J-S38041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHARIF COPELAND,                           :
                                               :
                       Appellant               :   No. 2892 EDA 2018

            Appeal from the PCRA Order Entered September 21, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002593-2010


BEFORE:      OTT, J., DUBOW, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                             FILED OCTOBER 24, 2019

        Appellant, Sharif Copeland, appeals from the order of the Honorable

Glenn B. Bronson, entered September 21, 2018, dismissing his first petition

filed under the Post Conviction Relief Act (PCRA),1 after a hearing. We affirm.

        On July 18, 2011, a jury convicted Appellant of murder of the third

degree, carrying a firearm without a license, and possessing an instrument of

crime (PIC).2 On September 30, 2011, the trial court imposed a sentence of

20 to 40 years’ of incarceration for third degree murder, with concurrent terms

of 2 to 4 years’ incarceration for carrying a firearm without a license, and 1 to

2 years’ incarceration for PIC.

____________________________________________


1   42 Pa.C.S. §§ 9541–9546.
2   18 P.A.C.S. §§ 2502(c), 6106(a)(1), and 907(a), respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S38041-19


      At trial, the Commonwealth presented the testimony of Sean Griffith

(Griffith), the victim’s cousin and an eyewitness to the murder. Griffith gave

a statement to Detectives that he saw Appellant shoot the victim.      Griffith

knew Appellant from school, as they both attended South Philly High School.

N.T. 7/12/11 at 239. However, at trial, Griffith recanted his statement and

testified that he didn’t remember where he was on the night of the shooting,

he did not know who shot and killed his cousin, and that Appellant did not

shoot his cousin. Id. at 243, 291, 292. Griffith testified that the Detectives

told him if he didn’t tell them something then he was going to be there for a

long time, so he just told them what they wanted to hear. Id. at 306. Griffith

testified that he didn’t remember Detectives Glenn and Pitts. Id. at 257. The

Commonwealth introduced Griffith’s statement, as substantive evidence. His

statement, in pertinent part, is as follows:

      We [Sean Griffith and the victim Rashawn Woodson] stood on the
      corner of Norwood and McKean Street for about ten minutes, and
      Sharif walked up with his hood on and bumped into Rashawn. He
      threw his shoulder into Rashawn. Then Rashawn turned around
      and laughed at Sharif, then Sharif pulled out a gun from his
      waistband. Then Rashawn said “oh shit” and started running
      toward the middle of Norwood Street, and Sharif chased him and
      shot two times. Then I saw Rashawn fall on the sidewalk in front
      of 2012, and he was coughing up blood, and there was blood
      coming from his nose. I saw Sharif running towards 21st Street,
      and I called the cops on my cell phone. And then they came and
      picked up Rashawn and took him to the hospital.

N.T. 7/13/11 at 119-120. The Commonwealth also presented the testimony

of Bijah Freeman. Ms. Freeman testified she was on her way to 2000 Norwood

Street (the corner of Norwood & McKean Streets) to visit her boyfriend. Id.


                                      -2-
J-S38041-19


at 70. She testified that Appellant began talking to her and walking with her

and they were walking together until 22nd and McKean Streets where she

continued walking on McKean Street to Norwood Street and Appellant

continued walking on 22nd Street. Id. at 72. Ms. Freeman testified that she

knew Appellant from the neighborhood. Id. at 73. Ms. Freeman testified that

she knocked on her boyfriend’s door, and immediately heard gunshots from a

couple houses down Norwood Street. Id. at 78. Ms. Freeman testified she

saw Appellant running toward a gold car. Id. at 80, 81.

     The Commonwealth also presented Tiera Hinson, who had two children

with the victim, and gave a statement to Detectives implicating Appellant. At

trial, Ms. Hinson also recanted her statement; she testified she didn’t

remember anything.      The Commonwealth introduced her statement to

Detectives as substantive evidence. In her statement, Ms. Hinson relayed

that she was present on Norwood Street and was talking to the victim

immediately before the shooting. Id. at 215. Ms. Hinson stated she knew

Appellant from school. Id. Ms. Hinson stated she saw Appellant running away

from the scene of the shooting immediately after hearing gunshots, he had

his one hand down by his side as he was running. Id.

     The defense presented two character witnesses, Chandelle Jackson,

Appellant’s sister, and Yolanda Matthews, Appellant’s mother. Both testified

that Appellant had a good reputation in his community. Id. at 255, 257.




