                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0869-18T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

WILBERT HANNAH, a/k/a RABE,

     Defendant-Appellant.
______________________________

                   Argued November 14, 2019 - Decided November 27, 2019

                   Before Judges Whipple, Gooden Brown and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 93-08-1826.

                   Andrew Robert Burroughs, Designated Counsel,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Andrew Robert Burroughs,
                   on the briefs).

                   Ednin D. Martinez, Assistant Prosecutor, argued the
                   cause for respondent (Esther Suarez, Hudson County
                   Prosecutor, attorney; Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Wilbert Hannah appeals from an August 21, 2018 order

denying his petition for post-conviction relief (PCR). We affirm.

      In a prior PCR appeal, we recounted the history of this matter:

                  On June 7, 1993, Angel "Freddie" Salazar and
            Luis Flores, two drug dealers, were found dead in a
            vehicle parked on a street in Jersey City. Salazar,
            found in the driver's seat, was killed by a single bullet
            that had entered the left side of his head. Flores,
            seated in the back, had been shot four times with three
            bullets entering the right side of his head and the
            fourth entering his left shoulder. Defendant Wilbert
            "Rabb" Hannah was convicted of crimes arising from
            these two deaths.

                  ....

                   At trial, the State contended that defendant and
            William LaCue had killed Salazar and Flores. LaCue,
            who had reached a plea agreement with the State,
            testified that defendant and he were engaged in the
            sale of illegal drugs. According to LaCue, on the day
            in question, defendant approached him indicating that
            when men from New York delivered drugs, rather than
            pay for the drugs, they would rob and kill the men.
            When the two men arrived from New York in a
            vehicle, the passenger exited the front seat and sat
            behind the driver in the back seat. Defendant sat next
            to the driver, and LaCue sat next to the man in the
            back seat. Defendant directed the driver to another
            location where the vehicle was parked. According to
            LaCue, the men handed over the drugs, and defendant
            pulled out his gun and shot the driver twice in the
            head. LaCue admitted that he shot the back seat
            passenger twice.


                                                                        A-0869-18T4
                                        2
       The medical evidence did not conform exactly
to LaCue's testimony. Most significantly, the bullet
killing Salazar, the driver, entered from the left side of
his head, and thus the shot was unlikely to have been
administered by a passenger seated to his right.
Further, LaCue had given contradictory pretrial
statements. In two pretrial statements, he said that he
shot one victim and defendant shot the other. In
another statement, he admitted to shooting both
victims.

       LaCue's testimony that defendant participated in
the shooting was confirmed by defendant's girlfriend
at the time, Hazel Forrester. She testified that on the
night in question, defendant came to her apartment
and she overheard him tell her sister Arlene that he
had shot someone named "Fred." Defendant then
came into her bedroom and told her that he had killed
a man.

      Defendant presented a different version of
events. He testified that he went with LaCue and
Maurice "Big Mo-T" Thomas to meet the car from
New York. He testified that he went as a bodyguard
for Thomas, although he was not armed with a
weapon. According to defendant, the three men
approached the vehicle that had arrived from New
York, and a moment later he went across the street to
the corner to talk to a woman while LaCue and
Thomas remained by the car. He thereafter heard
shots and ran. He contended that he fled to Florida,
where he was arrested, because he had been told that
"the Colombians [were] out to murder [him]" for the
shooting.

      Defendant was convicted by a jury of two
counts of felony murder, N.J.S.A. 2C:11-3(a)(3); two
counts of armed robbery, N.J.S.A. 2C:15-1; and one

                                                             A-0869-18T4
                            3
count of possession of a handgun for unlawful
purposes, N.J.S.A. 2C:39-4(a), arising from the deaths
of Flores and Salazar. He was acquitted of two counts
of knowing or purposeful murder. The trial court
imposed an aggregate sentence of two consecutive life
terms with sixty years of parole ineligibility.

       The convictions and sentence were affirmed on
appeal, State v. Hannah, No. A-5022-94 (App. Div.
Dec. 11, 1997), and the Court denied certification.
State v. Hannah, 153 N.J. 217 (1998). Defendant's
first [PCR] petition . . . was denied by the trial court
but remanded by us for an evidentiary hearing. State
v. Hannah, No. A-6424-99 (App. Div. Jan. 31, 2002).
After the evidentiary hearing was held, the trial court
denied defendant's first petition . . . and we affirmed.
State v. Hannah, No. A-6379-01 (App. Div. Nov. 7,
2003). The Court denied certification. State v.
Hannah, 178 N.J. 453 (2004).

