J-S09001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAMAR ALSTON                               :
                                               :
                       Appellant               :   No. 1368 WDA 2017

                  Appeal from the PCRA Order August 24, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0010059-2012


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, P.J.:                              FILED JULY 31, 2019

        Lamar Alston (“Appellant”) appeals from the order dismissing his

counseled first petition for relief pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. After a bench trial, the court convicted

Appellant of murder of the first degree and numerous related crimes. In this

appeal, he challenges the denial of his request for a new trial based on his

claim of after discovered evidence, and a purported Brady violation.1 We

affirm.

        We derive the facts of the original case from the PCRA court’s opinion,

and our independent review of the record. See PCRA Court Opinion, 8/3/18,


____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   Brady v. Maryland, 373 U.S. 83 (1963).
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at 4-13.       While there are disagreements about certain specifics, the basic

underlying facts of the case are not in dispute. For purposes of this appeal,

there is no dispute that Appellant shot and killed Mileek Grissom during a

melee between Appellant’s posse and Jonathan Tillar’s posse. The only factual

disputes relevant to this appeal center on whether Grissom was armed and

fired first.

         At trial, the Commonwealth presented evidence that Appellant was

involved in an ongoing dispute with Jonathan Tillar.2         Appellant and his

associates suspected Tillar of informing against them to the police.          In

particular, Appellant blamed Tillar for a police raid on the home of his younger

half-brother, Darrell Mar, nicknamed “Rico.”

         On June 24, 2012, in two separate encounters, Tillar confronted Rico

over the claim that Tillar was a police informant. The dispute escalated into a

fistfight. Tillar struck Rico on his face with his handgun, causing a deep gash.

Rico called Hope Barfield (who referred to Rico as her cousin) to tell her that

he had been hurt. Barfield and Appellant went to the scene of the second

fight.

         By the time they got there, the fistfight had ended. There was testimony

that Barfield encouraged Appellant to shoot at Tillar, and Tillar’s friend,



____________________________________________


2 Tillar died in December, 2016, of a drug overdose.         See N.T. Hearing,
8/21/17, at 28.


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Grissom. Appellant shot at Tillar and Grissom. Tillar managed to duck and

avoid being shot, but Grissom was fatally wounded. He was pronounced dead

at the hospital.

       Alerted by witnesses, police converged at the crime scene within

minutes after the shooting began. They apprehended Appellant as he was

trying to leave on foot. Appellant aimed his handgun at the oncoming police,

but the gun jammed and did not fire.

       Appellant was tried jointly in a bench trial with his friend, 3 Barfield.

Testimony of the number of shots fired ranged from five to nine.        Ballistic

evidence established that the shell casings recovered at the crime scene all

related to Appellant’s handgun. According to Pittsburgh homicide Detective

Robert Provident, the three casings found by the police, including the one

which struck Grissom, all matched the firearm used by Appellant, a Kel-Tec

9mm. The police found no evidence of any other firearm.

       The trial court convicted Appellant of first-degree murder, one count of

criminal attempt (on Tillar), one count of aggravated assault, one count of

flight to avoid apprehension, one count of person not to possess a firearm,

three counts of recklessly endangering another person and one count of




____________________________________________


3 The PCRA court found that Barfield “was, and may still be, [Appellant’s]
girlfriend.” PCRA Court Opinion, 8/3/18, at 16.



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tampering with or fabricating evidence.4 His co-defendant, Hope Barfield, was

acquitted of all charges.

       On January 16, 2014, the court sentenced Appellant to life imprisonment

without parole for first-degree murder, and a concurrent sentence of not less

than ten nor more than twenty years of incarceration for attempted first-

degree murder, with no further penalty on the remaining convictions. See

N.T. Sentencing, 1/16/14, at 75. On direct appeal, this Court affirmed the

judgment of sentence. See Commonwealth v. Alston, No. 266 WDA 2014,

2014 WL 10558589, at *4 (Pa. Super., filed November 25, 2014) (unpublished

memorandum).         Our Supreme Court denied allowance of appeal.        See

Commonwealth v. Alston, 114 A.3d 1038 (Pa. 2015).

       On August 2, 2016, Appellant filed a timely pro se petition for PCRA

relief. The court appointed counsel, who, after extensions, filed an amended

petition on March 6, 2017. In the amended petition, Appellant alleged that he

is entitled to a new trial based on the newly discovered testimony of Barfield,

Appellant’s friend, Nate Watts, and Franchesca (nicknamed “Frankie”) Reyes,




____________________________________________


4 The court found Appellant not guilty of the attempted homicide of Collier
Township police officer Franz Zygmuntowiz and Pittsburgh police officer David
Sisak, not guilty of aggravated assault against the two police officers, not
guilty of robbery, and not guilty of criminal conspiracy. See N.T. Trial,
10/21/13, at 569-70.




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then the girlfriend of Watts.5 Appellant also included a claim based on an

alleged Brady violation.

