Com. v. Regan, V. ( 2018 )

J-S23034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VASEN REGAN :
:
Appellant : No. 287 EDA 2017
Appeal from the PCRA Order January 12, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009480-2007
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 22, 2018
Appellant, Vasen Regan (“Regan”), appeals from the January 12, 2017,
order entered in the Court of Common Pleas of Philadelphia County, which
denied his first petition filed under the Post-Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. After a careful review, we affirm.
This Court has previously set forth, in part, the facts and procedural
history underlying this case as follow:
On July 31, 2006, Darrick Hampton (“Hampton”) was shot
and killed at the Mill Creek Playground on Parrish Street in
Philadelphia. Hampton was killed by multiple gunshot wounds,
including a bullet to his back that went through his lung and exited
out of his chest. Police Officer Lawrence Webb responded to the
shooting and found Hampton lying on the ground. Hampton was
unresponsive to questioning by Officer Webb. Further, the crowd
that had gathered at the scene did not report any information to
the police. Detective Brian Fetters was assigned to investigate the
murder. Detective Fetters interviewed Regan’s cousin, Cornelius
James (“James”). James stated that Regan had told him on the
night of the shooting that he had “offed an old head” at the Mill
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* Former Justice specially assigned to the Superior Court.
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Creek Playground. James indicated this meant that Regan had
shot the man killed in the playground earlier that night. Detective
Fetters also contacted Richard “Mouse” Johnson (“Johnson”) about
what he had witnessed at the playground. Johnson provided a
statement to the police, which the trial court summarized as
follows:
[Johnson] stated that he knew [Hampton] for over a
year as a drug user and an owner of various properties
in the city. [Johnson] also stated he knew [Regan]
for approximately two weeks from around the
neighborhood. [Johnson] further stated that on the
evening of July 31, 2006, [he] saw [Hampton] at Mill
Creek Playground storming around belligerently,
looking to buy crack cocaine. [Johnson] said he was
occupied with being an MC at a basketball game and
he sent [Hampton] to the other side of the
playground. When [Hampton] returned[,] he
continued to yell, possibly about the size or quality of
the crack. [Hampton] then left the playground and
walked to a Range Rover, subsequently determined to
be his vehicle. During this time, [Johnson] tried to
calm [Hampton] down and also began to speak to
[Regan]. When [Hampton] returned to the
playground[,] he was still upset. [Johnson] saw
[Regan] walk toward [Hampton] and [Johnson] saw
[Regan] pull out a gun. While facing [Hampton],
[Johnson] heard four or five shots fired from his right
side where [Regan] was standing and saw a flash out
of the corner of his eye. [Johnson] also stated,
although [Hampton] was unarmed and only had crack
in his hand, [Regan] probably shot him because he
thought [Hampton] was going to “try some type of
move.” [Johnson then selected Regan’s photo out of
an array.]
Trial Court Opinion, 3/10/10, at 3 (citation omitted).
The police eventually arrested Regan for Hampton’s murder.
The matter proceeded to a jury trial on November 17, 2008. At
trial, Johnson contradicted the statement he had given to the
police and stated that Regan was not the killer. The
Commonwealth introduced his prior statement at trial. James also
refused to be sworn in at trial and was declared unavailable at
trial. James’ statement regarding Regan’s admission was read
into the record. Another witness, Chantell Whitaker (“Whitaker”),
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was also uncooperative and could not be found for trial, even after
a bench warrant for her arrest had been issued. On November
20, 2008, the jury found Regan guilty of [first-degree murder and
possessing an instrument of crime, 18 Pa.C.S.A. §§ 2502(a) and
907, respectively]. On April 6, 2009, the trial court sentenced
Regan to life in prison for the first-degree murder conviction and
a concurrent prison term of one to two years for the possessing
an instrument of crime conviction. Regan filed post-sentencing
motions. Regan’s counsel also filed a motion to withdraw. The
trial court permitted counsel to withdraw and appointed Regan
new counsel. Subsequently, the post-sentencing motions were
denied by operation of law.
Commonwealth v. Regan, No. 2406 EDA 2009, at 1-3 (Pa.Super. filed Oct.
