Com. v. Heyward, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAIVON HEYWARD :
:
Appellant : No. 1887 EDA 2019
Appeal from the PCRA Order Entered June 5, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012398-2013
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: Filed: November 5, 2020
Appellant, Daivon Heyward, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his first petition
filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
The PCRA court opinion set forth the relevant facts and procedural
history of this appeal as follows:
On July 17, 2013, at approximately 11:00 p.m., Gregory
Smith, the victim, went to see his cousin to invite him to
play pool. Smith went to the area of Germantown Avenue
and Wister Streets near the Sugar Stick Bar and Wister
Plaza. At that time, Smith was dating [Appellant’s] mother,
Dawn Heyward (“Dawn”), Smith lived with her and
[Appellant], who was known in the neighborhood as “Dai”
or “Dai Dai.” Smith had multiple prior physical altercations
with both [Appellant] and Dawn over the past month.
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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At nearly midnight, [Appellant] arrived at the above
location, coming from Manheim Street and crossing
Germantown Ave. [Appellant] approached Smith, who was
sitting on the wall outside the parking lot of the Wister
Street Plaza. [Appellant] said something to Smith, who then
began walking away on Wister Street. [Appellant] followed
behind, pulled out a gun, and shot twice at Smith, who then
fell to the ground on Wister Street. [Appellant] ran away,
but then returned and fired additional shots, one of which
struck the fallen Smith as he was laying on the ground.
[Appellant] fled across the plaza through an alleyway.
Smith was pronounced dead on the scene by medical units.
[Appellant] was identified as the shooter by two identifying
witnesses, Kyron Shorter and Shahere “Diamond” Jackson-
McDonald.
At trial, both Shorter and McDonald testified as
eyewitnesses to the murder. McDonald was questioned
about receiving any benefit in her own misdemeanor
prostitution case in exchange for testifying. She also
testified she told Sylvester Mitchell about the shooting the
day after it happened and that he urged her to speak with
detectives. Detectives also testified that they obtained
[Appellant’s] phone records through a search warrant. The
FBI’s Agent Shute testified that he reviewed the cell site
location information obtained and determined that
[Appellant’s] phone was in the proximate location of the
murder at the time of the crime. On November 3, 2014,
after a week-long trial, a jury … found [Appellant] guilty of
first-degree murder, [violations of the Uniform Firearms
Act], and [possessing an instrument of crime]. He was
sentenced to life imprisonment for the charge of murder and
no further penalty for the remaining charges. [Appellant]
filed an appeal. On July 22, 2016, the Superior Court
affirmed [Appellant’s] judgment of sentence. On December
21, 2016, the Pennsylvania Supreme Court denied
[Appellant’s] request for allocatur.
On November 24, 2017, [Appellant] filed a [timely] pro se
PCRA petition. [PCRA counsel] entered her appearance on
April 18, 2018. On December [9], 2018, [PCRA counsel]
filed an Amended PCRA petition….
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* * *
On February 19, 2019, the Commonwealth filed a Motion to
Dismiss. On May 7, 2019, [the PCRA c]ourt sent [Appellant]
a Notice of Intent to Dismiss Pursuant to [Pa.R.Crim.P.] 907.
On June 5, 2019, [the PCRA c]ourt dismissed [Appellant’s]
petition based upon lack of merit.
(PCRA Court Opinion, filed December 20, 2019, at 1-3).
Appellant timely filed a notice of appeal on June 28, 2019. The PCRA
court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, and Appellant did not file one.
Appellant raises six issues for our review:
Were Appellant’s rights pursuant to the Sixth and
Fourteenth Amendments of the U.S. Constitution and Article
1, [Section] 9 of the Pennsylvania Constitution violated by
counsel’s ineffective failure to timely notice an alibi defense
and call [an] alibi witness, Niare Neal?
Were Appellant’s rights pursuant to the Sixth and
Fourteenth Amendments of the U.S. Constitution and Article
1, [Section] 9 of the Pennsylvania Constitution violated by
counsel’s ineffective advice that Appellant not testify on his
own behalf?
