture of his
          maxillary, right cheek bone, and nasal bone. His right
          cheek, right lower and upper eyelids, and right upper lip
          were bruised and swollen significantly. Dr. Collins further
          observed a three-point pattern on [Victim]'s right cheek.
          [Victim] also sustained injury to his lower lip, where there
          were two lacerations: one across his lower lip and one that
          separated his lower lip from the gum line. Dr. Collins further
          observed blood stains inside [Victim]'s oral and nasal
          cavities and lungs. There were no other blunt or sharp
          injuries or wounds to the remainder of his body.

          [Victim] bled profusely from his facial injuries. As a result,
          he suffocated from blood that obstructed his airways. Dr.
          Collins explained that an individual who is bleeding
          significantly from the nose and mouth will suffocate if he is
          unable to clear the accumulating blood from those cavities.
          The individual will then suffer from a lack of oxygen to the
          lungs or the brain. In addition to determining the cause of
          death, Dr. Collins concluded to a reasonable degree of
          medical certainty that the manner of death was homicide.
          The blunt impact facial injury and the lack of injury to the
          remainder of the body was consistent with testimony that
          [Victim]'s face was moderately to significantly impacted at
          least twice by a hard blunt object.

          On March 29, 2008, at    3:20 a.m., Sergeant Michael Davis
          responded to Club 121 after receiving a radio call about a
          fight. Within seconds other officers including Police Officers
          Donofrio and Corrado arrived on the scene and proceeded
          to the second floor of the nightclub with Sergeant Davis.
          When they reached the dance floor, [Victim] was still lying
          on the floor. His face was swollen and covered in blood and
          he was blowing bubbles of blood from his nose and mouth.

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          Sergeant Davis requested expedited rescue and moved the
          crowd     surrounding [Victim] while Officer Corrado
          administered CPR. Sergeant Davis also asked responding
          officers to control the crowd and to return as many patrons
          as possible to the nightclub.      About 30 to 40 people
          remained inside the first floor of the nightclub.
          Unfortunately, [Victim] stopped breathing while rescue was
          on location.

          At about 5:45 a.m., Crime Scene Officer William Trenwith
          responded and conducted a walkthrough of the crime scene.
          He collected a swab from the large pool of blood found on
          the banquet room dance floor, one black baseball cap..., and
          one pair of eyeglasses found on a nearby table. Officer
          Trenwith submitted this evidence to the criminalistics
          laboratory. Officer Trenwith also retrieved cups, glasses,
          and beer bottles and lifted thirteen (13) fingerprints from
          these items. He submitted the fingerprints to the Latent
          Fingerprint Unit.

          Mr. Tilghman     provided three statements regarding this
          incident to police. On March 29, 2008, at 3:20 a.m., he
          gave his first statement to Detective Kevin Conaway on the
          second floor of the nightclub. He did not identify either
          perpetrator during this interview.         In his two -page
          statement, Mr. Tilghman stated that he did not see anything
          because his back was turned during the incident.            Mr.
          Tilghman stated that after hearing the commotion, he
          turned and saw a man lying on the floor with plywood on his
          face. He further stated that he first recognized his friend by
          the camouflage vest [Victim] was wearing. After [Victim]
          was pronounced dead, Detective Conaway transported Mr.
          Tilghman to the Homicide Unit where he provided a second
          statement to Detectives Morton and Holmes.              In this
          statement, given on March 29, 2008,        at 5:25  a.m.,   Mr.
          Tilghman gave an account of the incident and identified a
          photograph of [Victim]. He did not identify the perpetrators,
          but stated that he saw a brown boot stomping on [Victim].

          After returning home, Mr. Tilghman could not sleep and
          continued to think of his deceased friend. On March 31,
          2008, at 8:55 a.m., Mr. Tilghman went to the Homicide Unit
          on his own accord and provided a third statement to
          detectives. In his third statement, Mr. Tilghman identified

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          [Appellant] as "one of the ones" that he saw stomping on
          [Victim].    Mr. Tilghman identified [Appellant] from a
          photograph and told police that he has known him for at
          least ten years. After identifying [Appellant], Mr. Tilghman
          was shown a separate photographic array. He identified
          Bruce Lee from the photographic array and stated that
          Bruce Lee was with [Appellant] at the nightclub.           He
          described [Appellant] as about 6'2" or 6'3" tall and Bruce
          Lee as about 6'3" tall. Mr. Tilghman told police that he only
          saw [Appellant] stomping on [Victim], but he believed that
          more than one person stomped his friend. He also told
          police that he saw [Appellant] stomp [Victim] in the face at
          least once, but that it could have been more than once.
          However, at trial, Mr. Tilghman stated that he saw...[V]ictim
          being stomped on at least twice.

          At trial, Mr. Tilghman explained his initial failure to identify
          [Appellant]. He stated that he felt pressured and was afraid
          of the neighbors' response to his cooperation with police.
          During his initial interview by Detective Conaway, some of
          the people inside the nightclub were from his neighborhood.
          [Appellant] also lived in the neighborhood, about one block
          away from Mr. Tilghman. At trial, Mr. Tilghman stated that
          he was "petrified" for his family and for himself. He stated,
          "If you tell, basically, everybody going to be against you and
          you can get killed that way, easy." Detective Conaway
          testified that Mr. Tilghman appeared worried and upset
          during the first interview. About one month after providing
          his third statement to police, Mr. Tilghman moved out of
          state. He has not returned to Philadelphia except to testify
          in this case on two separate occasions.