                                    -3-
J-S38041-19


       Appellant filed a timely direct appeal and this Court affirmed his

judgment of sentence on November 20, 2012. Appellant filed a petition for

allowance of appeal with the Pennsylvania Supreme Court, which was denied

on May 15, 2013.

       On December 17, 2013, Appellant filed his first, pro se, PCRA petition.

On May 20, 2014, Barnaby Wittels, Esq. was appointed to represent Appellant.

On October 17, 2017, October 31, 2017, and May 24, 2018, Attorney Wittels

filed amended PCRA petitions.          In his PCRA petition, Appellant raised the

following issues, claiming trial counsel was ineffective:

       (a) Trial counsel failed to investigate the case and failed to
       consult with his client with regard to witnesses. As a result, an
       alibi defense, which was available, was not presented. Had trial
       counsel done his job he would have called Jamal Graves, a barber,
       who would have testified that Petitioner was in his barber shop,
       getting a haircut, at the time of the murder. Mr. Graves’ affidavit
       is attached hereto as Exhibit A. He also would have called Sean
       Griffin [sic]who was on the scene at the time and would have
       testified that he tried to tell the detectives who interviewed him
       that Petitioner was not the one who shot the victim and that he
       was not even present. He would further have testified and will
       testify at an evidentiary hearing that he was coerced into
       identifying Petitioner and that he identified Petitioner only after
       being repeatedly threatened with being charged with the murder
       itself.

       (b) Trial counsel failed to challenge the coerced testimony of the
       juvenile witness, Bijah Freeman.3




____________________________________________


3 We note that Appellant abandoned his issue pertaining to Bijah Freeman at
the evidentiary hearing.


                                           -4-
J-S38041-19


Appellant’s Second Amended PCRA Petition, 5/24/18, at 3 (unpaginated)

(emphasis added).         On September 21, 2018, the PCRA court held an

evidentiary hearing on the issue of trial counsel’s failure to call an alibi witness

at trial. The PCRA court dismissed Appellant’s claim regarding Sean Griffith

without an evidentiary hearing.         Following that hearing, on September 21,

2018, the PCRA court dismissed Appellant’s PCRA petition.            Upon an oral

request from Attorney Wittles to withdraw from representing Appellant, the

PCRA court permitted Attorney Wittles to withdraw and appointed James

Berardinelli, Esq. to represent Appellant for this appeal.

       On September 28, 2018, Appellant filed this timely appeal.4 Appellant

presents the following issue(s) for our review:

       I.     Did the lower court err in denying defendant’s claims in his
              amended PCRA Petition relating to Sean Griffin [sic]without
              an evidentiary hearing where the coercion described by
              Griffin [sic] had not been testified to at trial and the
              Commonwealth conceded that an active investigation
              regarding the illicit behavior of Detective James Pitts had
              come to light since defendant’s trial?

       II.    Did the lower court err in denying defendant’s claims in his
              amended PCRA petition relating to the alibi testimony of
              Jamal Graves where Graves testimony was not available to
              the defense at time of trial and the testimony may clearly
              have affected the outcome?




____________________________________________


4PCRA court entered an order pursuant to Pa.R.A.P. 1925(b) and counsel filed
a timely Pa.R.A.P. 1925(b) statement of matters complained of on appeal. On
December 20, 2018, the PCRA court filed its Pa.R.A.P. 1925(a) opinion.

                                           -5-
J-S38041-19


Appellant’s Brief at 3 (answers omitted). “Our standard of review of a PCRA

court’s dismissal of a PCRA petition is limited to examining whether the PCRA

court’s determination is supported by the record evidence and free of legal

error.” Commonwealth v. Root, 179 A.3d 511, 515-16 (Pa. Super. 2018)

(internal quotation marks omitted). “It is an appellant’s burden to persuade

us that the PCRA court erred and that relief is due.”         Commonwealth v.

Miner, 44 A.3d 684, 688 (Pa. Super. 2012).

      Appellant’s claims on appeal concern after-discovered evidence and

ineffective assistance of counsel. To prevail on an after-discovered evidence

claim Appellant must demonstrate 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. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).

All four of these requirements must be proved; if the defendant fails to

establish any one of these, the after-discovered evidence claim fails. Id.