18, 2010) (unpublished memorandum) (footnote omitted).
Regan filed a timely, direct appeal from his judgment of sentence. On
appeal, Regan challenged the sufficiency of the evidence supporting his
conviction for first-degree murder, alleged the jury’s verdict was against the
weight of the evidence, and presented claims of prosecutorial misconduct.
Concluding Regan’s claims were waived and/or meritless, this Court affirmed
his judgment of sentence. See id. Regan filed a petition for allowance of
appeal, which our Supreme Court denied on June 16, 2011.
On or about March 7, 2012, Regan filed a timely, pro se PCRA petition,
and counsel was appointed to represent him. On July 11, 2013, counsel filed
an amended PCRA petition on behalf of Regan. On May 15, 2015, the PCRA
court conducted an evidentiary hearing limited to the issue of whether prior
counsel was ineffective for failing to call Seron Rose to testify at trial. N.T.,
PCRA hearing, 5/15/15/, at 4. On January 12, 2017, the PCRA court denied
Regan’s PCRA petition in its entirety. This timely, counseled appeal followed.
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The PCRA court directed Regan to file a Pa.R.A.P. 1925(b) statement, Regan
timely complied, and the PCRA court filed a responsive Pa.R.A.P. 1925(a)
opinion.
Regan presents the following issues, which we have set forth verbatim:
1. Did the PCRA court err in summarily dismissing the claim that
all prior counsel were ineffective for failing to challenge the
legal sufficiency of the verdict, as it was based solely on
evidence of prior inconsistent statements, a violation of the
federal Due Process Clause?
2. Did the PCRA court err in summarily dismissing the claim that
trial counsel was ineffective for failing to object to the
prosecutor’s closing argument in which she repeatedly referred
to matters not in evidence and disparaged [Regan’s] character?
3. Did the PCRA court err in summarily dismissing the claim that
direct appeal counsel was ineffective for failing to preserve the
claim that the trial court erred in denying [Regan’s] motion to
preclude the Commonwealth from impeaching intended
character witnesses with prejudicial evidence that did not rebut
the proffered trait of peacefulness?
4. Did the PCRA court err in summarily dismissing the claim that
trial counsel was ineffective for failing to request a “corrupt
source” instruction as it related to Commonwealth witness
Richard Johnson?
5. Did the PCRA court err in summarily dismissing the claim that
trial counsel was ineffective for failing to object to the
introduction of the former testimony of Cornelius James
because the defense did not have a full and fair opportunity to
cross-examine him at the prior proceeding?
Regan’s Brief at 3-4.
Initially, we note the following relevant legal principles.
When reviewing the denial of a PCRA petition, we must
determine whether the PCRA court’s order is supported by the
record and free of legal error. Generally, we are bound by a PCRA
court’s credibility determinations. However, with regard to a
court’s legal conclusions, we apply a de novo standard.
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Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)
(quotation marks and quotations omitted).
Furthermore,
In order to be eligible for PCRA relief, the petitioner must
prove by a preponderance of the evidence that his conviction or
sentence resulted from one or more of the enumerated
circumstances found in Section 9543(a)(2), which includes the
ineffective assistance of counsel. 42 Pa.C.S.[A.] § 9543(a)(2)(i).
It is well-established that counsel is presumed effective, and
to rebut that presumption, the PCRA petitioner must demonstrate
that counsel’s performance was deficient and that such deficiency
prejudiced him. To prevail on an ineffectiveness claim, the
petitioner has the burden to prove that (1) the underlying
substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis
for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s deficient performance.
The failure to satisfy any one of the prongs will cause the entire
claim to fail.
Commonwealth v. Benner, 147 A.3d 915, 919–20 (Pa.Super. 2016)
(quotation marks, quotations, and citations omitted).
We need not analyze the prongs of an ineffectiveness claim
in any particular order. Rather, we may discuss first any prong
that an appellant cannot satisfy under the prevailing law and the
applicable facts and circumstances of the case. Finally, counsel
cannot be deemed ineffective for failing to raise a meritless claim.
Johnson, 139 A.3d at 1272 (citations omitted).
