Com. v. Banks, J. ( 2019 )

J-S64023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMIL BANKS :
:
Appellant : No. 3579 EDA 2017
Appeal from the PCRA Order October 5, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009614-2012
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED JANUARY 08, 2019
Appellant, Jamil Banks, appeals from the order entered on October 5,
2017, dismissing his first petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We previously summarized the facts of this case as follows:
On April 12, 2008, at about 12:30 p.m., Joan Hill was working at
an insurance office located at 5637 Chew Avenue when she saw a
blue Lincoln town car park with the engine running on Woodlawn
Avenue. A man, [dressed in women’s Muslim clothing and] later
identified as [co-]defendant [Qentin] Salmond,[1] [] exited the
vehicle. Hill believed the man was going to rob Skyline Restaurant,
located around the corner, so she called 9-1-1 and gave the
license plate number of the vehicle.
At around noon that day, Kerron Denmark and Kenneth Wiggins
went to Skyline Restaurant and Wiggins ordered food.
Immediately after they left the restaurant with Wiggins carrying
____________________________________________
1 Qentin Salmond currently has an appeal with this same panel at 722 EDA
2018.
J-S64023-18
his food, a man approached them asking for marijuana. As
Denmark and Wiggins were walking down the street someone
yelled “don’t f’ing move.” Denmark heard gunshots and ran away.
On April 12, 2008, at 12:44 p.m., while on routine patrol, Police
Officer Christopher Mulderrig was flagged down by a man on the
street and told there had been a shooting about two blocks away.
When Officer Mulderrig arrived at 5643 Chew Avenue, he observed
a male, later identified as Wiggins, lying in the street with a
gunshot wound to the chest. Wiggins subsequently died from this
gunshot to his chest.
After the murder, Detective Thorsten Lucke recovered surveillance
video from Skyline Restaurant. The surveillance video showed
Wiggins and Kerron Denmark enter Skyline Restaurant. While the
men are inside the restaurant, a vehicle drives by on Chew Avenue
and turns left at the corner. [Appellant] and [co-]defendant
Salmond, wearing women’s Muslim clothing, emerge from the
area where the car had turned from Chew Avenue. The [co-]
defendants walk towards Skyline Restaurant. [Co-d]efendant
Salmond stops in an alley while [Appellant] enters the restaurant.
[Appellant] buys a bottle of soda, leaves the restaurant, and
stands with [co-]defendant Salmond in the alley, out of sight of
the camera. After Wiggins gets his food, he and Denmark leave
the restaurant and walk down the street. [Appellant] follows
closely behind Wiggins and Denmark while [co-]defendant
Salmond follows farther back. [The co-]defendants confront
Wiggins and Denmark and Wiggins falls to the ground. Quickly
thereafter everyone runs away.
Police Officer Joanne Gain of the Crime Scene Unit recovered two
.22 caliber fired cartridge casings, a Nike Air Jordan sneaker, and
a Mountain Dew bottle from the murder scene. Officer Gain tested
the Mountain Dew bottle for fingerprints and DNA. According to
Police Officer John Cannon, an expert in firearms identification,
these two .22 caliber fired cartridge casings were fired from the
same unrecovered firearm. The bullet recovered from the
decedent’s body and the [recovered .22 caliber] cartridge casings
were not fired from the same firearm.
On April 14, 2008, at about 9:00 p.m., an unlicensed blue Lincoln
town car was found on fire in the area of Tenth Street and Chew
Avenue. Lieutenant Rodney Wright of the Philadelphia Fire
Department determined that the vehicle was burned intentionally.
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On April 15, 2008, Charles Hayward gave a statement to police.
Hayward explained that in February he had sold the blue Lincoln
town car that Hill had called in to 9-1-1 to Bernard Salmond,
[co-]defendant Salmond’s brother. According to Hayward, about
a week previously, Wiggins had robbed [co-]defendant Salmond
after they had been gambling.
On April 17, 2008, Richard Hack, a friend of Wiggins, gave a
statement to police. Hack explained that two days before the
murder, [co-]defendant Salmond, Wiggins, and himself were
gambling. [Co-d]efendant Salmond and Wiggins argued about a
gambling debt and then Wiggins choked [co-]defendant Salmond
and took $1000[.00] from him. For the next couple of nights,
[co-]defendant Salmond and his friends were in the area looking
for Wiggins.
