J-S74009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MARK L. WILLIAMS,

                            Appellant                  No. 2728 EDA 2013


           Appeal from the PCRA Order Entered September 17, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0005614-2009


BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED DECEMBER 23, 2014

        Appellant, Mark L. Williams, appeals pro se from the post-conviction

court’s September 17, 2013 order denying his petition for relief filed

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

After careful review, we are compelled to vacate the court’s order and

remand for further proceedings.

        In October of 2010, a jury convicted Appellant of first-degree murder

and carrying a firearm without a license. Appellant’s convictions stemmed

from the September 21, 2009 shooting death of Isaiah McLendon on N. 3 rd

Street in Darby, Pennsylvania.            On December 7, 2010, Appellant was

sentenced to an aggregate term of life imprisonment without the possibility

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S74009-14



of parole. He filed a timely notice of appeal and, after this Court affirmed his

judgment of sentence on October 11, 2011, our Supreme Court denied

Appellant’s petition for allowance of appeal. Commonwealth v. Williams,

37 A.3d 1227 (Pa. Super. 2011) (unpublished memorandum), appeal

denied, 42 A.3d 1060 (Pa. 2012).

      On September 24, 2012, Appellant filed a timely pro se PCRA petition

raising various ineffective assistance of trial counsel claims. PCRA counsel

was appointed, but rather than filing an amended petition on Appellant’s

behalf, counsel filed a petition to withdraw and ‘no-merit’ letter pursuant to

Commonwealth           v.    Turner,   544   A.2d   927    (Pa.   1998),    and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Appellant filed

a timely pro se “Objection and Response” to counsel’s petition to withdraw.

On May 29, 2013, the PCRA court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss.          Appellant again filed a timely pro se response.

Nevertheless, on September 17, 2013, the PCRA court issued an order

dismissing Appellant’s PCRA petition and granting counsel’s petition to

withdraw.

      Appellant filed a timely pro se notice of appeal, as well as a timely

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. In

his pro se brief to this Court, Appellant sets forth the following four issues

(reproduced verbatim), each of which contain numerous sub-parts totaling

18 different claims:




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        I. Whether PCRA counsel provided ineffective assistance in failing
        to: a) provide any meaningful participation; b) properly certify
        the PCRA as required under section 9545(d)(1); c) meet the
        imposed requirements of Pa.R.Crim.P. 902 in regards to the
        contents of the petition; d) meet the imposed requirements of
        Pa.R.Crim.P. 904 and Turner/Finley; e) investigate and
        properly    raise   defendant’s  claims    of   trial  counsel’s
                                           [1]
        ineffectiveness; f) develop Brady      claims; and g) develop
        after-discovered evidence claim?

        II. Whether PCRA court committed reversible error of law,
        abused it’s discretion and denied the defendant his state and
        federal due process rights under the Pennsylvania and United
        States Constitution in: a) granting PCRA counsel leave to
        withdraw based upon a legally insufficient no-merit letter; b)
        conduct an independent review of the record and give it’s
        independent findings why defendant’s issues were without merit
        pursuant to Turner/Finley and their progenies; c) grant an
        evidentiary hearing on trial counsel ineffectiveness claims; and
        d) grant an evidentiary hearing on the after-discovered
        evidence?

        III. Whether trial counsel provided ineffective assistance in
        failing to: a) interview/investigate two known eye witnesses; b)
        interview/investigate [Drug Enforcement Administration (DEA)]
        Agent Robert Belcher; c) object or raise on direct appeal the
        court denying compulsory process; d) object or raise on direct
        appeal the court stating there was “a real reason” why the crime
        occurred; e) object or raise on direct appeal the court stating
        that the defendant admitted to committing the crime?

        IV. Whether the prosecutor committed misconducts, reversible
        error of law and denied the defendant his federal due process
        rights under the United States Constitution in failing to: a)
        disclose video surveillance footage of where the crime transpired
        and in failing to make the defense aware of that evidence; and in
        b) eliciting known false testimony and failing to correct known
        false testimony?