Were Appellant’s rights pursuant to the Sixth and
Fourteenth Amendments of the U.S. Constitution and Article
1, [Section] 9 of the Pennsylvania Constitution violated by
counsel’s ineffective failure to interview and call Christina
Douglas?
Were Appellant’s rights pursuant to the Sixth and
Fourteenth Amendments of the U.S. Constitution and Article
1, [Section] 9 of the Pennsylvania Constitution violated by
counsel’s ineffective failure to develop and present evidence
of an alternative suspect which would have established
reasonable doubt?
Were Appellant’s rights pursuant to the Sixth and
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Fourteenth Amendments of the U.S. Constitution and Article
1, [Section] 9 of the Pennsylvania Constitution violated by
counsel’s ineffective failure to interview Jackson-McDonald
prior to trial about her “special” relationship with Mitchell
and impeach her at trial with that information?
Did the cumulative impact of multiple instances of
ineffective assistance of counsel deprive Appellant of his
Sixth and Fourteenth Amendment rights to a fair trial and
due process of law?
(Appellant’s Brief at 3-4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74(2007). We do not give the same deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).
To obtain reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing. We stress that
an evidentiary hearing is not meant to function as a fishing
expedition for any possible evidence that may support some
speculative claim of ineffectiveness.
Commonwealth v. Roney, 622 Pa. 1, 17-18, 79 A.3d 595, 604-05 (2013),
cert. denied, 574 U.S. 829, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014) (internal
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citations and quotation marks omitted).
In his first issue, Appellant argues trial counsel retained an investigator
over one year prior to trial. Appellant asserts the investigator interviewed a
potential alibi witness, Niare Neal, who claimed that Appellant was with him
at his residence at the time of the shooting. Appellant further asserts that Mr.
Neal told the investigator that he was available and willing to testify on
Appellant’s behalf at trial. Despite Mr. Neal’s statements to the investigator,
Appellant complains that trial counsel failed to file a timely notice of an alibi
defense. Appellant insists trial counsel knew “his client wanted him to present
an alibi defense and this specific witness.” (Appellant’s Brief at 14). Appellant
contends Mr. “Neal came to Appellant’s trial voluntarily, without having been
subpoenaed. He was obviously willing to testify then.” (Id. at 13). Based
upon the foregoing, Appellant maintains trial counsel’s decision not to pursue
an alibi defense was unreasonable.
Appellant also avers that he suffered prejudice as a result of trial
counsel’s failure to present Mr. Neal, because “the jury was left completely
unaware that Appellant even had an alibi.” (Id. at 16). Appellant emphasizes
that “[b]ut for counsel’s ineffectiveness, the jury would have heard the alibi
witness which very likely would have established Appellant’s actual
innocence.” (Id. at 17). Appellant concludes trial counsel was ineffective for
failing to utilize an alibi defense by calling Mr. Neal as a witness. We disagree.
Pennsylvania law presumes counsel has rendered effective assistance.
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Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When
asserting a claim of ineffective assistance of counsel, the petitioner is required
to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis for his action or inaction; and, (3) but for the
errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong
of the test for ineffectiveness will cause the claim to fail. Williams, supra.“The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which forms the basis
for the assertion of ineffectiveness is of arguable merit….” Commonwealth
v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be
found ineffective for failing to pursue a baseless or meritless claim.”
Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).
Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.
Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).
Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
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outcome. In [Kimball, supra], we held that a “criminal
[appellant] alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)
(some internal citations and quotation marks omitted).
Regarding counsel’s preparation for trial:
Counsel has a general duty to undertake reasonable
investigations or make reasonable decisions that render
particular investigations unnecessary. Counsel’s
unreasonable failure to prepare for trial is an abdication of
the minimum performance required of defense counsel. The
duty to investigate, of course, may include a duty to
interview certain potential witnesses; and a prejudicial
failure to fulfill this duty, unless pursuant to a reasonable
strategic decision, may lead to a finding of ineffective
assistance.
Commonwealth v. Johnson, 600 Pa. 329, 350-51, 966 A.2d 523, 535-36
(internal citations and quotation marks omitted).