On January 13, 2010, Robert Bluefort told police that about three
weeks after the murder, [co-]defendant Salmond confessed to
him that he shot Wiggins. According to [co-]defendant Salmond[,]
he had to shoot or be shot. Bernard Salmond told Bluefort that
the police had questioned Hayward because the car that was used
in the murder was in his name. Bluefort and Bernard Salmond
then discussed burning the vehicle. Bernard Salmond stayed with
Bluefort for about a month after the murder.
[…T]he jury found Appellant guilty of [third-degree murder,
conspiracy to commit murder, possession of an instrument of
crime (PIC), and carrying an unlicensed firearm2] arising from the
shooting death of Mr. Wiggins. On July 28, 2014, the court
imposed sentence. Specifically, it sentenced Appellant to twenty
to forty years imprisonment for third-degree murder, followed by
two consecutive terms of incarceration of five to ten years for
conspiracy and persons not to possess a firearm. In addition, the
court imposed concurrent sentences of three and one-half to
seven years imprisonment for carrying an unlicensed firearm, and
one to two years for PIC.
Commonwealth v. Banks, 2015 WL 7187621, at *1-2 (Pa. Super. 2015)
(unpublished memorandum).
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2 18 Pa.C.S.A. §§ 2502(c), 903, 907, and 6106, respectively.
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We affirmed Appellant’s judgment of sentence in an unpublished
memorandum on November 16, 2015. Our Supreme Court denied further
review on May 24, 2016. See Commonwealth v. Banks, 636 Pa. 637 (Pa.
2016). Appellant filed a timely PCRA petition on September 12, 2016. The
PCRA court appointed PCRA counsel. Appointed counsel filed an amended
PCRA petition on May 10, 2017. On August 31, 2017, the PCRA court filed a
notice of intent to dismiss the amended PCRA petition without an evidentiary
hearing pursuant to Pa.R.CrimP. 907. Appellant did not respond. On October
5, 2017, the PCRA court entered an order, and an accompanying opinion
pursuant to Pa.R.A.P. 1925(a), denying Appellant relief. Appellant filed a
timely notice of appeal on November 2, 2017. The trial court relied upon its
earlier opinion as its rationale for denying relief.
On appeal, Appellant presents the following issues for our review:3
1. Was trial counsel ineffective for having failed to have
[Appellant] tested for DNA results?
2. Was appellate counsel ineffective for having failed to raise
and brief the issues of the weight and sufficiency of the
evidence and to the extent that trial counsel failed to file a
necessary [p]ost [s]entence [m]otion regarding the weight
of the evidence[,] was trial counsel ineffective for having
failed to do that?
Appellant’s Brief at 8.
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3 Despite presenting a sole issue in the statement of questions presented
section of his appellate brief, Appellant raises two discrete ineffective
assistance of counsel issues in the argument section of his brief. He raised
these issues in his amended PCRA petition and the PCRA court addressed them
in its Rule 1925(a) opinion. We will address the two issues separately.
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In his first appellate issue, Appellant presents two legally distinct, but
overarching claims pertaining to DNA testing. Appellant claims that: (1) the
PCRA court erred by refusing to order DNA testing; and (2) trial counsel was
ineffective for failing to secure and submit Appellant’s DNA sample to compare
with the DNA results taken from a soda bottle recovered from the scene. Id.
at 8-10. More specifically, on appeal Appellant posits, in sum:
The defense, at trial, focused on the lack of DNA evidence
matching up to [Appellant]. However, the DNA expert did not
have [Appellant’s] sample submitted to him, not by the
Commonwealth nor the defense. Trial counsel was ineffective. If
trial counsel was going to make a central point of the defense the
DNA evidence, then [trial] counsel had to make sure that the DNA
was tested. [PCRA counsel] has presumed that the DNA would
not have matched; otherwise, why would [trial] counsel [not]
have pursued it? Moreover, the failure to get the DNA tested only
left the air at trial tainted with the smell of the defense hiding
something. In any event, if [trial counsel] was going to rely on
DNA testing to help acquit [Appellant], then the predicate to such
argument was to have the DNA test. It’s just common sense. It
is also ineffective assistance of counsel for having failed to do so.
