J-S36033-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THADDEUS CRUMBLEY                          :
                                               :
                       Appellant               :   No. 1899 WDA 2019

            Appeal from the PCRA Order Entered December 13, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0002820-2012


BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 20, 2020

        Thaddeus Crumbley (Crumbley) appeals the order of the Court of

Common Pleas of Allegheny County (PCRA court) denying his petition filed

pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

The central claim in his petition is based on after-discovered evidence in the

form of a purported eyewitness. Crumbley also argues for the first time in his

appellate brief that PCRA counsel was ineffective for failing to assert trial

counsel’s ineffectiveness due to lack of an objection to improper closing

statements and failing to preserve a jury instruction issue. We affirm.




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*   Retired Senior Judge assigned to the Superior Court.
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                                               I.

       In 2012, Crumbley and his co-defendant, Matthew Ebo (Ebo), were

found guilty of murder and several-related offenses. See Commonwealth

v. Crumbley, 127 WDA 2016 (Pa. Super. June 21, 2017).                           The

Commonwealth’s only eyewitness was Saday Robinson (Robinson), who

testified that she saw Crumbley and Ebo shoot the victim, Todd Mattox.

       Crumbley and Ebo were sentenced, each receiving life terms, and they

filed direct appeals. Prior to filing briefs, they applied for a remand to the trial

court for an evidentiary hearing based on after-discovered evidence, namely,

Robinson’s recantation of her identification in a letter dated November 12,

2014. We granted the application for a remand so that the trial court could

determine whether to grant Crumbley and Ebo relief.

       However, at the evidentiary hearing, Robinson withdrew her previous

recantation, explaining that she gave it due to threats by Crumbley and Ebo’s

associates, and the trial court ruled that a new trial was not warranted. The

direct appeal then resumed before this Court, and in 2017, Crumbley’s

judgment of sentence was affirmed,1 becoming final on March 13, 2018.2 We

____________________________________________


1 Ebo’s convictions were also affirmed, but this Court ordered a resentencing
to remedy violations of Alleyne v. United States, 570 U.S. 99 (2013).
Crumbley’s sentence was not affected.

2 Crumbley filed a petition for allowance of appeal before the Pennsylvania
Supreme Court, which was denied on December 13, 2017, and he did not seek
relief before the United States Supreme Court. His judgment of sentence,



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found no merit in any of Crumbley’s direct appeal issues, including the claim

that Robinson’s recantation entitled him to a new trial.

       Crumbley timely filed his first PCRA petition, pro se, and he was

appointed PCRA counsel who submitted an amended version claiming that a

new eyewitness to the Mattox murder had come forward.3             This witness,

Robert Raglin (Raglin), submitted a signed statement dated July 31, 2018,

describing what he had seen. The PCRA court held a hearing on May 10, 2019,

to assess Raglin’s credibility. See PCRA Hearing, 5/10/2019, at pp. 44-46.

After he testified, the PCRA court made the following findings:

       a. On May 16, 2011, the day Todd Mattox was shot to death at
       the Leechburg Gardens Apartments in Penn Hills, Mr. Raglin was
       working as a jitney driver.

       b. That evening, shortly before the shooting occurred, Mr. Raglin
       picked up two (2) African American men and drove them to the
       Leechburg Gardens apartment. He claimed that he recognized
       these men because they had used his jitney services “more than
       ten” times in the past. He described one of the men as being
       “really tall” with “dark skin,” approximately 6’8 in height. He
       described the other man as being “short” and “light-skinned.”


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therefore, became final on March 13, 2018, when the 90-day period for
seeking a writ of certiorari expired. Crumbley had a year from that date to
timely file a PCRA petition, which he did, pro se, on February 13, 2018.

3 Crumbley’s PCRA counsel abandoned several of the claims Crumbley had
asserted in his initial pro se petition, including Claims IV and VI, which became
the basis of Crumbley’s layered ineffectiveness claims in this PCRA appeal.
Both issues – regarding improper prosecutorial comment and denial of a
missing witness instruction – were found to be waived by trial counsel in
Crumbley’s direct appeal. See Commonwealth v. Crumbley, 127 WDA
2016 (Pa. Super. June 21, 2017).