For claims of ineffectiveness based upon counsel’s failure to call a
witness:
A defense attorney’s failure to call certain witnesses does
not constitute per se ineffectiveness. In establishing
whether defense counsel was ineffective for failing to call
witnesses, a defendant must prove the witnesses existed,
the witnesses were ready and willing to testify, and the
absence of the witnesses’ testimony prejudiced petitioner
and denied him a fair trial.
Commonwealth v. Cox, 603 Pa. 223, 267-68, 983 A.2d 666, 693 (2009)
(internal citations omitted). A petitioner “must show how the uncalled
witnesses’ testimony would have been beneficial under the circumstances of
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the case.” Commonwealth v. Gibson, 597 Pa. 402, 441, 951 A.2d 1110,
1134 (2008).
Further, a PCRA petitioner’s request for an evidentiary hearing
must include a certification, signed by the petitioner, as to
each intended witness, identifying the witness’s name,
address, date of birth, the expected substance of his or her
testimony, and any documents material to that testimony.
42 Pa.C.S. § 9545(d)(1). Failure to substantially comply
with this requirement will render the proposed witness’s
testimony inadmissible. Id.
Commonwealth v. Lippert, 85 A.3d 1095, 1097 (Pa.Super. 2014) (quoting
Commonwealth v. Robinson, 596 Pa. 580, 581, 947 A.2d 710, 711 (2008)).
Instantly, Appellant’s amended PCRA petition includes a copy of the
report from private investigator Richard Strohm to trial counsel. The report
describes Mr. Strohm’s interview with Mr. Neal as follows:
He informed us that [Appellant] was staying with him at his
residence and he was at his residence during the time of the
shooting.
He stated that the only time [Appellant] left the house that
day was for approximately (1) hour when he went to see his
son, Jayden Heyward, at his baby’s mother’s house, who
lived around the block.
He is also willing to appear in court to testify on behalf of
[Appellant].
(Amended PCRA Petition, filed 12/9/18, at Exhibit P1).
Appellant’s amended PCRA petition also includes a certification stating
that if the PCRA court conducted an evidentiary hearing on the matter, Mr.
Strohm “will testify consistent with his report (P1).” (Id. at 53). Significantly,
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the certification does not include any mention of calling the alleged alibi
witness, Mr. Neal, as a witness at an evidentiary hearing. Rather, the
certification indicates that Appellant himself would testify that “Neal was
present and willing to testify during [Appellant’s] trial but was not called by
the defense.” (Id. at 54).
After reviewing the amended petition, the PCRA court emphasized that
Appellant did not include Mr. Neal on his list of witnesses for the evidentiary
hearing. (See PCRA Court Opinion at 6). Absent testimony from Mr. Neal,
the PCRA court noted that Appellant’s ineffectiveness claim depended on the
hearsay assertions within Mr. Strohm’s report. (Id.) On this record, the PCRA
court concluded Appellant could not demonstrate trial counsel’s
ineffectiveness for failing to call Mr. Neal as a witness. We cannot say the
PCRA court erred in this regard.
While the investigator and his report establish Mr. Neal’s purported
availability and willingness to cooperate in October 2013, it does not
necessarily follow that Mr. Neal was still available and willing to cooperate
when trial commenced in October 2014. Although Appellant now claims Mr.
Neal subsequently appeared at trial voluntarily, such statement does not
amount to confirmation of Mr. Neal’s willingness to testify. Without a
certification indicating that Mr. Neal himself was willing to testify to these
circumstances at an evidentiary hearing, the trial court correctly determined
that Appellant failed to establish the arguable merit prong of this
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ineffectiveness claim. See Cox, supra; Lippert, supra.In his second issue, Appellant argues he could have testified on his own
behalf to establish his alibi. Appellant acknowledges he decided to waive his
constitutional right to testify at trial, but he insists his waiver was not
intelligent due to inadequate advice from trial counsel. Specifically, Appellant
maintains trial counsel did not discuss the advantages and disadvantages of
the waiver. Instead, trial counsel merely advised him to “tell the court he did
not want to testify when the judge asked him and to let [trial counsel] do all
the talking.” (Appellant’s Brief at 22). Appellant asserts his responses during
the court’s waiver colloquy “only established that he followed counsel’s
instructions and not that his waiver was knowing and intelligent.” (Id.)
