J. S38013/14

NON-PRECEDENTIAL DECISION               SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
DARRYL D. BLACK,                           :         No. 2183 EDA 2013
                                           :
                          Appellant        :


                   Appeal from the PCRA Order, June 28, 2013,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-1206101-2005


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED AUGUST 27, 2014

        Darryl D. Black appeals from the order of June 28, 2013, dismissing

his PCRA1 petition without a hearing. We affirm.

        The facts of this matter have been aptly and thoroughly summarized in

a prior opinion by the trial court, the Honorable M. Teresa Sarmina, as

follows:

                    On July 29, 2003, at around 7:30 pm,
              James Scott (hereinafter, victim) was shot to death
              in broad daylight in his row home located at 2219
              Uber Street, in Philadelphia. He was shot seven
              times -- three times in the back, twice in the left arm
              and one time each in both the chest and the right
              thigh. The victim was rushed to Temple University
              Hospital where he was pronounced dead on
              arrival.[Footnote 5]



1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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               [Footnote 5] The medical examiner
               concluded that the cause of death was
               multiple gunshot wounds.    One base
               jacketed medium-sized hollow point
               bullet caused massive hemorrhaging

               the    lower   back,    penetrating    his
               diaphragm, twelfth rib, and lower right
               lung, bouncing off of the vertebrae in the
               thoracic spine, piercing the upper right
               lung and the sub-clavian artery and,


                The shooting punctuated a series of arguments
          that had escalated over three or four days before the
          shooting incident between the victim and his
          neighbors,    Sherron    Dennis[Footnote    6]   and
          Carline Izzard.    On the day of the shooting,
          Sherron Dennis, Teia Dennis, Ms. Izzard, and the

          was invited, but had not yet arrived.[Footnote 7] An
          intense argument erupted involving Sherron Dennis,
          Ms. Izzard and the victim.          The victim left
          Sherron
          [appellant] arrived, Sherron Dennis told him of the
          dispute she had with the victim. [Appellant] asked
          her the whereabouts of the victim, and she told him
                    e victim] was probably upstairs in his
                                                 -- perceptibly
          angry -- walked off toward Susquehanna Avenue.



               though it also appears on various
               exhibits, and in the Quarter Sessions file
               pertaining to her solicitation charge, as



               [Footnote 7] [Appellant] was Sherron


               Thereafter, at just before 7:30 pm, a second
          argument ensued between the victim, who was on


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          the front step of his home, and Sherron Dennis. As
          the victim argued, [appellant] approached on
          Uber Street from the direction of Susquehanna

          [appellant] had changed into a black hoodie and
          black glasses. When [appellant] arrived in front of


          exited through the back of his t-shirt. The victim
          spun around and retreated inside his home.
          [Appellant] followed the victim into the residence,
          and closed the door behind them. Several more
          shots were heard. Shortly thereafter, [appellant]


               [Footnote 8] Shortly before the shooting,
               Kenneth Collins and a few family
               members and friends had gathered
               around the front step of his residence at
               2311 North Uber Street.       Collins was
               seated on the step.       A stocky male
               passed by them at a distance of
               approximately six or seven feet coming
               from     Susquehanna       Avenue      on
               Uber
               home. All of his clothing was black. The

               home, raised his arm and began shooting
               at the victim. Upon hearing the shots,
               the gathering in front of
               residence     dispersed,   and    Collins
               scrambled into his home. Once inside,
               Collins heard several more gunshots.

                Coincidentally, at that same time, Officers
          Ronald Gilbert and Aaron Green of the Philadelphia
          Highway Patrol, were parked in their marked patrol
          car at the intersection of Susquehanna Avenue and
          Uber Street.[Footnote 9] As soon as the shots rang
          out, they looked in the direction of the incident and
          saw the shooter firing from the pavement into the
          residence at 2219 Uber Street. They exited their
          patrol car and ran toward the scene, but the shooter
          disappeared into the house. As they closed in on the


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          residence,     [appellant]    emerged      from   the
          house.[Footnote 10]       [Appellant] fired one shot
          directly at Officer Gilbert, but missed, and then
          [appellant] ducked for cover. He ran across the
          street, past S.J. who was outside playing with a
          ball,[Footnote 11] and into a parking lot.
          Officer Gilbert observed [appellant] standing next to
          a dumpster with his gun drawn and he fired four
          shots at [appellant], but missed.[Footnote 12]
          [Appellant] fled to the 2200 block of 20th Street


               [Footnote 9] They were there to execute
               a warrant at a location unrelated to this
               incident.