____________________________________________


1
    Brady v. Maryland, 373 U.S. 83 (1963).




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Appellant’s Brief at 4.

      First, “[t]his Court’s standard of review from the grant or denial of

post-conviction relief is limited to examining whether the lower court’s

determination is supported by the evidence of record and whether it is free

of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has stated that:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.”
      Generally, counsel’s performance is presumed to be
      constitutionally adequate, and counsel will only be deemed
      ineffective upon a sufficient showing by the petitioner. To obtain
      relief, a petitioner must demonstrate that counsel’s performance
      was deficient and that the deficiency prejudiced the petitioner. A
      petitioner establishes prejudice when he demonstrates “that
      there is a reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceeding would have
      been different.” … [A] properly pled claim of ineffectiveness
      posits that: (1) the underlying legal issue has arguable merit;
      (2) counsel’s actions lacked an objective reasonable basis; and
      (3) actual prejudice befell the petitioner from counsel’s act or
      omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      In Appellant’s first issue, he essentially contends that PCRA counsel

acted ineffectively by filing an inadequate petition to withdraw and no-merit



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letter. After careful review, we are compelled to agree with Appellant that

PCRA counsel failed to adequately examine, in his Turner/Finley no-merit

letter, two of Appellant’s trial counsel ineffectiveness claims. We will discuss

those two ineffectiveness claims first.

       Appellant contends that trial counsel was ineffective for failing to

object when the trial court denied Appellant “his right to compulsory

process” by dismissing two potential defense witnesses. Appellant’s Brief at

42.   Those witnesses, James Shepard and Stephan Fenwick, both invoked

their right to remain silent after claiming that their testifying at Appellant’s

trial would incriminate them.           The PCRA court described the proposed

testimony of these defense witnesses as follows:

             At trial, defense counsel expressed his intention to call two
       witnesses: James [Shepard] and Stephan Fenwick. [Shepard]
       was available to testify, but his attorney, Stephen Gilson, Esq.,
       advised him not to do so. [Shepard] would have attacked the
       credibility of Jeffrey Mason, the jailhouse snitch [who testified
       that Appellant made inculpatory statements while incarcerated].
       [Shepard] would have testified that he witnessed Mason
       reviewing paperwork in [Appellant’s] cell. This testimony would
       allegedly raise the inference that Mason became familiar with
       [Appellant’s] case by reading paperwork, not by hearing
       [Appellant] admit to the crime. Stephan Fenwick was to rebut a
       portion of Gregory Graham’s account of his whereabouts on the
       day and night of the shooting.[2]

____________________________________________


2
 Gregory Graham was also charged in the murder of McLendon, and entered
a plea agreement pursuant to which he testified for the Commonwealth at
Appellant’s trial. In Graham’s appeal from his judgment of sentence, we
described his testimony at Appellant’s trial as follows:

(Footnote Continued Next Page)


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PCRA Court Opinion (PCO), 3/3/14, at 9-10 (unpaginated).

       The trial court appointed Timothy Plasenti, Esq., to represent Shepard

and Fenwick.     On October 19, 2010, Attorney Plasenti informed the court

that he consulted with both witnesses and advised each of them to invoke

their right to remain silent. Attorney Plasenti was then asked by the court to

explain how Shepard’s testimony would “tend to incriminate” him.                   N.T.