          On March 29, 2008, at about   6:50 a.m., Detective George
          Fetters interviewed Jana Perry. During the interview, Ms.
          Perry provided a description of one perpetrator. She was
          also shown a photographic array and asked if she recognized
          anyone from the incident. Ms. Perry identified Bruce Lee
          and stated: "Yes, this one. He's the one that was trying to
          talk with me and he's the one that stomped [Victim] then
          he rolled out. I didn't see him again after that." At trial,
          Ms. Perry did not recall providing a description to police.
          She also claimed to have used the "eeny meeny rainy moe"
          method when she identified Bruce Lee from the
          photographic array. However, Detective Fetters testified

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          that Ms. Perry did not hesitate when she made her
          identification.

          On March 29, 2008, at     9:50 a.m., Detective Thomas Gaul
          interviewed Loretta Epps, who was a nightclub patron when
          this incident occurred.     During the interview, Ms. Epps
          described two perpetrators: one man was taller than
          Detective Gaul, who was 6'3", and the other man was even
          taller and wearing a white baseball cap and red jacket. Ms.
          Epps was also shown a photographic array and asked if she
          recognized anyone from the incident. Ms. Epps identified
          Bruce Lee and stated: "This guy was on the bar second floor.
          I can't say for sure he was one of the guys who was
          stomping on the guy though." At trial, Ms. Epps further
          described      the    two    perpetrators.       The    man
          stomping...[V]ictim's head and neck was about 6'2" or 6'3"
          tall and a fairly thin person who weighed about 190 to 210
          pounds. He was wearing a red jacket, white baseball cap,
          and tan Timberland boots. The second man may have been
          a little shorter and slimmer than the first man.


          Detective Verrechio was the assigned investigator in this
          homicide case. Based on his investigation, he obtained
          arrest warrants for [Appellant] and Bruce Lee on April 5,
          2008. He also obtained search warrants for [Appellant's]
          residence at 2639 Oakford Street and Bruce Lee's residence
          at 2645 Oakford Street in Philadelphia. These properties
          are three doors apart from each other and approximately
          nine (9) or ten (10) blocks away from Club 121 at 35th and
          Wharton Streets. Detectives executed the search warrant
          at [Appellant's] residence, but nothing of evidentiary value
          was recovered. [Appellant] was not present in his home
          when police served the arrest warrant. Detective Verrechio
          left his contact information and a copy of the search warrant
          with a female relative. [Appellant] later contacted police
          and told them that he would surrender on a date certain,
          but he failed to do so.

          On April 5, 2008, Detective Steven Mostovyk executed a
          search warrant at 1248 South 27th Street in Philadelphia,
          the address of Bruce Lee's friend Latifa Sharee Allison. This
          residence is just around the corner from 2639 Oakford
          Street.   During the execution of this search warrant,
          Detective Mostovyk recovered two pairs of size 13

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          Timberland boots, one tan and one light brown, and
          submitted them to the criminalistics laboratory. Later that
          day, Bruce Lee was arrested at his girlfriend's house in
          Yeadon, Pennsylvania. At that time, Bruce Lee was 6'5" tall
          and weighed 260 pounds.

          In the early morning hours of April 9, 2008, police officers
          returned to [Appellant's] residence. Shortly after knocking
          and announcing their presence, Sergeant Davis heard the
          door latch turn. When Police Officer Thomas Dydra looked
          through the living room window, he saw a dark shadow walk
          up to the door and then back up against the wall. Officer
          Dydra communicated his observation to Sergeant Davis,
          and the men waited a few minutes. No one responded.
          Sergeant Davis then knocked harder and announced louder.
          When no one responded Sergeant Davis loudly requested a
          sledgehammer and a halligan bar to assist in opening the
          door. At that time [Appellant] opened the door and said:
          "I'm right here." [Appellant] was arrested and transported
          to the Homicide Unit. After [Appellant's] arrest Detective
          John Cahill completed a biographical report of [Appellant]
          on April 9, 2008. At that time, [Appellant] was 6' 2" tall
          and weighed 215 pounds. He was wearing a white thermal
          long sleeve shirt, blue denim jeans, and tan Timberland
          boots size 111/2. Detective Cahill confiscated those items
          from [Appellant] and submitted them to the criminalistics
          laboratory.    In his report, Detective Cahill noted that
          [Appellant] named Bruce Lee as an associate.           After
          [Appellant] and Bruce Lee were arrested, Detective
          Singleton obtained two buccal swabs from each man and
          submitted them to the criminalistics laboratory.

          At trial, Gamal Emira testified as a forensic science expert.
          Mr. Emira analyzed the evidence submitted to the
          criminalistics laboratory and prepared a report. The dark
          red stain swab [taken from the pool of blood on the floor of
          the club] tested positive for blood. Mr. Emira did not see
          any blood stains on visual examination of the black baseball
          cap. He observed a rootless human brown hair fragment.
          He also cut a piece of the sweatband from the cap for
          identification purposes. He also swabbed the recovered
          eyeglasses. His visual examination of the tan size 111/2
          Timberland boots recovered from [Appellant] reaped one
          microscopic brown stain on the left side of the left boot. He

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           did not find any other stains. Mr. Emira testified that he
           suspected that it was blood, but he did not conduct blood
           testing because of the sample's small size. Instead, he
           swabbed the stain and submitted it for DNA testing. Mr.
           Emira also observed brown stains during his visual
           examination of the two pairs of size 13 Timberland boots
           recovered from Bruce Lee. Mr. Benjamin Levin, a DNA
           science expert, received and analyzed the swabs Mr. Emira
           submitted to the DNA laboratory. Mr. Levin concluded to a
           reasonable degree of scientific certainty that the dark brown
           stain swab recovered from the banquet room dance floor
           was from [Victim].     There were no DNA results from
           [Appellant's] left Timberland boot, the sweatband, the
           eyeglasses, or Bruce Lee's right Timberland boot.