       Defendant, appearing pro se, brought this
second petition for post-conviction relief arguing that
he was entitled to a new trial because the State had
withheld evidence. According to defendant, his legal
papers had been destroyed during a lockdown at the
New Jersey State prison, and as a result, he obtained a
court order to compel the prosecutor's office to
provide him with copies of the contents of the
discovery in his case. Among the materials he
received in response to the order was a report from
Investigator Charles Lee Redd. Defendant contends
that this report had not been provided to the defense
earlier. The report states that a pager with a telephone
number listed to "Rabb" was found in the victim's car,
and when the investigators called the number, Maurice
"Big Mo-T" Thomas responded to the page.
Defendant argues that this newly discovered evidence
buttresses his defense that Thomas and not defendant

                                                           A-0869-18T4
                            4
             was the second person involved in the killings. Since
             this report was not provided earlier, defendant argues
             that he is entitled to a new trial.

             [State v. Hannah, No. A-3788-07, slip op. at 1-5 (App.
             Div. June 19, 2009)].

       We remanded and held the following:

                   In order to decide whether defendant is entitled
             to a new trial, an evidentiary hearing is necessary to
             determine whether a Brady[1] violation occurred and
             the pager is newly discovered evidence. If so, then
             further details about the pager need to be explored to
             determine its relevance to the facts of this case, and an
             analysis would have to [be] done by the trial court to
             determine if its discovery merits a new trial.

             [Id. at 10].

Following the remand, a subsequent appeal ensued, whereby we reversed and

remanded the matter for an evidentiary hearing before a second PCR judge

because we determined the judge who heard the case was disqualified from

doing so. State v. Hannah, No. A-5099-09, slip op. at 13 (App. Div. July 16,

2012).

       After a three-day evidentiary hearing, the second PCR judge ultimately

denied defendant's second petition. Defendant sought our review of the decision




1
    Brady v. Maryland, 373 U.S. 83 (1963).
                                                                         A-0869-18T4
                                         5
and we affirmed in part, and reversed and remanded in part, for the following

reasons:

           PCR counsel argued there were two pagers. The first
           was found at the scene of the crime and listed on the
           Redd Report. The second, he argues, was found after
           the police discovered a piece of paper containing a
           pager number. PCR counsel argued the police called
           that number, and therefore, the pager belonging to that
           number was a second pager. The second pager,
           defendant argues, is the newly discovered evidence.
           In defendant's opinion, the second judge determined
           the Redd Report was not newly discovered evidence,
           but did not address whether the pager was newly
           discovered evidence. We agree. As such, although
           we affirm the PCR judge's determination there were
           no Brady violations, we are constrained to remand
           solely to address whether the pager was newly
           discovered evidence.

           [State v. Hannah, No. A-3515-14, slip op. at 4-5 (App.
           Div. May 12, 2017)].

      Subsequent to the remand, the PCR judge found the pager was not newly

discovered evidence meriting a new trial and denied the petition. The judge

stated:

           [N]ewly discovered evidence must meet the following
           three prongs. One, it must be material and not merely
           cumulative, impeaching or contradictory. And,
           number two, it must have been discovered after the
           trial, and not discoverable by reasonable diligence
           beforehand. And, number three, it must be evidence
           that would probably change the jury's verdict if a new
           trial were granted. . . .

                                                                     A-0869-18T4
                                      6
       ....

[W]hile there's vague memory apparently trial counsel
knew . . . [the] beeper number was written on a piece
of paper. . . . I'll agree with defense counsel, this is
the one and only piece of paper with . . . a phone
number on it that I'm aware of.

       ....

        Additionally, [defendant] testified . . . he went
through the Redd [R]eport, the Valdora reports, and he
indicated to me that he didn't have them at the time,
and even if he had them, nothing in there would
indicate to him that there was any piece of paper with
any phone number, or any pager out there. So, I . . .
accept his testimony. However, [defendant] testified
. . . that . . . Thomas was paged by the police, and he
was aware of this fact throughout the trial process.

       ....

     He also testified that he was not aware that the
phone number was found in the victim's car or [i]n
someone's pocket.

       [Defendant] is very involved in this case . . . . I
can't imagine that he didn't hear the mother of . . .
Thomas[, Mary Jones] testif[y] that she had a
conversation with her son, and that . . . Thomas[] was
afraid that his beeper number was found in the
victim's car, and that the police would get his name
and his telephone number from that. So, I can't
imagine he wouldn't have heard that . . . .