               [Footnote 10] Officer Gilbert testified
               that he was able to observe the shooter
               at   this  point   for   a   period  of
               approximately five (5) to ten (10)
               seconds. He identified him from a photo
               array.


               appears in the certified record; however,
               she will be referred to herein by her
               initials, S.J.  See Commonwealth v.
               Bryson, 860 A.2d 1101, n 2 (Pa.Super.
               2004). Twelve year old S.J. was playing
               with a ball with her friends in a lot
               located between Uber and 20th Streets.
               She overheard a verbal dispute between

               At one point, the ball rolled away and
               was retrieved by a man walking by. She
               then observed as the same man


               just stand on the pavement and shoot.
               He walked up two steps and shot into the

               later that night.




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               [Footnote 12] Officer Green never fired
               his weapon.

                During the investigation of the area outside of
          2219 Uber Street, Officer Leo Everett Rahill, of the
          Crime Scene Unit, recovered ten (10) fired cartridge
          cases and five (5) spent bullets. Inside, he located
          four (4) more fired cartridge cases and one
          additional (1) spent bullet.[Footnote 13] A Keltec
          P-11 .9 millimeter semiautomatic handgun was
          recovered from behind the dumpster, next to where
          [appellant] had been standing. Officer John Cannon,
          of the Firearms Identification Unit, examined the
          firearm and the ballistics evidence and concluded
          that the three (3) spent bullets recovered from the

          near the dumpster.[Footnote 14]

               [Footnote 13] A spent bullet was also
               retrieved from the window frame of a
               nearby residence.

               [Footnote 14] The recovered Keltec
               firearm did not contain any fingerprints
               that could be used to identify the
               shooter. Officer Cannon concluded that
               ten (10) of the fired cartridge cases
               (hereinafter, FCC) recovered, and five
               (5) of the spent bullets recovered, had
               been fired from the Keltec firearm. He
               further concluded that four other (4)
               FCCs, and two (2) spent bullets were

               Two (2) spent bullets were inconclusive
               as to whether they had been fired from
               the Keltec firearm, although they had not

               Two (2) additional spent bullets were
               inconclusive as to whether they had been

               although Officer Cannon concluded that
               they had not been fired from the Keltec
               firearm.



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                Later      that    night,     S.J.,     Kenneth
          Collins[Footnote 15] and Officer Green[Footnote 16]
          gave statements.[Footnote 17]         The next day,
          Ms. Izzard gave a statement. At that time, she
          described the arguments that had taken place
          leading up to the shooting, but did not describe nor
          indicate that she knew the identity of the shooter.

               [Footnote     15]   At   that   time,   Collins

               about 30 or so. He was maybe five nine
               to five eleven, heavier than me, kind of
               stocky. I weigh 155 pounds. He was
               wearing black clothes, a long sleeve
               black shir
               remember that it was a hoodie and he

               notice his sneaks, just that he was


               [Footnote 16] At that time, Officer Green

               about medium complected, five nine, five
               eleven, stocky build, bearded and low cut


               [Footnote 17] Due to the discharge of his
               weapon,     Officer   Gilbert  was    not
               questioned until the investigation by
               Internal Affairs Division Shooting Team
               was      concluded.           Accordingly,
               Officer Gilbert gave a statement over a
               year after the shooting, in September of
               2004.

                The   identity of the shooter remained unknown
          until the   case was taken up in June of 2004 by
          Detective   Timothy Bass of the Special Investigations
          Unit.       On June 2, 2004, Detective Bass
          re-



          him,[Footnote 18] but did not know his name.