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     c. When presented with photographs that were marked as Defense
     Exhibits A and B, he was able to identify the individuals in those
     pictures as the men he had driven to the Leechburg Gardens
     apartment that day. (He had nicknamed them “stretch” and
     “young buck” but recalled that they referred to each other as “Ron
     and Rome or something like that.”)

     d. Mr. Raglin testified that he dropped these men off at the
     Leechburg Gardens [apartment] at approximately 7:00 p.m.,
     when it was getting dim outside.

     e. After he dropped them off, Mr. Raglin testified to the following
     series of events:

        I was turning my car around so I could go out. I had to go
        to the bathroom by the fire hydrant and the big Christmas
        tree. As I’m standing up peeing, a white car comes in [the
        parking lot], two guys started busting off caps, and
        everybody started shooting at each other. I dove on the
        ground, crawled in my car, dropped my seat back and
        pulled out.

     f. Mr. Raglin testified that he “clearly” saw that “Ron and Rome”
     were firing their guns “[o]ver in that direction towards the parking
     lot in that area” where the white car was located.

     g. However, he also testified that he “wasn’t paying no attention”
     to what or who they were shooting at because he dropped to the
     ground as soon as he saw “the sparks and fires.” As he described
     it: “I dropped down, peed on myself, crawled in my car, kicked
     my seat back and just pulled off. I started lifting my head up as
     I am pulling out.”

     h. After Mr. Raglin got back inside of his vehicle, he noticed that
     the white car had pulled out behind him, and he thought that the
     people inside of the white car were going after him because of
     what he had just witnessed.

     i. Even though Mr. Raglin saw Ron and Rome shooting at the
     people in the white car, Mr. Raglin thought that Ron and Rome
     were now in the white car behind him. However, Mr. Raglin never
     saw anyone get in or out of the white car, and he could not see
     inside of the vehicle at any point. Mr. Raglin was able to retreat
     safely from the scene, but he never went to the police to report

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     the shooting that he had allegedly witnessed, and, at that time,
     he was unaware that anyone had been killed in the shootout. Law
     enforcement also never attempted to contact him in 2011 about
     the shooting.

                                   ***

     k. When asked why he decided to come forward with this
     information in 2018, Mr. Raglin testified as follows: I was in the
     [Allegheny] county jail, and I was on the fourth floor just coming
     in, and these gentlemen was talking and they was pointing at me.
     So they called me to be released. As I am coming downstairs to
     be released, some young guy told me - he was from Turtle Creek
     or something - he told me that I was there. And I said, “[w]here?”
     He says “you was there for the ‘Leechburg, Penn Hills’] shooting.”
     And he goes, “say that you wasn’t, and jump on you.” I’m like,
     what the hell? So I put my foot on the bunk and stood up to fight
     to defend myself.

     l. Mr. Raglin testified that this young man was a fellow inmate
     whom he did not know and had never seen before.             This
     unidentified inmate told Mr. Raglin that he knew Mr. Raglin was
     there that night because he was there too.

     m. Mr. Raglin stated that the inmate provided the details of the
     incident, telling him “exactly where it happened, exactly what time
     it was. [The inmate] said the guy’s name that died.” The inmate
     also told him that “these were the two men that did it.”

     n. Mr. Raglin testified that he was scared that this inmate was
     going to physically assault him. He “felt threatened enough . . .
     to jump on the bunk and brace” himself “for just two of them
     against me.” The jail guards had to step in to prevent an
     altercation.

     o. Mr. Raglin testified that he “didn’t know any of this
     [information]” and that he was “in shock” because he was “being
     attacked” so he “had to do research on why” he was “being
     attacked.”

     p. Mr. Raglin testified that when he was released from jail shortly
     thereafter, he had a friend of his fact-checked [sic] the
     information that the inmate had provided on her cell phone
     because he wanted to know why he “was threatened for my life in

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     jail.” He asked his friend to google “the days, dates, things like
     that.”

     q. When he saw the pictures of [Crumbley and Ebo] and learned
     that they had been convicted of the murder, he “knew [they were
     not] the people that” he had driven to the complex. This prompted
     Mr. Raglin to write a letter to . . . Crumbley telling him “that I
     knew they were innocent because I was there.”

     r. Mr. Raglin testified that he decided to reach out to Mr. Crumbley
     because he had a brother in prison who he believes was wrongfully
     convicted, and he did not “want an innocent man to be in jail.”

     s. Mr. Raglin further testified that he does not know and has never
     seen any member of the Crumbley or Ebo family and that
     [Crumbley and Ebo] were not present during the shooting incident
     that he witnessed.

     t. Mr. Raglin confirmed that the witness statements that were
     attached to the PCRA petitions were true. Though he claimed he
     saw “something in one line somewhere” when he was reading it
     that was a discrepancy, but he never scratched anything out or
     attempted to correct this purported discrepancy.

     u. Mr. Raglin also testified that he did not attempt to contact law
     enforcement or the District Attorney’s Office with the information
     he had relayed to . . . Crumbley through his letter.

     v. When questioned by this court, Mr. Raglin clarified that he did
     not actually see anyone get struck by a bullet, he did not see what
     the victim looked like at any point, and he did not see anyone
     laying on the ground. He also testified that he never saw anyone
     get out of the white car before the shooting started and he did not
     see who entered the white car after the shooting because he
     “wasn’t paying attention” and “everything happened in a tenth of
     a second.”

