Com. v. Livingston, D. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL LIVINGSTON :
:
Appellant : No. 1761 EDA 2017
Appeal from the PCRA Order June 1, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001554-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIEL LIVINGSTON :
:
Appellant : No. 2149 EDA 2017
Appeal from the PCRA Order June 30, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001552-2011
BEFORE: BENDER, P.J.E., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED JULY 09, 2018
Daniel Livingston appeals from the order dismissing his petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546, without a hearing. Livingston alleges he was entitled to an evidentiary
hearing, and ultimately a new trial, due to trial counsel’s ineffectiveness during
his jury trial. We affirm.
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For a recitation of the complete factual background and procedural
history of this case, we direct the interested reader to the memorandum
decision written by a prior panel of this Court in response to Livingston’s direct
appeal. See Commonwealth v. Livingston, No. 3334 EDA 2012, at 1-6 (Pa.
Super. filed Nov. 8, 2013) (unpublished memorandum).
Briefly, on September 28, 2009, Jesse Jones was walking to the store
when he ran into Livingston, Gerald Outland, and Parrish Holmes standing on
the corner of Locust and Crowson streets in Philadelphia. Jones observed
Outland and Holmes get into a verbal argument that morphed into a physical
altercation. At some point, Outland removed himself from the physical
altercation, walked over to Livingston, removed a gun from Livingston’s
waistband, and used the gun to shoot Holmes in the stomach. Holmes was
taken to the hospital for treatment. When the police interviewed Holmes
concerning his gunshot wound the next day, Holmes informed the police that
Outland shot him with Livingston’s gun.
One month later, Detective William Knecht interviewed Holmes again
concerning the events of September 28, 2009. Holmes identified both Outland
and Livingston from a photo array. Prior to leaving the interview, Holmes,
pointing to the photograph of Livingston, informed Detective Knecht, “if you
ever find me dead, he did it.” N.T., Trial, 7/25/12, at 157. Based upon this
information, Detective Knecht obtained and executed search warrants on both
Outland and Livingston’s homes on November 5, 2009. Subsequent to the
search, Livingston agreed to meet with the detectives, but failed to follow
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through. An arrest warrant was issued for Livingston. However, police were
unable to locate him.
Two days after the police executed the search warrants, Jones ran into
Holmes. Holmes informed Jones that “he was going to get his gun, because
[Livingston] was saying he was going to kill him.” N.T., Trial, 7/26/12, at 67-
68. Ten minutes later, Jones observed Holmes walking towards Boyd and
Woodlawn Street, approximately one block from where Jones was standing on
Chew Street. Holmes walked up to an individual and spoke to him for a few
seconds before being shot five times. Holmes did not survive.
Police recovered a Ruger 9-mm handgun and an ammunition magazine
near the scene. The police were able to determine that all of the cartridge
casings recovered from the scene were fired from the Ruger 9-mm handgun.
Additionally, three fingerprints recovered from the ammunition magazine
matched Livingston’s fingerprints.
Based upon this evidence, Livingston was arrested and charged with
numerous offenses arising from these two incidents. A jury trial commenced
on July 25, 2012. At trial, the Commonwealth presented, in part, the
testimony of Detective Knecht and Jones. Detective Knecht testified regarding
Holmes’s identification of Livingston and his belief that Livingston would kill
him. Jones identified Livingston as the individual who shot Holmes and
recounted that Livingston had informed him before Holmes’s death that “he
was going to kill [Holmes] because he thought he was telling on him.” N.T.,
Trial, 7/26/12, at 63-65.
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On July 31, 2012, the jury convicted Livingston of first-degree murder,
intimidation of a victim, retaliation against a victim, two counts of carrying a
firearm without a license, two counts of possessing an instrument of crime,
and two counts of possession of a firearm by a prohibited person.1
A panel of this Court affirmed his judgment of sentence on November 8,
2013, and our Supreme Court denied his subsequent petition for allocatur.
On December 3, 2014, Livingston filed a timely pro se PCRA petition.
The PCRA court appointed counsel who later filed an amended petition. The
PCRA court issued notice of its intent to dismiss Livingston’s petition without
a hearing, and ultimately dismissed the petition.2 This timely appeal follows.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
____________________________________________
1 As the two counts of possession of a firearm by a prohibited person required
proof of Livingston’s prior felony as an element of the offense, the trial court
severed these charges from its first charge to the jury, and only charged the
jury on these offenses once they had returned with a verdict on Livingston’s
other charges.
2 While the record reflects that Livingston’s PCRA petition collectively
challenged his convictions under both docket numbers, it appears that a
clerical error resulted in different dismissal dates for each docket number.
Thus, the petition was dismissed on June 1, 2017, for the claims arising under
docket number CP-51-CR-0001554-2011, while the claims arising under
docket number CP-XX-XXXXXXX-2011 were not dismissed until June 30, 2017.
As Livingston filed a timely notice of appeal from each of these orders, this
clerical error does not affect our review.