       Appellant argues that the proposed newly discovered testimony would

establish that Grissom was also carrying a firearm, and Grissom shot first at

Appellant. Therefore, he maintains, based on this after discovered evidence,

the jury would have concluded that Appellant’s shooting of Grissom was in

self-defense, or at least “imperfect self-defense,” constituting third-degree

murder instead of murder of the first-degree.

       The PCRA court held a hearing on August 21, 2017. After the hearing,

the PCRA court denied the petition by order of court dated August 24, 2017.

This timely appeal followed. Both Appellant and the PCRA Court complied with

Rule 1925. See Pa.R.A.P. 1925.

       Appellant raises four questions on appeal.

              I. Did the trial court err when it denied the request for a new
       trial in Appellant’s [a]mended PCRA petition based on after–
       discovered evidence by Hope Barfield?

             II. Did the trial court err when it denied the request for a
       new trial in Appellant’s [a]mended PCRA petition based on after-
       discovered evidence by Franchesca Reyes?

             III. Did the trial court err when it denied the request for a
       new trial in Appellant’s [a]mended PCRA petition based on after-
       discovered evidence by Darrell Mar?


____________________________________________


5It turned out that Watts was unwilling to cooperate and Appellant essentially
abandoned the argument based on his alleged evidence. Notably, none of the
proposed certifications is signed by the respective proponents.


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             IV. Did the trial court err when it denied the request for a
      new trial in Appellant’s [a]mended PCRA petition based on Brady
      violations?

Appellant’s Brief, at 5.

      Our standard and scope of review for the denial of PCRA relief are well-

settled.

      To the extent review of the PCRA court’s determinations is
      implicated, an appellate court reviews the PCRA court’s findings of
      fact to determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations omitted).

      “The PCRA court’s factual determinations are entitled to deference, but

its legal determinations are subject to our plenary review.” Commonwealth

v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citations omitted). “A PCRA court

passes     on   witness    credibility       at   PCRA    hearings,   and   its   credibility

determinations should be provided great deference by reviewing courts.” Id.

at 539 (citations omitted).

      To be eligible for PCRA relief, the petitioner must plead and prove by a

preponderance of the evidence all of the following:


      (2) That the conviction or sentence resulted from one or more of
      the following:

                                         *        *   *

                (vi) The unavailability at the time of trial of
           exculpatory evidence that has subsequently become

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         available and would have changed the outcome of the
         trial if it had been introduced.

42 Pa.C.S.A. § 9543(a)(2)(vi) (emphasis added).

      In order to succeed on such a claim, the petitioner must establish
      that: (1) the evidence has been discovered after the trial and it
      could not have been obtained at or prior to trial through
      reasonable diligence; (2) such evidence is not cumulative; (3) it
      is not being used solely to impeach credibility; and (4) such
      evidence would likely compel a different verdict.

Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa. 1998) (citations

omitted).

      In this appeal, Appellant first argues that Barfield’s PCRA hearing

testimony established that Grissom had a firearm, and he shot first at

Appellant.   See Appellant’s brief, at 19-25.   Appellant maintains that the

Commonwealth withheld Barfield’s statements to police during discovery.

Appellant notes, and the PCRA court found, that Barfield was unavailable

during his trial because she exercised her constitutional right not to testify.

However, Appellant fails to explain why, after Barfield was acquitted, it took

him almost four more years to discover her potential testimony and present it

in a PCRA petition.

      Further, the PCRA court concluded that Barfield’s testimony was not

credible. See PCRA Court Opinion, 8/3/18, at 16. We give great deference to

the credibility findings of the PCRA court which are supported by the record.

See Johnson, 966 A.2d at 532. Here, the record confirms that Barfield lied

about having car trouble in an effort to avoid speaking to the police. See N.T.


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Trial, 10/18/13, at 446-47.     She testified inconsistently about not seeing

anything. See id. at 451. She claimed police corruption in withholding the

statement she gave to them, but Appellant has failed to present any

independent evidence of police corruption or prosecutorial misconduct.

      Moreover, the PCRA court determined that the evidence at trial

“overwhelmingly supports” Barfield’s original statement to the police that

Appellant was “the one firing the gun,” and that she did not see what was in

Grissom’s hand.    PCRA Court Opinion 8/3/18, at 17.        The record supports

these findings. See N.T. Trial, 10/18/13, at 451. Appellant’s first claim fails to

merit relief.

      In his second claim, Appellant posits that the PCRA hearing testimony

of Reyes, much like that of Barfield, establishes that Grissom had a gun and

shot first. See Appellant’s Brief, at 26-29. However, Appellant’s argument

again fails to establish that the PCRA court erred in finding that he did not act

with reasonable diligence in discovering Reyes’s testimony.

