J-S62001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                             Appellant

                        v.

 JACQUEZ DAVON BROWN

                             Appellee               No. 1669 MDA 2016


              Appeal from the PCRA Order entered October 3, 2016
                  In the Court of Common Pleas of York County
                Criminal Division at No: CP-67-CR-0007081-2011


BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                     FILED DECEMBER 21, 2017

       The Commonwealth appeals from the October 3, 2016 order entered in

the Court of Common Pleas of York County, granting in part the petition for

collateral relief filed by Appellee, Jacquez Davon Brown (“Brown”), pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and

awarding him a new trial. The Commonwealth argues the PCRA court erred

by finding counsel ineffective for failing to locate a witness whose testimony

was cumulative of other evidence presented at trial. Brown counters that the

testimony was not cumulative, that the testimony would have supported his




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* Retired Senior Judge assigned to the Superior Court.
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claim of self-defense, and that he was prejudiced by trial counsel’s failure to

interview and call the witness at trial. Following review, we affirm.1

       Following a jury trial that concluded on November 14, 2013, Brown was

convicted of first-degree murder for the shooting death of 19-year old Tony

Wasilewski when Brown was 15 years old. On January 27, 2014, Brown was

sentenced to a term of 50 years to life in prison. On direct appeal, this Court

affirmed the judgment of sentence, rejecting Brown’s claims of insufficiency

of evidence, failure of the Commonwealth to disprove his self-defense claims

beyond a reasonable doubt, and excessive sentence.        Commonwealth v.

Brown, 832 MDA 2014, unpublished memorandum (Pa. Super. filed April 24,

2015).

       Brown filed a timely PCRA petition on April 22, 2016.      Counsel was

appointed and a hearing was held on June 16, 2016. At the conclusion of the

proceedings, the PCRA court dismissed all but one of Brown’s claims and

reserved ruling on the final claim—relating to failure to call an eyewitness at

trial—pending continuation of the hearing to take the testimony of that

witness, Dominic Breeland (“Breeland”).2 The hearing resumed on September

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1The PCRA court rejected three additional claims of ineffectiveness raised by
Brown in his petition. Those three claims are not at issue in this appeal. We
shall confine our discussion to the claim upon which the petition was granted
and new trial awarded.

2At the time of the June 16, 2016 hearing, Breeland was incarcerated at SCI
Forest, serving a 30- to 60-year sentence for murder. Due to some confusion



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27, 2016.     By order entered on October 3, 2016, the PCRA court granted

Brown a new trial based on trial counsel’s failure to interview Breeland. This

timely appeal followed. Both the Commonwealth and the PCRA court complied

with Pa.R.A.P. 1925.

       On appeal, the Commonwealth asks us to consider one issue:

       Whether [the] PCRA court erred in granting [the] PCRA petition
       alleging ineffectiveness of counsel, where trial counsel had
       insufficient information to locate [the] witness, and the witness’s
       testimony was cumulative of existing testimony presented at trial,
       and [Brown] suffered no prejudice.

Commonwealth’s Brief at 4 (some capitalization omitted).

       As this Court has recognized:

       This Court examines PCRA appeals in the light most favorable to
       the prevailing party at the PCRA level. Our review is limited to
       the findings of the PCRA court and the evidence of record.
       Additionally, we grant great deference to the factual findings of
       the PCRA court and will not disturb those findings unless they have
       no support in the record. In this respect, we will not disturb a
       PCRA court’s ruling if it is supported by evidence of record and is
       free of legal error. However, we afford no deference to its legal
       conclusions. Where the petitioner raises questions of law, our
       standard of review is de novo and our scope of review is plenary.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (quoting

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)

(quotation marks and brackets omitted)).




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regarding transport to testify at the hearing, he was not available to testify
that day.

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       In analyzing the claim of trial counsel ineffectiveness for failing to

investigate and call a potential witness at trial, the PCRA court looked to our

Supreme Court’s decision in Commonwealth v. Johnson, 966 A.2d 523 (Pa.

2009). There, the Court explained:

             Counsel has a general duty to undertake reasonable
       investigations or make reasonable decisions that render particular
       investigations unnecessary. . . . The duty to investigate, of
       course, may include a duty to interview certain potential
       witnesses; and a prejudicial failure to fulfill this duty, unless
       pursuant to a reasonable strategic decision, may lead to a finding
       of ineffective assistance.     Recently summarizing cases in
       Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945 (2008),
       this Court stated that:

          These cases . . . arguably stand for the proposition that, at
          least where there is a limited amount of evidence of guilt, it
          is per se unreasonable not to attempt to investigate and
          interview known eyewitnesses in connection with defenses
          that hinge on the credibility of other witnesses. They do not
          stand, however, for the proposition that such an omission is
          per se prejudicial.