Commonwealth v. Williams, 156 A.3d 352, at *1 -*4 (Pa.Super. 2016)
(unpublished memorandum), appeal denied, 641 Pa. 606, 169 A.3d 32

(2017).

        On July 26, 2013, the     jury convicted Appellant of one count of third-
degree murder.      The court sentenced Appellant on December 6, 2013, to

twenty (20) to forty (40) years' incarceration.        Appellant timely filed post -

sentence motions, which the court denied on August 8, 2014. On August 28,

2014, Appellant filed   a   timely notice of appeal.

        While Appellant's direct appeal was pending, he filed in the trial court

on June 24, 2015, a petition purportedly brought under the Post Conviction

Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546.1 In the petition, Appellant




1 We note Appellant's PCRA petition was premature, because Appellant filed
the petition while his direct appeal was pending in this Court.      See
Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa.Super. 2002), appeal
denied, 572 Pa. 700, 813 A.2d 839 (2002) (providing PCRA "has no
applicability until the judgment of sentence becomes final").
                                         - 8 -
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stated he had obtained after -discovered evidence in the form of an affidavit

from Mr. Lee, in which Mr. Lee said he alone had inflicted the fatal injuries

upon Victim. Mr. Lee claimed he had       a   "change of heart" and was now willing

to testify on Appellant's behalf.      Appellant filed in this Court on August 7,

2015,    a   "Petition for Remand," requesting this Court to remand to allow

Appellant to present Mr. Lee's affidavit and testimony.

        On August 30, 2016, this Court affirmed Appellant's conviction and

found without merit Appellant's challenges to, inter alia, the sufficiency and

weight of the evidence.          This Court, however, also vacated Appellant's

judgment of sentence and remanded for the trial court to hold an evidentiary

hearing limited to whether Appellant's alleged after -discovered evidence

warranted     a   new trial.   Our Supreme Court denied Appellant's petition for

allowance of appeal on March 30, 2017. See Williams, supra.

        On August 18, 2017, the      trial court conducted an evidentiary hearing

upon remand and heard testimony from Mr. Lee. Mr. Lee testified he had an

altercation with Victim on the second floor of Club 121 on March 29, 2008,

during which he punched Victim in the face, causing Victim to fall to the ground

unconscious.       Mr. Lee said he then stomped on Victim's face several times.

Mr. Tilghman attempted to stop Mr. Lee, but Mr. Lee pushed Mr. Tilghman

away and stomped on Victim's face several more times.               Mr. Lee stated

Appellant was not with Mr. Lee throughout his altercation with Victim, as

Appellant was downstairs, on the first floor of the club.        Mr. Lee added Mr.


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Tilghman inaccurately testified as to the events of March 29, 2008, at Mr.

Lee's and Appellant's    joint preliminary hearing.          Mr. Lee noted Mr. Tilghman

claimed to have grabbed Appellant during the incident, not Mr. Lee. Mr. Lee

said Mr. Tilghman confused Appellant for Mr. Lee throughout his preliminary

hearing testimony.        Mr.   Lee claimed        he told       his attorneys during   Mr.

Tilghman's preliminary hearing testimony, "This              is   what happened between

myself and Mr. Tilghman. [Appellant] wasn't with me." When asked why he

did not testify at Appellant's first trial, Mr. Lee explained his attorneys advised

him against testifying because his criminal charge for Victim's murder was still

pending. Mr. Lee acknowledged he had entered                 a    guilty plea to the murder

of Victim prior to Appellant's retrial.     When asked why he declined to testify

at Appellant's retrial, Mr. Lee said, "I was being hot-headed, I was upset

pertaining to my situation as far as sentencing."                  (N.T. Remand Hearing,

8/18/17, at 16-28).

        During the hearing, Appellant also introduced the statement Steven

Murphy had given to police on March 29, 2008.2 In his statement, Mr. Murphy

explained he was     a   part-time manager of Club 121 and was working there

when the incident occurred. Mr. Murphy told police he saw Mr. Lee stomp on

Victim, but did not see anyone else strike Victim. (Id. at 75-76, Exhibit "D-

6"; Appellant's Brief at Appendix "B").




2   Mr. Murphy testified at Appellant's   first trial, but not at Appellant's retrial.
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        On November 7, 2017, the           trial court conducted   a   second remand

hearing, during which it heard the testimony of Thomas McGill, Esq. Mr. McGill

explained he represented Appellant at the preliminary hearing and both trials.