In his first argument, Regan contends his prior attorneys were
ineffective in failing to raise a sufficiency of the evidence claim. Specifically,
he contends prior counsel should have challenged the sufficiency of the
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evidence concerning his identity as the shooter. We conclude Regan is not
entitled to relief on this claim.
Initially, we note that Regan is mistaken in his assertion that his prior
attorneys did not challenge the sufficiency of the evidence as to identity. In
the post-sentence motion, trial counsel specifically challenged the sufficiency
of the evidence as to Regan’s identity as the shooter. Furthermore, on direct
appeal, Regan’s appellate counsel challenged the sufficiency of the evidence
as to his first-degree murder conviction. Specifically, Regan’s counsel alleged
on direct appeal that the Commonwealth failed to prove the identity of Regan
as the shooter and/or that he acted with the requisite mens rea for first-degree
murder.
In finding no merit to the sufficiency claim, we specifically held:
Here, the trial court’s Opinion has thoroughly addressed this claim
and found it to be without merit. See Trial Court Opinion,
3/10/10, at 2-5. The trial court found that the evidence was
sufficient to support the murder of the first-degree conviction as
the evidence demonstrated that Regan was the shooter and acted
with malice by shooting a gun at a vital body part of Hampton’s
body. See Commonwealth v. Moore, 937 A.2d 1062, 1067 (Pa.
2007) (concluding that “[t]he manner in which the victim was
killed (two gunshot wounds to his back, one of which penetrated
his heart) constitutes circumstantial evidence of malice and
specific intent to kill on [the] appellant’s part[.]”). We agree with
the sound reasoning of the trial court and affirm on this basis.
Regan, No. 2406 EDA 2009, at 5-6 (citation omitted).
Accordingly, to the extent Regan now contends his prior counsel failed
to challenge the sufficiency of the evidence as to his identification as the
shooter, we find no arguable merit to his claim. Further, to the extent Regan
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challenges the manner in which direct appeal counsel litigated the claim on
appeal, we conclude Regan has failed to demonstrate the outcome of the
proceedings would have been different. See Commonwealth v. Koehler,
614 Pa. 159, 36 A.3d 121, 142 (2012). Thus, we find Regan is not entitled to
relief on his first claim.
In his second claim, Regan contends trial counsel was ineffective in
failing to object to certain comments made by the prosecutor during closing
arguments.1 Specifically, he contends trial counsel should have objected to
the following statements, which were made by the prosecutor: (1) “Is it likely
that [the police] are going to lie on this defendant?. . .They didn’t know him
from a can of paint, so why are they going to risk everything, a collective total
of 64 years of professional experience[.]” N.T., 11/19/08, at 212-13; (2)
“Cornelius James, Ladies and Gentlemen, had important information. He had
valuable information. He had information that you needed to hear in this case
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1 Regan points to certain statements from the prosecutor’s closing argument
in which the prosecutor commented on Chantell Whitaker’s failure to appear
for trial. See Regan’s Brief at 26-27, 29. He also points to statements made
by the prosecutor in which she characterized James as Regan’s cousin. Id. at
31. Regan indicates trial counsel properly objected to these challenged
statements; however, he contends appellate counsel was ineffective in failing
to challenge/litigate properly these statements on direct appeal. Regan did
not challenge appellate counsel’s effectiveness in this regard in his court-
ordered Pa.R.A.P. 1925(b) statement. Thus, the specific issue as to appellate
counsel’s effectiveness is waived. See Pa.R.A.P. 1925(b); Commonwealth
v. Paddy, 609 Pa. 272, 15 A.3d 431 (2011) (holding that claims of trial
counsel ineffectiveness are distinct from claims of appellate counsel
ineffectiveness).
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to help you make your decision. And he tried to deprive you of that
information by not speaking.” Id. at 227; and (3) “You are not going to find
a bank executive from, you know, Bank of America, out in Mill Creek
Playground in West Philadelphia at eleven o’clock on a summer night where
people are gambling and selling drugs and walking around with guns. People
that are out there are people like Richard Johnson, like Cornelius James, and
like this defendant. . . .” Id. at 205.