Trial, 10/19/10, at 7.          When Attorney Plasenti began to respond, the

Commonwealth interjected, indicating that it was not appropriate for the

court to ask such a question, which could “interfere with the attorney/client

relationship.”   Id. at 8.       Attorney Plasenti then stated that he “would be

more    comfortable       not   answering[,]”     but   nevertheless   indicated   that

Shepard’s testimony would be incriminating because “he has an open

                       _______________________
(Footnote Continued)

       At [Appellant’s] trial, [Graham] testified that he drove
       [Appellant] to an alley behind [the scene of the crime].
       [Appellant] exited the car and told [Graham] to meet him at a
       Save-A-Lot store. While parked at the nearby Save-A lot store,
       [Graham] heard gunshots in the distance. Shortly after the shots
       rang out, [Appellant] appeared at the Save-A-Lot, got into
       [Graham’s] car and said, “I shot that n[*****] and wonder if
       he’s dead.” [Graham] then drove [Appellant] to Philadelphia.
       Later, [Appellant] telephoned [Graham] and solicited his
       assistance in disposing of the murder weapon. A week or so
       later, [Graham] retrieved the gun from its hiding place and
       placed it in his van, which was towed to Virginia and loaded on a
       Florida-bound train. After arriving in Florida, [Graham] took the
       gun apart and “spread” it across various locations in
       Jacksonville, Florida.

Commonwealth v. Graham, No. 738 EDA 2011,                                 unpublished
memorandum at 2 (Pa. Super. filed February 8, 2012).



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criminal matter.”     Id.   Without requesting any further elaboration from

Attorney Plasenti, the court dismissed Shepard as a witness. Id. at 9.

      In regard to Fenwick, Attorney Plasenti stated:

      [Attorney Plasenti]: Your Honor[,] I spoke at length with Mr.
      Fenwick about his proposed or potential testimony as a witness
      in this trial. I spoke with Mr. Fenwick about information I
      received from both defense counsel and from the Assistant
      District Attorney prosecuting this case regarding that testimony
      and other information received by both of those parties. And
      then we talked about[,] and I understand that[,] Mr. Fenwick
      has an open criminal case here in Delaware County. Based on
      those conversations, it was my advice yesterday and it is my
      advice to Mr. Fenwick today and it is Mr. Fenwick’s desire to
      invoke his Fifth Amendment right not to be compelled to testify
      in this court case.

Id. at 10-11. After asking Fenwick if counsel’s statements were correct, to

which Fenwick replied in the affirmative, the court dismissed Fenwick as a

witness. Id. at 11.

      Appellant claimed in his pro se PCRA petition, and reiterates on appeal,

that the trial court erred by allowing these witnesses to invoke their privilege

against self-incrimination simply because they had open criminal cases

pending in the same county. Appellant maintains that the court should have

inquired   further   into   how   their   testifying   at   Appellant’s   trial   would

incriminate them.      Because the court did not conduct such an inquiry,

Appellant maintains that his trial counsel should have objected to the court’s

dismissal of these witnesses.

      In PCRA counsel’s Turner/Finley no-merit letter, he construed

Appellant’s claim in the following manner: “Defendant asserts that trial


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counsel was ineffective for failing to call Stefan Fenwick and James Shepard

to testify on his behalf.”    No-Merit Letter, 5/6/13, at 15 (unpaginated).

Counsel then went on to conclude that counsel was not ineffective for failing

to call these witnesses because each witness “invoked his 5th Amendment

right not to testify.” Id.

      From our review of Appellant’s pro se PCRA petition, it is obvious that

PCRA counsel misconstrued Appellant’s argument. Appellant did not allege

that counsel was ineffective for failing to call Shepard and Fenwick; instead,

he argued that counsel should have objected to the court’s acceptance of

these witnesses’ invocation of their right to remain silent. PCRA counsel did

not address this claim in his Turner/Finley no-merit letter, and Appellant

expressly challenged that failure in his pro se response to counsel’s petition

to withdraw. See “Objection and Response,” 5/28/13, at 17-19. On appeal,

Appellant reiterates his arguments that (1) trial counsel acted ineffectively

regarding the trial court’s decision to dismiss these witnesses, and (2) PCRA

counsel ineffectively omitted a discussion of this claim from his no-merit

letter.