Order and Opinion, 12/13/2019, at 5-11 (footnotes, headings and citations

omitted).

     The PCRA court denied Crumbley’s after-discovered evidence claim on

the grounds that Raglin’s testimony would be used solely to impeach the

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credibility of the Commonwealth’s eyewitness, Robinson, and that Raglin’s

account would be unlikely to compel a different verdict were a new trial

granted. Id. at 11-17. Crumbley timely appealed and his PCRA counsel filed

a 1925(b) statement raising issues limited to the after-discovered evidence

claim.

     Now in his appellate brief, Crumbley presents three grounds for our

consideration:

     i. Whether the PCRA court erred in denying Mr. Crumbley’s after-
     discovered evidence claim by finding that Robert Raglin’s
     testimony would be used solely to impeach Saday Robinson’s
     testimony and finding that Mr. Crumbley did not suffer actual
     prejudice[;]

     ii. Whether Mr. Crumbley was denied his federal and Pennsylvania
     constitutional due process right to effective assistance of PCRA
     counsel and his rule-based right to such assistance where PCRA
     counsel failed to allege trial counsel’s ineffectiveness for not
     objecting to the prosecutor’s improper reference to Mr. Crumbley
     as an “angel of death” [and;]

     iii. Whether Mr. Crumbley was denied his federal and Pennsylvania
     constitutional due process right to effective assistance of PCRA
     counsel and his rule-based right to such assistance where PCRA
     counsel was ineffective in failing to argue trial counsel’s
     ineffectiveness in declining to preserve for review her request for
     a missing witness instruction when the Commonwealth did not
     present Richard Carpenter[.]

Appellant’s Brief, at p. 9 (emphasis added, suggested answers omitted).

     The Commonwealth responds in its brief that the PCRA court did not

abuse its discretion in ruling that Crumbley failed to establish his after-

discovered evidence claim. As to the latter two claims concerning Crumbley’s

claims of ineffective PCRA counsel, the Commonwealth contends that such

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issues cannot be raised for the first time on appeal, and that even if they could

be considered, the claims lack merit.

       Crumbley replied that his two claims of ineffective PCRA counsel may

now be heard because he raised them at the first possible opportunity, and

they are based on his constitutional right to effective counsel at the post-

conviction stage rather than his “rule-based” right to PCRA counsel. Through

this distinction, Crumbley contends that the procedural bars on his claims of

ineffective PCRA counsel do not apply.

       After reviewing the record and the applicable law, we find that there is

no basis to disturb the PCRA court’s denial of Crumbley’s after-discovered

evidence claim.4       As to Crumbley’s two additional claims of ineffective

assistance of PCRA counsel, we decline to consider their merits for lack of

jurisdiction.

                                               II.

       Crumbley‘s first issue concerns the PCRA court’s denial of his after-

discovered evidence claim. At the evidentiary hearing, Crumbley and his co-

defendant presented the testimony of a new witness (Raglin), who testified

that two other men had killed the victim.




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4 In reviewing the denial of Crumbley’s claims, we are limited to determining
whether the PCRA court's findings are supported by the record and free of
legal error. See Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 1999).


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      After-discovered evidence is a ground for relief under the PCRA. See

42 Pa.C.S. § 9543(a)(2)(vi).        Relief is due when the proponent can

“demonstrate 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 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. Pagan, 950 A.2d 270, 292 (Pa.

2008).    Failure to satisfy any one prong is fatal to the claim.           See

Commonwealth v. Solano, 129 A.3d 1156, 1180 (Pa. 2015) (“As this test

is conjunctive, failure to establish one prong obviates the need to analyze the

remaining ones.”).

      The PCRA court found that Crumbley had not satisfied the third and

fourth prong. See PCRA Court Opinion, 12/13/2019, at 12-17. We disagree

with the PCRA court that the third prong was not met, but affirm the denial of

the claim based on Crumbley’s failure to establish the fourth – that the result

would have been different if a new trial was granted.