With regard to Regan’s underlying claim of prosecutorial misconduct
during closing argument, we note it is well settled that “[i]n reviewing
prosecutorial remarks to determine their prejudicial quality, comments cannot
be viewed in isolation but, rather, must be considered in the context in which
they were made.” Commonwealth v. Sampson, 900 A.2d 887, 890
(Pa.Super. 2006) (citation omitted). Our review of prosecutorial remarks and
an allegation of prosecutorial misconduct requires us to evaluate whether a
defendant received a fair trial, not a perfect trial. Commonwealth v. Rios,
554 Pa. 419, 721 A.2d 1049, 1054 (1998).
In addition, we note the following:
It is well-settled that a prosecutor has considerable latitude during
closing arguments and [her] arguments are fair if they are
supported by the evidence or use inferences that can reasonably
be derived from the evidence. Further, prosecutorial misconduct
does not take place unless the unavoidable effect of the comments
at issue was to prejudice the jurors by forming in their minds a
fixed bias and hostility toward the defendant, thus impeding their
ability to weigh the evidence objectively and render a true verdict.
Prosecutorial misconduct is evaluated under a harmless error
standard.
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Commonwealth v. Holley, 945 A.2d 241, 250 (Pa.Super. 2008) (citations
and quotations omitted). We are further mindful of the following:
In determining whether the prosecutor engaged in
misconduct, we must keep in mind that comments made by a
prosecutor must be examined within the context of defense
counsel’s conduct. It is well settled that the prosecutor may fairly
respond to points made in the defense closing. Moreover,
prosecutorial misconduct will not be found where comments were
based on the evidence or proper inferences therefrom or were only
oratorical flair.
***
It is well-settled that it is improper for a prosecutor to
express a personal belief as to the credibility of the defendant or
other witnesses. However, the prosecutor may comment on the
credibility of witnesses. Further, a prosecutor is allowed to
respond to defense arguments with logical force and vigor. If
defense counsel has attacked the credibility of witnesses in
closing, the prosecutor may present argument addressing the
witnesses’ credibility.
Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 544 (2005)
(citations and quotations omitted).
We have reviewed Regan’s underlying claims of prosecutorial
misconduct, and we conclude that the claims lack arguable merit. Specifically,
we conclude the prosecutor’s statements were a fair response to arguments
advanced by Regan’s trial counsel during his summation and based on the
evidence or proper inferences therefrom. See N.T., 11/19/08, at 178-79,
198-99 (defense counsel indicating during closing that the witnesses’ pre-trial
statements were coerced by the police who sought “the best case scenario of
what they could get out” of the witnesses); 170-71 (defense counsel indicating
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during closing that James’ refusal to testify resulted in the jury not hearing
from him “face-to-face[,]” thus resulting in James not coming “into this
courtroom [and putting] his hand on the Bible”); 181 (defense counsel
indicating during closing that James was arrested for an offense after the
murder); 184-85 (defense counsel indicating during closing that one of the
witness’s statement “is a mess”); 189 (defense counsel indicating during
closing that Johnson is a rapper--a “real humanitarian”). Accordingly, as there
is no arguable merit to the underlying claim, trial counsel may not be deemed
ineffective in failing to object on this basis.2 See Johnson, supra.
In his third claim, Regan argues appellate counsel was ineffective in
failing to raise on direct appeal the issue of whether the trial court erred in
denying Regan’s pre-trial motion in which he sought to preclude the
Commonwealth from introducing Regan’s prior convictions (drug trafficking
and possession of an unregistered firearm) to rebut proffered character
witness testimony. We conclude Regan’s underlying claim lacks arguable
merit, and therefore, appellate counsel was not ineffective in failing to raise
the claim on direct appeal.
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2 Regan contends the cumulative impact of the prosecutor’s improper
comments made during her closing argument warrants a new trial. This
substantive claim is waived as he could have presented it on direct appeal.
42 Pa.C.S.A. § 9544(b). He further “tacks on” a boilerplate assertion that
appellate counsel was ineffective in failing to raise each claim of prosecutorial
misconduct on direct appeal. See Regan’s Brief at 38. Boilerplate assertions
of ineffectiveness do not warrant relief. See Paddy, supra.
