J-S49037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JERRY RANSOME                              :
                                               :
                       Appellant               :   No. 291 EDA 2019

            Appeal from the PCRA Order Entered December 20, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0006515-2007


BEFORE:      BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED DECEMBER 04, 2019

        Appellant Jerry Ransome appeals the order of the Court of Common

Pleas of Philadelphia County denying Appellant’s petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Appellant claims that

his trial counsel was ineffective for failing to object to the admission of prior

bad act evidence and suggests that he is entitled to a new trial based on after-

discovered evidence. After careful review, we affirm.

        The trial court previously summarized the factual background and

procedural history of this case as follows:

        [Appellant] and three co-defendants, Eric Gales, Isaiah Ransome,
        and Sean Gordine were each arrested and charged with murder
        and related offenses in connection with a robbery and shooting in
        the Frankford section of Philadelphia on October 3, 2006. During
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*   Former Justice specially assigned to the Superior Court.
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       the course of the robbery, [Appellant] fired shots at each of the
       four victims, robbing all and killing one.

       The defendants were jointly tried by a jury before the Honorable
       Carolyn Engle Temin.1,2 On June 13, 2008, the jury returned a
       partial verdict finding all four defendants not guilty of first degree
       murder, but deadlocking on the remaining charges. …

       On December 14, 2012, at the conclusion of the second jury trial,
       the jury found [Appellant] guilty of second degree murder, three
       counts of robbery (F-1), three counts of aggravated assault (F-1),
       criminal conspiracy, possession of an instrument of crime (PIC)
       and violating §§ 6106 and 6108 of the Uniform Firearms Act.

       On June 21, 2013, following a lengthy hearing, [the Honorable
       Benjamin Lerner] sentenced [Appellant] to thirty-five (35) years
       to life imprisonment on the second degree murder bill and
       concurrent prison terms of five (5) to ten (10) years on the
       robbery and conspiracy bills [] and two-and-a-half (2½) to five
       (5) years on the § 6106 bill. The court also imposed a prison term
       of five (5) to ten (10) years for each aggravated assault bill (these
       sentences were ordered to run concurrently to each other but
       consecutively to the murder). No further penalty was imposed on
       the remaining bills. [Appellant’s] total aggregate sentence was
       forty (40) years to life.

Trial Court Opinion (T.C.O.), 8/7/15, at 1-2. Appellant filed a post-sentence

motion which the trial court subsequently denied.

       Appellant filed a notice of appeal, but his appeal was dismissed due to

defense counsel’s failure to file a docketing statement. On March 24, 2014,

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1 Although Appellant was seventeen at the time of the crimes at issue,
Appellant and his co-defendants were charged and tried as adults.

2 Judge Temin subsequently joined the Philadelphia District Attorney’s Office
as an Assistant District Attorney. The Commonwealth, in its Motion to Dismiss
Appellant’s PCRA petition, indicated that it had screened Judge Temin from
this case pursuant to its conflict-resolution protocol. See Pa.R.Prof.Conduct
1.12(c)(2) (providing for the disqualification of a lawyer who previously served
in a matter as a judge and setting forth notice and screening requirements for
participation of the former judge’s firm in the matter).

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Appellant filed a pro se PCRA petition, arguing that his counsel was ineffective

in failing to file the docketing statement. On February 20, 2014, the lower

court granted this petition and reinstated Appellant’s appellate rights nunc pro

tunc.    After Appellant filed an appeal, this Court affirmed the judgment of

sentence on May 16, 2016, and our Supreme Court denied Appellant’s petition

for allowance of appeal on November 29, 2016.

        On November 7, 2017, Appellant filed a pro se PCRA petition.3 The PCRA

court appointed Appellant counsel, who filed an amended petition.            On

September 9, 2018, the Commonwealth filed a Motion to Dismiss the petition.

On November 20, 2018, the PCRA court notified Appellant of its intent to

dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Appellant

did not respond to the Rule 907 notice. On December 20, 2018, the PCRA

court dismissed Appellant’s petition. This timely appeal followed.

        Appellant raises two issues for our review:

        I.    Were Appellant’s constitutional rights under the Sixth and
              Fourteenth Amendments of the U.S. Constitution and Article
              1 sec. 9 of the Pennsylvania Constitution violated by trial
              counsel’s failure to timely object to and appeal the Court’s
              pre-trial ruling permitting the Commonwealth to introduce
              evidence of Appellant’s prior juvenile ‘contacts’ with the
              criminal justice system?

        II.   Did after discovered evidence of a pattern, practice and
              custom within the Philadelphia Homicide Detectives Unit of

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3 Appellant’s petition meets the PCRA’s timeliness requirements. See 42
Pa.C.S.A. § 9545(b)(1) (indicating that a PCRA petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment of
sentence becomes final”).