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Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of
law, our scope of review is de novo. See id.“The right to an evidentiary hearing on a post-conviction petition is not
absolute.” Commonwealth v. Walls, 993 A.2d 289, 295 (Pa. Super. 2010)
(citations and brackets omitted). A PCRA court may decline to hold a hearing
where it can determine, from the record, that there are no genuine issues of
material fact. See Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008). “With respect to the PCRA court’s decision to deny a request for an
evidentiary hearing … such a decision is within the discretion of the PCRA court
and will not be overturned absent an abuse of discretion.” Commonwealth
v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citation omitted).
Livingston’s sole issue on appeal asserts the ineffective assistance of
trial counsel. We presume counsel provided effective assistance; Livingston
has the burden of proving otherwise. See Commonwealth v. Pond, 846 A.2d
699, 708 (Pa. Super. 2004). “In order for [an a]ppellant to prevail on a claim
of ineffective assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel which … so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place.” Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa.
Super. 2005) (citation omitted). Further,
[an a]ppellant must plead and prove by a preponderance of the
evidence that: (1) the underlying legal claim has arguable merit;
(2) counsel had no reasonable basis for his action or inaction; and
(3) [a]ppellant suffered prejudice because of counsel’s action or
inaction.
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Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).
A failure to satisfy any prong of the test will require rejection of the entire
claim. See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).
“Arguable merit exists when the factual statements are accurate and
could establish cause for relief. Whether the facts rise to the level of arguable
merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,
540 (Pa. Super. 2015) (citations and internal quotation marks omitted).
“Prejudice is established if there is a reasonable probability that, but for
counsel’s errors, the result of the proceedings would have been different. A
reasonable probability is probability sufficient to undermine confidence in the
outcome.” Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013)
(en banc) (citations and internal quotation marks omitted).
Livingston claims that trial counsel was ineffective in failing to object to
the admission of evidence offered in the form of inadmissible hearsay.
Specifically, Livingston challenges the introduction of Holmes’s statement,
elicited through Detective Knecht’s testimony, that if Detective Knecht ever
found Holmes dead, it was at Livingston’s hand. See N.T., Trial, 7/25/12, at
157. Livingston alleges that this statement is inadmissible hearsay, that trial
counsel had no reasonable basis in failing to object to this statement, and that
this statement was extremely prejudicial.
Conversely, the Commonwealth and PCRA court contend Livingston’s
claim of ineffectiveness fails because the challenged statement is admissible
evidence. Specifically, the PCRA court found that the statement, while
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constituting hearsay, was admissible under Pennsylvania Rule of Evidence
804(b)(6) Statement Offered Against a Party That Wrongfully Caused the
Declarant's Unavailability. We agree.
“Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted by the declarant.” Commonwealth v. Puksar, 740 A.2d
219, 225 (Pa. 1999) (citation omitted). While our rules of evidence generally
prohibit the admission of hearsay, there are several exceptions to the rule.
Relevant to the instant case, Rule of Evidence 804(b)(6) provides:
Rule 804. Hearsay exceptions; declarant unavailable
(a) Criteria for Being Unavailable. A declarant is
considered to be unavailable as a witness if the declarant:
(4) cannot be present or testify at the trial or hearing
because of death or a then-existing infirmity, physical
illness, or mental illness …
(b) The Exceptions. The following are not excluded by the
rule against hearsay if the declarant is unavailable as a
witness:
(6) Statement Offered Against a Party That Wrongfully
Caused the Decedent’s Unavailability. A statement
offered against a party that wrongfully caused -- or
acquiesced in wrongfully causing -- the declarant’s
unavailability as a witness, and did so intending that
result.
Pa.R.E. 804(a)(4), (b)(6).
Under this rule, our courts have found that statements made by a
decedent against defendant, made prior to the decedent’s death, are not
barred by the rules against hearsay if the Commonwealth shows that decedent
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was killed in an attempt to prevent him from participating as a witness in
another matter. See Commonwealth v. Kuncle, 79 A.3d 1173, 1186-1187
(Pa. Super. 2013) (finding decedent’s statement that he was afraid defendant
would attempt to kill him admissible under Rule 804(b)(6) where decedent
was planning to be a witness against defendant in a child custody dispute);
see also Commonwealth v. King, 959 A.2d 405, 413-417 (Pa. Super. 2008)
(holding that Pa.R.E. 804(b)(6) allowed hearsay statements of murder victim
shot to prevent the victim’s testimony regarding illegal arms purchase).
Here, the evidence adduced at trial clearly supports the conclusion that
Livingston’s alleged motive in killing Holmes was to make him unavailable as
a witness in in a trial arising from the September 28, 2009 incident. Livingston
was aware that he was being investigated concerning this incident. Further,
he informed Jones that “he was going to kill [Holmes] because he thought he
was telling on him.” N.T., Trial, 7/26/12, at 64.
As the Commonwealth presented sufficient evidence that Livingston
killed Holmes in order to keep him from testifying, and Holmes was clearly
unavailable as a witness, this evidence was properly introduced under the
forfeiture by wrongdoing exception to the hearsay rule. Accordingly,
Livingston’s claim of trial counsel error lacks arguable merit and, thus, his sole
ineffectiveness claim fails. The PCRA court committed no error in dismissing
the petition without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/18
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