Com. v. Jordan, J. ( 2022 )

J-S31008-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JOSHUA JORDAN
Appellant No. 429 EDA 2021
Appeal from the PCRA Order Entered January 15, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-12114-2013
BEFORE: STABILE, J., KING, J. and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 14, 2022
Appellant, Joshua Jordan, who is serving a mandatory life sentence for
first-degree murder and a consecutive term of imprisonment for other
convictions, appeals from an order denying his petition under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court accurately summarized the evidence adduced during
trial as follows:
At trial, the Commonwealth presented the testimony of
Philadelphia Police Detectives Omar Jenkins and John
Komorowski, Philadelphia Police Officers Michael Kilroy, Christian
Cruz, Craig Perry, Jesus Cruz, Robert Bakos, and Brian Waltman,
Philadelphia Deputy Medical Examiner Dr. Albert Chu, Unique
Riggins, Kenneth White, Shawn Adams, and Isaac Guy.
[Appellant] testified on his own behalf and presented the
testimony of Andrea Jordan and Elbert Jordan. Viewed in the light
most favorable to the Commonwealth as the verdict winner, the
evidence established the following.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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On July 14, 2014, at approximately 9:58 p.m., Craig Jackson, the
decedent, was playing a game of basketball at the courts at B and
Olney Streets in Philadelphia. Jackson’s team was playing against
[Appellant]’s team. As the game progressed, Jackson and
[Appellant] fouled each other, inciting an argument that
escalated, with a physical fight seemingly imminent. [Appellant]
left the court, went to his book bag, and withdrew a semi-
automatic firearm, pointing it at Jackson. Jackson told [Appellant]
“If you’re going to shoot, go ahead and shoot.” [Appellant]
responded by shooting at Jackson multiple times, striking Jackson
once in the left chest, and once in the left buttock.
[Appellant] then fled the scene, placing the gun back into the book
bag. Jackson was transported to Einstein Hospital by emergency
medical personnel, where he was pronounced dead on July 14,
2013. Witnesses Unique Riggins and Isaac Guy saw [Appellant]
later that night. [Appellant] had changed his clothes and told
Riggins and Guy, “I’m not playing with this nigger. If he lives, I’m
going to shoot him again.”
In police interviews shortly after the shooting, witnesses Riggins
and Shawn Adams both identified [Appellant] as the shooter from
a photo array. Police attempted to arrest [Appellant] at home on
July 20, 2013, but he was not present at the time. Police
encountered [Appellant] on the street on July 21, 2013 and asked
him to identify himself. [Appellant] gave a false name, and
multiple birthdates. After being shown a photograph the police
had retrieved of the person whose name [Appellant] was using,
[Appellant] gave his real name and birthdate. Upon his arrest,
[Appellant] stated that “he wasn’t on the basketball courts that
night.”
While in prison awaiting trial, [Appellant] made a series of phone
calls. In one conversation, [Appellant] told his mother that he
“really should’ve ran.” In several other conversations, he
repeatedly asked whether there were video cameras covering the
playground, making sure that his brother Isaiah had “checked
every aspect of that park.” In another conversation, [Appellant]
and Isaiah urgently discussed the problem that someone named
“Pete” had the gun and wanted to “swap it out” instead of
destroying it. Isaiah assured [Appellant] that he would “break
that jawn down ... and throw it, throw it, throw it,” to which
[Appellant] replied, “You got it?” In another conversation, after
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hearing that the defense investigator confirmed that there were
no cameras covering the crime scene, [Appellant] told Isaiah, “I
was at the crib through wink wink. Know what I’m saying I was
at the crib.” Isaiah and [Appellant] also discussed the problem of
“the motherfuckers that saying [Appellant] did it.” Isaiah assured
[Appellant] that they would find out who those people were before
court.
PCRA Court Opinion, 4/22/21, at 5-6 (citations omitted).
On July 15, 2016, a jury found Appellant guilty of one count each of first
degree murder (18 Pa.C,S.A. § 2502), possession of a firearm without a
license (18 Pa.C.S.A. § 6106), possession of a firearm on the streets of
Philadelphia (18 Pa.C.S.A. § 6108), and possession of an instrument of crime
(18 Pa.C.S.A. § 907). The court imposed the mandatory sentence of life in
prison for the murder charge (18 Pa.C.S.A. § 1102(a)(1)) and sentenced
Appellant to a consecutive aggregate term of 6½ to 13 years’ imprisonment
on the remaining charges. The court added an additional 3 to 6 months’
consecutive imprisonment for contempt of court after defendant yelled an
expletive to the decedent’s family after sentencing.