Appellant contends trial counsel’s advice was unreasonable where
Appellant’s testimony could have: 1) established his alibi; 2) elaborated on a
motive for his mother to have committed the murder; 3) refuted the
Commonwealth’s evidence regarding the cell phone records; and 4) informed
the jury that the police used physical force to coerce Appellant into providing
his cell phone. Additionally, Appellant avers the outcome of his waiver
proceeding would have been different but for counsel’s ineffectiveness,
because Appellant “wanted to testify on his own behalf and had counsel not
discouraged him from doing so, he would have testified.” (Id. at 26).
Appellant concludes trial counsel was ineffective for advising him not to testify
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at trial.2 We disagree.
“The decision of whether or not to testify on one’s own behalf is
ultimately to be made by the defendant after full consultation with counsel.”
Commonwealth v. Michaud, 70 A.3d 862, 869 (Pa.Super. 2013).
In order to sustain a claim that counsel was ineffective for
failing to advise the appellant of his rights in this regard, the
appellant must demonstrate either that counsel interfered
with his right to testify, or that counsel gave specific advice
so unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf.
Id. (quoting Commonwealth v. Nieves, 560 Pa. 529, 533, 746 A.2d 1102(2000)).
“In addition, where a defendant voluntarily waives his right to testify
after a colloquy, he generally cannot argue that trial counsel was ineffective
in failing to call him to the stand.” Commonwealth v. Rigg, 84 A.3d 1080,
1086 (Pa.Super. 2014). “A defendant will not be afforded relief where he
voluntarily waives the right to take the stand during a colloquy with the court,
but later claims that he was prompted by counsel to lie or give certain
answers.” Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa.Super.
2000), appeal denied, 566 Pa. 638, 781 A.2d 141 (2001).
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2 Appellant correctly cites Commonwealth v. Walker, 110 A.3d 1000(Pa.Super. 2015), appeal denied, 633 Pa. 756, 125 A.3d 777 (2015), for the
proposition that “the appropriate standard for assessing whether a defendant
was prejudiced by trial counsel’s ineffectiveness regarding the waiver of his
right to testify is whether the result of the waiver proceeding would have been
different … not whether the outcome of the trial itself would have been more
favorable….” (Appellant’s Brief at 25-26).
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Instantly, the Commonwealth rested its case, and the trial court
conducted a colloquy regarding Appellant’s right to testify. (See N.T. Trial,
10/30/14, at 126-30). During the colloquy, the following exchange occurred:
THE COURT: So I need to ask you these specific questions.
First. Have you discussed with [trial counsel] the decision
whether or not you should testify?
[APPELLANT]: Yes.
THE COURT: After discussing that with [trial counsel],
have you, on your own, made a decision whether or not to
testify, and just tell me yes or no?
[APPELLANT]: Yes.
THE COURT: What decision have you reached?
[APPELLANT]: Not to testify.
THE COURT: Are you satisfied with your attorney’s advice
and representation?
[APPELLANT]: Yes, I am.
(Id. at 130).
The PCRA court reviewed Appellant’s colloquy and determined
Appellant’s decision not to testify was knowing, voluntary, and intelligent.
(See PCRA Court Opinion at 7). In light of the applicable case law, the PCRA
court’s conclusion is proper. See Rigg, supra; Lawson, supra. Therefore,
there is no arguable merit to Appellant’s claim that trial counsel was ineffective
in conjunction with Appellant’s decision not to testify at trial.
In his third issue, Appellant contends that Christina Douglas is the
mother of his child. Appellant relies on the private investigator’s pretrial
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report for the proposition that trial counsel was aware that, at some point on
the day of the murder, Appellant purportedly went to see his child at Ms.
Douglas’s residence. Despite this information, the investigator and trial
counsel did not interview Ms. Douglas or subpoena her to testify at trial. Had
he inquired further, Appellant insists trial counsel “would have learned that
[Ms.] Douglas had evidence that would be helpful for the defense.”