      We are compelled to agree with Appellant that PCRA counsel’s

Turner/Finley      no-merit   letter   was   inadequate.    Counsel    clearly




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misconstrued Appellant’s issue and did not properly analyze the merits

thereof.3

       Moreover, while the PCRA court correctly characterized Appellant’s

ineffectiveness claim, it nevertheless provided a very cursory analysis

thereof. The court stated:

             Although [Appellant] now asserts that this Court
       “improperly” permitted the witnesses to invoke their rights
       against self-incrimination, he does not explain why this ruling
       was improper. This Court can think of no reason. The privilege
       against self-incrimination is of constitutional force.     Both
       witnesses consulted with counsel before invoking the privilege.
       Therefore, it is recommended that the Superior Court reject the
       assertion that this Court erred when it allowed the witnesses to
       invoke it.

PCO at 10.

       Initially, we disagree with the PCRA court that Appellant does not

sufficiently explain why the trial court erred in accepting Shepard’s and

Fenwick’s invocation of their right to remain silent.       While Appellant’s

argument may not be particularly eloquent, the essence of his claim is clear:
____________________________________________


3
  The Commonwealth similarly misinterprets Appellant’s argument and
concludes it is meritless, stating:

       Neither trial counsel nor PCRA counsel was ineffective for failing
       to call James Shepard or Stephan Fenwick as a witness. Both
       men consulted with an independent attorney and on the advice
       of said attorney elected to assert their Fifth Amendment rights to
       refrain from testifying.        Therefore, neither counsel can be
       ineffective for failing to call them as witnesses.

Commonwealth’s Brief at 18.




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the trial court’s inquiry was insufficient to determine that these witnesses

had a reasonable fear of self-incrimination and, as such, Appellant’s trial

counsel should have objected to the court’s dismissing them.

      Moreover, we disagree with the PCRA court that Appellant’s claim is

clearly meritless. Our Supreme Court has stated:

      It is clear that under both our state and federal constitutions, a
      criminal defendant has a right of compulsory process to obtain
      witnesses in his favor. Pa. Const. art. I § 9. See Washington v.
      Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
      However, this right is qualified to the extent of existing
      testimonial privileges of witnesses, including the privilege
      against self incrimination. Id. at 23, n. 21, 87 S.Ct. at 1925, n.
      21.

Commonwealth v. Allen, 462 A.2d 624, 627 (Pa. 1983) (emphasis

omitted). The Court has also discussed a witness’ invocation of his privilege

against self-incrimination as follows:

      The standard against which a trial judge must determine
      whether a witness may properly invoke a claimed Fifth
      Amendment privilege was set forth in Commonwealth v.
      Carrera, 424 Pa. 551, 227 A.2d 627 (1967).

         When [a witness is called to testify], he or she is not
         exonerated from answering questions merely upon the
         declaration that in so doing it would be self-incriminating.
         It is always for the court to judge if the silence is justified,
         and an illusory claim should be rejected. However, for the
         court to properly overrule the claim of privilege, it must be
         perfectly clear from a careful consideration of all the
         circumstances, that the witness is mistaken in the
         apprehension of self-incrimination and the answer
         demanded cannot possibly have such tendency. (Emphasis
         [omitted], citations omitted.)

      Id. at 553-54, 227 A.2d at 629.



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             If an individual possesses reasonable cause to apprehend
      danger of prosecution, “it is not necessary that a real danger of
      prosecution exist to justify the exercise of the privilege against
      self-incrimination.” Id. “Moreover, the privilege extends not only
      to the disclosure of facts which would in themselves establish
      guilt, but also to any fact which might constitute an essential link
      in a chain of evidence by which guilt can be established.” Id.
      See Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95
      L.Ed. 1118 (1951). “The trial judge in appraising the claim must
      be governed as much by his personal perception of the
      peculiarities of the case as by the facts actually in evidence[.]”
      Id. at 487, 71 S.Ct. at 818 (citation omitted). To require the
      witness to prove the basis of the claim would force the disclosure
      of the information the Fifth Amendment was designed to protect
      against. Id. at 486, 71 S.Ct. at 818.