Appellant filed a direct appeal, and on December 29, 2017, this Court
affirmed his judgment of sentence, holding, inter alia, that Appellant waived
his challenge to the sufficiency of the evidence due to the vagueness of his
Pa.R.A.P. 1925 concise statement of matters raised on direct appeal.
Commonwealth v. Jordan, 2017 WL 6629526, *2 (Pa. Super., Dec. 29,
2017).
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On July 31, 2018, the Pennsylvania Supreme Court denied Appellant’s
petition for allowance of appeal. On November 26, 2018, Appellant filed a
timely pro se PCRA petition. The PCRA court appointed James Berardinelli,
Esquire to represent Appellant. On January 4, 2020, Mr. Berardinelli was
relieved, and on January 31, 2020, Gina Amoriello, Esquire was appointed to
represent Appellant. On March 20, 2020, pursuant to Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988), Ms. Amoriello filed a letter seeking
leave to withdraw as counsel because there was no merit to Appellant’s PCRA
claims and no other issues in the record had merit. Due to administrative
issues caused by the coronavirus pandemic, the PCRA court did not receive
the no-merit letter until June 8, 2020. On July 8, 2020, the PCRA court issued
a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s PCRA
petition without an evidentiary hearing. On July 10, 2020, the PCRA court
received Appellant’s pro se response to the no-merit letter. Appended to this
response was Appellant’s pro se motion to amend his PCRA petition. On
August 3, 2020, Appellant filed a response to the Rule 907 notice. On October
21, 2020, Ms. Amoriello filed a reply to Appellant’s Rule 907 response. On
November 13, 2021, the PCRA court denied Ms. Amoriello’s motion for leave
to withdraw and ordered her to respond to Appellant’s motion to amend his
PCRA petition. On January 3, 2021, Ms. Amoriello filed a supplemental Finley
letter stating that she found no issues of arguable merit in the motion to
amend. On January 15, 2021, the PCRA court dismissed Appellant’s PCRA
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petition, granted Ms. Amoriello leave to withdraw her appearance, and
instructed Appellant that he could either proceed pro se or through privately
retained counsel.1 Acting pro se, Appellant filed a timely appeal.
Appellant has filed a pro se brief in this Court in which he raises a
number of issues, which we re-order for the sake of convenience:
1. Did not the PCRA court err when it appointed Gina Amariello to
represent Appellant during his PCRA proceeding after she had
already filed a no-merit letter and made it abundantly clear she
had no interest in representing Appellant and complained to PCRA
courts that she could not represent Appellant effectively thus
creating a conflict of interest and denying Appellant effective
assistance of PCRA counsel?
2. Appellant’s 6th and 14th Amendment rights under the United
States Constitution and his State Constitutional right under Article
1 sections 9, 13 of the Pennsylvania Constitution were violated
when the prosecution failed to turn over to the defense regarding
homicide Detective Omar Jenkins’ internal affairs investigative
records and misconduct records concerning history of fabricating
witnesses’ statements.
(i). To the extent that this court finds that the prosecution
was not obligated to disclose the evidence to Appellant’s
counsel, then Appellant was denied effective assistance of
counsel when his trial attorney failed to uncover and
introduce Detective Jenkins’ misconduct record.
3. Did not the prosecution violate the 14th amendment under
Brady v. Maryland, 373 U.S. 63 (1963) by illegally suppressing
Internal Affairs investigative reports and/or complaints regarding
Detective Omar Jenkins’ coercive and illegal tactics in a separate
homicide case against then defendant Roca Ford, establishing a
prime facie case for an evidentiary hearing to determine or record
whether the investigative tactics employed by Jenkins establish a
____________________________________________
1 We have reviewed Ms. Amariello’s letters to the PCRA court and conclude
that they satisfactorily explain why each of the issues raised in Appellant’s
original PCRA petition and supplemental filings are devoid of merit.
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pattern, custom and practice of coercing witnesses into identifying
innocent persons of crimes they did not commit and whether such
suppressed evidence would have been relevant to the jury in
present case? Was not PCRA counsel ineffective for failing to raise
this claim?
4. Were not Appellant’s constitutional rights violated when the
prosecution directly or constructively via investigation
detective(s) allowed material ballistics evidence vital to
Appellant’s defense to be lost or destroyed without attempting to
locate, prevent and secure such evidence pursuant to guidelines
set by the United States Supreme Court in [Arizona v.
Youngblood, 488 U.S. 51 (1988)], involving spoliation issues?
Was not PCRA counsel ineffective for failing to raise this claim?