[PCRA counsel] recognize[s] that the [c]ourt cannot grant a new
trial on this alone; however, counsel respectfully requested that
the Honorable PCRA [c]ourt order that DNA be tested and, if the
DNA would have supported an argument that [Appellant] was not
culpable in this case, then, a new trial would have been requested.
Now, [PCRA counsel] asserts that the PCRA [c]ourt erred and that
this Honorable Court should right that wrong by either reversing
the PCRA [c]ourt for a full evidentiary hearing or by granting []
Appellant a new trial at this time.
Id. at 9-10 (record citation omitted).
Our standard of review is well-settled:
This Court's standard of review regarding an order denying a
petition under the PCRA is whether the determination of the PCRA
court is supported by the evidence of record and is free of legal
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error. The PCRA court's findings will not be disturbed unless there
is no support for the findings in the certified record.
Commonwealth v. Durrett King, 2018 WL 4102591, at *2 (Pa. Super.
August 29, 2018) (internal citations, quotations, and brackets omitted).
We first examine Appellant’s request for DNA testing before the PCRA
court. Requests for post-conviction DNA testing are governed by 42 Pa.C.S.A.
§ 9543.1. An applicant must present “a prima facie case demonstrating that:
(i) the identity of or the participation in the crime by the perpetrator was at
issue in the proceedings that resulted in the applicant's conviction and
sentencing; and (ii) DNA testing of the specific evidence, assuming
exculpatory results, would establish [] the applicant's actual innocence of the
offense for which the applicant was convicted.” 42 Pa.C.S.A. § 9543.1(c)(3).
“The court shall not order the [requested DNA] testing [] if, after review of
the record of the applicant's trial, the court determines that there is no
reasonable possibility that the testing would produce exculpatory evidence
that [] would establish the applicant's actual innocence of the offense for which
the applicant was convicted[.]” 42 Pa.C.S.A. 9543.1(d)(2).
“Post-conviction DNA testing falls under the aegis of the [PCRA] and
thus, our standard of review permits us to consider only whether the PCRA
court's determination is supported by the evidence of record and whether it is
free from legal error.” Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.
Super. 2011) (internal citations, quotations, and brackets omitted).
“Moreover, because the resolution of this appeal involves statutory
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construction, which involves a pure question of law, we review that aspect of
the trial court's decision de novo and our scope of review is plenary.” Id.
We have previously determined that there is no error where the PCRA
court refuses to order DNA testing if the petitioner does not make a threshold
showing:
Significantly, in DNA testing cases, “an absence of evidence is not
evidence of absence.” Commonwealth v. Heilman, 867 A.2d
542, 547 (Pa. Super. 2005). See also [Commonwealth v.] B.
Williams, [35 A.3d 44 (Pa. Super. 2011)] (affirming trial court's
denial of DNA testing where appellant failed to meet threshold
requirements for DNA testing, under Section 9543.1(a)(2), and
did not demonstrate prima facie case of “actual innocence”; even
if appellant's DNA were not found on hat/wig, record contained
overwhelming evidence of appellant's guilt including three
unshakable eyewitnesses, appellant's confession, and appellant's
access to weapon used in crimes); Commonwealth v. Smith,
889 A.2d 582 (Pa. Super. 2005), appeal denied, 905 A.2d 500
(Pa. 2006) (affirming denial of request for post-conviction DNA
testing where absence of appellant's DNA from victim's fingernails
would not establish appellant's innocence of victim's murder;
nothing in record supported appellant's claim that victim would
have scratched her assailant leaving DNA evidence under her
fingernails).
Commonwealth v. Walsh, 125 A.3d 1248, 1255 (Pa. Super. 2015).
Here, the trial court determined:
[Appellant] requests that [the trial court] order DNA testing. This
is not necessary. Even if the DNA testing excluded [Appellant],
[Appellant] cannot escape the fact that the soda bottle at the
crime scene contained his fingerprints.
PCRA Court Opinion, 10/5/2017, at 6 (citations omitted).
We discern no abuse of discretion or error of law by the PCRA court in
denying Appellant’s request for DNA testing. Here, there was eyewitness
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testimony, from a police officer familiar with Appellant, that Appellant was the
person wearing dark clothing seen on video surveillance purchasing a soda
from the Skyline Restaurant, standing in the alley with his co-defendant, and
confronting the victim just prior to the murder. See N.T., 3/7/2014, at 10-
13. Fingerprint analysis of the bottle retrieved from a garbage can near the
crime scene further tied Appellant to the crimes. See N.T., 3/6/2014, at 114-
123; N.T., 3/7/2014, at 38 and 52. Because Appellant’s fingerprints were
discovered, there was no reasonable possibility that DNA testing would
produce exculpatory evidence that would establish Appellant’s actual
innocence. Hence, the PCRA court did not err in failing to order DNA testing
under Section 9543.1.