      When reviewing a claim that a PCRA court erred by denying an appellant

PCRA relief based upon ineffective assistance of counsel, we consider the

following legal precepts:

      We review the denial of PCRA relief to decide whether the PCRA
      court’s factual determinations are supported by the record and are
      free of legal error. . . .

      Counsel is presumed to be effective.


                                       -6-
J-S38041-19


      To overcome this presumption, a PCRA petitioner must plead and
      prove that: (1) the underlying legal claim is of arguable merit;
      (2) counsel’s action or inaction lacked any objectively reasonable
      basis designed to effectuate his client’s interest; and
      (3) prejudice, to the effect that there was a reasonable probability
      of a different outcome if not for counsel’s error.

      A failure to satisfy any of the three prongs of this test requires
      rejection of a claim of ineffective assistance.

Commonwealth v. Medina, 209 A.3d 992, 996, 1000 (Pa. Super. 2019)

(internal brackets, citations, and quotation marks omitted) (some additional

formatting), reargument denied (July 17, 2019). We consider the record “in

the light most favorable to the prevailing party at the PCRA level.”

Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super. 2015) (quoting

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

      In the context of a post-conviction challenge to counsel's
      stewardship, prejudice is established where the truth-determining
      process was so undermined that no reliable adjudication of guilt
      or innocence could have taken place, i.e., there is a reasonable
      probability that, but for counsel's error, the outcome of the trial
      would have been different. This does not mean a different
      outcome would have been more likely than not; a reasonable
      probability is a probability sufficient to undermine confidence in
      the outcome of the proceeding. Still, a speculative or attenuated
      possibility of a different outcome is insufficient to undermine
      confidence in the outcome.

Commonwealth v. Jones, 210 A.3d 1014, 1018–19 (Pa. 2019) (internal

citations and quotation marks omitted). See Harrington v. Richter, 562

U.S. 86, 112 (“The likelihood of a different result must be substantial, not just

conceivable.” (citation omitted)).




                                      -7-
J-S38041-19


      Appellant argues that counsel was ineffective for failing to elicit

testimony from Sean Griffith that Detective Pitts coerced him into giving his

statement by threatening to charge him with the murder. Appellant’s brief at

9. Appellant claims that this omission was particularly egregious because the

PCRA court conceded that one of the detectives who questioned Griffith,

Detective Pitts, had been found to have engaged in a pattern of coercive

behavior. Id. Appellant states that claims of after-discovered evidence may

be considered in regard to claims of ineffective assistance of counsel relating

to the adequacy of trial counsel’s preparation. Id. at 8.

      The PCRA court determined that any claim relating to Detective Pitts

was not presented in Appellant’s PCRA petition, nor was permission to amend

his PCRA petition requested, therefore, the claim was waived. TCO at 6. “It

is it is well-settled that claims raised outside of a court-authorized PCRA

petition are subject to waiver regardless of whether the Commonwealth raises

a timely and specific objection to them at the time they are raised.”

Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (internal citation

omitted).   As Appellant failed to include in his PCRA petition a claim of after-

discovered evidence or ineffective assistance of counsel with regard to

Detective Pitts, we agree with the PCRA court and find the claim waived.

      Furthermore, even if Appellant had preserved a claim of after-

discovered evidence in regard to Sean Griffith’s affidavit, it would have no




                                      -8-
J-S38041-19


merit. Appellant attached an affidavit to his PCRA petition from Sean Griffith

stating, in relevant part:

      [O]ne of the detective’s [sic] threaten [sic] me by saying “if you
      don’t tell me who shot Woodson you will be charged with his
      death.” [The detectives told me] “either you shot Woodson or
      your friend Copland did, either way we got you.” After an hour or
      more with repeated threats of me being charged with Murder I
      gave in and just started agreeing with what ever [sic] the
      Detective’s [sic] were saying, just so I would not be charged with
      Murder.

Affidavit Sean Griffith, ¶ 12-14. The affidavit does not mention Detective Pitts.