5. Was not Appellant’s constitutional right violated when the
prosecution illegally suppressed material, ballistics evidence, vital
to Appellant’s defense, via the investigating detective, as alluded
to in Appellant’s counsel’s brief to the Pennsylvania Superior court
on direct review? Was not PCRA counsel ineffective for failing to
raise this claim?
6. Was not Appellant denied effective assistance of counsel when
his pre-trial, trial and appellate counsel failed to investigate a
probable Brady violation? Is the illegal suppression or
constructive suppression of material ballistics evidence missing
from discovery as alluded to in counsel’s brief to the Pennsylvania
Superior Court? Was not PCRA counsel ineffective for failing to
raise this claim?
7. Was not Appellant denied effective assistance of counsel when
his pre-trial, trial and appellate attorneys failed to investigate a
possible spoliation claim which demanded an on-the-record
determination of good or bad faith effort, of the prosecution and
its agent in locating and preventing the loss or destruction of, or
securing the missing ballistics evidence alluded to in appellate
counsel’s brief to the Pennsylvania Superior Court on direct
review? Was not PCRA counsel ineffective for failing to raise this
claim?
8. Was Appellant’s constitutional right violated when the
Philadelphia Police Department failed to conduct a proper crime
scene investigation and where there was missing discovery? Was
not PCRA counsel ineffective for failing to raise this claim?
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9. Was Appellant denied due process of law when the scene
investigator falsely testified about the crime scene photo
explaining that the crime scene photos he was testifying to were
taken roughly 3 years prior to testifying, when in actuality those
photos were taken days before his testimony? Was not trial
counsel ineffective for failing to highlight this? Was not PCRA
counsel ineffective for failing to raise this claim?
10. Whether the trial and Superior Court’s ruling on direct appeal
regarding Appellant’s counsel’s waiver of Appellant’s sufficiency of
the evidence challenge a declaration of Appellant’s counsel’s
ineffectiveness for failing to preserve an appealable claim in
accordance with Pa.R.A.P 302(a), and whether a sufficiency
challenge based upon such neglect is cognizable under the PCRA,
requiring relief? Was not PCRA counsel ineffective for failing to
raise this claim?
11. Was not Appellant denied effective assistance of counsel when
his attorney failed to investigate Appellant’s case or introduce
Appellant’s high school transcripts from military school which he
attended for 4 years being that Commonwealth witness Unique
Riggins falsely testified that he knew the shooter from Olney High
school, which Appellant never attended? Was PCRA counsel
ineffective for failing to raise this claim?
12. Should Appellant’s case be remanded to the PCRA court so
that Appellant can raise several claims regarding PCRA counsel’s
ineffectiveness?
Appellant’s Brief at 11-13 (edited for grammar and form).
In an appeal from an order denying PCRA relief, we must determine
whether the PCRA court committed an error of law and/or whether the record
supports its findings of fact. Commonwealth v. Watkins, 108 A.3d 692,
701 (Pa. 2014). We review the PCRA court’s legal conclusions de novo. Id.Where the record supports the PCRA court’s findings of fact, they are binding
on this Court. Id. To prevail on a claim of ineffective assistance of counsel,
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a PCRA petitioner must plead and prove by a preponderance of the evidence
each of the following: (1) that the underlying issue is of arguable merit; (2)
that counsel had no strategic basis in support of the disputed action or
inaction; and (3) that counsel’s error was prejudicial, i.e., that there is a
reasonable probability that the outcome of the proceeding would have been
different but for counsel’s error. Commonwealth v. Spotz, 84 A.3d 294,
311-12 (Pa. 2014). “[A] finding that a chosen strategy lacked a reasonable
basis is not warranted unless it can be concluded that an alternative not
chosen offered a potential for success substantially greater than the course
actually pursued.” Id. at 312. For purposes of prejudice, “[A] reasonable
probability is a probability that is sufficient to undermine confidence in the
outcome of the proceeding.” Id. “A failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of ineffectiveness.”
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
The PCRA court may dismiss a petition without a hearing when it is
satisfied that there is no genuine issue concerning any material fact and that
further proceedings would serve no purpose. Pa.R.Crim.P. 907(1). If PCRA
counsel seeks to withdraw on the ground that the issues raised by the PCRA
petitioner are without merit, she must file a no-merit letter, send the petitioner
copies of the application to withdraw and no-merit letter, and advise the
petitioner of his right to proceed pro se or with a privately retained attorney.
Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019). The
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no-merit letter must set forth: 1) the nature and extent of counsel’s review of
the case; 2) each issue that the petitioner wishes to raise on appeal; and 3)
counsel’s explanation of why each of those issues is meritless. Id. Where the
no-merit letter does not discuss all of the issues that the convicted defendant
has raised in a first PCRA petition and explain why they lack merit, it does not
satisfy these mandatory requirements and dismissal of the PCRA petition
without requiring counsel to file an amended PCRA petition or a further,
adequate no-merit letter is a deprivation of the right to counsel on the PCRA
petition. Id.Appellant argues that the PCRA court erred by issuing an order
“reappointing” Ms. Amariello to represent him after she filed her initial no-
merit letter and the court issued a Rule 907 notice. We disagree.
In this case, the court appointed Ms. Amariello to represent Appellant in
his PCRA proceeding. After reviewing Appellant’s PCRA petition, Ms. Amariello
filed a no-merit letter seeking leave to withdraw on the ground that no issues
raised by Appellant, and no other issues in the record, had merit. The court
thereupon issued a Rule 907 notice. Appellant responded to the Rule 907
notice by filing a motion to amend his PCRA petition. The court denied Ms.
Amariello leave to withdraw and directed her to respond to the issues in the
motion to amend. She filed a second no-merit letter concluding that none of
the new issues had merit. The court entered an order denying PCRA relief and
permitting Ms. Amariello to withdraw.
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These facts demonstrate that the court did not “reappoint” Ms.
Amariello, for it only appointed her to represent Appellant once. The order
that Appellant mischaracterizes as a “reappointment” order merely required
Ms. Amariello to complete her duties under her original appointment by
reviewing Appellant’s motion to amend his PCRA petition. We think this order
was entirely proper. It ensured that Appellant received effective
representation by directing Ms. Amariello to review the record a second time
and determine (again) whether there existed any issue(s) of arguable merit.
It also was consistent with the purpose of no-merit letters articulated in
Kelsey, that is, to guarantee that counsel seeks leave to withdraw only after
she reviews all issues raised by the PCRA petitioner.2 Id. at 1139.
In his next two arguments, Appellant claims that the Commonwealth
withheld evidence of Detective Jenkins’ misconduct in violation of Brady, and
that Appellant’s attorneys, including PCRA counsel, were ineffective in failing
to raise this violation.3 We disagree.
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2 Since Appellant does not challenge the contents of the no-merit letters, we
will not review their content. Commonwealth v. Pitts, 981 A.2d 875, 879
(Pa. 2009), abrogated on different grounds, Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021) (appellate court may not sua sponte review
sufficiency of no-merit letter when defendant has not raised such issue).
3In Bradley, supra, our Supreme Court expanded the opportunity for a PCRA
petitioner to raise claims of PCRA counsel’s ineffectiveness. Previously, “the
sole method by which a petitioner c[ould] challenge the ineffectiveness of
PCRA counsel [wa]s by filing of a response to the PCRA court’s Rule 907
dismissal notice.” Id., 261 A.3d at 386. Bradley abandoned that approach
(Footnote Continued Next Page)
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To establish a Brady violation, the defendant must prove:
(1) evidence was suppressed by the state, either willfully or
inadvertently; (2) the evidence was favorable to the defendant,
either because it was exculpatory or because it could have been
used for impeachment; and (3) the evidence was material, in that
its omission resulted in prejudice to the defendant. However, the
mere possibility that an item of undisclosed information might
have helped the defense, or might have affected the outcome of
the trial, does not establish materiality in the constitutional sense.
Rather, evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.
Commonwealth v. Wenzel, 248 A.3d 540, 550 (Pa. Super. 2021).
The PCRA court held that Appellant failed to establish a Brady violation
relating to evidence of Detective Jenkins, reasoning as follows:
In support of his Brady claim regarding Detective Jenkins,
[Appellant] relies on a civil case that Recco Ford, the defendant in
[an] unrelated homicide, brought against Jenkins in federal court
. . . In his [Rule] 907 Response, [Appellant] attached a copy of
the complaint in that case, Ford v. City of Philadelphia, et al.,
2012 WL 5228936 (E.D.Pa.). While [Appellant] erroneously refers
to the complaint as “a copy of Detective Jenkins’ internal affairs
file,” [Appellant] actually proffered no evidence to show that any
internal affairs investigative records exist regarding Detective
Jenkins. [Rule] 907 Response at p. 2.
Moreover, in her investigation of [Appellant]’s case, PCRA counsel
[Amariello] contacted the Conviction Integrity Unit of the District
Attorney’s Office and “was advised that there was no ‘disclosure
____________________________________________
by holding that “a PCRA petitioner may, after a PCRA court denies relief, and
after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s
ineffectiveness at the first opportunity to do so, even if on appeal.” Id. at
401. Thus, Appellant may claim in this Court that Ms. Amariello was
ineffective for failing to claim that the Commonwealth withheld evidence of
Detective Jenkins’ misconduct, even though he did not raise this claim below.