                                    -6-
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          boyfriend as [appellant].         He prepared a
          photographic line-
          image and, on September 23rd and 24th of 2004,
          presented it to Officer Green, Ms. Izzard, and
          Officer Gilbert, all of whom selected the image of
          [appellant] as the shooter.

               [Footnote 18] Ms. Izzard first suggested

               shooter    during   her   June   2,    2004

               during this argument did Sherron say
               that she was going to get somebody to

               whole time she was saying to [the

               said it a couple of times, and [the victim]

               you want, Sherron.        I am not going


                                                     --


                                            nd talk about

               guy that shot [the victim], is that the


               think it was him. By the way the guy
               looked, you know, physically and all that,
               It

                Shortly thereafter, Sherron Dennis was
          arrested on charges of criminal solicitation to commit
          murder,[Footnote 19] and identified [appellant] as
          the shooter.[Footnote 20] An arrest warrant was
          subsequently issued for [appellant].

               [Footnote 19] 18 Pa.C.S.A. § 902. This
               matter was captioned at CP-51-CR-
               0204221-2005.



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                   [Footnote 20] Pursuant to negotiations

                   D.A.) Office, Sherron Dennis agreed to
                   identify [appellant] on the record, and to
                   do to [s

                   to   recommend      a   mere      probationary

                   taken from her on November 30, 2004,
                   in the presence of her attorney, David
                   Nenner, Esquire, Assistant D.A., Anthony
                   Voci (hereinafter, Voci), and Detectives
                   Bass and Buckley. In that statement,
                   she identified [appellant] as the shooter.
                   She    identified  [appellant]    by   his


                   counsel, and Sherron Dennis. On April
                   18, 2005, Sherron Dennis appeared
                   before The Honorable Benjamin Lerner
                   and entered a plea of nolo contendere to
                   solicitation. She was found guilty and
                   received a probationary sentence.        In
                   April of 2002, Detective James Griffin
                   had interviewed [appellant] in a matter
                   unrelated to this case, at which time and
                   [sic] [appellant] stated that his nickname


Trial court opinion, 8/4/08 at 2-6 (citations to the record omitted).

      On December 11, 2007, following a jury trial, appellant was found

guilty of first degree murder, aggravated assault, carrying a firearm without

a license, and possessing an instrument of crime. Appellant was sentenced

to life imprisonment for first degree murder, and a consecutive, aggregate

sentence of 7 to 19 years for the remaining convictions. Appellant filed a

timely   direct   appeal,   and   on   April   20,   2009,   this   court   affirmed.

Commonwealth v. Black, 974 A.2d 1176 (Pa.Super. 2009) (unpublished


                                       -8-
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memorandum), appeal denied, 983 A.2d 725 (Pa. 2009). On November 5,

2009, our supreme court denied allowance of appeal. Id.

      On August 12, 2010, appellant filed a timely pro se PCRA petition.



On June 28, 2013, following notice pursuant to Pa.R.Crim.P., Rule 907,

42

followed.      Appellant   has   complied   with   Pa.R.A.P.,   Rule   1925(b),

42 Pa.C.S.A., and the PCRA court has filed an opinion.

      Appellant complains that the PCRA court erred in dismissing his

petition without an evidentiary hearing, where he would have been able to

prove that he was entitled to relief due to trial counsel ineffectiveness.


            denying a petition under the PCRA is whether the
            determination of the PCRA court is supported by the
            evidence of record and is free of legal error.
            Commonwealth v. Halley, 582 Pa. 164, 870 A.2d

            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            [T]he right to an evidentiary hearing on a
            post-conviction petition is   not   absolute.
            Commonwealth v. Jordan, 772 A.2d 1011, 1014

            discretion to decline to hold a hearing if the

            support either in the record or other evidence. Id.
            It is the responsibility of the reviewing court on


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            appeal to examine each issue raised in the PCRA
            petition in light of the record certified before it in
            order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief
            without    conducting    an    evidentiary   hearing.
            Commonwealth v. Hardcastle, 549 Pa. 450, 454,
            701 A.2d 541, 542-543 (1997).

Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,

1239-1240 (Pa.Super. 2004).


            ineffectiveness under the PCRA, Appellant must
            demonstrate (1) that the underlying claim is of

            was    without     a   reasonable     basis    designed     to

                                                   i.e. there is
            a reasonable probability that but for the act or
            omission in question the outcome of the proceeding
            would have been different.     Commonwealth v.
            Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
            Commonwealth v. Douglas, 537 Pa. 588, 645
            A.2d 226, 230 (1994).

Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).

      In his first issue on appeal, appellant argues that trial counsel was

ineffective for allowing the jury to review the police report of Officer Green,

which was not in evidence.            As the PCRA court explains, during their

deliberations,   the   jury   asked    to   see   the   original   police    reports   of

Officers Gilbert and Green. (PCRA court opinion, 12/6/13 at 7.) The court



an exhibit, nor moved into evidence, and therefore could not be provided to




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them. (Id. at 8.) The court told the jury to rely on their own recollection of

                            Id.)

     Shortly thereafter, the jury asked whether they could have portions of



read back to them. (Id.) At that point, trial counsel interjected, suggesting



through his testimony to find the relevant portions.     (Id.)   Trial counsel

opined that it was better to just give the jury the entire statement. (Id.,

citing notes of testimony, 12/11/07 at 11-12.)     The trial court specifically

asked appellant whether he was in agreement with counsel, and he

responded in the affirmative.   (Id.)   The trial court also warned appellant

that the matter could be considered immune from future collateral attack.

(Id.) Appellant stated that he understood. (Id.)


           knowing,   voluntary,    and    intelligent  decision
           concerning trial strategy will not later be heard to
           complain that trial counsel was ineffective on the
                                    Commonwealth v. Paddy,
           569 Pa. 47, 800 A.2d 294, 316 (2002) (citing
           Commonwealth v. Abu Jamal, 553 Pa. 485, 720
           A.2d 79, 93 (1998)). To do otherwise, the Court
                                                               e
           a ready-made ineffectiveness claim to be raised in
                                             Id. In Paddy, the

           ineffectiveness for failing to call alibi witnesses. We

           fundamental reason that Paddy agreed at trial to

                     Id. at 315. As in this case, the trial court
           engaged Paddy in a colloquy as to the decision not to


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           call the alibi witnesses. He replied that trial counsel
           had explained her decision not to call the witnesses
           and that he agreed.       He further stated that he
           understood that he had a right to call the witnesses.
           We dismissed his claim, stating:

                 As Paddy expressed the view that the
                 decision not to call alibi witnesses was

                 decision has not been shown to have
                 been unknowingly, involuntarily, or
                 unintelligently made, this allegation of
                 ineffectiveness lacks arguable merit.

           Id. at 316.

Commonwealth v. Rios, 920 A.2d 790, 803 (Pa. 2007).




cannot now be heard to complain that it was the wrong decision.

     Moreover, appellant cannot show how he was prejudiced.          Appellant



fact, in his initial report, Officer Green did not identify appellant as the

shooter.   Furthermore, Officer Green was cross-examined extensively

regarding the statements he made in the police report, so the jury was

already aware of the substance of those statements.



somehow violated his constitutional right of confrontation. However, as the

PCRA court notes, appellant cross-examined Officer Green thoroughly

regarding alleged omissions or inconsistencies between his initial statements



                                   - 12 -
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contained in the police report and his trial testimony. (PCRA court opinion,

12/6/13 at 9-

the shooter in very general terms and did not identify appellant as the



Officer                                  that his memory was fresher at that

time. (Id.) Appellant cannot possibly demonstrate how he was prejudiced



which he assented.

      Next, appellant argues that trial counsel was ineffective for failing to



polluted source instruction.    Appellant states that Dennis was initially

charged with murder but the charge was reduced to solicitation, with the

recommendation of a probationary sentence, if she agreed to testify against

him. In addition, Dennis was in custody on a probation violation when she

                                 -19.)

      Appellant is simply mistaken. In fact, as the PCRA court explains, trial

counsel did question Dennis regarding her plea agreement with the

Commonwealth and the reduction in charges. (PCRA court opinion, 12/6/13

at 10-11.) Dennis testified that in exchange for having the charges reduced

to solicitation and being freed on bail, she agreed to identify the gunman.

