Com. v. Wanamaker, L. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LAMARR WANAMAKER, : No. 3145 EDA 2018
:
Appellant :
Appeal from the PCRA Order Entered September 20, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010007-2011
BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 15, 2019
Lamarr Wanamaker appeals from the September 20, 2018 order
entered by the Court of Common Pleas of Philadelphia County denying relief
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
A previous panel of this court provided the following factual history:
On September [11,] 2010, a group of men, including
Neville Franks and Shakiel Taylor, were walking to a
park at B and Rockland Streets in North Philadelphia.
The group was a few blocks away from the park, on
Ruscomb Street when [a]ppellant and Jerek Anderson
approached the group. Appellant asked, “where the
money at? [W]here the drugs at? I heard you all be
out there selling.” Taylor responded saying that he
did not have any money or drugs. Appellant then took
out a revolver and searched Taylor’s pockets.
Appellant threw the things in Taylor’s pockets on the
ground.
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Appellant demanded to search Franks. Franks
refused. Appellant then shot Franks twice. Franks
died.
Commonwealth v. Wanamaker, 161 A.3d 369 (Pa.Super. 2017)
(unpublished memorandum).
The PCRA court set forth the following:
On July 8, 2011, [appellant] was arrested and charged
with murder, robbery (two counts), simple assault,
firearms not to be carried without a license
(“VUFA 6106”), carrying firearms on a public street in
Philadelphia (“VUFA 6108”), and possession of an
instrument of crime (“PIC”).
On January 22, 2013, [appellant] appeared before
[the trial court] and elected to be tried by a jury. On
January 25, 2013, the jury found [appellant] guilty of
second-degree murder, two counts of robbery,
VUFA 6106, and PIC.[Footnote 1] That same day,
[the trial court] sentenced [appellant] to life
imprisonment without parole for second-degree
murder, and concurrent sentences of ten to twenty
years of imprisonment for each robbery count, three
to six years of imprisonment for VUFA 6106, and one
to two years of imprisonment for PIC, for a total
sentence of life imprisonment.
[Footnote 1] The remaining charges were
nolle prossed.
[Appellant] appealed and on February 7, 2017, the
Superior Court vacated [appellant’s] judgment of
sentence with respect to one count of robbery, and
affirmed the judgment of sentence in all other
respects.[Footnote 2] [See Wanamaker, 161 A.3d
369 (unpublished memorandum).] On March 6, 2017,
[appellant] filed a petition for allowance of appeal,
which the Supreme Court of Pennsylvania denied on
July 6, 2017. [See Commonwealth v. Wanamaker,
169 A.3d 1036 (Pa. 2017).]
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[Footnote 2] The predicate felony for
[appellant’s] second-degree murder
conviction was robbery, so the
second-degree murder conviction and one
of the robbery convictions should have
merged for sentencing purposes.
On February 20, 2018, [appellant] filed the instant,
timely pro se PCRA petition, his first. On June 27,
2018, appointed PCRA counsel filed an amended
petition. After a bifurcated evidentiary hearing on
September 17, 2018 and September 20, 2018, [the
PCRA court] dismissed the petition. On October 14,
2018, [appellant] filed a timely notice of appeal. On
October 16, 2018, [the PCRA court] issued an order
directing [appellant] to file a 1925(b) statement,
which was filed on November 3, 2018.
PCRA court opinion, 12/14/18 at 1-2 (extraneous capitalization omitted). The
PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on December 14,
2018.
Appellant raises the following issues for our review:
I. Did the PCRA [c]ourt err and violate
[a]ppellant’s constitutional rights under the
Sixth and Fourteenth Amendments by finding
that [a]ppellant had not used reasonable
diligence and/or was otherwise untimely in
presenting the after[-]discovered evidence of
Jaleel Lewis?
II. Did the PCRA court err and violate [a]ppellant’s
constitutional rights under the Sixth and
Fourteenth Amendments by finding that
after[-]discovered witness Jaleel Lewis did not
present credible evidence of [a]ppellant’s
innocence?
Appellant’s brief at 3.
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We review the denial of relief pursuant to the PCRA using the following
standard:
“On appeal from the denial of PCRA relief, our
standard of review calls for us to determine whether
the ruling of the PCRA court is supported by the record
and free of legal error.” Commonwealth v.
Washington, [], 927 A.2d 586, 593 ([Pa.] 2007)
(citations omitted). “The PCRA court’s credibility
determinations, when supported by the record, are
binding on this Court; however, we apply a de novo
standard of review to the PCRA court’s legal
conclusions.” Commonwealth v. Roney, [], 79 A.3d
595, 603 ([Pa.] 2013), cert. denied, Roney v.
Pennsylvania, [] 135 S.Ct. 56, [] (2014). To be
eligible for relief under the PCRA, a defendant must
plead and prove that his conviction and/or sentence
resulted from one of the circumstances delineated by
the PCRA. See 42 Pa.C.S.[A.] § 9543(a)(2) (outlining
the requirements to be eligible for PCRA relief).