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            threatening, coercing, and falsifying witnesses and suspects
            statements violate Appellant’s right to a fair trial?

Appellant’s Brief, at 3.

      Appellant first claims trial counsel was ineffective in failing to object

when the Commonwealth elicited testimony concerning his prior contacts with

the criminal justice system. In reviewing claims of ineffectiveness of counsel,

we are guided by the following principles:

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA petitioner
         pleads and proves all of the following: (1) the underlying
         legal claim is of arguable merit; (2) counsel's action or
         inaction lacked any objectively reasonable basis designed to
         effectuate his client's interest; and (3) prejudice, to the
         effect that there was a reasonable probability of a different
         outcome if not for counsel's error. See Commonwealth v.
         Pierce, 515 Pa. 153, 527 A.2d 973, 975–76 (1987);
         Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
         80 L.Ed.2d 674 (1984). The PCRA court may deny an
         ineffectiveness claim if “the petitioner's evidence fails to
         meet a single one of these prongs.” Commonwealth v.
         Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (2000)....
         Because courts must presume that counsel was effective, it
         is the petitioner's burden to prove otherwise. See Pierce,
         supra; Commonwealth v. Holloway, 559 Pa. 258, 739
         A.2d 1039, 1044 (1999).

      [Commonwealth v. Natividad, 595 Pa. 188, 207–208, 938 A.2d
      310, 321 (2007);] see also Commonwealth v. Hall, 582 Pa.
      526, 537, 872 A.2d 1177, 1184 (2005) (stating an appellant's
      failure to satisfy any prong of the Pierce ineffectiveness test
      results in a failure to establish the arguable merit prong of the
      claim of ineffectiveness).

Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018).

      With respect to the admission of evidence of a defendant’s prior bad

acts, we are guided by the following principles:



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      While evidence of prior bad acts is inadmissible to prove the
      character of a person in order to show conduct in conformity
      therewith, evidence of prior bad acts may be admissible when
      offered to prove some other relevant fact, such as motive,
      opportunity, intent, preparation, plan, knowledge, identity, and
      absence of mistake or accident. Commonwealth v. Sherwood,
      603 Pa. 92, 982 A.2d 483, 497 (2009); Pa.R.E. 404(b)(2)
      (providing that “[e]vidence of other crimes, wrongs, or acts may
      be admitted for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity or
      absence of mistake or accident”).

Commonwealth v. Busanet, 618 Pa. 1, 43, 54 A.3d 35, 60 (2012).

      Specifically, Appellant argues that trial counsel was ineffective in failing

to object when the Commonwealth elicited testimony regarding Appellant’s

four prior juvenile arrests. Appellant argues that any probative value of the

admission of this evidence was outweighed by its prejudicial effect.

      The Commonwealth responds that this line of questioning was proper to

rebut defense counsel’s suggestion in opening statements that Appellant’s

confession to police was involuntary and unknowing as a result of his age and

inexperience. At the time of his confession, Appellant was seventeen years

old and agreed to waive his Miranda rights.

      Our Supreme Court has held that “[i]t is the Commonwealth's burden

to establish whether [a defendant] knowingly and voluntarily waived

his Miranda rights. In order to do so, the Commonwealth must demonstrate

that the proper warnings were given, and that the accused manifested an

understanding of these warnings.” Commonwealth v. Eichinger, 591 Pa. 1,

24, 915 A.2d 1122, 1135–36 (2007) (citing Commonwealth v. Hughes, 521

Pa. 423, 555 A.2d 1264, 1274 (1989)).


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      In Hughes, the Supreme Court held that a defendant’s prior experience

with Miranda warnings is relevant in determining whether the defendant’s

subsequent waiver of those rights was knowing and voluntary. Hughes, 521

Pa. at 444, 555 A.2d 1264, 1274-75 (concluding that the appellant’s prior

waiver of his Miranda rights in a previous rape investigation suggested that

his subsequent waiver of these rights and confession to a murder was knowing

and voluntary). See also Commonwealth v. Davis, 861 A.2d 310, 318-19

(Pa.Super. 2004) (considering minor appellant’s previous contact with the

police in determining whether his statements to police should have been

suppressed as involuntary or unknowing).

      However, as recognized by our Supreme Court in Hall, we need not

specifically determine whether Appellant’s claim has arguable merit, because

Appellant has not demonstrated that he was prejudiced by trial counsel’s

failure to object to the admission of this evidence. As noted above, “where it

is clear that a petitioner has failed to meet the prejudice prong, the claim may

be dismissed on that basis alone without determination of whether the first

two prongs of the ineffectiveness standard have been met.” Hall, 582 Pa. at

538–39, 872 A.2d at 1184.