      Specifically on the trial . . . transcript of
September 30, 1994, at the Rule 104 hearing, . . .
Jones . . . testified and . . . discussed the issue of . . .

                                                               A-0869-18T4
                              7
Thomas'[s] beeper number being in the possession of
the police, . . . and her son's concern that the police
had found his beeper number at the scene. Those are
the facts that I will find.

       So, now I need to decide whether this is . . . new
evidence, pursuant to the test. So, number one, it must
be material and not really cumulative, impeaching or
contradictory. I would agree that the telephone
number on the piece of paper is material to the case,
and there's a beeper that was called, that someone
answered, that . . . defendant intended to say . . . was
the real person who committed this crime, and not me.
So . . . it's material.

        Number two, it must have been discovered after
the trial, and not discoverable by reasonable diligence
beforehand. I can't find that . . . [defendant] has met
that prong of the test. I've already reviewed [prior
counsel's] testimony that he thinks that he heard about
it, and . . . Jones testified at [a] 104 hearing in the
midst of the trial about the telephone number, and it
being discovered at the scene and the son being
concerned. So, it must have been discovered after the
trial, and not discoverable by reasonable diligence
beforehand. So, did the prosecutor actually hand the
piece of paper and say, here it is? No. But it was
discoverable by . . . reasonable diligence beforehand,
at least based upon the testimony that I have from
[prior counsel] and from . . . Jones.

       And, number three, it must be evidence that
would probably change the jury's verdict if a new trial
were granted. I frankly don't know that it would be
evidence that would probably change the jury's verdict
if a new trial were granted.



                                                            A-0869-18T4
                           8
                      [Defendant] presented his defense of third party
             guilt. I understand lacking the piece of paper it,
             perhaps, limited him in some ways. He didn't have
             . . . the beeper, he didn't have other things that he
             could have pursued, but just having the beeper, I don't
             know would probably change the jury's verdict if a
             new trial were granted. So, I'm not convinced in
             regard to that. So, pursuant to State v. Allen,[2] if any
             of these elements are missing the motion must be
             denied.
                      I'm firmly convinced that element number two is
             missing, and I'm convinced that element number three
             is missing. So, for those reasons I'm going to find that
             . . . the . . . telephone number on that piece of paper
             . . . is not newly discovered evidence.

       On this appeal, defendant raises the following arguments:

             THE INFORMATION CONTAINED IN THE REDD
             REPORT WAS NEWLY DISCOVERED EVIDENCE
             AND KNOWLEDGE OF ITS EXISTENCE BY THE
             DEFENSE COULD HAVE CHANGED THE
             OUTCOME OF THE TRIAL.

                    1.   The PCR court was correct when it found
             the information in the Redd Report was material
             evidence.

                    2.   As the information contained in the Redd
             Report was material and not available to the defense
             from other sources, the PCR court was wrong when it
             found the evidence was discoverable at the time of
             trial.




2
    398 N.J. Super. 247 (App. Div. 2008).
                                                                         A-0869-18T4
                                        9
                   3.    The PCR court was wrong when it found
            the discovered evidence would not have changed the
            result of the trial.

                                       I.

      "Our standard of review is necessarily deferential to a PCR court's factual

findings based on its review of . . . witness testimony. In such circumstances

we will uphold the PCR court's findings that are supported by sufficient credible

evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). "We must

keep in mind that the purpose of post-conviction review in light of newly

discovered evidence is to provide a safeguard in the system for those who are

unjustly convicted of a crime." State v. Ways, 180 N.J. 171, 188 (2004).

However, "if the trial court's conclusions are 'clearly mistaken or wide of the

mark[,]' an appellate court must intervene to ensure the fairness of the

proceeding." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226-27

(2010) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v.

E.P., 196 N.J. 88, 104 (2008)).

      In Ways, the Court stated:

            To meet the standard for a new trial based on newly
            discovered evidence, defendant must show that the
            evidence is 1) material, and not "merely" cumulative,
            impeaching, or contradictory; 2) that the evidence was
            discovered after completion of the trial and was "not
            discoverable by reasonable diligence beforehand"; and

                                                                         A-0869-18T4
                                      10
            3) that the evidence "would probably change the jury's
            verdict if a new trial were granted." State v. Carter,
            85 N.J. 300, 314 (1981). We have held that all three
            prongs of that test must be satisfied before a defendant
            will gain the relief of a new trial. Ibid. [(citations
            omitted)].