Mr. McGill said he was near Mr. Lee while waiting for Appellant prior to the

start of the preliminary hearing. Mr. McGill recalled Mr. Lee said to him when

Appellant entered, "[Appellant] didn't have anything to do with this.                He

shouldn't even be here." Mr. McGill added he had arranged for Mr. Lee to be

brought to the courthouse from prison during Appellant's retrial, because

Appellant had information Mr. Lee would testify that Appellant was not

involved in the incident. Mr. McGill said he met with Mr. Lee in the courthouse

cell room during      a   lunch break during Appellant's retrial to discuss Mr. Lee's

testifying on Appellant's behalf. Mr. Lee, however, refused to testify. When

Mr. McGill asked why Mr. Lee would not          testify, Mr. Lee said, "I'm serving my

sentence. I have to come up for parole at some point." Mr. Lee added, "Based

on what folks have told me, I probably wouldn't be here if it hadn't been for

[Appellant]." (N.T. Remand Hearing, 11/7/17, at 5-11).

        On March 9, 2018, the       trial court stated on the record that it found Mr.

Lee incredible.       That same day, the court entered an order dismissing

Appellant's premature PCRA petition and denying his request for           a   new trial.

Appellant filed   a   timely notice of appeal on April 9, 2018. The court ordered

Appellant on April 10, 2018, to file      a   concise statement of errors complained

of on appeal per Pa.R.A.P. 1925(b); Appellant timely complied on April 25,
J   -A15019-19


2018. On August 17, 2018, the trial court re -imposed Appellant's December

6, 2013 judgment of sentence.3

        Appellant raises one issue for our review:

           WHERE THE TESTIMONY OF BRUCE LEE, PRESENTED TO
           THE [TRIAL] COURT ON REMAND, WAS SO COMPELLING AS
           TO MEET ALL THE PRONGS OF THE NEWLY -DISCOVERED
           EVIDENCE TEST, DID THE [TRIAL] COURT ERR AS A
           MATTER OF LAW IN DENYING A NEW TRIAL ON THE BASIS
           OF THIS EVIDENCE?

(Appellant's Brief at 2).

        After   a   thorough review of the record, the briefs of the parties, the

applicable law, and the well -reasoned opinion of the Honorable Sandy L.V.

Byrd, we conclude Appellant's issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed July 18, 2018, at 6-9) (finding: Mr. Lee was

friend of Appellant; Mr. Lee failed to exculpate Appellant at both of Appellant's

trials; as of retrial, Mr. Lee had already entered guilty plea, was serving his

sentence, and did not have any Fifth Amendment privilege to assert; Mr. Lee

told trial counsel he would not testify at retrial because, if not for Appellant,

Mr. Lee would not be in situation he was in at     that time; Mr. Lee's testimony




3 Appellant's notice of appeal relates forward to August 17, 2018, the date the
court reinstated Appellant's judgment of sentence. Therefore, we have no
jurisdictional impediments to our review. See Pa.R.A.P. 905(a)(5) (stating:
"A notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof").

                                         - 12 -
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was incredible and was not of such nature and character that verdict would

differ if court granted new trial to permit Appellant to present Mr. Lee as

exculpatory witness; therefore, Appellant failed to meet fourth prong of after -

discovered evidence test; further, Appellant's claim that Mr. Lee's testimony

contradicts trial testimony of Mr. Tilghman warrants no relief; Ms. Epps

testified at trial that two people stomped on Victim; Mr. Tilghman identified

one stomper as Appellant, and Ms. Perry identified other stomper as Mr. Lee;

on initial direct appeal, Superior Court determined it was not unreasonable for

these witnesses' statements to differ under circumstances of altercation,

concluding witnesses' testimony was not so inconsistent as to be inherently

unreliable; additionally, Appellant's claim Mr. Lee's testimony on remand     is

more reliable than Mr. Tilghman's trial testimony, because Mr. Murphy's

statement to police corroborated Mr. Lee's testimony, fails, where Mr.

Tilghman's testimony contradicted that evidence; at trial, jury rejected

testimony of several defense witnesses who testified Appellant was on first

floor of club during altercation as well as Appellant's version of events; jury

accepted testimony of Commonwealth's witnesses, including Mr. Tilghman,

Ms. Epps, and Ms. Perry).     The record supports the trial court's rationale.

Accordingly, we affirm based on the trial court opinion.

        Judgment of sentence affirmed.




                                     - 13 -
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Judgment Entered.




J seph D. Seletyn,
Prothonotary



Date: 8/9/19




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                                                                     CP-51-CR-0000754-2009 Comm. v. Wiiiams, Reggie
                                   V.                                                   Opinion




                         REGGIE WILLIAMS                                  II 11111111111111111111111
                                                                                  8138106331


                                           SUPPLEMENT AL OPINION

          Byrd, J.                                                                                            July 18, 2018 .

                  After a February 22, 2011 mistrial, Reggie Williams was convicted of third-degree murder

          by a jury on July 26, 2013. Defendant was sentenced to a term of twenty (20) to forty (40) years

          incarceration on December 6, 2013. Post-sentence motions were denied on August 8, 2014, and

          Williams filed a notice of appeal on August 28, 2014. This court filed an opinion on April 30,

          2015. On August 30, 2016, the Superior Court denied relief on defendant's substantive issues, but

          remanded for proceedings consistent with its opinion. In accordance therewith, this court held an

          evidentiary hearing on the after-discovered evidence claim presented in an affidavit by co-

          defendant Bruce Lee, with testimony taken on August 18, 2017, November 7, 2017, and March 9,

          2018. On April 3, 2018, this court entered an order denying defendant's request for a new trial.

          Defendant filed a notice of appeal on April 9, 2018. On April 10, 2018, this court ordered defendant

          to file a statement of matters complained of on appeal. Said statement was filed April 25, 2018.