      The prosecution presented overwhelming evidence of Appellant’s guilt

including Appellant’s confession admitting his involvement in the robbery and

shootings, the accounts of four eyewitnesses identifying Appellant as one of

the perpetrators, and Appellant’s admission of guilt to his brother. As a result,

Appellant has not shown prejudice from counsel’s inaction such that “there

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was a reasonable probability of a different outcome if not for counsel's error.”

Johnson, supra. Thus, this ineffectiveness claim fails.

      In his second claim of error, Appellant suggests that he is entitled to a

new trial based on after-discovered evidence. To successfully obtain relief on

an after-discovered evidence claim, a petitioner must show 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. Small, ___Pa.___, 189 A.3d 961, 969 (Pa. 2018)

(quoting Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 292 (2008))

(other citation omitted). “In determining whether the evidence would compel

a different verdict, a court should consider the integrity of the alleged after-

discovered evidence, the motive of those offering the evidence, and the overall

strength of the evidence supporting the conviction.” Commonwealth v.

Sandusky, 203 A.3d 1033, 1060 (Pa.Super. 2019) (citation omitted).

      Specifically, Appellant contends that there is an unconstitutional pattern

and practice within the Philadelphia Police Department’s Homicide Unit of

threatening, coercing, and falsifying statements of defendants and witnesses.

Appellant claims that he is entitled to a new trial to offer this evidence of the

pattern and practice of misconduct as a “habit” under Pa.R.E. 406. In support

of this claim, Appellant attempts to offer as after-discovered evidence several




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cases in which other appellants had accused Philadelphia detectives of similar

claims of misconduct.4

       However, even assuming arguendo that such cases can be construed to

show acts of police misconduct, Appellant has not shown any nexus between

those cases and the instant case. As these cases have little connection to the

evaluation of the voluntariness of Appellant’s confession, Appellant has not

established how these unrelated allegations of misconduct would support his

claim that he personally was coerced into making a confession by detectives

using illegal interrogation tactics. See Commonwealth v. Griffin, 137 A.3d

605, 609-10 (Pa.Super. 2016) (finding that “allegations about an unrelated

person in an unrelated case” did not constitute after-discovered evidence);

Commonwealth v. Foreman, 55 A.3d 532, 537-38 (Pa.Super. 2012)


____________________________________________


4 Appellant mainly claims that the decision in Commonwealth v. Thorpe,
CP-51-CR-0011433-2008 (Pa.Ct.Com.P., November 3, 2017) constitutes
after-discovered evidence of a pattern and practice of misconduct in the
Philadelphia Homicide Unit. We note that the record does not contain a copy
of the Thorpe decision. However, Appellant admits that the officers accused
of misconduct in the Thorpe case were not involved in the instant case.
      Likewise, the majority of cases that Appellant attempts to offer as after-
discovered evidence analyze allegations of misconduct against officers who
were not involved in Appellant’s case. The only case Appellant cites that
involves a detective assigned to Appellant’s case is Commonwealth v.
Jones, 3317 EDA 2012 (Pa.Super. Aug. 15, 2014) (unpublished
memorandum). In Jones, this Court reviewed a defendant’s allegations that
her actual statement to police conflicted with Detective Bamberski’s account
of her confession. Commonwealth v. Jones, 3317 EDA 2012 (Pa.Super.
Aug. 15, 2014) (unpublished memorandum). However, in that case, the jury
convicted Jones of the charged offenses despite her claims of police
misconduct and this Court did not analyze the merits of Jones’s assertions of
misconduct, but reversed and remanded on different grounds.

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(finding that the appellant failed to show a nexus between the detective’s

conduct in his case and allegations of the detective’s misconduct in an incident

that occurred two years after the appellant’s conviction).

       Moreover, we agree with the PCRA court’s finding that Appellant could

not use the alleged “after-discovered evidence” to demonstrate that his own

confession was involuntary or unknowing. Appellant claimed for the first time

in his PCRA petition that he was subjected to coercive interrogation

techniques. Specifically, Appellant asserted that he was held at the Homicide

Unit for 2½ to 3 days, only allowed to go to the bathroom once or twice, and

was deprived of food, except for when the detectives allegedly offered

Appellant a pork roll, knowing that Appellant was a Muslim. Appellant also

asserted that the detectives pointed a taser at him while he was being

interrogated.

       However, Appellant’s allegation that his confession was coerced is in

direct conflict with the evidence of record presented to the trial court. Before

trial, Appellant never filed a suppression motion to challenge the admission of

his confession on the grounds that it was involuntary or unknowing.5 At trial,

before the prosecution read Appellant’s confession to the jury, Detective

Bamberski testified that Appellant’s statement was taken twenty-five minutes

after Appellant arrived at the Homicide Unit. As Appellant was five months

shy of his eighteenth birthday at that point, several documented attempts
____________________________________________


5 Appellant has not alleged that trial counsel was ineffective in failing to
investigate claims relating to the suppression of his confession to police.