       Id. at 960 [citations omitted].

       ...

       When raising a failure to call a potential witness claim, the PCRA
       petitioner satisfies the performance and prejudice requirement of
       the Strickland[3] test by establishing that:

          (1) the witness existed; (2) the witness was available to
          testify for the defense; (3) counsel knew of, or should have
          known of, the existence of the witness; (4) the witness was
          willing to testify for the defense; and (5) the absence of the
          testimony of the witness was so prejudicial as to have
          denied the defendant a fair trial.


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3   Strickland v. Washington, 466 U.S. 688 (1984).

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     Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586,
     599 (2007). To demonstrate Strickland prejudice, the PCRA
     petition must show how the uncalled witnesses’ testimony would
     have been beneficial under the circumstances of the case.

Id. at 535-36 (some citations and quotations omitted).

     In its Rule 1925(a) opinion, the PCRA court explained:

           At the trial, and pertinent to the issue on appeal, the
     Commonwealth presented witnesses who established that
     [Brown] shot decedent with several shots while standing over him
     and while backing away from the decedent. One witness recalled
     hearing the victim and [Brown] arguing about a cell phone. The
     victim had [Brown] in a headlock at one point, and then [that
     witness, Ms. Altland,] heard a gunshot. Ms. Altland testified that
     [Brown] was standing when he shot the victim, who was kneeling
     down at the time.

            After hearing the first shot, Ms. Altland said that the victim
     was on the ground on his side when she saw [Brown] pause and
     fire another shot into the victim. She also saw the victim put his
     hand up over his face before [Brown] fired the second shot. Ms.
     Altland heard three more shots and for every shot the victim was
     still on the ground and made no attempts to get up. She also
     stated that as the other shots were being fired, [Brown] was
     walking away from the victim, towards an alleyway.

            Another witness[, Mr. Altland,] testified that he was
     standing directly in front of his residence, which was right across
     the street from the murder. Like his wife, he saw [Brown] and
     the victim arguing, but he was not sure what they were arguing
     about. Mr. Altland testified that the victim had [Brown] in some
     kind of hold and then “all heck broke loose.” Mr. Altland was on
     his way across the street to break up the fight when he saw
     [Brown] shoot the victim in the back, upper thigh area. Mr.
     Altland saw the victim put his hand up after the first shot and saw
     [Brown] shoot the victim again. The bullet went through the
     victim’s hand and into his neck. [Brown] walked backwards as he
     fired the second, third, fourth, and fifth shot. At no point did the
     victim try to get up.

           At the PCRA hearing, [Brown] called Dominic Breeland as a
     witness. He testified that the victim wanted to buy some drugs

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       earlier in the day. Later, and just before the shooting, Breeland
       went to the home of another individual about five or six houses
       away, and saw a fight develop between the victim and [Brown].
       He further testified that the victim had [Brown] in a choke hold
       and that during that struggle, the shots were fired.         This
       testimony, if believed, would have differed from the testimony of
       the two Commonwealth witnesses. Breeland did not testify that
       he saw [Brown] stand up and shoot while standing over the victim
       and backing away. The proffered testimony would have supported
       a self-defense claim by [Brown], and could have resulted in a
       verdict of a lesser degree of murder or manslaughter.

             [The PCRA c]ourt found no reason to disbelieve the
       proffered testimony other than it differed in degree from that
       presented by the Commonwealth’s witnesses at trial.

              Testimony from trial counsel revealed that he did not know
       Breeland’s full name, nor where to locate him. That testimony
       was contradicted by PCRA Defense Exhibit B, p. 4-5, which was
       the police report provided in discovery. That report clearly
       identified Dominic Breeland by name as a possible eye witness
       and indicates that he likely is in the York County Prison.[4]

PCRA Court Rule 1925(a) Opinion, 6/13/17, at 3-4 (references to notes of trial

testimony omitted).




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4 The parties agree that the exhibit identified the potential eyewitness as
“Dom.” See, e.g., Commonwealth’s Brief at 19; Brown’s Brief at 4. However,
in the exhibit, references are made to another witness, Corey Fitzkee. Fitzkee
in turn identified yet another eyewitness, “Dom,” and stated that he saw Dom
at the York County Prison when Fitzkee turned himself in for an unpaid fine.
The exhibit reflects that the assistant district attorney who interviewed Fitzkee
“showed Fitzkee a photo of Dominic Breeland on a laptop computer. Fitzkee
identified him as the subject he knows as ‘Dom.’” PCRA Defense Exhibit B at
5.