          This opinion follows.




                                                           1
                                  STATEMENT OF FACTS

       The August 30, 2016 Superior Court opinion quoted the trial court's summary of the

evidence as follows:

       On March 29, 2008, sometime before 3:20 a.m., James Anderson and his friend
       Harvey Tilghman went to Club 121, an after-hours nightclub at 35th and Wharton
       Streets in South Philadelphia. When Mr. Anderson arrived at the nightclub he was
       met by Jana Perry, a female friend whom he had invited earlier. A short time after
       Ms. Perry entered the nightclub, she joined a line dance on the second floor of the
       establishment. While Ms. Perry was dancing, Mr. Tilghman and Mr. Anderson
       stood on the left side of thedance floor and watched the dancers. [Appellant] and
       Bruce Lee were standing to the right of Mr. Tilghman and Mr. Anderson. They
       were also watching the line dancers. Mr. Tilghman spoke to the two men and
       introduced them to Mr. Anderson. While Ms. Perry was dancing, Bruce Lee tugged
       at her about three times. Toward the end of the dance, Bruce Lee reached his hand
       out to Ms. Perry. Mr. Anderson also reached his hand out to her. Ms. Perry chose '
       Mr. Anderson.
       Mr. Anderson was then knocked to the floor and rendered unconscious, lying flat
       on his back. His face was swollen and he was barely breathing. Mr. Tilghman
       kneeled to the floor and attempted to aid his friend. As Mr. Tilghman attended to
       Mr. Anderson, [Appellant] and Bruce Lee proceeded to stomp on Mr. Anderson's
       face at least twice. [Appellant] was 6'2" tall and weighed 215 pounds. Bruce Lee
       was 6'5" tall and weighed 260 pounds. Both men were wearing Timberland boots.
       During the assault on decedent, Mr. Tilghman and [Appellant] engaged in a shoving
       match with each other. [Appellant] pushed Mr. Tilghman, causing him to fall over
       Mr. Anderson who was still lying on the floor. Mr. Tilghman rose and said: "I told
       you that was my friend, what did you do?" [Appellant] yelled back: "He
       disrespected me." Within seconds, security responded and separated the two men.
       The nightclub patrons scattered and some left the establishment. (Appellant] fled
       the scene. Minutes later, police arrived on the scene.
       James Anderson was pronounced dead at ·the Hospital of the University of
       Pennsylvania on March 29, 2008 at about 4:10 a.m. At trial, Dr. Gary Collins,
       deputy chief medical examiner, testified as the Commonwealth's forensic pathology
       expert. After conducting an autopsy of Mr. Anderson, Dr. Collins concluded to a
       reasonable degree of medical certainty that the cause of death was [a] blunt impact
       facial injury. Mr. Anderson sustained a palpable fracture of his maxillary, right
       cheek bone, and nasal bone. His right cheek, right lower and upper eyelids, and
       right upper lip were bruised and swollen significantly. Dr. Collins further observed
        a three-point pattern on [Mr. Anderson's] right cheek. Mr. Anderson also sustained
        injury to his lower lip, where there were two lacerations: one across his lower lip
        and one that separated his lower lip from the gum line. Dr. Collins further observed
        blood stains inside Mr. Anderson's oral and nasal cavities and lungs. There were no
        other blunt or sharp injuries or wounds to the remainder of his body.



                                                2
 Mr. Anderson bled profusely from his facial injuries. As a result, he suffocated from
 blood that obstructed his airways. Dr. Collins explained that an individual who is
 bleeding significantly from the nose and mouth will suffocate if he is unable to
 clear the accumulating blood from those cavities. The individual will then suffer
 from a lack of oxygen to the lungs or the brain. In addition to determining the cause
 of death, Dr. Collins concluded to a reasonable degree of medical certainty that the
 manner of death was homicide. The blunt impact facial injury and the lack of injury
to the remainder of the body was consistent with testimony that Mr. Anderson's
face was moderately to significantly impacted at least twice by a hard blunt object.
On March 29, 2008, at 3:20 a.m., Sergeant Michael Davis responded to Club 121
after receiving a radio call about a fight. Within seconds other officers including
Police Officers Donofrio and Corrado arrived on the scene and proceeded to the
 second floor of the nightclub with Sergeant Davis. When they reached the dance
floor, Mr. Anderson was still lying on the floor. His face was swollen and covered
in blood and he was blowing bubbles of blood from his nose and mouth. Sergeant
Davis requested expedited rescue and moved the crowd surrounding Mr. Anderson
while Officer Corrado administered CPR. Sergeant Davis also asked responding
officers to control the crowd and to return as many patrons as possible to the
nightclub. About 30·to·40 people remained inside the first floor of the nightclub.
Unfortunately, Mr. Anderson stopped breathing while rescue was on location.
At about 5:45 a.m., Crime Scene Officer William Trenwith responded and
conducted a walkthrough of the crime scene. He collected. a swab from the large
pool of blood found on the banquet room dance floor, one black baseball cap, and
one pair of eyeglasses found on a nearby table. Officer Trenwith submitted this
evidence to the criminalistics laboratory. Officer Trenwith also retrieved cups,
glasses, and beer bottles and lifted thirteen (13) fingerprints from these items. He
submitted the fingerprints to the Latent Fingerprint Unit.
Mr. Tilghman provided three statements regarding this incident to police. On March
29, 2008, at 3:20 a.m., he gave his first statement to Detective Kevin Conaway on
the second floor of the nightclub. He did not identify either perpetrator during this
interview. In his two-page statement, Mr. Tilghman stated that he· did· not see
anything because his back was turned during the incident. Mr. Tilghman stated that
after hearing the commotion, he turned and saw a man lying on the floor with
plywood on his face. He further stated that he first recognized his friend by the
camouflage vest Mr. Anderson was wearing. After Mr. Anderson was pronounced
dead, Detective Conaway transported Mr. Tilghman to the Homicide Unit where
he provided a second statement to Detectives Morton and Holmes. In this statement,
given on March 29, 2008, at 5:25 a.m., Mr. Tilghman gave an account of the
incident and identified a photograph of the decedent. He did not identify the
perpetrators, but stated that he saw a brown boot stomping on Mr. Anderson.
After returning home, Mr. Tilghman could not sleep and continued to think of his
deceased friend. On March 31, 2008, at 8:55 a.m., Mr. Tilghman went to the
Homicide Unit on his own accord and provided a third statement to detectives. In
his third statement, Mr. Tilghman identified [Appellant] as "one of the ones" that
he saw stomping on James Anderson. Mr. Tilghman identified [Appellant] from a
photograph and told police that he has known him for at least ten years. After