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were made to contact Appellant’s mother and his aunt. However, the officers

were unable to reach either of the women. Thereafter, Appellant agreed to

waive his Miranda rights in order to give the detectives his statement.

Appellant did not challenge Detective Bamberski’s account of the events

surrounding Appellant’s confession at the trial court level.

      Furthermore, we reject Appellant’s argument that he is entitled to a new

trial based on his contention that detectives may have coerced the statements

of Deshaun Williams and Keith Pena. Such allegations do not constitute after-

discovered evidence as both witnesses actually testified at Appellant’s trial

and were subject to cross-examination by Appellant’s counsel.

      As such, Appellant failed to show that he could not have obtained the

testimony of these witnesses prior to the conclusion of the trial by the exercise

of reasonable diligence. Our Supreme Court has provided that:

      [t]o obtain a new trial based on after-discovered evidence, the
      petitioner must explain why he could not have produced the
      evidence in question at or before trial by the exercise of
      reasonable diligence. Commonwealth v. Jones, 266 Pa.Super.
      37, 402 A.2d 1065, 1066 (1979). A defendant may unearth
      information that the party with the burden of proof is not required
      to uncover, so long as such diligence in investigation does not
      exceed what is reasonably expected. Commonwealth v.
      Brosnick, 530 Pa. 158, 166, 607 A.2d 725, 729 (1992). See also
      Argyrou v. State, 349 Md. 587, 709 A.2d 1194, 1202–03 (1998)
      (holding due diligence requires that defendant act “reasonably and
      in good faith to obtain the evidence, in light of the totality of the
      circumstances and facts known to [him]”). Thus, a defendant has
      a duty to bring forth any relevant evidence in his behalf.
      Commonwealth v. Johnson, 228 Pa.Super. 364, 323 A.2d 295,
      296 (1974). A defendant cannot claim he has discovered new
      evidence simply because he had not been expressly told of that
      evidence. Commonwealth v. Crawford, 285 Pa.Super. 169, 427

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      A.2d 166, 175 (1981). Likewise, a defendant who fails to
      question or investigate an obvious, available source of
      information, cannot later claim evidence from that source
      constitutes newly discovered evidence. Commonwealth v.
      Chambers, 528 Pa. 558, 583, 599 A.2d 630, 642 (1991), cert.
      denied, 504 U.S. 946, 112 S.Ct. 2290, 119 L.Ed.2d 214 (1992).

Commonwealth v. Padillas, 997 A.2d 356, 363–64 (Pa.Super. 2010)

(emphasis added).

      Appellant points out that although Williams gave a statement to the

police identifying Appellant as one of the individuals responsible for the

robbery and shootings in this case, Williams subsequently recanted this

statement while testifying at Appellant’s trial. However, although Williams

testified that the he merely signed a statement with allegations created by the

officers so that he could leave the station, Detective John Verrecchio testified

that he took Williams’s statement verbatim and required Williams to review

and sign each page of the statement to ensure its accuracy. Despite hearing

Williams recant his statement, the jury found Appellant guilty of the charged

offenses.   As such, Appellant cannot claim that this testimony is after-

discovered evidence as it was available to Appellant and presented at trial.

      In the same manner, the testimony of Keith Pena does not entitle

Appellant relief on his claim of after-discovered evidence. While Pena gave a

statement to police identifying Appellant as a perpetrator in the instant crimes

and testified consistently with this statement at Appellant’s trial, Appellant

points to the fact that, prior to Pena’s testimony, the prosecutor told the trial

court that Pena had suggested that he would recant his statement because


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his “identifications were a lie and that the detectives pressured him to do it.”

Notes of Testimony, 12/7/12, at 13.      The trial court restricted the parties’

inquiry into Pena’s discussion with the prosecutor, finding that Pena had

threatened to change his testimony as he expressly blamed the District

Attorney’s Office for a perceived slight in his own unrelated criminal

proceedings.

      However, the trial court indicated that the defense could inquire into

whether the detectives directed Pena to identify a particular person as one of

the perpetrators. Although Pena did testify at trial that Appellant was one of

the perpetrators, Appellant had the opportunity to question Pena on the

voluntariness of his statement and identification. As such, Pena’s testimony

was not after-discovered evidence as it was available to Appellant and

presented at trial.

      Accordingly, we conclude that the PCRA court correctly determined that

Appellant was not entitled to relief on this claim.

      For the foregoing reasons, we affirm the PCRA court’s order dismissing

this petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/19




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