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packet’ for [Detective Jenkins].” Supplemental Finley Letter at
p. 4. PCRA counsel also attempted to contact the Commonwealth
witnesses who originally provided statements to Detective Jenkins
but was unable to reach those witnesses to obtain any support for
[Appellant’s] contention that Jenkins committed misconduct in
this case. Id. Accordingly, PCRA counsel correctly concluded that
she was unable to support [Appellant]’s claim that Brady material
was withheld regarding Detective Jenkins.
Additionally, even if such evidence had been withheld, [Appellant]
could not establish prejudice. While Detective Jenkins did
interview all four eyewitnesses, he was not the lead detective on
the case and did not take any statements alone. Detective Aitken,
not Detective Jenkins, took Riggins’ statement and signed it as
witness. Statement of Unique Riggins 7/17/2013. Detective
Jenkins and Detective Grebloski took Adams’ statement, with
Detective Grebloski signing as witness. Statement of Shawn
Adams 7/19/2013. Although the signature page of White’s
statement is missing, Detective Jenkins and Detective Tolliver
took White’s statement together. Statement of Kenneth White
7/15/2013. Detective Komorowski and Detective Tolliver took the
statement of the final eyewitness, Isaac Guy, who verified his
statement during trial. Statement of Isaac Guy 7/17/2013; N.T.
7/13/2016 at 154, 174.
Accordingly, Detective Jenkins was not in a position to coerce the
eyewitnesses in this case or fabricate their statements. Therefore,
the concealment of any evidence in unrelated cases regarding
Officer Jenkins’ alleged behavior would not have prejudiced
[Appellant].
PCRA Court Opinion, 4/22/21, at 11-12. Having reviewed the record, we
conclude that the PCRA court correctly concluded that Appellant’s claims
concerning Detective Jenkins lack arguable merit, and, in the alternative, fail
to satisfy the prejudice prong of the test for ineffectiveness. Accordingly, no
relief is due.
Next, Appellant argues that the Commonwealth violated his
constitutional rights by concealing ballistics evidence from the crime scene or
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allowing this evidence to be destroyed, and that all counsel were ineffective
for failing to raise this claim. We disagree. The PCRA court analyzed this
issue as follows:
The evidence that [Appellant] claims prosecutors withheld is “the
location of the spent projectiles” from the shooting. Response to
Finley Letter at p. 4. [Appellant] claims that the fact that no
ballistics evidence was presented to the jury “proves that this
issue [has] merit and that such evidence was missing from the
case.” [Rule] 907 Response at p. 2. [Appellant] contends that
the placement of ballistics evidence recovered from the site
“would be impeaching” if it did not match witness statements.
Id.; PCRA Petition at p. 18. [Appellant] also contends that “any
DNA or fingerprints [that] may have been recoverable from the
ballistics would have been significant in determining the identity
of the shooter” and “other scientific facts may have been
recoverable.” PCRA Petition at p. 19.
[Appellant] proffered no evidence to support his contention that
prosecutors withheld any ballistics evidence from the defense.
His bald contention that such evidence exists and that it would be
favorable to the defense is entirely speculative and, therefore, did
not entitle [Appellant] to an evidentiary hearing. See, e.g.,
Commonwealth v. Roney, 79 A.3d 595, 604-605 (Pa. 2013)
(defendant must proffer evidence to support a PCRA claim to be
entitled to a hearing; an evidentiary hearing is not a fishing
expedition to support a speculative claim).
Moreover, there is nothing in the record suggesting that the police
or prosecutors concealed information about the location of any of
the fired cartridge casings (“FCC’s”). Rather, the trial evidence
demonstrated that the location of the FCC’s at the time police
arrived had little or no probative value. Multiple witnesses
testified that there were 10 players on the court where the
shooting took place in addition to dozens of other people playing
and watching. There was a mass exodus from the park when the
shooting started. Many people returned to the court after the
shooting and a few attempted to aid the victim. All of this
movement occurred before the police arrived at the scene. All of
this activity was highly likely to disturb the original locations of
the FCC’s.
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In addition, none of the witnesses pinpointed the location of the
shooter in a manner that could have been impeached by the
location of the FCC’s. Neither Riggins nor Adams mentioned the
location of the shooter in either their in-court testimony or their
statements to police. White testified at trial that “wherever the
shooting was from, it was from a distance. It wasn’t on the court.”
This testimony corresponds with his statement to police that the
shooter was “about 12 yards off the basketball court.” In his
testimony, Casty confirmed his statement to police that he did not
see the shooting but saw [Appellant] running from the courts.