                                       A.

      Approximately eight years after the Mattox murder occurred, Crumbley

put forward the eyewitness account of Raglin, whose testimony conflicts with

the Commonwealth’s sole eyewitness at trial, Robinson. The PCRA court found

that Raglin’s testimony would be used solely to impeach the credibility of

Robinson. Id. at 12-15 (citing Commonwealth v. Weis, 611 A.2d 1218,


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1229 (Pa. Super. 1992) (“Whenever a party offers a witness to provide

evidence that contradicts other evidence previously given by another witness

it constitutes impeachment[.]”).

      However, Crumbley had no other eyewitnesses at trial who had

identified someone other than himself and the co-defendant as the

perpetrators of the subject murder. Raglin’s account, then, did not simply

undercut Robinson’s credibility or cast doubt on her identification; that was

incidental. If believed, Raglin also directly established that someone other

than Crumbley committed the murders. For that reason, the third prong is

satisfied because Raglin’s testimony did more than impeach the credibility of

another witness.

                                      B.

      We now turn to the fourth prong of the claim – whether Raglin’s

testimony would have likely resulted in a different outcome if a new trial were

granted. See Pagan, 950 A.2d at 292. “In making that determination, a

court should consider the integrity of the alleged after-discovered evidence,

the motive of those offering the evidence, and the overall strength of the

evidence supporting the conviction.” Commonwealth v. Padillas, 997 A.2d

356, 365 (Pa. Super. 2010). “[C]ases that have addressed [newly-discovered

evidence] have focused not simply on the credibility of the person offering the

exculpatory evidence, but on the credibility or trustworthiness of the evidence

itself, as well as the motive, or other impeaching characteristics, of those


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offering it.”   Id. (quoting Argyrou v. State, 709 A.2d 1194, 1204 (Md.

1998)).

      On review of a PCRA court’s ruling, we must defer to its factual

determinations, including those relating to the credibility of witnesses. See

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).                The PCRA

court’s rulings must stand as long as they are supported by the record and

free of legal error. See id.; see also Commonwealth v. Mitchell, 105 A.3d

1257, 1277 (Pa. 2014) (as finder of fact, a “PCRA court judge may believe all,

some, or none of a particular witness’s testimony.”).

      Here, on the one hand, the PCRA court found Robinson credible when

she testified both at trial and at a PCRA hearing regarding her identification of

Crumbley and post-trial recantation.          The PCRA court emphasized that

Robinson had described the incident in detail. Further, the PCRA court had

assessed her demeanor firsthand, noting that she “shook uncontrollably

throughout her testimony and was clearly frightened to be involved in the

case.”    PCRA Court Opinion, 12/13/2019, at 15.      The PCRA court credited

Robinson’s explanation that she earlier attempted to recant her trial testimony

because she had been threatened into doing so indirectly by Crumbley and

the co-defendant. See id. at 13.

      On the other hand, the PCRA court found that Raglin lacked credibility

based on his demeanor and the lack of detail in his account. While Raglin

testified that Crumbley and Ebo were not the shooters, he also said that he


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did not see the victim in the car in which he was shot, and that once he heard

gunfire, he dropped to the ground and stopped paying attention. Id. at 13.

      In addition to the problems with the content of Raglin’s testimony, the

PCRA court was rightfully skeptical about the reasons why he had come

forward.   Raglin, who was in jail in 2018, testified that he was randomly

prompted to give an exonerating statement in Crumbley’s favor by an

unnamed inmate who physically threatened him.

      Nothing in Raglin’s testimony or elsewhere in the record explains how,

in 2018, this unnamed inmate could possibly know that Raglin saw the Mattox

shooting in 2011; nor did Raglin explain why this inmate would have reason

to threaten him due to his presence there. Up until then, it was unknown to

police, Crumbley and even Raglin himself that he had witnessed a murder.

Raglin also did not know at the time he was threatened that Crumbley and

Ebo had been found guilty of murdering Mattox. According to Raglin, he only

learned the names of the victim and the accused after he was released from

incarceration and had the chance to research the incident on the internet.

      Based on the PCRA court’s assessment of Raglin’s testimony and

evidence against Crumbley, we find no abuse of discretion.          The record

supports the PCRA court’s finding that Raglin’s account would have had

minimal value as compared to the evidence of Crumbley’s guilt. Robinson was

found credible, and there are too many holes in Raglin’s bizarre story for it to

likely change the outcome of a new trial.