At trial Griffith testified that “I did tell them [the detectives] what they wanted

to hear so they can let me go home,” and “[h]e told me if I don’t tell them

something, then I was going to be there for a long time, and I wasn’t trying

to be there, so I just told them.” N.T. 7/12/11, 305-306. Additionally, on

recross-examination by Appellant’s trial counsel, Griffith testified that the

detectives told him what they thought happened and based on that, he started

telling them the story. N.T. 7/12/11, 308. We agree with the PCRA court,

even if the jury heard Griffith testify that Detective Pitts threatened to charge

him with the murder, the outcome of the trial would not likely be different as

Griffith had already testified at Appellant’s trial that he was coerced into giving

the statement. Therefore, Appellant’s after-discovered evidence claim would

fail with regard to Sean Griffith’s affidavit. See Small, 189 A.3d at 972.

      With respect to Appellant’s argument that trial counsel was ineffective

for failing to elicit testimony from Sean Griffith that Detective Pitts coerced

him into giving his statement implicating Appellant, we likewise find that the

                                       -9-
J-S38041-19


claim would fail, as Appellant cannot prove prejudice. The jury heard Griffith’s

trial testimony recanting his statement. The degree of detail Griffith gave to

the jury for his purported lies in the original statement is irrelevant. The jury

chose to credit his original statement, which they are freely permitted to do.

A prior inconsistent statement is admissible as substantive evidence even

when the witness repudiates the prior statement during his testimony at trial.

See Commonwealth v. Brown, 52 A.3d 1139, 1169-71 (Pa. 2012). As long

as the Commonwealth proves that the statement was signed by the witness

and adopted at some time prior to trial, it is covered by a hearsay exception.

Id.; See also Commonwealth v. Brown, 134 A.3d 1097, 1104 (Pa. Super.

2016) (although witnesses recanted at trial, the jury was free to credit the

witnesses’ prior inconsistent statements over their recantations.). Given that

the jury already heard Griffith’s testimony that his statement was false

because he was coerced by the Detectives, additional testimony that his

statement was false because he was coerced by Detective Pitts by threatening

to charge him with the murder would not lead to a “reasonable probability

that, but for counsel’s error, the outcome of the trial would have been

different.” See Jones, 210 A.3d at 1018-19. Accordingly, Appellant cannot

show prejudice and his ineffective assistance of counsel claim fails. Id.; See

Medina, 209 A.3d at 996, 1000 (A failure to satisfy any of the three prongs

of [the ineffective assistance of counsel] test requires rejection of a claim of

ineffective assistance.).


                                     - 10 -
J-S38041-19


      Lastly, even if Appellant had preserved the claim that he is entitled to a

new trial because trial counsel was ineffective for failing to uncover evidence

concerning Detective Pitts’ misconduct, this claim would fail because Appellant

cannot show he was prejudiced. Any pattern of coercion that Detective Pitts

engaged in at the time of the murder in 2009 and Appellant’s trial in 2011 is

purely speculative.    See Brown, 134 A.3d at 1108 (in unsuccessful after-

discovered evidence claim under the PCRA, appellant attempted to use a

November 6, 2013 Philadelphia Daily News article that discussed three

criminal cases where defendants claimed that Detective Pitts employed

aggressive interrogation tactics to coerce them into giving false statements).

Appellant cannot show that the likelihood of a different result at a new trial

would be substantial based on counsel discovering a completely speculative

pattern of coercion.    See Richter, 562 U.S. at 112 (“The likelihood of a

different result must be substantial, not just conceivable.” (citation omitted)).

      We find that the PCRA committed no error in denying Appellant’s claim

without an evidentiary hearing.

      There is no absolute right to an evidentiary hearing on a PCRA
      petition, and if the PCRA court can determine from the record that
      no genuine issues of material fact exist, then a hearing is not
      necessary. To obtain reversal of a PCRA court's decision to
      dismiss a petition without a hearing, an appellant must show that
      he raised a genuine issue of fact which, if resolved in his favor,
      would have entitled him to relief, or that the court otherwise
      abused its discretion in denying a hearing.

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (internal

quotations omitted). An evidentiary hearing “is not meant to function as a

                                     - 11 -
J-S38041-19


fishing expedition for any possible evidence that may support some

speculative claim of ineffectiveness.” Commonwealth v. Roney, 79 A.3d

595, 605 (Pa. 2013) (citation omitted). There were no genuine issues of fact

with respect to Appellant’s claim of after-discovered evidence or ineffective

assistance of counsel with regard to Detective Pitts because a claim was not

preserved. Furthermore, the trial record established that the coercion issue

was fully presented to the jury. The PCRA court did not err in denying this

claim without an evidentiary hearing. See Maddrey, 205 A.3d at 328.