Since no witness claimed to know where the shooter was standing,
the location of the FCC’s would be neither exculpatory nor
impeaching. As to the possibility that DNA, fingerprints of
someone other than [Appellant], or “other scientific facts” may
have been recoverable from the FCC’s, there is nothing in the
record, nor anything proffered by [Appellant], to support this
claim.
Finally, the record shows that if anyone sought to destroy ballistics
evidence in this case, it was [Appellant]. As stated above, in
prison recordings played for the jury, [Appellant] was advised by
his brother Isiah that someone named “Pete” had the gun and
wanted to “swap it out” instead of destroying it. Isiah assured
[Appellant] he would “break that jawn down ... and throw it, throw
it, throw it,” to which [Appellant] replied, “You got it.” The murder
weapon was never recovered.
PCRA Court Opinion, 4/22/21, at 13-15 (trial transcript citations omitted).
Having reviewed the record, we conclude that the PCRA court correctly
concluded that Appellant’s claims concerning ballistics evidence lack arguable
merit. Accordingly, no relief is due.
Next, Appellant contends that the Philadelphia Police Department failed
to conduct a proper crime scene investigation, that there was missing
discovery concerning this claim, that a crime scene investigator gave false
testimony about the crime scene, and that all counsel were ineffective for
failing to raise these claims. We disagree.
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The PCRA court reasoned:
As to the crime scene investigation, there is no evidence in the
record, nor in anything proffered by [Appellant], that suggest that
there was anything omitted from the crime scene investigation
that would have somehow assisted the defense. [Appellant]’s
claim is entirely based upon speculation and is therefore meritless.
Similarly, there is no reason to believe that any surveillance video
would have been helpful to [Appellant]. To the contrary, the
record demonstrates that surveillance video, if anything, would
have inculpated [Appellant]. During [Appellant]’s prison calls with
his brother Isaiah, [Appellant] repeatedly asked his brother to
check the park for surveillance cameras as he plotted with his
brother to intimidate witnesses and set up a false alibi.
Unquestionably, [Appellant] was interested in insuring that there
was no surveillance video as he planned his defense.
As to [Appellant]’s claim that discovery was missing, [Appellant]
fails to specify what discovery was missing.
PCRA Court Opinion, 4/22/21, at 17 (trial transcript citations omitted).
With regard to the alleged false testimony of the crime scene
investigator, the PCRA court wrote:
At trial, Officer Perry testified that on March 18, 2016, between
8:00 p.m. and 8:30 p.m., he took photographs of the crime scene.
Those photographs were presented to the jury. Contrary to
[Appellant’s] claim, Officer Perry never represented that the
photos shown at trial were taken “three years prior to testifying.”
Therefore, [Appellant’s] claim is frivolous. Trial counsel cannot be
ineffective for failing to highlight testimony that never occurred.
Id. at 18.
Having reviewed the record, we conclude that the PCRA court correctly
concluded that Appellant’s claims concerning crime scene evidence and the
investigator’s testimony lack arguable merit. Accordingly, no relief is due.
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Next, Appellant argues that his attorney on direct appeal was ineffective
for failing to preserve a challenge to the sufficiency of the evidence, and that
PCRA counsel was ineffective for failing to pursue this claim during PCRA
proceedings. We disagree. The PCRA court correctly reasoned that this claim
lacked arguable merit because the evidence, viewed in the light most
favorable to the Commonwealth, was sufficient to sustain Appellant’s
convictions on all charges.
The PCRA court reasoned:
1. First Degree Murder
“The evidence is sufficient to establish first-degree murder where
the Commonwealth proves that: (1) a human being was
unlawfully killed; (2) the person accused is responsible for the
killing; and (3) the accused acted with the specific intent to kill.”
Commonwealth v. Edwards, 903 A.2d 1139, 1146 (Pa. 2006).
a. Jackson was unlawfully killed.
The Commonwealth presented evidence at trial that Jackson was
killed by a gunshot to the left chest. Jackson was also shot in his
left buttock. This evidence was sufficient for the jury to find that
Jackson was unlawfully killed.
b. [Appellant] was responsible for killing Jackson.
Riggins, Adams, and White, all of whom knew [Appellant] from
the neighborhood, testified that the altercation between
[Appellant] and Jackson started when they fouled one another
while playing basketball. Each of these witnesses gave a
statement to police that he witnessed [Appellant] shoot Jackson.
Guy, who also knew [Appellant] from the neighborhood, testified
that he saw [Appellant] running from the shooting carrying a gun.