Allen, 462 A.2d 624, 627 (Pa. 1983).

      Here, neither Shepard nor Fenwick was called to the stand and

questioned before asserting the privilege against self-incrimination; instead,

they asserted “[a] blanket privilege” which “generally is not permitted.”

Commonwealth v. Kirwan, 847 A.2d 61, 65-66 (Pa. Super. 2004)

(citations omitted). In Allen, our Supreme Court affirmed the trial court’s

acceptance of a ‘blanket privilege,’ and found “[a] specific factual inquiry

was … unnecessary[,]” where “the testimony of record was sufficient to

suggest [the witness’] complicity in the crime.”     Allen, 462 A.2d at 627.

Here, however, there is nothing in the record indicating that Shepard or

Fenwick was involved in McLendon’s murder, and the simple fact that they

had ‘open cases’ also did not suggest how their testimony at Appellant’s trial

would be incriminating.    Therefore, Allen supports Appellant’s argument

that defense counsel should have requested a more specific factual inquiry




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to determine if Shepard and Fenwick had reasonable cause to fear

prosecution.

      We also note that while this Court has declared that “there is no

mandatory procedure for deciding whether the privilege against self-

incrimination should be allowed,” we have held that “one acceptable

procedure is to hold an in camera review.” Commonwealth v. Treat, 848

A.2d 147, 149-150 (Pa. Super. 2004).

      In the usual case, the trial court could take the witness, the
      witness' counsel and defense counsel (the Commonwealth could
      not be present for obvious reasons) into chambers. In private,
      and off the record, the court could review the witness' testimony
      and make an informed decision about whether the witness has to
      testify. If the privilege is sustained, the court could even make
      some discrete on-the-record remarks that would explain why the
      privilege would be appropriate while avoiding revealing any
      incriminatory information the court might have obtained.
      Another option would be for the Commonwealth to grant the
      witness immunity.

Id. at 150.

      In Treat, the defendant was charged in a domestic violence incident

against the victim, who sought to invoke her right to remain silent when

called to the stand during his trial.    Treat, 848 A.2d at 149.      The court

conducted an in camera hearing, at which defense counsel stated “that he

believed the victim’s testimony would potentially subject her to prosecution

for false reports, unsworn falsifications to authorities and other charges.”

Id.   Despite stating that “the possibility that the victim would incriminate

herself was ‘ridiculous[,]’ … the trial court sustained her claim of privilege[,]

citing the statement of [her] counsel that [she] could incriminate herself.”

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Id.   This Court ultimately overruled the trial court’s decision, emphasizing

that “although the trial court did have an in camera discussion with counsel,

… no one offered anything to substantiate the claim of privilege.” Id.

      The same is true in the present case. Although Shepard and Fenwick

had counsel who advised them to assert their right to remain silent because

they had ‘open cases,’ there is nothing in the record indicating how or why

Shepard’s or Fenwick’s testimony would have incriminated them in this, or

any other, criminal case. Accordingly, Appellant’s claim that defense counsel

should have objected to the court’s accepting these witnesses’ invocation of

their right to remain silent has arguable merit. See also Commonwealth

v. Rolon, 406 A.2d 1039 (Pa. 1979) (finding the trial court erred by

accepting witness’ invocation of his privilege against self-incrimination where

the witness never took the stand, the court did not permit Rolon to establish

the line of questions he would have asked the witness, and there was

nothing in the record linking the witness to the crime). However, because

the PCRA court dismissed this claim without a hearing, we are unable to

assess whether counsel had a reasonable basis for his decision not to raise

such an objection.