      The PCRA court found that Appellant was aware of Watts and that Reyes

was Watt’s girlfriend. The court also found that Appellant was aware that

Watts was present when Grissom was shot. “At minimum, [Appellant] knew

or should have known of Ms. Reyes[’s] existence as a potential witness at the

time of trial.” PCRA Court Opinion, 8/3/18, at 18.           These findings are

supported by Reyes’s testimony that she drove Appellant’s half-brother,

Darrell Mar, to and from the scene of the shooting. See N.T., PCRA Hearing,


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8/21/17, at 42. Appellant provides no explanation why he did not follow up

earlier with Reyes, who testified that she was present at the shooting, and

who was the girlfriend of his friend, Watts.

      [A] defendant who fails to question or investigate an obvious,
      available source of information, cannot later claim evidence from
      that source constitutes newly discovered evidence. The concept of
      reasonable diligence is particularly relevant where the defendant
      fails to investigate or question a potential witness with whom he
      has a close, amicable relationship.

Commonwealth v. Padillas, 997 A.2d 356, 363-64 (Pa. Super. 2010).

(citations omitted).

      Appellant also fails to establish how Reyes’s testimony would compel a

different outcome, where the ballistics evidence at trial established that there

was only one firearm at the crime scene. See N.T., Bench Trial, 10/16-21,

2013, at 377. Appellant’s second issue does not merit relief.

      In his third issue, Appellant challenges the rejection of testimony by

Darrell Mar that also supported the “Grissom-shot−first” scenario.         See

Appellant’s Brief, at 29-32. However, the PCRA court concluded that Mar’s

testimony failed to meet the due diligence test and was not believable. See

PCRA Court Opinion, 8/3/18, at 20.

      At the PCRA hearing, Mar testified that, immediately before the

shooting, Appellant and Barfield walked up to him and asked him if he was

okay. N.T., PCRA Hearing, 8/21/17, at 53. Appellant was clearly aware that

his half-brother was a witness to the shooting, and he fails to explain why he

could not have presented Mar’s testimony earlier. We defer to the PCRA court

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on determinations of credibility. Furthermore, Appellant fails to establish how

Mar’s testimony would have compelled a different outcome, particularly in

view of the ballistics evidence that there was only one firearm on the scene.

Appellant’s third issue does not merit relief.

      Finally, in his fourth issue, Appellant claims a Brady violation.       He

asserts that the police withheld the statements of Barfield and Reyes to

detectives that Grissom pulled out a firearm and shot first. See Appellant’s

Brief, at 34. Appellant asserts he was prejudiced.

      With respect to whether Brady applies to a particular factual scenario,

the standard of review is de novo, because it is a question of law.

      Under Brady, the prosecution’s failure to divulge exculpatory
      evidence is a violation of a defendant’s Fourteenth Amendment
      due process rights. To establish a Brady violation, a defendant is
      required to demonstrate that exculpatory or impeaching evidence,
      favorable to the defense, was suppressed by the prosecution, to
      the prejudice of the defendant.

            The burden of proof is on the defendant to demonstrate that
      the Commonwealth withheld or suppressed evidence. The United
      States Supreme Court has held, [T]he prosecutor is not required
      to deliver his entire file to defense counsel, but only to disclose
      evidence favorable to the accused that, if suppressed, would
      deprive the defendant of a fair trial. Similarly, [our Supreme]
      Court has limited the prosecution’s disclosure duty such that it
      does not provide a general right of discovery to defendants.
      Moreover, [our Supreme Court has] held that the prosecution is
      not obligated to reveal evidence relating to fruitless leads followed
      by investigators.

            To satisfy the prejudice inquiry, the evidence suppressed
      must have been material to guilt or punishment. . . . Moreover,
      [our Supreme Court has] held that the protection of Brady
      extends to the defendant’s ability to investigate alternate defense
      theories and to formulate trial strategy.

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             As to Brady claims advanced under the PCRA, a defendant
      must demonstrate that the alleged Brady violation “so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.” See
      Commonwealth v. Copenhefer, 553 Pa. 285, 719 A.2d 242,
      259 (1998). The . . . United States Supreme Court has held that
      the mere possibility that an item of undisclosed information might
      have helped the defense, or might have affected the outcome of
      the trial, does not establish materiality in the constitutional sense.

Com. v. Cam Ly, 980 A.2d 61, 75–76 (Pa. 2009) (most citations, brackets,

footnote and internal quotation marks omitted).

      Here, Barfield stated she told detectives at her initial interview that

Grissom pulled a firearm and shot first. See N.T., PCRA Hearing, 8/21/17, at

13. Reyes stated she approached detectives at the preliminary hearing and

told them that she had information regarding the shooting. See id., at 38.

She testified the police never followed up with her. See id.

      The PCRA court found that the Commonwealth provided the defense

with the supplemental report generated as a result of Barfield’s interview with

the police through the pre-trial discovery process. Further, the PCRA court

found that Appellant had not established the existence of any report regarding

an interview with Reyes. Finally, the PCRA court found that Appellant failed to

meet his burden to prove that any additional reports exist. The court’s findings

are supported by the record. As a result, the PCRA court’s conclusion that

Appellant failed to establish a Brady violation is not in error. Appellant’s final

issue on appeal merits no relief.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2019




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