J-S63042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
            v.                            :
                                          :
CLAUDE WINSTON,                           :
                                          :
                   Appellant              :           No. 1227 EDA 2015

            Appeal from the PCRA Order entered on April 8, 2015
            in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No. CP-51-CR-0013213-2007

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED NOVEMBER 13, 2015

      Claude Winston (“Winston”) appeals from the Order dismissing his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On September 22, 2006, Winston attempted to rob James Crawford

(“Crawford”) of two bags of marijuana. When Crawford turned and began to

run, Winston shot him four to five times from behind. Crawford died as a

result of the gunshot wounds. The next day, as Winston was walking past

the scene of the murder, he approached an unmarked police vehicle, telling

the detectives that someone was killed the night before, and a rumor was

circulating that he was responsible. After a few moments, a female walked

past the detectives and, without stopping, stated that men were coming to

kill Winston.    The detectives saw seven men walking towards them, and
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immediately placed Winston in the backseat of their vehicle and transported

him to police headquarters.         In the car, Detective Michael Rocks heard

Winston talking on his cell phone and state, “you know where I was last

night but I can’t say right now.”

      In April 2008, while being held on unrelated charges, Winston told an

inmate that his case involved killing someone “over two bags of weed.”

Winston boasted about the murder and explained, in detail, how he had shot

and killed Crawford. Winston also told the inmate that his mother was going

to testify that Winston never left her house the night Crawford was killed.

Winston and his mother testified to this effect at trial.

      On March 17, 2009, following a jury trial, Winston was convicted of

murder of the second degree, robbery, conspiracy to murder, conspiracy to

commit robbery, and violations of the Uniform Firearm Act. 1 On the same

date, the trial court sentenced Winston to life in prison without the possibility

of parole, in addition to an aggregate concurrent prison term of forty-six to

ninety-two years. This Court affirmed the judgment of sentence on March

22, 2010, and the Pennsylvania Supreme Court denied Winston’s petition for

allowance of appeal on October 29, 2010.             See Commonwealth v.

Winston, 996 A.2d 960 (Pa. Super. 2010) (unpublished memorandum),

appeal denied, 9 A.3d 630 (Pa. 2010).



1
  18 Pa.C.S.A. §§ 2502(b); 3701(a)(1)(i); 903(a)(1); 903(c); 6106(a)(1);
6108.


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        Winston filed a pro se PCRA Petition on June 27, 2011.      The PCRA

court appointed counsel. Counsel filed an amended Petition on October 23,

2013, arguing that Winston was entitled to relief based on after-discovered

evidence in the form of a letter written by Nathaniel Brookens (“Brookens”).

Counsel filed a supplemental amended Petition, containing an affidavit from

Valerie Garcia (“Garcia”).     Thereafter, counsel filed a second amended

Petition on May 26, 2014. On October 8, 2014, counsel filed a supplemental

Petition containing an additional affidavit from Garcia and an affidavit from

Herman Burton (“Burton”).2         In January 2015, Counsel filed a third

supplement to the second amended Petition, containing an affidavit from

Terrell Haslam (“Haslam”)3.       The PCRA court conducted an evidentiary

hearing on February 24, 2015, which it summarized as follows:

               At [the PCRA court’s] evidentiary hearing, [Haslam]
        testified that she met [Winston] in 2007 when they were both
        incarcerated in the Philadelphia [p]rison [s]ystem. Haslam and
        [] Brookens were in a romantic relationship at that time. While
        incarcerated, Brookens assisted [Winston] with preparations for
        his trial in March of 2009. At some point after [Winston] was
        convicted, and after Brookens had been released from custody,
        Haslam received a letter from Brookens. Haslam gave the letter
        to an individual named Mal to give to [Winston’s] cousin, []
        Burton[,] to get the letter to [Winston].        In the letter[,]
        Brookens states “Oh I want you to know something to F**k Rock
        he was always F**king with you and he got pay back I told you I
        will handle him didn’t I.” Haslam explained that she believed the
        letter referred to the fact that Brookens was jealous that
        [Winston], known as [“]Rock[”], and Haslam were friends.

2
    Burton identifies as a woman. See PCRA Court Opinion, 4/8/15, at 4 n.5.
3
 Haslam identifies as a woman and is also known as Sabrina.         See PCRA
Court Opinion, 4/8/15, at 4 n.4.


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      Haslam did not know what Brookens meant when he said he
      handled [Winston,] but Haslam assumed Brookens would not do
      anything serious to [Winston]. Brookens never told Haslam
      what, if anything, he did do.      Haslam believed that since
      Brookens and [Winston] never got into a physical altercation
      while in custody[,] the only way Brookens could “get” [Winston]
      was through testifying.

             In 2007 and 2008, [] Burton, [Winston’s] cousin, was also
      incarcerated with [Winston], Haslam, and Brookens. At some
      point after [Winston] was convicted in 2009, Haslam gave
      Burton the letter Brookens had mailed after he had been
      released from custody. Haslam stated she gave Burton the
      letter because “it wasn’t fair that [Winston] got convicted for
      something he didn’t do.” Burton gave the letter to his mother to
      give to [Winston].

             Garcia, Burton’s mother, testified that Burton gave her a
      letter while she was incarcerated and asked her to give it to
      [Winston]. Some time passed before Garcia sent the letter to
      [Winston], who was incarcerated at SCI Graterford.