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Prior to the commencement of trial, Regan’s trial counsel requested a
ruling on the following: “[I]f the defense introduce[s] evidence of the
defendant’s reputation in the community for being peaceful and nonviolent,
[will the trial court] order the Commonwealth not to use any prior convictions
for firearms or drug trafficking[?]” N.T., 11/17/08, at 5. The trial court ruled
that, if Regan presented such character witnesses, the trial court would permit
the Commonwealth to cross-examine the character witnesses with regard to
Regan’s prior weapon and drug trafficking offenses. Id. In response, Regan
chose not to present character witnesses at trial. Regan contends that the
trial court’s ruling was in error and, accordingly, appellate counsel should have
raised the issue on direct appeal.
Initially, we note that “[t]he scope of cross-examination is a matter
within the discretion of the trial court and will not be reversed absent an abuse
of that discretion. Where a character witness has testified as to a relevant
trait of the defendant’s good character, that witness may be impeached, on
credibility grounds, just like any other witness.” Commonwealth v. Morgan,
559 Pa. 248, 739 A.2d 1033, 1035 (1999) (citations omitted).
Pennsylvania Rule of Evidence 405 relevantly provides the following:
Rule 405. Methods of proving character
(a) Reputation evidence. In all cases in which evidence of
character or a trait of character of a person is admissible,
proof may be made by testimony as to reputation. On
cross-examination of the reputation witness, inquiry is
allowable into specific instances of conduct probative of the
character trait in question, except that in criminal cases
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inquiry into allegations of other criminal misconduct of the
accused not resulting in conviction is not permissible.
Pa.R.E. 405(a) (bold in original).3
Pursuant to Pa.R.E. 405(a), our Supreme Court has observed that
“[a]lthough evidence of good character may not be rebutted by evidence of
specific acts of misconduct, a character witness may be cross-examined
regarding his knowledge of particular acts of misconduct by the defendant to
test the accuracy of his testimony and the standard by which he measures
reputation.” Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 382-
83 (1986). Convictions for drug dealing, as well as possession of an illegal
firearm, are relevant to a consideration of whether a defendant has a
reputation for being peaceful and nonviolent. See Commonwealth v.
Rashid, 160 A.3d 838 (Pa.Super. 2017). Thus, where a defendant presents
reputation evidence from a character witness, he “opens the door” for the
Commonwealth to cross-examine the character witness regarding the
defendant’s drug trafficking and illegal firearm convictions. See
Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 916 (2004)
(“[W]here the defense presents evidence of the defendant’s reputation for
peacefulness, the prosecution is permitted to test that testimony by inquiry
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3 Pa.R.E. 405 was amended, effective March 18, 2013. However, Regan’s trial
was held in 2008, thus the amended version is not applicable to the case sub
judice.
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into whether the witness is aware of convictions which tend to refute that
reputation.”) (quotation and quotation marks omitted)).
In the instant case, the trial court did not abuse its discretion in ruling
that, if Regan presented character witnesses as to his reputation for
peacefulness and non-violence, the Commonwealth could cross-examine the
witnesses as to Regan’s prior convictions for drug trafficking and possession
of an unregistered firearm. Thus, appellate counsel cannot be found
ineffective in failing to present the claim on direct appeal. See Johnson,
supra.
In his fourth claim, Regan contends trial counsel was ineffective in failing
to request a “corrupt source” instruction for Commonwealth witness Richard
Johnson. Specifically, Regan contends there was evidence that Johnson was
an accomplice such that the jury should have been instructed to receive
Johnson’s trial testimony with caution. We conclude Regan is not entitled to
relief on this claim.
“[T]he standard charge for accomplice testimony [is] commonly referred
to as the corrupt and polluted source charge. [I]n any case where an
accomplice implicates the defendant, the judge should tell the jury that the
accomplice is a corrupt and polluted source whose testimony should be viewed
with great caution[.]” Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 873,
906 (2011) (quotations and quotation marks omitted). “The ‘corrupt source’
charge in particular is designed specifically to address situations where one
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accomplice testifies against the other to obtain favorable treatment. It directs
the jury to view the testimony of an accomplice with disfavor and accept it
only with care and caution.” Id.