                                          3
identifying [Appellant]; Mr. Tilghman was shown a separatephotographic array.
He identified Bruce Lee from the photographic array and stated that Bruce Lee was.
with [Appellant] at the nightclub. He described [Appellant] as about 612" or 6'311
tall and Bruce Lee as about 6'311 tall. Mr. Tilghman told police that he only saw
[Appellant] stomping on Mr. Anderson, but he believed that more than one person
stomped his friend. He also told police that he saw [Appellant] stomp Mr. Anderson
in the face at least once, but that it could have been more than once. However, at
trial, Mr. Tilghman stated that he saw the victim being stomped on at least twice.
At trial, Mr. Tilghman explained his initial failure to identify [Appellant]. He stated
that he felt pressured and was afraid of the neighbors' response to his cooperation
with police. During his initial interview by Detective Conaway, some of the people
inside the nightclub were from his neighborhood. [Appellant] also lived in the
neighborhood, about one block ·away·from Mr; Tilghman. At trial, Mr. Tilghman
stated that he was "petrified" for his family and for himself. He stated, "If you tell,
                                                                                       11
basically, everybody going to be against you and you can get killed that way, easy.
Detective Conaway testified that Mr. Tilghman appeared worried and upset during
the first interview. About one month after providing his third statement to police,
Mr. Tilghman moved out of state. He has not returned to Philadelphia except to
testify in this case on two separate occasions.
 On March 29, 2008, at about 6:50 a.m.,Detective George Fetters interviewed Jana
Perry. During the interview, Ms. Perry provided a description of one perpetrator.
 She was also shown a photographic array and asked if she recognized anyone from
the incident. Ms. Perry identified Bruce Lee and stated: 11Yes, this one. He's the one
 that was trying to talk with me and he's the one that stomped Jimmy then he rolled
 out. I didn't see him-again after that." At trial, Ms. Perry·did·not recall providing a
 description to police. She also claimed to have used the "eeny meeny miny moe''
 method when she identified Bruce Lee from the photographic array. However,
 Detective Fetters testified that Ms. Perry did not hesitate when she made her
 identification.
 On March 29, 2008, at 9:50 a.m., Detective Thomas Gaul interviewed Loretta Epps,
 who was a nightclub patron when this incident occurred. During the interview, Ms.
 Epps described two perpetrators: one man was taller than Detective Gaul, who was
 6'3 11, and the other man was even taller and wearing a white baseball cap and red
 jacket. Ms. Epps was also shown a photographic array and asked if she recognized
 anyone from the incident. Ms. Epps identified Bruce Lee and stated: "This guy was
 on the bar second floor. I can't say for sure he was one of the guys who was
  stomping· on the guy though." At trial, Ms. Epps further described- 11the two
 perpetrators. The man stomping the victim's head and neck was about 6'2 or 6 3"
                                                                                     1


  tall and a fairly thin person who weighed about 190 to 210 pounds. He was wearing
  a red jacket, white baseball cap, and tan Timberland boots. The second man may
  have been a little shorter and slimmer than the first man.      ;
  Detective Verrechio was the assigned investigator in this homicide case. Based on
  his investigation, he obtained arrest warrants for [Appellant] and Bruce Lee on
  April S, 2008. He also obtained search warrants for [Appellant's] residence at 2639
  Oakford Street and Bruce Lee's residence at 2645 Oakford Street in Philadelphia.
  These properties are three doors apart from each other and approximately nine (9)