                   A jury verdict rendered after a fair trial should
            not be disturbed except for the clearest of reasons.
            Newly discovered evidence must be reviewed with a
            certain degree of circumspection to ensure that it is
            not the product of fabrication, and, if credible and
            material, is of sufficient weight that it would probably
            alter the outcome of the verdict in a new trial.

            [180 N.J. 187-88].

                                       A.

      At the outset, we do not address defendant's agreement with the PCR

judge's finding the Redd Report information regarding the pager Thomas

answered was material evidence. We agree with the judge's findings.

      Defendant asserts the PCR judge erred in determining he failed to meet

prong two of Ways because his trial counsel testified under oath he did not recall

or have the Redd Report in his file. Defendant alleges there was a concerted

effort to disguise the fact Thomas responded to a page to a number fo und on a

paper in Salazar's pocket because it was not mentioned in any other police

report. He maintains the information in the Redd Report was not available in



                                                                         A-0869-18T4
                                       11
any of the other police reports provided in discovery, Thomas's statement to

police, or Jones' testimony.

      In cases involving a claim of newly discovered evidence "the reviewing

court must engage in a thorough, fact-sensitive analysis to determine whether

the newly discovered evidence would probably make a difference to the jury."

Ways, 180 N.J. at 191. The record does not support the PCR judge's finding

defendant had prior knowledge of the information regarding the pager found in

the Redd Report.

      Indeed, because defendant knew he gave Thomas one of the pagers

registered to his name, did not mean he knew police found the number to that

pager in Salazar's pocket, used it to contact Thomas, and Thomas answered. At

the PCR hearing, the State conceded there was nothing in Thomas's statement

to police indicating he was paged from the number found in Salazar's pocket.

Defendant had a copy of Thomas's statement to police noting they asked

Thomas, "Alright ah and then that's a little bit later that's when we paged you,

is that correct?" However, this question did not prove police contacted Thomas

after discovering a pager number on a piece of paper found in Salazar's pocket.

      The State's argument the information in the Redd Report was available

through Jones's testimony also did not establish defendant had prior knowledge


                                                                        A-0869-18T4
                                      12
of the pager noted in the Redd report. Jones testified her son stated, "Ma, this

kid, [LaCue] have just killed two drug suppliers, and I don't know what to do

because I think the police have my name, I mean have my name and beeper

number." This statement does not reveal police found the number in Salazar's

pocket, called it, and reached Thomas. For these reasons, the PCR judge's

finding the evidence was discoverable by reasonable diligence beforehand was

not supported by the evidence in the record.

                                       B.

      Defendant also challenges the PCR judge's prong three findings. He

claims if the jury had known Thomas responded to the number police found in

the decedent's pocket, it would have found his third-party guilt defense credible,

and acquitted him. Specifically, he argues "[t]he Redd Report and . . . Jones'

testimony were inseparable; two pieces of evidence each dependent upon the

other[,] . . . and had [he] been permitted to present all the exculpatory evidence

to the jury, [it] would have rejected . . . LaCue's many falsehoods." He asser ts

the Redd Report revealed Thomas's possible involvement in the robbery and

shooting, and Jones' testimony would have established Forrester conspired with

Thomas to "set-up" defendant.




                                                                         A-0869-18T4
                                       13
      We agree with the PCR judge the pager evidence would not change the

verdict. Contrary to defendant's argument, Jones's testimony was inadmissible

as a statement against interest or a statement by a co-conspirator.

      N.J.R.E. 803(c)(25) posits a statement against interest "is admissible

against an accused in a criminal action only if the accused was the declarant."

Jones' testimony concerned statements attributed to Thomas, who was not the

accused. Therefore, the statements were inadmissible.

      The co-conspirator hearsay exception requires the statement to be "made

at the time the party and the declarant were participating in a plan to commit a

crime or civil wrong and the statement was made in furtherance of that plan."

N.J.R.E. 803(b)(5). Even considering that police called the number found in

Salazar's pocket and reached Thomas, this did not demonstrate a conspiracy

between Thomas and LaCue to rob the victims, take the money, exclude

defendant from the profits, and frame defendant for the murders. Defendant

admitted he had multiple pagers registered to him, Thomas used the pagers, and

the two were associates in the drug business. The substantial, credible evidence

supported the PCR judge's conclusion the pager evidence would not have

changed the verdict where the jury acquitted defendant of knowing and

purposeful murder but concluded he participated in the felony murder.


                                                                        A-0869-18T4
                                      14
Affirmed.




                 A-0869-18T4
            15