Riggins and Guy saw [Appellant] later that night walking down
Rising Sun Avenue. [Appellant] told Riggins and Guy, “I’m not
playing with this nigger. If he lives, I’m going to shoot him again.”
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The jury also heard testimony that police encountered [Appellant]
on the street on July 21, 2013 and asked him to identify himself.
[Appellant] gave the name of one of his brothers, and multiple
birthdates. Only after being shown a photograph the police had
retrieved of the brother whose name [Appellant] was using did
[Appellant] gave his real name and birthdate. Upon his arrest,
[Appellant] spontaneously stated that he “wasn’t on the basketball
courts that night.”
The jury also heard a series of highly incriminating phone calls
[Appellant] made while in prison awaiting trial. In one
conversation, [Appellant] told his mother that he “really should’ve
ran.” He repeatedly asked whether there were video cameras
covering the playground, making sure that his brother, Isaiah, had
“checked every aspect of that park.” In another conversation,
[Appellant] and Isaiah urgently discussed the problem that
someone named “Pete” had the gun and wanted to “swap it out”
instead of destroying it. Isaiah assured [Appellant] that he would
“break that jawn down ... and throw it, throw it, throw it,” to which
[Appellant] replied, “You got it?” In another conversation, after
hearing that the defense investigator confirmed that there were
no cameras covering the crime scene, [Appellant] told Isaiah, “I
was at the crib though wink wink. Know what I’m saying I was at
the crib.” Isaiah and [Appellant] also discussed the problem of
“the motherfuckers that saying [[Appellant]] did it.” Isaiah
assured [Appellant] that they would find out who those people
were before court.
All of this evidence was sufficient for the jury to find that
[Appellant] killed Jackson.
c. [Appellant] acted with specific intent to kill.
“The specific intent to kill may be inferred where ... the accused
uses a deadly weapon on a vital part of the victim’s body.”
Commonwealth v. Cash, 137 A.3d 1262, 1269 (Pa. 2016). The
medical examiner testified that Jackson was shot once in his chest
and once in his buttock. Therefore, the Commonwealth showed
that [Appellant] used a deadly weapon on a vital part of Jackson’s
body, his chest. This evidence was sufficient to prove that
[Appellant] acted with the intent to kill required to support a
conviction for first-degree murder. See Cash, 137 A.3d at 1269;
Commonwealth v. Briggs, 12 A.3d 291, 306 (Pa. 2011);
Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011).
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Accordingly, the record contained sufficient evidence to allow a
reasonable factfinder to conclude, beyond a reasonable doubt,
that [Appellant] was guilty of first-degree murder.
2. Carrying a Firearm Without a License
A person violates section 6106 of the Uniform Firearms Act if he
“carries a firearm in any vehicle or ... carries a firearm concealed
on or about his person, except in his place of abode or fixed place
of business, without a valid and lawfully issued license.” 18
Pa.C.S.[A.] § 6106(a)(1). “Firearm” is defined by section 6102 to
include “[a]ny pistol or revolver with a barrel length less than 15
inches.” 18 Pa.C.S[A.] § 6102. In order to fall under the purview
of section 6106, the object must also either be operable or the
[Appellant] must have under his control the means to make the
object operable. See Commonwealth v. Gainer, 7 A.3d 291,
297 (Pa. Super. 2010), app. denied, 23 A.3d 1055 (Pa. 2011).
The evidence as described above established that [Appellant] shot
Jackson multiple times using a .40 caliber handgun. The
Commonwealth and [Appellant] stipulated that [Appellant] did not
have a license to carry a firearm at the time of the shooting.
In addition, there was testimony that [Appellant] concealed the
gun in a bookbag that he carried with him both to and from the
basketball court that day. Accordingly, the record contained
sufficient evidence to allow a reasonable factfinder to conclude,
beyond a reasonable doubt, that [Appellant] was guilty of carrying
a firearm without a license.
3. Carrying a Firearm on a Public Street or Public Properly in
Philadelphia
A person violates section 6108 of the Uniform Firearms Act if he
“carr[ies] a firearm, rifle or shotgun at any time upon the public
streets or upon any public property in [Philadelphia].” 18
Pa.C.S.[A.] § 6108. The evidence described above established
that [Appellant] was in possession of a handgun while on a public
basketball court in Philadelphia. That was sufficient to prove that
[Appellant] was guilty of carrying a firearm on public streets or
public property in Philadelphia.
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4. Possessing an Instrument of Crime (“PIC”)
To sustain a conviction for PIC, the Commonwealth must establish
that [Appellant] “possesse[d] any instrument of crime with intent
to employ it criminally.” 18 Pa.C.S.[A.] § 907(a). An “instrument
of crime” is defined as “(1) [a]nything specially made or specially
adapted for criminal use .... [or) (2) [a]nything used for criminal
purposes and possessed by the actor under circumstances not
manifestly appropriate for lawful uses it may have.” 18
Pa.C.S.[A.] § 907(d).