A corrupt source instruction is warranted where sufficient evidence is
presented as to whether the witness is an accomplice. Commonwealth v.
Williams, 557 Pa. 207, 732 A.2d 1167, 1181 (1999). An individual is an
accomplice if, with intent to promote or facilitate the commission of the
offense, he solicits, aids, agrees, or attempts to aid another person in planning
or committing the offense. Commonwealth v. Treiber, 632 Pa. 449, 121
A.3d 435, 459 (2015).
In rejecting Regan’s ineffectiveness claim, the PCRA court concluded
there was no arguable merit to the underlying claim. Specifically, the PCRA
court concluded there was no evidence that Johnson was an accomplice so as
to warrant the instruction. PCRA Court Opinion, 7/31/17, at 9. Regan
contends the PCRA court erred in this regard, and he points this Court to an
excerpt of Regan’s trial counsel’s cross-examination of Johnson at trial. See
Regan’s Brief at 44-45 (citing N.T., 11/17/08, at 165-72).
We have reviewed the cited notes of testimony, and we agree with the
PCRA court that the cross-examination testimony does not suggest that
Johnson was an accomplice. Rather, Johnson testified that, six months after
the shooting, the police questioned him about the shooting. Johnson testified
at trial that he informed the police he was not sure who shot the victim. N.T.,
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11/17/08, at 176. Further, Detective Robert Fetters, who took Johnson’s
statement, testified on cross-examination by Regan’s trial counsel that
Johnson “was allowed to leave” the police questioning at any time as he was
not in custody. N.T., 11/18/08, at 48.
Simply put, contrary to Regan’s suggestion, the record does not
demonstrate that Johnson was an accomplice for the crimes for which Regan
was on trial. There was, therefore, no evidence from which the finder of fact
could have reasonably inferred that Johnson was Regan’s accomplice, and it
follows, therefore, that Regan was not entitled to a corrupt source instruction.
Accordingly, his ineffectiveness of trial counsel claim fails for lack of arguable
merit. Johnson, supra.
In his final claim, Regan contends trial counsel was ineffective for failing
to object to the introduction of the preliminary hearing testimony of Cornelius
James. We conclude Regan is not entitled to relief.4
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4 The record reveals that, after James refused to provide his name for the
record at trial and the trial court informed James that he faced possible
“consequences” for refusing to answer, defense counsel requested to “see”
the trial court. N.T., 11/18/08, at 194. The parties then met with the trial
court for a discussion in chambers. Id. at 195. This discussion has not been
provided to this Court, and therefore, we are unable to determine whether
trial counsel, in fact, failed to lodge an objection to the introduction of James’
preliminary hearing testimony. However, assuming, arguendo, that trial
counsel failed to object, as discussed infra, we conclude Regan is not otherwise
entitled to relief on his ineffective assistance of counsel claim.
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In the case sub judice, James appeared for trial, but he refused to
answer any questions. Accordingly, the Commonwealth requested that the
trial court rule that James was unavailable for trial and that his testimony from
the preliminary hearing be admissible pursuant to Pa.R.E. 804(b)(1). 5 The
trial court granted the Commonwealth’s request. Regan does not dispute that
James was unavailable at trial for purposes of Rule 804(b)(1). See Regan’s
Brief at 49. However, Regan contends that he did not have a full and fair
opportunity to cross-examine James at the preliminary hearing proceeding.
Specifically, Regan asserts that he did not have an opportunity to impeach
James at the preliminary hearing with criminal charges that were pending
against James when he testified at Regan’s preliminary hearing. Id. at 50-
53. Consequently, Regan argues the Commonwealth did not meet the
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5 The version of Pa.R.E. 804 in effect at the time of Regan’s trial provided, in
relevant part, the following:
Rule 804. Hearsay exceptions; declarant unavailable
***
(b) Hearsay Exceptions. The following statements, as
hereinafter defined, are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness
at another hearing of the same or a different
proceeding, or in a deposition taken in compliance
with law in the course of the same or another
proceeding, if the party against whom the testimony
is now offered, or, in a civil action or proceeding, a
predecessor in interest, had an adequate opportunity
and similar motive to develop the testimony by direct,
cross, or redirect examination.