(Appellant’s Brief at 28). Although Appellant concedes Ms. Douglas “currently
has no specific recollection of the night in question, Appellant argues “her
memory of the night in question would have still been fresh” if trial counsel
had facilitated her interview in a timely manner. (Id.) Appellant concludes
trial counsel was ineffective for failing to interview and call Ms. Douglas as a
witness at trial. We disagree.
Instantly, Appellant’s amended PCRA petition includes a signed
statement from Ms. Douglas. Significantly, Ms. Douglas admits that she
cannot remember what happened on the night of the murder:
I never spoke to a police officer or investigator. I don’t have
independent recall of the night of the murder. If I had been
questioned sooner I might have remembered the date. All
I know is that [the decedent] was killed and [Appellant] was
arrested soon afterwards. If I had been questioned sooner
I maybe could have said [Appellant] was here. It’s possible
since he was here so frequently. He also came to South
Philly a lot to visit his best friend Naire. He often stayed
over at Naire’s house.
(Amended PCRA Petition at Exhibit P3).
The PCRA court analyzed Ms. Douglas’s statement and concluded “she
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cannot offer any substantive testimony. In fact, the only thing she could truly
say is her relation to [Appellant] and that she was not questioned about this
case around the time of the murder.” (PCRA Court Opinion at 10). We agree
with this determination, emphasizing that Ms. Douglas’s statement does not
actually establish that she ever possessed evidence that would be helpful for
the defense. As such, Appellant has failed to show how Ms. Douglas’s
testimony would have been beneficial under the circumstances. See Gibson,
supra.To the extent Appellant also complains that trial counsel had an
obligation to conduct a pretrial interview with Ms. Douglas, the record
demonstrates that counsel endeavored to satisfy his general duty to undertake
a reasonable pretrial investigation. See Johnson, supra. Particularly, trial
counsel had the benefit of the private investigator’s report. While trial
counsel’s duty to investigate could have extended to include a duty to
interview Ms. Douglas, Appellant’s pleadings force one to speculate as to
whether trial counsel had any reasonable strategic basis for failing to do so.3
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3 Regarding trial counsel’s strategic basis, the Commonwealth’s brief argues
that Appellant “never offered to support his claims with a signed certification
from prior counsel, addressing his claims, or demonstrate an attempt to
ascertain trial counsel’s input for the PCRA court’s review of his claims.”
(Commonwealth’s Brief at 13). The Commonwealth further argues “it is
unclear if [Appellant] actually attempted to contact trial counsel to explore the
circumstances of his representation and his respective trial strategies….” (Id.
at 13-14). In this regard, we agree that Appellant’s failure to proffer input
from trial counsel leaves him unable to satisfy the “strategic basis” prong for
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See id. Absent more, Appellant is not entitled to relief on his claim of
ineffectiveness related to trial counsel’s handling of Ms. Douglas.
In his fourth issue, Appellant notes his “entire defense hinged on the
jury finding that the two eyewitnesses misidentified Appellant as the shooter.”
(Appellant’s Brief at 30). Appellant contends that additional evidence existed
to demonstrate that his mother, Dawn Heyward, was a credible alternative
suspect. Appellant asserts trial counsel “knew or should have known through
his pretrial investigation that if [Ms. Heyward] had been dressed as the
shooter that night, given the distance and the dim lighting, [Ms. Heyward]
could easily pass for Appellant.” (Id. at 34). In support of his assertion,
Appellant relies on a signed statement from his father, Melvin Heyward, Jr.,
indicating that the description of the suspect provided by eyewitness Shahere
Jackson-McDonald matched that of Ms. Heyward.
Moreover, Appellant complains trial counsel was aware that Ms.