                                            4
or ten (10) blocks away from Club 121 at 35th and Wharton Streets. Detectives
executed the search warrant at [Appellant's] residence, but nothing of evidentiary
value was recovered. [Appellant] was not present in his home when police served
the arrest warrant. Detective Verrechio left his contact information and a copy of
the search warrant with a female relative. [Appellant] later contacted police and
told them that he would surrender on a date certain, but he failed to do so.
On April 5, 2008 Detective Steven Mostovyk executed a search warrant at 1248
South 27th Street in Philadelphia, the address of Bruce Lee's friend Latifa Sharee
Allison. This residence is just around the corner from 2639 Oakford Street. During
the execution of this search warrant, Detective Mostovyk recovered two pairs of
size 13 Timberland boots, one tan and one light brown, and submitted them to the
criminalistics laboratory. Later that day, Bruce Lee was arrested at his girlfriend's
house in Yeadon, Pennsylvania. At that time, Bruce Lee was 6'5" tall and weighed
260 pounds.
In the early morning hours of April 9, 2008 police officers returned to [Appellant's]
residence. Shortly after knocking and announcing their presence, Sergeant Davis
heard the door latch turn. When Police Officer Thomas Dydra looked through the
living room window, he saw a dark shadow walk up to the door and then back up
against the wall. Officer Dydra communicated his observation to Sergeant Davis,
and the men waited a few minutes. No one responded. Sergeant Davis then
knocked harder and announced louder. When no one responded Sergeant Davis
loudly requested a sledgehammer and a halligan bar to assist in opening the door.
At that time [Appellant] opened the door and said: "I'm right here." [Appellant] was
arrested and transported to the Homicide Unit. After [Appellant's'[arrest Detective
John Cahill completed a biographical report of (Appellant] on April 9, 2008. At
that time, [Appellant] was 612" tall and weighed 215 pounds. He was wearing a
white thermal long sleeve shirt, blue denim jeans, and tan Timberland boots size
 11 Y2. Detective Cahill confiscated those items from [Appellant] and submitted
them to the criminalistics laboratory. In his report, Detective Cahill noted that
(Appellant] named Bruce Lee as an associate. After [Appellant] and Bruce Lee
were arrested, Detective Singleton obtained two buccal swabs from each man and
submitted them to the criminalistics laboratory.
At trial, Gamal Emira testified as a forensic science expert. Mr. Emira analyzed the
evidence submitted to the criminalistics laboratory and prepared a report. The dark
red stain swab [taken from the pool of blood on the floor of the club] tested positive
for blood. Mr. Emira did not see any blood stains on visual examination of the black
baseball cap. He observed a rootless human brown hair fragment. He also cut a
piece of the sweatband from the cap for identification purposes. He also swabbed
the recovered eyeglasses. His visual examination of the tan size 11 'h Timberland
 boots recovered from [Appellant] reaped one microscopic brown stain on the left
 side of the left boot. He did not find any other stains. Mr. Emira testified that he
 suspected that it was blood, but he did not conduct blood testing because of the
 sample's small size. Instead, he swabbed the stain and submitted it for DNA testing.
 Mr. Emira also observed brown stains during his visual examination of the two
 pairs of size 13 Timberland boots recovered from Bruce Lee. Mr. Benjamin Levin,
 a DNA science expert, received and analyzed the swabs Mr. Emira submitted to the


                                          5
         DNA laboratory. Mr. Levin concluded to a reasonable degree of scientific certainty
         that the dark brown stain swab recovered from the banquet room dance floor was
         from James Anderson. There were no DNA results from [Appellant's] left
         Timberland boot, the sweatband, the eyeglasses, or Bruce Lee's right Timberland
         boot.
         On February 22, 2012, Bruce Lee entered into a negotiated guilty plea to third-
         degree murder, at CP-51-CR�0000746-2009. On that same day, Bruce Lee. was
         sentenced to an imprisonment term of seven (7) to fourteen ( 14) years.

Commonwealth v, Williams, 2016 WL 5389061, at *1�4 (Pa. Super. Aug. 30, 2016).

               STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

         Defendant raised the following issues in his statement of matters complained of on
         appeal 1:

         1. The Court erred in not granting a new trial based upon the newly discovered
            evidence of Bruce Lee. Specifically, Mr. Williams posits that he has met all
            prongs of the newly discovered evidence test and since the court only ruled that
            he failed to meet the last prong, i.e., that this new evidence was not likely to
            compel the grant of a new trial, this was error.
         2. Moreover, it is respectfully submitted that contrary to the court's finding of a
            lack of credibility Mr. Lee was credible based on his testimony, the fact that
            Steven Murphy corroborated his testimony at the very time his story, and given
            that Mr. Lee, at the Preliminary Hearing asked Mr. Williams counsel why he
            was there because he did not do anything to warrant being arrested.
         3. Furthermore, all of the witnesses who saw persons assault the decedent
            identified Mr. Lee, not Reggie Williams as the perpetrator of the crime, except
            Harvey Tilghman.
         4. However, Mr. Tilghman did not come forward immediately and Steven Murphy
            who did speak to the police the night of the incident, said that it was Mr.
            Tilghman fighting with Bruce Lee rather than Mr. Tilghman fighting with
            Reggie Williams, which was directly contrary to Mr. Tilghman's testimony.
            Therefore, and again, the Court erred in denying the grant of a new trial.


                                            DISCUSSION

         In his first claim, defendant contends that this court erred in not granting a new trial based

on the after-discovered evidence presented in Bruce Lee's affidavit. Here, the burden was on

defendant to show, by a preponderance of the evidence, that each prong of the after-discovered



1   The following is a verbatim account of defendant's statement.
                                                   6
evidence standard has been met. Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007).

Thus, the trial court must develop the record and make the determination of whether a new trial is

warranted. See Pa.R.A.P. 302(a). Unless the trial court has clearly abused its discretion in denying

a new trial on the basis of after-discovered evidence, its order will not be disturbed on appeal.