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                                           III.

       Next, Crumbley asserts for the first time in this appeal that his PCRA

counsel was ineffective for failing to raise two issues in his PCRA petition

concerning trial counsel’s deficient performance. Before reaching the merits

of those layered ineffectiveness claims,5 we must determine whether we have

authority to do so.

       In Pennsylvania, the right to post-conviction relief is statutory, or “rule-

based” in nature, as codified in the PCRA, and the Pennsylvania Rules of

Criminal Procedure, which provide that “the judge shall appoint counsel to

represent the defendant on the defendant’s first petition for post-conviction

collateral relief.” Pa.R.Crim.P. 904(C).

       The PCRA affords state courts authority to consider the merits of post-

conviction claims only so long as they comport with the PCRA’s procedural

requirements. PCRA claims are considered to be waived and unpreserved for

appellate review unless a petitioner first asserts them in a PCRA petition within

one year from the date the judgment of sentence became final.             See 42

Pa.C.S. § 9545(b). Otherwise, some exception to the time-bar must apply.

See id. at § 9545(b)(1)(i)-(iii). A party must also preserve issues by having


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5 Crumbley’s ineffectiveness claims as to PCRA counsel are derived from his
underlying assertion that trial counsel performed deficiently and PCRA counsel
should have raised such issues; accordingly, PCRA counsel could only be found
ineffective if trial counsel was ineffective. See Commonwealth v. Rykard,
55 A.3d 1177, 1190 (Pa. Super. 2012).


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them adjudicated at the earliest possible time and then listing them in a

1925(b) Statement. See Pa.R.A.P. 302(a), 1925(b)(4).

       In practice, these rules often make it difficult, if not impossible, for PCRA

petitioners    to   enforce    their   right      to    effective   counsel.      See    e.g.,

Commonwealth v. Holmes, 79 A.3d 562, 583-84 (Pa. 2013) (“[T]here is no

formal mechanism in the PCRA for a second round of collateral attack focusing

upon the performance of PCRA counsel, much less is there a formal

mechanism       designed      to   specifically        capture   claims   of   trial   counsel

ineffectiveness defaulted by initial-review PCRA counsel.”).6

       Pennsylvania courts are well-aware “that failing to address PCRA counsel

ineffectiveness claims raised for the first time on appeal renders effective

enforcement of the rule-based right to effective PCRA counsel difficult at the

state level.” Commonwealth v. Henkel, 90 A.3d 16, 29 (Pa. Super. 2014)

(en banc); see also Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011)

(holding that PCRA “confers no authority upon this Court to fashion ad hoc

equitable exceptions to the PCRA time-bar in addition to those exceptions

expressly delineated in the [PCRA].”).



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6 The sole exception is one that does not apply in the present case. In
Commonwealth v. Peterson, 192 A.3d 1123, 1125 (Pa. 2018), our Supreme
Court held that a petitioner may assert a claim of per se ineffectiveness of
PCRA counsel for the first time on appeal where the petitioner has effectively
been denied representation at the post-conviction stage. This exception is of
no avail to Crumbley because his PCRA counsel filed PCRA claims on his behalf,
and he was not deprived of representation during these collateral proceedings.

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      Despite these observations, “no definitive resolution has emerged” as to

how the right to effective PCRA counsel is to be assured. Henkel, 90 A.3d at

29 (quoting Holmes, 79 A.3d at 584).

      Here, Crumbley attempts to avoid the above obstacles by arguing that

he is not proceeding under the “rule-based” right to PCRA counsel.              He

stresses that he is asserting a violation of his constitutional right to effective

counsel during post-conviction proceedings, rendering inapplicable prior

decisional law as to the PCRA’s procedural bars.

      Yet, the fact remains that no Pennsylvania court has ever recognized a

constitutional right to post-conviction counsel. To the contrary, Pennsylvania

courts have repeatedly declined to recognize the existence of such a right in

cases just like this one, where the claim of ineffective post-conviction counsel

is raised for the first time on appeal: “[W]e hold that, absent recognition of a

constitutional right to effective collateral review counsel, claims of PCRA

counsel ineffectiveness cannot be raised for the first time after a notice of

appeal has been taken from the underlying PCRA matter.” Commonwealth

v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012).

      Accordingly, we find that Crumbley’s claims of ineffective post-

conviction counsel cannot be heard on the merits at this time, as they were

raised for the first time on appeal, and no constitutional right to effective post-

conviction counsel has been recognized in Pennsylvania.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2020




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