The evidence as described above established that [Appellant]
intentionally shot Jackson multiple times with a handgun;
intending to kill him. Therefore, the Commonwealth proved that
[Appellant] possessed the gun for a criminal purpose, used it to
commit a crime, and possessed it under circumstances not
appropriate for its lawful use. Accordingly, the record contained
sufficient evidence to allow a reasonable factfinder to conclude,
beyond a reasonable doubt, that [Appellant] was guilty of PIC.
PCRA Court Opinion, 4/22/21, at 19-23 (trial transcript citations omitted).
Having reviewed the record, we conclude that the PCRA court correctly
concluded that Appellant’s claims concerning the sufficiency of the evidence
lack arguable merit. Accordingly, no relief is due.
Next, Appellant argues that trial counsel was ineffective when he failed
to introduce Appellant’s high school transcripts from military school to
impeach Commonwealth witness Riggins’ testimony that Riggins knew
defendant from Olney High School. Appellant also argues that PCRA counsel
was ineffective for failing to pursue this claim during PCRA proceedings. We
disagree.
The PCRA court reasoned:
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[Appellant] argues that Riggins’ statement to police that he
recognized [Appellant] from a high school which [Appellant] did
not attend “should of [sic] raised red flags as to the truthfulness
of what he claimed, that he witnessed the shooting.” Motion to
Amend PCRA at ¶ 4. Riggins testified at trial that he knew
[Appellant] in passing but they were not friends. He testified that
he knew [Appellant]’s brother because they attended Olney High
School together. Riggins then testified that, although his
statement to police said that he and [Appellant] attended Olney
High School together, that was likely a typo because he went to
school with [Appellant]’s brother, not [Appellant]. On cross-
examination, defense counsel and Riggins had the following
exchange:
[Defense Counsel]: Now, going to the following page, seven
lines down, "I know Josh from high school." Is that true?
[Riggins]: No. I know his brother.
[Defense Counsel]: You know his brother?
[Biggins]: Yes, sir.
[Defense Counsel]: So you didn’t say those words?
[Riggins]: No. I doubt if I said that.
[Defense Counsel]: The police wrote down something different,
correct?
[Riggins]: Exactly.
[Defense Counsel]: At the bottom of the page, how long have
you known Josh? “ANSWER: For about six years. We went to
Olney High School.” That’s false, right?
[Riggins]: That's false. He probably was talking about Zay, his
brother.
[Defense Counsel]: So it seems like the police are confusing Zay
with Josh?
[Riggins]: Yes, sir.
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Accordingly, the jury was aware that [Appellant] did not attend
Olney High School, and that the assertion to the contrary in
Riggins’ statement to police was in error. [Appellant] testified
during both direct and cross-examination that he attended
Philadelphia Military Academy at Elverson and not Olney High
School. In his closing argument, trial counsel reiterated that
[Appellant] never attended Olney High School. The
Commonwealth never claimed that [Appellant] attended Olney
High School. Therefore, it would have been cumulative and
completely unhelpful for trial counsel to “investigate ... and
introduce” [Appellant]’s high school transcripts. [Appellant] was
not prejudiced by counsel’s failure to introduce this cumulative
evidence.
PCRA Court Opinion, 4/22/21, at 28-29. Having reviewed the record, we
conclude that the PCRA court correctly concluded that Appellant’s claims
concerning trial counsel’s failure to introduce the high school transcript did not
prejudice Appellant. Accordingly, no relief is due.
Finally, Appellant requests that this case be remanded to the PCRA court
in order for him to raise additional claims of ineffective assistance against
PCRA counsel. We disagree. While Appellant has the right to contend in this
appeal that PCRA counsel was ineffective, he must also comply with other
well-settled standards of appellate practice. One such standard is the duty to
develop the arguments in his brief beyond mere cursory statements.
Interest of D.C., 263 A.3d 326, 338 (Pa. Super. 2021) (appellant’s claim
failed because “his three-sentence argument is woefully underdeveloped. It
is not the role of this Court to develop an appellant’s argument where the brief
provides mere cursory legal discussion”). As in D.C., Appellant’s request for
a remand suffers from lack of specificity, because he fails to identify the claims
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that he would raise against PCRA counsel. In short, this issue is waived.
Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017) (failure
to properly develop claim in appellate brief renders issue waived).
For the foregoing reasons, we affirm the PCRA court’s order dismissing
Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2022
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