      Accordingly, we are compelled to vacate the PCRA court’s order

denying Appellant’s petition and remand for an evidentiary hearing on this

particular trial counsel ineffectiveness claim. Additionally, we conclude that

the PCRA court erred in allowing PCRA counsel to withdraw where counsel

wholly failed to address this issue in his Turner/Finley no-merit letter, and

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the   claim   has   arguable    merit      necessitating   further   examination.

Consequently, we direct that Appellant be appointed new PCRA counsel to

represent him at the PCRA hearing addressing this issue.

      We reach the same conclusion regarding another trial counsel

ineffectiveness claim asserted by Appellant.        Specifically, Appellant takes

issue with trial counsel’s failure to object to the following instruction by the

trial court, provided at the conclusion of Gregory Graham’s testimony:

      The Court: All right. Okay. You may step down. … One of the
      things that you need to know about witnesses is that one way of
      challenging their credibility is to demonstrate that they gave
      what is called prior inconsistent statements and in this case
      [defense counsel] has given – asked about statements that this
      witness[,] Mr. Graham[,] gave to Detective Pitts. One of the
      statements was did you tell Detective Pitts that the decedent[,]
      Isaiah McLendon[,] was a drug dealer or was involved in drugs
      and he may have said that to Detective Pitts and it was
      obviously inconsistent because he knew the real reason
      why this homicide occurred. There’s no evidence in this case
      that Isaiah McLendon was involved in dealing drugs and I want
      to make that clear to you. The reason for that testimony was
      not to indicate that the decedent was involved in drug dealing,
      but to show the inconsistent statements of the witness. Okay.

N.T. Trial, 10/15/10, at 145.         Appellant claims that this instruction was

prejudicial because it encouraged the jury to disbelieve Graham’s initial

statement to police, in which he did not implicate Appellant in the murder,

and to instead believe Graham’s trial testimony that Appellant shot

McLendon.     Appellant argues that if defense counsel had objected to this

instruction, “the court would have corrected it’s [sic] error or granted a

mistrial.” Appellant’s Brief at 52.



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      Appellant clearly cited (and quoted) in his pro se PCRA petition the

above-stated instruction by the trial court. See PCRA Petition, 9/24/12, at

23. Nevertheless, in PCRA counsel’s Turner/Finley no-merit letter, counsel

only reviewed the court’s closing jury instruction (provided on October 20,

2010) and concluded that “nothing in the transcripts of the jury charge …

indicate that the trial court told the jury that there was a ‘real reason’ that

McLendon was killed and Gregory Graham knew that reason.”             No-Merit

Letter at 14 (unpaginated). In other words, PCRA counsel did not review the

comments proffered by the trial court on October 15, 2010, following

Graham’s testimony. Appellant objected to PCRA counsel’s examination of

this issue in his pro se response to counsel’s no-merit letter. See “Objection

and Response,” 5/28/13, at 9.     Because our review of Appellant’s pro se

PCRA petition confirms that he clearly identified, and cited to, the court’s

above-quoted comment, we agree with Appellant that PCRA counsel failed to

properly review this issue in his Turner/Finley no-merit letter.

      It also appears that the PCRA court did not adequately examine

Appellant’s petition and the portion of the record cited therein. Instead, the

court adopted an analysis nearly identical to that proffered by PCRA counsel

in his no-merit letter. Namely, the court presumed Appellant was referring

to the jury instruction the trial court provided before the jury retired to

deliberate. See PCO at 8-9. After assessing that portion of the record, the

PCRA court stated that,




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      the jury instructions in this case, taken as a whole, were clear
      and had no tendency to mislead the jury. [The trial court]
      instructed the jury regarding Gregory Graham. [The trial court]
      also instructed the jury regarding motive. The charge did not
      suggest that the jury was told that there was a “real reason”
      that the victim was killed and that Gregory Graham knew that
      reason. [Appellant’s] argument is without merit.

Id. at 9.