      In Appellant’s next issue presented to this Court, he argues that the

PCRA court erred in dismissing his claim that trial counsel was ineffective for

failing to call Jamal Graves as an alibi witness.

      In establishing whether defense counsel was ineffective for failing
      to call witnesses, appellant must prove (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.

Commonwealth v. Treiber, 121 A.3d 435, 463-64 (Pa. 2015) (citations

omitted) (some formatting). However, the failure to call a witness “is not per

se ineffective assistance of counsel, for such decision implicates matters of

trial strategy. It is [the petitioner’s] burden to demonstrate that trial counsel

had no reasonable basis for declining to call [a particular person] as a

witness.” Commonwealth v. Hammond, 953 A.2d 544, 558 (Pa. Super.

2008) (internal quotations omitted).


                                     - 12 -
J-S38041-19


      The PCRA court held an evidentiary hearing and trial counsel, Mr. Robert

Gamburg, Esq., (Attorney Gamburg) testified.        Attorney Gamburg testified

that he did not recall Appellant providing him with any witnesses to call or

investigate.    N.T. 9/21/18 at 17, 19.      Attorney Gamburg testified that if

Appellant provided him with the name of an alibi witness, his common practice

would be to send his investigator to go talk to them. Id. at 17, 19, 20. Upon

reviewing the affidavit of Jamal Graves, Attorney Gamburg testified that if he

received the information contained in the affidavit, he would have sent his

investigator to speak to Graves. Id. at 22. Appellant also testified at the

evidentiary hearing. Appellant testified that told Attorney Gamburg that he

had an alibi witness, and that he was at the barbershop at the time of the

murder. Id. at 71. The purported alibi witness, Jamal Graves, also testified.

Mr. Graves testified that he is a barber and Appellant was in his barbershop

on the date of the murder, October 1, 2009, from 5:30 p.m. until between

7:30 or 8:00 p.m. Id. at 33, 38, 49. Mr. Graves testified that his barbershop

is approximately a ten minute walk from the location of the murder. Id. at

68. Mr. Graves testified that he told Appellant’s family that Appellant was in

his barbershop at the time of the murder, but nobody ever came to talk to

him about it.    Id. at 34-36.   Mr. Graves testified that he found out that

Appellant was charged with the murder the next day, October 2, 2009, at

between 12:00 p.m. and 3:00 p.m. Id. at 59-60. Mr. Graves testified that

he typically closes his shop at 6:00 p.m. Id. at 59.


                                    - 13 -
J-S38041-19


      The PCRA court found that Mr. Gamburg testified credibly that he was

never told about the existence of this alibi witness. The PCRA court found the

alibi witness and Appellant to be incredible. We will not disturb credibility

findings of the PCRA court. “The PCRA court's credibility determinations, when

supported by the record, are binding on this Court.” Commonwealth v. Hill,

202 A.3d 792, 797 (Pa. Super. 2019).           As Appellant failed to prove that

counsel knew of, or should have known of the existence of the alibi witness,

this claim fails.

      Additionally, the PCRA court determined that Mr. Graves’s testimony did

not actually establish an alibi for Appellant. The PCRA court determined that

the record showed that the radio call for the murder came at approximately

7:59 p.m. on October 1, 2009. TCO at 9; N.T. 7/12/11, at 310. Appellant

was arrested and charged with the murder on October 2, 2009 at 8:12 p.m.

TCO at 9; N.T. 9/21/18 at 65-66.          The record shows that Mr. Graves

barbershop was as little as a ten minute walk from the scene of the murder,

and from Mr. Graves’ testimony Appellant could have left the barbershop as

early as 7:30 p.m. TCO at 9, N.T. at 68, 33. We find that the PCRA court’s

determinations are supported by the record and it committed no error of law

in dismissing Appellant’s claim of ineffective assistance of trial counsel for

failure to call Mr. Graves as an alibi witness.




                                      - 14 -
J-S38041-19


      For the foregoing reasons, the PCRA court therefore did not err in

limiting its hearing on the PCRA petition to Appellant’s claim concerning an

alibi witness and dismissing both claims in Appellant’s first PCRA petition.

      Order affirmed.

      Judge Ott joins the Memorandum.

      Judge Dubow Concurs in the Result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/19




                                     - 15 -