(Id. at 11, citing notes of testimony, 12/4/07 at 212-215.) Trial counsel got




                                    - 13 -
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                                                Id.)   Therefore, trial counsel



      In addition, trial counsel did request a corrupt and polluted source

instruction and the trial court granted it. The trial court did instruct the jury

that Dennis, as an accomplice, was a corrupt and polluted source and her

testimony should be viewed with caution.       (Id. at 12; trial court opinion,

8/4/08 at 14-15, citing notes of testimony, 12/6/07 at 179-182.) Therefore,

                                                         s in the record.

      In his third and final issue on appeal, appellant argues that trial

counsel was ineffective for failing to object to prosecutorial misconduct.

Specifically, appellant contends that the prosecuting attorney expressed her

personal opinion



that the Commonwealth committed prosecutorial misconduct by questioning

Dennis about alleged threats by appellant.

      One



testimony, the Commonwealth argued to the jury that it was undisputed that

there was an argument between Dennis and the victim.               (PCRA court

opinion, 12/6/13 at 15-16, citing notes of testimony, 12/6/07 at 159-160.)



every other witness testified there was an argument involving Dennis,



                                     - 14 -
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Izzard, and the victim. (Id.) The assistant district attorney then remarked,



her? Does [defense counsel] even believe her? Because what did he say,

the first thing he said to you? Everyone agrees there was an argument on

                        Id.)




inconsistent with every other eyewitness, a

own representations. It was not in dispute that an argument occurred. At

no time did she imply that defense counsel was intentionally trying to

mislead the jury or solicit false testimony.   While the attorney for the

Common



lacks arguable merit.

     Regarding the alleged threats, Dennis testified at trial that she could

not remember whether she saw the man who shot the victim.               This

conflicted with her prior statement in which she identified appellant as the

perpetrator.   Dennis disavowed her prior statement, testifying that it was

untrue. (PCRA court opinion, 12/6/13 at 14.) To explain why Dennis would

be distancing herself from her prior statement, the Commonwealth asked



office, in which she alleged that someone had called her and threatened to



                                   - 15 -
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kill her and her children. (Id. at 13, citing notes of testimony, 12/4/07 at

193-195.) Dennis was placed in a hotel and given money to help her move.

(Id.) Dennis denied telling Assistant District Attorney Anthony Voci that she

had   been   threatened,   but   admitted     that   she   was   in   fear.    (Id.)

Subsequently, ADA Voci was called to testify regarding his conversations

with Dennis.    ADA Voci testified that Dennis called him in a panic, stating

that someone had threatened to kill her and her children if she came to

court. (Trial court opinion, 8/4/08 at 20, citing notes of testimony, 12/5/07

at 183-184.)     ADA Voci made arrangements with victim services to put

Dennis and her family up in a hotel until such time as they could be

relocated.     (Id.)   The trial court gave the jury a limiting instruction,

cautioning them that this testimony was only for purposes of assessing

                                                                              Id. at

20-21.)

      A related issue has already been addressed on direct appeal, where

appellant argued that the trial court erred in denying his motion for mistrial

after ADA Voci testified that Dennis had been threatened. Commonwealth

v. Black, No. 1091 EDA 2008, unpublished memorandum at 5-6 (Pa.Super.

filed April 20, 2009). This court affirmed on the trial court opinion. Id. at

7-

admissible for impeachment purposes under Pa.R.E. 607(b).               (Trial court




                                     - 16 -
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opinion, 8/4/08 at 20.) In addition, the testimony was relevant to explain

        change in her story. (Id. at 21.)

      As such, the matter could be considered previously litigated.   This



testify regarding these threats.   Furthermore, the testimony was clearly

ad

she denied having been threatened. There was no basis for objection. In

addition, appellant would be unable to prove prejudice where several other

eyewitnesses, including two police officers, identified appellant as the




ineffectiveness fails.2

                                                    patently without merit

and have no support in the record or from other evidence, the PCRA court



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014

2
  Several other issues raised in the PCRA court have been abandoned on
appeal.


                                   - 17 -