      In sum, it is apparent from our review of the record that PCRA counsel

and the court both failed to properly address Appellant’s claim of trial

counsel’s ineffectiveness.   Accordingly, because we are remanding for an

evidentiary   hearing   regarding   Appellant’s   first   ineffectiveness   claim,

discussed supra, we direct that PCRA court permit Appellant to further

develop the instant ineffectiveness claim at that hearing, as well.

      Appellant raises various other claims, which, for the reasons stated

below, we conclude are either meritless or waived. Accordingly, these issues

need not be addressed on remand.

      First, Appellant argues that trial counsel was ineffective for failing to

investigate “two known [eyewitnesses,]” Melvin Gross and Richard Gardner.”

Appellant’s Brief at 32. The PCRA court points out that “[t]he name ‘Richard

Gardner’ surfaced for the first time in [Appellant’s] Statement of [Errors]

Complained of on Appeal.”      PCO at 11 (unpaginated).        Appellant did not

raise in his pro se PCRA petition any issue regarding trial counsel’s

ineffectiveness for failing to investigate Richard Gardner.     We also see no

mention of Gardner in Appellant’s pro se response to PCRA counsel’s petition

to withdraw or in his response to the PCRA court’s Rule 907 notice of its


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intent to dismiss. Thus, Appellant’s ineffectiveness claim regarding Richard

Gardner is waived.   See Commonwealth v. Washington, 927 A.2d 586,

601 (Pa. 2007) (“Any claim not raised in the PCRA petition is waived and not

cognizable on appeal.”) (citing Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

      However, Appellant did argue in his pro se PCRA petition that trial

counsel ineffectively failed to investigate Marvin Gross, thus preserving this

assertion for our review. Appellant contends that trial counsel should have

investigated Mr. Gross (and, presumably, called him to the stand at trial)

because Mr. Gross was an eyewitness to the shooting and his description of

what occurred was “somewhat different” than the testimony of the

Commonwealth’s eyewitness, Andrea Ebo.         See Appellant’s Brief at 34.

Appellant does not elaborate on how Mr. Gross’ account of the shooting

differed from Ms. Ebo’s.

      The PCRA court concluded that Mr. Gross would have provided a

description of the shooter that was consistent with Ms. Ebo’s description.

See No-Merit Letter, 5/6/13, at 12; PCO at 11 (unpaginated). The court

explained:

      [Mr.] Gross stated that he saw a black male wearing a black or
      gray hoodie and red backpack shoot the victim. This account is
      consistent with that of Andrea Ebo, who testified that the
      shooter was a dark-skinned African-American man of medium
      height wearing a black hoodie.

PCO at 11. Thus, the PCRA court reasoned that “[Mr.] Gross’[] testimony

would have been of little assistance to [Appellant].”       Id.    Appellant’s

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undeveloped argument does not convince us that the court’s conclusion was

erroneous. Thus, this claim of trial counsel’s ineffectiveness is meritless.

      Appellant also argues that trial counsel was ineffective for failing to

investigate DEA Agent Belcher, who “could possibly have [had] evidence

favorable to the defense….” Appellant’s Brief at 36. Essentially, Appellant

claims that Agent Belcher must have possessed video surveillance footage of

the murder based on the agent’s testimony that he had various cameras set

up in the area of the shooting, and also because a fellow inmate informed

Appellant that the agent had surveillance cameras in the area of N. 3 rd

Street.   See Appellant’s Brief at 37-38.       Appellant maintains that trial

counsel ineffectively failed to investigate whether Agent Belcher possessed

such video surveillance evidence.      However, Appellant did not raise this

claim in his pro se PCRA petition. Accordingly, he has waived his argument

that trial counsel was ineffective for failing to investigate Agent Belcher.

See Washington, 927 A.2d at 601.