Commonwealth v. Cull, 688 A.2d 1191, 1198 (Pa. Super. 1997). "Abuse of discretion is not merely

an error of judgment, but rather where the judgment is manifestly unreasonable or where the law

is not applied or where the record shows that the action is a result of partiality, prejudice, bias or

ill will." Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010).

        In order to obtain relief based on after-discovered evidence, defendant bears the burden of

proving that the new 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 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. Montalvo, 986 A.2d 84 (Pa. 2009).

        On remand and after receiving Bruce Lee's affidavit, this court held an evidentiary hearing

over several days, wherein Mr. Lee testified as a witness for defendant. Mr. Lee claimed he was

the only person who attacked the decedent and that defendant was on the first floor of the club

during the fatal altercation on the second floor of the night club. N.T., 8/18/17, at 21�23. Mr. Lee

further claimed that he refused to testify in defendant's second trial because he was "upset

pertaining to my situation as far as sentencing". Id. at 24. Mr. Lee asserted that he had since had a

"change of heart" and wanted to help appellant. Lee Affidavit at 2. At the conclusion of the

evidentiary hearing, this court stated:

        The record reflects that Bruce Lee was a friend of Reggie Williams, the Defendant
        and petitioner herein, yet although he could have [he] failed to exculpate him at the
        two previous trials[.] Mr. Lee declined to testify in the first trial which ended in a
        mistrial. Mr. Lee declined to testify in the second trial which ended in a conviction

                                                  7
       of petitioner Reggie Williams. Interestingly enough, at the time of the second trial,
       Mr. Lee had already pled guilty, was serving a sentence and did not have a 5th
       Amendment [p]rivilege. Nevertheless, he told Mr. McGill that he would not testify
       because if it was not for Williams, he would not be here. So, the issue is, was Bruce
       Lee a credible witness when he testified at this hearing? He was not. Thus, Mr.
       Williams has failed to meet at least the fourth prong and is not entitled to a new
       trial. The request, motion for a new trial is denied[.] and the post conviction relief
       petition is formally dismissed.

N.T., 3/9/18, at 34-35.

       After consideration of the record and Mr. Lee's unreliable testimony, this court concluded

that the after discovered evidence was not of such a nature and character that a different verdict
  I



                                            •
would likely result if a new trial was granted. Therefore, the fourth requirement of the test for

after-discovered evidence was not met. If all prongs are not met, then the claim must be dismissed.

Commonwealth v, Rivera, 939 A.2d 355, 359 (Pa. Super. 2007).

       Defendant's second claim is that Bruce Lee was credible based on his testimony. However,

at the conclusion of a lengthy evidentiary hearing, this court found that Bruce Lee was not credible

for the reasons stated above. Thus, this claim is therefore meritless.

       Defendant's third claim is that "all of the witnesses who saw persons assault the decedent

identified Mr. Lee, not Reggie Williams as the perpetrator of the crime, except Mr. Tilghman." At

trial, the Commonwealth presented eyewitness testimony from Harvey Tilghman, Loretta Epps,

and Jana Perry. "In sum, there was testimony by Ms. Epps that two people were stomping on Mr.

Anderson. Mr. Tilghman identified one of those people as defendant, and Ms. Perry identified

another as Bruce Lee." Commonwealth v. Williams, 2016 WL 5389061, at *7 (Pa. Super. Aug. 30,

2016). The Superior Court found that the witnesses' testimony was not so inconsistent as to be

inherently unreliable as a matter of law, and it was not unreasonable that their statements would

differ and there would be inconsistencies in their versions of the attack. Id. "Even though Mr.

Tilghman did not identify Mr. Lee as a stomper, and Ms. Perry did not identify defendant, their

                                                  8
testimony indicates that they were viewing the altercation from different perspectives and

distances, and the club was dimly lit and crowded." Id. Defendant's third claim is therefore

meritless.

       Defendant's fourth and final claim is that Mr. Tilghman was not a credible witness because

" ... [he] did not come forward immediately and Steven Murphy who did speak to the police said

that it was Mr. Tilghman fighting with Bruce Lee rather than Mr. Tilghman fighting with Reggie

Williams ... ". While defendant presented several witnesses who testified that defendant was on the

first floor of the club at the time of the altercation, Mr. Tilghman's testimony contradicted that

evidence. Commonwealth v. Williams, 2016 WL 5389061, at *7 (Pa. Super. Aug. 30, 2016). As

the trier of fact, the jury was free to believe all, part, or none of the evidence while passing upon

the credibility of witnesses and assigning weight to their testimony. Commonwealth v. Troy, 832

A.2d 1089, 1092.. (Pa. Super. 2003). At trial, the jury rejected defendant's version of events and

accepted the testimony of Harvey Tilghman, Loretta Epps, and Jana Perry. The Superior Court

stated, "We discern no abuse of discretion in the trial court's rejection of Appellant's claim that

the Commonwealth's witnesses were so inconsistent as to render the verdict speculative or mere

conjecture". Williams, at *8. Therefore, defendant's fourth claim challenging the credibility of Mr.

Tilghman's testimony is meritless.

        Accordingly, for the foregoing reasons, the defendant's motion for a new trial should be

DENIED.

                                                              BY THE COURT:




                                                                                       J.


                                                  9