Next, Appellant suggests that trial counsel was ineffective for failing to
submit his sample for DNA testing. In order to prove an ineffective assistance
of counsel claim under the PCRA,
we begin with the presumption that counsel rendered effective
assistance. To overcome that presumption, the petitioner must
establish: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel's action or failure to act; and
(3) the petitioner suffered prejudice as a result of counsel's error,
with prejudice measured by whether there is a reasonable
probability that the result of the proceeding would have been
different. If the petitioner fails to prove any of these prongs, the
claim is subject to dismissal.
Relating to the reasonable basis prong, generally, where matters
of strategy and tactics are concerned, counsel's assistance is
deemed constitutionally effective if he chose a particular course
that had some reasonable basis designed to effectuate his client's
interests. Courts should not deem counsel's strategy or tactic
unreasonable unless it can be concluded that an alternative not
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chosen offered a potential for success substantially greater than
the course actually pursued.
To demonstrate prejudice in an ineffective assistance of counsel
claim, the petitioner must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.
Durrett King, 2018 WL 4102591, at *2.
In the PCRA context, our Supreme Court has stated the following
regarding DNA analysis and trial counsel effectiveness:
It is easy to say that failing to pursue exculpatory evidence is
ineffectiveness, but this presumes the evidence will indeed be
exculpatory. If counsel were sure the accused's DNA would not be
revealed in any relevant samples from the victim or scene,
certainly testing would give exculpatory results and should be
sought. However, the client's mere claim of innocence or alibi does
not always settle the question; effectiveness of counsel is not
dependent on accepting the candor of the client. Testing that
shows the DNA matches suddenly makes a conviction-one that
might have been avoided or less than certain-a sure thing.
That is, subjecting a client to DNA testing is very likely to settle
whether there will be a conviction or not. It can demolish the
prosecution's case, but it can cast it in concrete as well. It can
eliminate the potential of a “not guilty” verdict based on an alibi,
or on reasonable doubt, and the less compelling the
Commonwealth's case, the less compelling is the desire for pre-
trial DNA testing. Not seeking testing that has the potential to
convict a client may be a very reasonable strategy; strategy is not
measured through hindsight against alternatives not pursued, so
long as trial counsel had a reasonable basis for the decision made.
Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (internal
citations omitted).
On the allegation of ineffective assistance of counsel pertaining to DNA
testing, the PCRA court determined:
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This claim is without merit as trial counsel had a reasonable basis
for not submitting [Appellant’s] DNA to compare with the DNA
found on the soda bottle. [Appellant’s] fingerprints were on the
bottle. [] DNA testing is not warranted when there is no
reasonable possibility that the test would establish actual
innocence.
[Appellant] also fails to show prejudice by offering any evidence
or expert testimony that the DNA testing would have been
exculpatory; instead, he merely speculates. Without this
evidence, [Appellant] cannot show that if [Appellant] had
submitted a DNA sample for testing, there was a reasonable
probability that the outcome of trial would have been different.
PCRA Court Opinion, 10/5/2017, at 5-6 (citations omitted).
We agree with the PCRA court’s analysis. Trial counsel had a reasonable
basis not to submit Appellant’s DNA sample for analysis. If the DNA test
showed that Appellant was a match, the Commonwealth would have had
additional evidence to support its case at trial. However, if the DNA test
excluded Appellant, the Commonwealth still had evidence that Appellant’s
fingerprints were on the soda bottle, linking him to the crime. This is simply
not a case where the evidence at trial solely hinged on DNA evidence, or lack
thereof. The absence of Appellant’s DNA in or on the soda bottle would not
establish Appellant’s actual innocence when faced with the additional evidence
presented at trial. As such, trial counsel had a reasonable basis to decline
submitting a sample from Appellant for DNA testing and Appellant has failed
to show that there is a probability that the outcome would have been different.
See Williams, supra. For all of the foregoing reasons, Appellant’s first
appellate issue fails.