      Appellant also maintains that trial counsel was ineffective for not

objecting to the trial court’s jury instruction “that [Appellant] admitted to

committing the crime.”      Appellant’s Brief at 55.    Specifically, the court

stated:

      [The Court]: There is also evidence that the Defendant
      made an admission that he was the shooter to the police.
      Now what I am about to tell you about that admission and only
      that admission, because if you find that the Defendant made
      admissions to other people other than police officers you should
      evaluate that testimony in the ordinary way.        But when a
      Defendant makes an admission of guilt to a police officer, you

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      have to look at that admission in a very specific way. We are
      talking about Officer Pitts’s testimony that the Defendant
      walked into the room after he was released from the cell
      and stated that he was the shooter, that he did it. This is
      what we are talking about. You may not consider that statement
      as evidence unless you find that he made the statement
      voluntarily.

N.T. Trial, 10/20/10, at 58-59 (emphasis added).

      Appellant argues that defense counsel should have objected to this

instruction because there was no evidence that Appellant admitted to the

shooting. However, Detective Brian Pitts testified that Appellant made the

following statement to him: “Listen, this is what I’m going to tell you, I did

it. It was me. Nobody knows the true facts. Nobody’s going to identify me.

I want to tell you….”    N.T. Trial, 10/15/10, at 187.      We conclude that

Detective Pitts’ testimony that Appellant stated to him, “I did it[,]” was

sufficient to justify the court’s jury instruction regarding an admission by

Appellant. Accordingly, we see no error in trial counsel’s failure to object to

this instruction.

      In addition to his various claims of trial counsel’s ineffectiveness,

Appellant also avers that the Commonwealth committed a Brady violation

by failing to turn over video surveillance footage of the street on which the

murder occurred. Appellant claims that such footage was in the possession

of Agent Belcher. Not only is this claim waived because it was not raised in

Appellant’s pro se petition, but Appellant’s contention that such video

footage exists is purely speculative. Moreover, in support of his contention

that Agent Belcher possessed this footage, Appellant cites portions of his


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trial testimony; clearly, if we accept Appellant’s argument that the agent’s

testimony proves he possesses video footage of the murder, then Appellant

became aware of this fact at the time of trial and could have asserted this

purported Brady violation on direct appeal. For these reasons, Appellant’s

claim is waived.   42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for

relief, a petitioner must prove that “[t]he allegation of error has not been

previously litigated or waived”); 42 Pa.C.S. § 9544(b) (directing that “an

issue is waived if the petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior state post[-

]conviction proceeding”).

      Appellant also avers that the Commonwealth elicited false testimony

from witnesses, and/or knowingly permitted witnesses to make untrue

statements on the stand. Appellant does not frame his argument as a claim

of trial/appellate counsel ineffectiveness, and he does not discuss why this

assertion could not have been raised on direct appeal.        Accordingly, it is

waived. See 42 Pa.C.S. § 9543(a)(3); 42 Pa.C.S. § 9544(b).

      Lastly, we will address Appellant’s assertions that PCRA counsel acted

ineffectively by filing an inadequate Turner/Finley no-merit letter, and that

the PCRA court erred in granting counsel’s petition to withdraw.              As

discussed herein, it is apparent that PCRA counsel failed to properly assess

two of Appellant’s trial counsel ineffectiveness issues, and at least one of

those issues has arguable merit. Therefore, we are compelled to vacate the

PCRA court’s order denying Appellant’s petition and remand for the

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appointment of new PCRA counsel, who shall be permitted to file an

amended petition on Appellant’s behalf. See Commonwealth v. Massina,

2013 WL 4399018, at *1 (Pa. Super. 2013). We also direct that the PCRA

court conduct an evidentiary hearing on the following two claims: (1) trial

counsel was ineffective for failing to object to the trial court’s accepting

Shepard’s and Fenwick’s invocation of their right to remain silent, and (2)

trial counsel was ineffective for failing to object when the trial court

instructed the jury that Graham knew the ‘real reason’ that this murder

occurred. The PCRA court may also address at the hearing any other issues

raised in PCRA counsel’s amended petition that warrant further review.

      Order vacated. Case remanded for further proceedings.      Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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