Pa.R.E. 804(b)(1) (bold and italics in original).
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requirements of Pa.R.E. 804(b)(1), and thus, trial counsel was ineffective in
failing to object to the introduction of James’ preliminary hearing testimony.
In concluding Regan is not entitled to relief, the PCRA court focused on
the prejudice prong of the ineffectiveness test. Specifically, the PCRA court
determined that the portion of James’ preliminary hearing testimony, which
was read to the jury, tended to establish Regan did not commit the shooting.
See PCRA Court Opinion, 7/31/17, at 9-10. We agree and conclude Regan
failed to demonstrate a reasonable probability that, but for trial counsel’s
failure to object to the introduction of James’ preliminary hearing testimony,
the outcome of Regan’s trial would have been different. See Commonwealth
v. King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (“To demonstrate prejudice,
the petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings would have been
different.”) (quotation, quotation marks, and citation omitted));
Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008) (“[A]
reasonable probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.”) (quotation omitted)).
Here, the portion of James’ preliminary hearing testimony read to the
jury at trial revealed the following: James testified at the preliminary hearing
that he did not know Regan and he has no memory of giving a statement to
the police as he was “high off PCP” at the time. N.T., 11/19/08, at 15-16.
James indicated he had never seen the statement allegedly given by him to
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the police until it was presented to him at the preliminary hearing. Id. at 16.
He testified that he did not sign the statement, and in fact, he alleged that the
person who signed the statement had misspelled his name. Id. James noted
the statement incorrectly indicated that he was “19” when he gave the
statement when, in fact, he was not “19” at the time. Id. at 18. He further
noted the statement incorrectly indicated that he “almost finished the eleventh
grade,” and in fact, he finished only the ninth grade. Id. at 20-21. James
disavowed the contents of the police statement, specifically indicating that he
did not tell the police that he had knowledge about the shooting at issue or
that Regan had told him he “offed an old head” at the playground. Id. at 22-
24. James testified at the preliminary hearing that he did not give any
statement to the police, and he has no idea how the police obtained his
personal information. Id. at 25-26. James further disavowed that he
identified Regan from a photograph and emphasized that he did not know
Regan. Id. at 24. When the prosecutor suggested that James was being
uncooperative and asked whether he wanted to be testifying at the preliminary
hearing, James indicated, “[I] can’t testify to something I don’t know.” Id. at
26.
On cross-examination at the preliminary hearing, James testified the
signature on the police statement was written in a manner inconsistent with
his handwriting, it looked like someone had written over the signature, and
his alleged signature was misspelled. Id. at 27-28. James indicated he has
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no memory of giving a statement to the police about the shooting and he was
not a witness to the shooting. Id. at 30. He testified he has his own open
criminal charges “to worry about.” Id.
Based on the aforementioned, Regan suggests that James’ preliminary
hearing testimony implicated Regan in the shooting. We disagree with
Regan’s characterization of the testimony. Further, we note the jury was
presented with the police statement of Johnson, who indicated in the
statement that he witnessed Regan shoot the victim. Accordingly, we
conclude Regan has failed to demonstrate he was prejudiced, i.e., there is a
reasonable probability that, but for the reading of James’ preliminary hearing
testimony to the jury, the outcome of his trial would have been different. See
King, supra. Accordingly, he is not entitled to relief on his claim of ineffective
assistance of trial counsel.6
For all of the foregoing reasons, we affirm.
Affirmed.
____________________________________________
6 To the extent Regan suggests the PCRA court erred in dismissing his
aforementioned claims without permitting the claims to be raised at the
evidentiary hearing, we note the right to an evidentiary hearing in PCRA
proceedings is not absolute and we review the PCRA court’s decision for an
abuse of discretion. Commonwealth v. Miller, 102 A.3d 988, 992
(Pa.Super. 2014). In light of our resolution of Regan’s issues as indicated
supra, we conclude the PCRA court did not abuse its discretion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/18
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