Among those requirements are that the issue raised
be neither previously litigated nor waived. Id. at
9543(a)(3). “An issue is previously litigated if ‘the
highest appellate court in which the petitioner could
have had review as a matter of right has ruled on the
merits of the issue. . . .’ [42 Pa.C.S.A.] § 9544(a)(2).
An issue is waived ‘if the petitioner could have raised
it but failed to do so before trial, at trial, . . . , on
appeal, or in a prior state postconviction proceeding.’
Id. § 9544(b).” Commonwealth v. Keaton, [], 45
A.3d 1050, 1060 ([Pa.] 2012). “Appellant has the
burden to persuade this Court that the PCRA court
erred and that such error requires relief. [Also, i]t is
well settled that this Court may affirm a valid
judgment or order for any reason appearing as of
record.” Commonwealth v. Wholaver, [], 177 A.3d
136, 144-45 ([Pa.] 2018) (citations omitted).
Commonwealth v. Williams, 196 A.3d 1021, 1026-1027 (Pa. 2018).
Both of appellant’s issues on appeal address the potential testimony of
Jaleel Lewis. Appellant contends that Lewis was at the murder scene, but that
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appellant did not learn Lewis’s first and last name until he and Lewis met on
October 8, 2017, on their way to the dining hall at SCI Houtzdale, and
therefore had no way to contact Lewis before trial. (Appellant’s brief at
10-11.)
In his first issue, appellant contends that the PCRA court erred when it
determined that appellant failed to exercise reasonable diligence in his
attempt to secure Lewis’s testimony. (Id. at 6.)
To 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, [] 402 A.2d 1065, 1066
([Pa.Super.] 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, [] 607 A.2d
725, 729 ([Pa.] 1992). See also Argyrou v. State,
[] 709 A.2d 1194, 1202-03 ([Md.] 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, [] 323 A.2d 295, 296 ([Pa.Super.]
1974). A defendant cannot claim he has discovered
new evidence simply because he had not been
expressly told of that evidence. Commonwealth v.
Crawford, [] 427 A.2d 166, 175 ([Pa.Super.] 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, [] 599 A.2d 630, 642
([Pa.] 1991), cert. denied, 504 U.S. 946 [] (1992).
The concept of reasonable diligence is particularly
relevant where the defendant fails to investigate or
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question a potential witness with whom he has a
close, amicable relationship. See Commonwealth v.
Parker, [] 431 A.2d 216, 218 ([Pa.] 1981) (holding
defendant did not exercise reasonable diligence where
he failed to learn before or during trial of girlfriend’s
confession to murder for which he was on trial). See
also United States v. Vigil, 506 F. Supp.2d 571, 578
(D. N.M. 2007) (observing defendant likely knew
content of new witness’ testimony where defendant
had long-standing personal relationship with witness,
worked with witness, and witness was member of
defendant’s family); Commonwealth v. Weichell, []
847 N.E.2d 1080, 1092 ([Mass.] 2006) (stating
defendant who learned of exculpatory witness
testimony after trial did not exercise due diligence,
where he maintained contact with witness and
circumstances should have alerted him to existence of
evidence claimed to be newly discovered).
Commonwealth v. Padillas, 997 A.2d 356, 363-364 (Pa.Super. 2010),
appeal denied, 14 A.3d 826 (Pa. 2010).
Here, as noted by the PCRA court, appellant was aware that Lewis was
“out there” on the night of the murder. (See PCRA court opinion, 12/14/18
at 6, citing notes of testimony, 9/20/18 at 35-36.) In his brief, appellant
contends that he failed to investigate Lewis’s whereabouts because he only
knew Lewis to be “Shaniqua’s little brother.” (Appellant’s brief at 9.) This
does not absolve appellant of his responsibility to conduct an investigation into
Lewis’s whereabouts. Indeed, appellant knew that Lewis lived somewhere
over on the next block from where appellant lived. (Id. at 8.) Appellant was
also casually acquainted with Shaniqua. (Id. at 9 n.2.) With this information,
appellant, through his counsel and/or an investigator, could have attempted
to obtain Lewis’s cooperation before and during trial. Accordingly, we find
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that the PCRA court’s conclusion that appellant did not adequately explain the
delay in producing Lewis’s testimony is supported by the record and is free of
legal error.
In his second issue on appeal, appellant contends that the PCRA court
erred when it concluded that Lewis’s evidence of appellant’s innocence lacked
credibility. In his argument, rather than defend Lewis’s credibility, appellant
avers that Lewis’s testimony “cannot possibly be considered to be cumulative
of other evidence.” (Appellant’s brief at 16.) In his concise statement of
errors complained of on appeal, appellant only addresses the PCRA court’s
credibility determination as it pertains to Lewis’s testimony. (See appellant’s
Rule 1925(b) statement at 2.) Accordingly, any issue relating to whether
Lewis’s testimony was considered cumulative is waived on appeal.
Commonwealth v. Smyser, 195 A.3d 912, 916 (Pa.Super. 2018), citing
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998);
Pa.R.A.P. 1925(b)(4)(vii) (holding that failing to include an issue in a
Rule 1925(b) statement results in waiver of the issue on appeal).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/19
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