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In the second issue presented, Appellant contends that trial counsel was
ineffective for failing to challenge the sufficiency of the evidence on direct
appeal.4 Appellant’s Brief at 10-12. In sum, Appellant argues:
The Commonwealth is not permitted to prove its case via
speculation, conjecture and surmise. If the Commonwealth is
given every inference, [Appellant] was present at the scene when
someone else did something of a criminal nature. However, there
is nothing here that would prove a conspiracy. The
Commonwealth [did] not present evidence of anything that
occurred prior to the event in question and the mere fact that
[Appellant] was in the presence of a perpetrator only proves that
he was in the wrong place at the wrong time. In short, [Appellant]
has been convicted of [m]urder because he bought a bottle of
soda and was then seen in the company of Mr. Salmond, the
perpetrator.
There is nothing in the case that would prove a conspiracy. There
was nothing in the case that would demonstrate that [Appellant]
was a shooter. There is nothing in the case that would prove that
[Appellant] conspired with someone to shoot another person, or
rob the restaurant. In short, and where there is no evidence to
demonstrate that [Appellant] was a perpetrator[,] an[]
accomplice[,] or a conspirator, it can only be concluded that there
was insufficient evidence. It is always more difficult to prove a
negative than to prove something in the affirmative. However,
here, and while it is difficult to prove a negative, there is nothing
in this case which would support the Commonwealth’s theory that
[] Appellant acted as a principal or an accomplice and,
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4 While Appellant mentions a weight of the evidence claim in framing the
issue, he does not assert such a claim in his argument and fails to cite legal
authority for this proposition. Thus, we find this aspect of Appellant’s current
claim waived. See Commonwealth v. Plante, 914 A.2d 916, 924 (Pa.
Super. 2006) (“We have repeatedly held that failure to develop an argument
with citation to, and analysis of, relevant authority waives the issue on
review.”); see also Pa.R.A.P. 2119(a) (the argument “shall” be followed by
“citation of authorities” that are pertinent). Thus, we confine our review to
counsel’s performance in failing to challenge the sufficiency of evidence.
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accordingly, and without evidence, the verdict was based on
suspicion, conjecture and surmise.
Id. at 11-12.
To ascertain whether this claim possesses arguable merit, we examine
the sufficiency of the evidence pursuant to the following standard of review:
[viewing the evidence] in a light most favorable to the verdict
winner, [we ask whether] the evidence at trial and all reasonable
inferences therefrom are sufficient for the trier of fact to find that
each element of the crimes charged [have been] established
beyond a reasonable doubt. The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubt raised
as to the accused's guilt is to be resolved by the fact-finder. As
an appellate court, we do not assess credibility nor do we assign
weight to any of the testimony of record. Therefore, we will not
disturb the verdict unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact may be drawn from
the combined circumstances.
Commonwealth v. Knox, 165 A.3d 925, 927 (Pa. Super. 2017) (internal
citations and quotations omitted).
Conspiracy is defined as follows:
(a) Definition of conspiracy.-A person is guilty of conspiracy
with another person or persons to commit a crime if with
the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
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18 Pa.C.S.A. § 903(a).
Our Supreme Court has held:
In order to prove the existence of a criminal conspiracy, the
Commonwealth must demonstrate that the defendant: (1)
entered an agreement to commit or aid in an unlawful act with
another person or persons, (2) with a shared criminal intent and,
(3) an overt act was done in furtherance of the conspiracy. Once
the conspiracy is established beyond a reasonable doubt, a
conspirator can be convicted of both the conspiracy and the
substantive offense that served as the illicit objective of the
conspiracy.
At the heart of every conspiracy lies the common understanding
or agreement between the actors. Implicit in any conspiracy is
proof ... that an accused agrees to participate in the alleged
criminal activity. The criminal union being prosecuted cannot be
based upon an agreement to complete a broad, undefined
objective at some unknown point. Rather, the agreement must
rest upon the mutual specific intent to carry out a particular
criminal objective. The sine qua non of a conspiracy is the shared
criminal intent. Without this common purpose, a conspiracy
cannot be maintained. Proving the existence of such an
agreement is not always easy, and is rarely proven with direct
evidence. An explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for proof of a
criminal partnership is almost invariably extracted from the
circumstances that attend its activities. Indeed, a conspiracy may
be proven inferentially by showing the relation, conduct, or
circumstances of the parties, and the overt acts of alleged
co-conspirators are competent as proof that a criminal
confederation has in fact been formed.