Heyward had a potential motive, as well as the opportunity to commit the
crime. Appellant argues “any objectively reasonable criminal defense attorney
would have presented … evidence of an alternative suspect to the jury,” and
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any of the claims presented in his amended petition. See Roney, supra at
21, 79 A.3d at 606-07 (explaining petitioner offered no affidavit or other
evidence as to what trial counsel did or did not investigate; petitioner provided
no explanation for absence of affidavit from trial counsel and proffered no
evidence as to what actions trial counsel took or failed to take; thus, any
assertion that trial counsel had no reasonable basis for failing to recognize or
present evidence of alternative suspect was speculative).
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there is a reasonable probability that the outcome of the trial would have been
different if counsel had presented such evidence. (Id. at 39-40). Appellant
concludes trial counsel was ineffective for failing to present evidence to
develop Ms. Heyward as an alternative suspect. We disagree.
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc),
appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more
or less probable, or tends to support a reasonable inference
or proposition regarding a material fact. Relevant evidence
may nevertheless be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.
Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal
denied, ___ Pa. ___, 219 A.3d 597 (2019) (internal quotation marks omitted).
Instantly, Appellant’s amended PCRA petition includes a signed
statement from his father, Mr. Heyward. The statement describes Appellant’s
relationship with his mother, as well as Mr. Heyward’s impressions about what
happened at trial. In pertinent part, the statement provides:
From the description that Ms. Jackson[-McDonald] provided
the person was mostly identified via body-type. The
description could be almost anyone including [Appellant’s]
own mother. My former wife was once a beautiful woman
with a figure like Halle Berry and long flowing hair. As her
drug and alcohol abuse escalated she became emaciated
and cut her hair short. From a distance it was difficult to
tell the difference between Dawn and [Appellant]. They
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were similar in height and body type.
(Amended PCRA Petition at Exhibit P11).
In evaluating Mr. Heyward’s statement, the PCRA court found his
“opinions regarding [Appellant and Ms. Heyward’s] similar body types [are]
speculative, irrelevant, and inadmissible.” (Trial Court Opinion at 11). Here,
the PCRA court correctly determined that Mr. Heyward’s opinion did not tend
to make a fact at issue more or less probable. See Danzey, supra.
Moreover, Mr. Heyward merely opined that it would be difficult for Ms.
Jackson-McDonald to identify Appellant from a distance, which is a point that
trial counsel repeatedly referred to during his cross-examination questions.
(See N.T. Trial, 10/29/14, at 105-07). Based upon the statement from Mr.
Heyward, there is no arguable merit to Appellant’s claim of ineffectiveness for
failing to develop an alternative suspect. See Pierce, supra; Poplawski,
supra.In his fifth issue, Appellant contends eyewitness Shahere Jackson-
McDonald admitted that she spoke with Sylvester Mitchell after the shooting.
Although Ms. Jackson-McDonald was unsure about Mr. Mitchell’s name, she
identified him at trial as the decedent’s cousin, and she indicated that Mr.
Mitchell encouraged her to speak with police about what she had seen.
Appellant insists trial counsel should have interviewed Ms. Jackson-McDonald
prior to trial. Had counsel conducted an interview, Appellant posits that
counsel would have learned that Ms. Jackson-McDonald and Mr. Mitchell were
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involved in a sexual relationship. Appellant continues:
The only question that counsel asked this witness on cross-
examination about her relationship was whether she and
Mitchell were “close.” Jackson-McDonald answered “We’re
close, yes. He’s a great person.” Counsel then dropped the
subject and simply moved on. It would be highly unlikely
that the jury would know from that one question and answer
that Jackson-McDonald was in fact actively in a sexual and
emotional relationship with Mitchell and that her claim of not
knowing him well enough to know his name was entirely
false.
(Appellant’s Brief at 42) (internal citations omitted).
Appellant argues trial counsel had no reasonable basis for failing to
interview a witness as critical as Ms. Jackson-McDonald, and Appellant
suffered prejudice as a result of counsel’s failure. Appellant concludes trial
counsel was ineffective for failing to interview Ms. Jackson-McDonald about
her relationship with Mr. Mitchell and impeach her at trial with that
information. We disagree.