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      The Commonwealth concedes Brown met his burden as to the first two

factors of the Strickland test, i.e., that the witness existed and was available

to testify for the defense.     Commonwealth’s Brief at 18.           However, the

Commonwealth takes issue with the remaining factors. The Commonwealth

contends trial counsel had no knowledge of Breeland’s name, other than a

reference to “Dom” that was unaccompanied by any other identifying

information. Further, the Commonwealth argues, there is nothing to suggest

Breeland ever contacted the police or defense counsel to make himself known

as a potential witness. Id. at 18-19. Further, while trial counsel hired an

investigator to research other witnesses, counsel was not aware of Breeland’s

existence or his availability or willingness to testify. Id. at 19.

      Brown counters that he spoke with trial counsel about Breeland as a

potential witness.    Notes of Testimony, PCRA Hearing, 6/29/16, at 5-6.

Although he never talked with the investigator, Brown testified he told counsel

that Breeland could verify Brown’s story. Id. Nevertheless, Breeland was

never interviewed for trial. Id.

      Trial counsel acknowledged he was aware of Tobias Banks, whom Brown

identified as an eyewitness.         Attempts to locate that witness were

unsuccessful. Id. at 34-35, 38-39. Counsel testified he was not aware of

Breeland, whose name he said he had never heard before reviewing the PCRA

petition.   Id. at 40.   However, the PCRA court rejected counsel’s claimed

unawareness, noting it “was contradicted by PCRA Defense Exhibit B, p. 4-5,


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which was the police report provided in discovery.         That report clearly

identifies Dominic Breeland by name as a possible eye witness and indicates

that he likely is in the York County Prison.” PCRA Court Rule 1925(a) Opinion,

6/13/17, at 4.

      As for the fifth Strickland factor, the PCRA court recognized that failure

to call a witness does not, by itself, afford relief and that Brown was required

to prove that the failure prejudiced him. PCRA Court Rule 1925(a) Opinion,

6/13/17, at 7 (citing Johnson, supra). The court stated:

      In this case, we already noted that the proffered witness’s
      testimony would have provided the jury a different point of view
      than that testified to by the Commonwealth witnesses. The
      testimony, if believed by a jury, would have provided a basis for
      a verdict of a lesser degree of murder (third degree) or a verdict
      based on imperfect self-defense (voluntary manslaughter) or a
      complete defense to the charge.

      Had the jury been able to hear the proffered testimony, we
      conclude that there is a reasonable probability that the outcome
      would have been different.       Having been deprived of the
      opportunity to present that evidence because of counsel’s
      ineffectiveness, [Brown] has suffered prejudice as a result.

Id.

      The Commonwealth argues that Brown cannot establish prejudice

resulting from the absence of Breeland’s testimony.        As the PCRA court

recognized, Breeland “did not see the shooting. [He] heard shots and then he

saw [Brown] run away. . . . Breeland testified that he heard gunshots but did

not actually see the shooting.” Id. Therefore, the Commonwealth asserts,




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Breeland’s testimony would not “have served any purpose other than to

corroborate the Commonwealth’s witnesses.” Commonwealth’s Brief at 31.

         The   Commonwealth’s    argument     focuses   on   whether    Breeland’s

testimony is appropriately classified as “cumulative,” noting that counsel is

not ineffective for failing to pursue cumulative evidence. Commonwealth’s

Brief at 19 (citing Commonwealth v. Showers, 782 A.2d 1010, 1022 (Pa.

Super. 2001)). The Commonwealth contends Breeland’s testimony would be

cumulative because Breeland testified consistently with the other witnesses

regarding the fight prior to the shooting, “BUT as to the shooting itself, [] he

heard but did not see the shooting occur.”         Commonwealth’s Brief at 16

(capitalization in original). It is true that Breeland testified he did not see that

Brown had a gun and did not see him fire any shots. However, giving great

deference to the factual findings of the PCRA court as we must, we conclude

Breeland’s description of the fight and struggle between Brown and the victim

is sufficiently different from the testimony of the Commonwealth’s witnesses

and, if believed, could support a self-defense claim by Brown or a conviction

for a less serious offense than first-degree murder. Therefore, we shall not

disturb the PCRA court’s findings in that regard.

         We find the PCRA court’s factual findings are supported by the record

and that its ruling is free of legal error. Therefore, we shall affirm the PCRA

court’s October 3, 2016 order granting Brown’s petition and awarding a new

trial.


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     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




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