A conspiracy cannot be established based only upon mere
suspicion and conjecture. Preexisting relationships or mere
association of participants, without more, will not suffice to
establish a prosecutable criminal conspiracy. Mere association
with the perpetrators, mere presence at the scene, or mere
knowledge of the crime is insufficient to prove that a particular
actor was involved in a criminal conspiracy. In other words, even
a husband and a wife, a parent and a child, friends, paramours,
or siblings are not, by virtue of these close relationships alone,
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conspirators when acting in concert. The Commonwealth still must
demonstrate the formation of an illicit agreement, the attendant
specific shared intent to promote or facilitate the object offense,
and an overt act. No level of intimacy or history between actors
can replace the elements of the offense. These relationships
undoubtedly can be a factor to be considered in ascertaining
whether an agreement was formed between the actors, and the
agreement may be proven by circumstantial evidence. Yet,
without more, these relationships alone cannot serve as
incontrovertible and definitive proof that an illicit agreement
existed.
Commonwealth v. Chambers, 188 A.3d 400, 409–411 (Pa. 2018) (internal
citations, quotations, and brackets omitted).
In denying Appellant relief on his ineffectiveness claim pertaining to the
sufficiency of the evidence, the PCRA court concluded:
The Commonwealth presented a considerable amount of
eyewitness testimony and physical evidence that [Appellant] and
Qentin Salmond conspired and fatally shot Kenneth Wiggins. If
appellate counsel had raised a sufficiency [] claim on appeal, the
Superior Court surely would have [rejected] these claims.
[Appellant] bought a bottle of soda from the Skyline Restaurant
and then waited with Salmond for the victim in an alley outside.
[Appellant] and Salmond then followed the victim before fatally
shooting him. Robert Bluefort told police that Qentin Salmond
confessed to him that he shot Wiggins. Michael Miller, who knew
[Appellant] before the murder, identified [Appellant] from
surveillance video from Skyline Restaurant. [Appellant’s]
fingerprints from his right middle finger and right ring finger were
on the Mountain Dew bottle recovered from the crime scene. As
such, no relief is due.
PCRA Court Opinion, 10/5/2017, at 6-7 (citation omitted).
We agree with the PCRA court’s assessment and discern no abuse of
discretion or error of law in denying relief on Appellant’s ineffective assistance
of counsel claim pertaining to the sufficiency of the evidence presented at trial.
While Appellant characterizes his relationship with his co-defendant as merely
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fortuitous, the record reveals that Appellant worked in conjunction with his
co-defendant to murder the victim. Appellant and co-defendant were together
for the entire altercation. Their movements were almost identical as captured
by video surveillance, inside and outside of the Skyline restaurant. Both men
appeared to be waiting for the victim, both confronted the victim
simultaneously, and both men fled after the victim was shot. N.T., 3/6/2014,
at 149-156. Officer Michael Miller, who was previously familiar with Appellant,
watched the video surveillance before and during trial and confirmed,
unequivocally that he immediately recognized Appellant, without outside
influence from any other person, as one of the two individuals who confronted
the victim on the video. N.T., 3/7/2014, at 10-13. Appellant’s latent
fingerprints were recovered from a bottle of Mountain Dew, which was
purchased by the person Officer Miller identified as Appellant from the video
surveillance. Id. at 39, 189-192. The victim’s friend, Kerron Denmark,
testified that on the day in question, a man dressed all in black approached
Denmark and the victim, asked them for marijuana, and wielded a gun at
them. N.T., 3/10/2014, at 64-66, 75. Denmark initially fled, but returned to
help the injured victim after he heard shots fired. Id. In totality, the facts
at trial demonstrated that Appellant had a shared intent with his co-defendant
to follow, physically confront, and shoot the victim and Appellant took overt
steps towards this shared criminal goal. Moreover, it does not matter which
co-defendant actually fatally shot the victim, because the Commonwealth
proved the conspiracy beyond a reasonable doubt each actor is responsible
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for the substantive offenses that served as the illicit objectives of the
conspiracy. Accordingly, appellate counsel was not ineffective for failing to
argue that the evidence was insufficient to convict Appellant. Therefore,
Appellant’s second issue fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/19
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