PCRA Court Opinion, 4/8/15, at 4-5 (citations omitted).

      Following the evidentiary hearing, the PCRA court dismissed Winston’s

Petition. Winston filed a timely Notice of Appeal.

      On appeal, Winston raises the following question for our review: “Is

[Winston] entitled to post-conviction relief based upon after-discovered

evidence in the form of a letter written by Commonwealth witness []

Brookens to [] Haslam?” Brief for Appellant at 4.

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of the record. We will not disturb a PCRA
      court’s ruling if it is supported by evidence of record and is free
      of legal error.




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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

     Winston argues he is entitled to post-conviction relief as a result of

after-discovered evidence, i.e., a letter sent by Brookens, who had

presented testimony against Winston at trial regarding their time in prison

together. Brief for Appellant at 15, 20. Winston asserts that in the letter

sent to Haslam after trial clearly indicating that Brookens testified falsely

against Winston. Id. at 20. Winston contends that Brookens and Haslam

were in a relationship, and that the letter shows that Brookens’s testimony

was in retaliation for Winston’s relationship with Haslam.      Id. at 20-21.

Winston further argues that the evidence the Commonwealth presented at

trial was less than overwhelming once Brookens’s testimony is removed, and

that such testimony held the Commonwealth’s case together. Id. at 22-25.

Winston claims that the letter discloses a motive for Brookens’s testimony

that was not presented at trial, and that the jury would have acquitted

Winston had they heard the contents of the letter. Id. at 25-26.

     “In order to be eligible for relief, a PCRA petitioner must establish by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated defects found in 42 Pa.C.S.[A.] §

9543(a)(2)[.]”   Commonwealth v. Brown, 872 A.2d 1139, 1144 (Pa.

2005). To present an after-discovered evidence claim, the petitioner must

demonstrate that the evidence was unavailable at the time of trial, but has



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subsequently become available and would have changed the outcome of the

trial if it had been introduced. 42 Pa.C.S.A. § 9543(a)(2)(vi).

            To be granted a new trial based on [] after-discovered
      evidence:

            [The petitioner] must 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. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010)

(citations omitted). “The test is conjunctive; the [petitioner] must show by

a preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.”      Id.   Whether new evidence is

corroborative or cumulative depends on the strength of other evidence

supporting the conviction.   Id. at 364.   Further, where the new evidence

supports a claim that the petitioner previously made and litigated at trial, it

is probably cumulative or corroborative of the evidence already presented.

Id. at 365.4

      At trial, Brookens testified that Winston had confessed to him that

Winston shot Crawford over two bags of weed.        N.T., 3/12/09, at 47-48.

During cross-examination, defense counsel thoroughly questioned Brookens


4
  The PCRA court found that Haslam received the letter after Winston was
convicted; thus, the letter could not have been obtained prior to trial. See
PCRA Court Opinion, 4/18/15, at 6.


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regarding his motive for testifying. Id. at 69-115. Winston testified that he

caused Brookens to be written up when he caught him in an intimate

relationship in a shower. N.T., 3/18/09, at 152. Winston also testified that

Brookens tried to touch him, so Winston “cut him off.”          Id. at 152-53.

Winston testified he put Brookens “on blast” by encouraging others not to

get their haircut from Brookens, and screaming “homo” at Brookens when

he got out of the shower. Id. at 153. Winston stated that Brookens did not

like that Winston “put him out there like that,” and that Brookens was

“revengeful.” Id. Winston also testified that Brookens lied in his testimony

as a result of Winston putting him “on blast.” Id. at 164-65.

      The letter in question from Brookens to Haslam stated, “Oh I want you

to know something to F**k Rock he was always F**king with you and he got

pay back I told you I will handle him didn’t I[?]”      PCRA Court Opinion,

4/8/15, at 7.   Winston has not established that the letter was referencing

Brookens’s trial testimony. See PCRA Court Opinion, 4/8/15, at 7 (stating

that Winston “presented no evidence that when Brookens referenced ‘pay

back’ and ‘handling’ [that] [] Brookens was referring to his trial testimony”).

Indeed, Haslam testified at the evidentiary hearing that he did not know how

Brookens would “pay back” Winston.        N.T., 2/24/15, at 52, 62.      Thus,

Winston has not demonstrated that the letter referred to Brookens’s

testimony.




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       Moreover, the letter at most indicates that the relationship between

Brookens and Winston was contentious. At trial, defense counsel attempted

to establish that, because of this contentious relationship, Brookens had a

motive for testifying against Winston during trial. See N.T., 3/12/09, at 61-

115.    The letter in question could only act as additional evidence of

Brookens’s bias, which is cumulative of the trial testimony. See PCRA Court

Opinion, 4/18/15, at 7-8; see also Padillas, 997 A.2d at 363. Indeed, this

evidence could only be used to impeach the credibility of Brookens.     See

Padillas, 997 A.2d at 363.     Furthermore, the record supports the PCRA

court’s determination that the cumulative evidence would not have made a

difference in light of other evidence presented at trial.   See PCRA Court

Opinion, 4/8/2015, at 8-9 (pointing out that the Commonwealth presented

at trial eyewitness testimony concerning the murder, in addition to physical

and ballistic evidence).

       Based upon the foregoing, we conclude that the PCRA court properly

dismissed the PCRA Petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2015




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