Instantly, the Commonwealth presented testimony from Ms. Jackson-
McDonald at Appellant’s trial. Among other things, Ms. Jackson-McDonald
explained that she was afraid to approach the police on the evening of the
shooting. (See N.T. Trial, 10/29/14, at 89). The next day, Ms. Jackson-
McDonald had a telephone call with an individual who she referred to as the
decedent’s cousin. (Id. at 89, 91). Ms. Jackson-McDonald could not provide
the individual’s name, but she indicated that that he encouraged her to speak
with the police about what she had seen. (Id. at 89-90). Later on direct
examination, the prosecutor showed Ms. Jackson-McDonald a picture of Mr.
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Mitchell, and she identified him as the person she spoke with on the telephone.
(Id. at 94).
On cross-examination, trial counsel’s questioning attacked Ms. Jackson-
McDonald’s credibility on multiple fronts, including the fact that she did not
approach the police until after speaking with Mr. Mitchell. (Id. at 108). Trial
counsel asked, “And you and [Mr. Mitchell] are pretty close; correct?” (Id. at
109). Ms. Jackson-McDonald responded, “We’re close, yes. He’s a great
person.” (Id.) Trial counsel subsequently revisited this testimony during his
closing argument, when he theorized that Ms. Jackson-McDonald had based
her statement to the police on the information supplied by Mr. Mitchell. (See
N.T. Trial, 10/30/14, at 150-51).
Appellant’s amended PCRA petition includes an affidavit from Kitty
Hailey, a private investigator hired by PCRA counsel. The affidavit describes
Ms. Hailey’s interview with Ms. Jackson-McDonald about her recollections of
the murder. In pertinent part, the affidavit states:
5. [Ms. Jackson-McDonald] recalled the evening for me and
stated that she saw the young boy across the street on
Germantown Avenue going from North to South on the
Avenue. She described him as having on a hoodie, but said
she could see short dreads (dreadlocks) and that she could
identify him from his body type which was that of a typical
young man.
6. She further recalled that this “boy” went up to three other
“young boys” across the street on Wister near the shopping
area and pulled out a gun and shot. She stated that one of
the “young boys” was the person who was shot.
* * *
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9. She further claimed that she learned the details of the
case the next day from Sylvester who was her “special
friend” with whom she had a sexual relationship. He was a
relative of the deceased and filled her in on the details of
the matter from his personal knowledge.
(Amended PCRA Petition at Exhibit P12).
Here, the affidavit attached to Appellant’s PCRA petition does not
actually confirm Appellant’s assertion that Ms. Jackson-McDonald lied at
Appellant’s trial. Contrary to Appellant’s argument, Ms. Jackson-McDonald did
not claim that she did not know Mr. Mitchell well enough to know his name.
Rather, Ms. Jackson-McDonald did not initially recall Mr. Mitchell’s name, and
she quickly confirmed his identity after the prosecutor showed her a
photograph.
While the jury was unaware of the sexual nature of Ms. Jackson-
McDonald’s relationship with Mr. Mitchell, trial counsel did elicit evidence to
demonstrate that the two were close friends, thereby providing a basis for the
jury to question the credibility of Ms. Jackson-McDonald’s account of the
murder. Under these circumstances, additional information about the specific
nature of Ms. Jackson-McDonald’s relationship was irrelevant. See Danzey,
supra. Consequently, there is no arguable merit to Appellant’s claim
regarding trial counsel’s treatment of Ms. Jackson-McDonald’s testimony. See
Pierce, supra; Poplawski, supra.In his final issue, Appellant suggests that he is entitled to relief based
upon the theory that his claims cumulatively undermine confidence in the
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convictions. Nevertheless, “no number of failed ineffectiveness claims may
collectively warrant relief if they fail to do so individually. When the failure of
individual claims is based upon a lack of prejudice, however, then the
cumulative prejudice from those individual claims may properly be assessed.”
Commonwealth v. Elliott, 622 Pa. 236, 294, 80 A.3d 415, 450 (2013), cert.
denied, 574 U.S. 828, 135 S.Ct. 50, 190 L.Ed.2d 54 (2014) (internal citations
omitted). Here, we have not rejected Appellant’s claims of ineffectiveness
based upon the prejudice prong of the test for ineffectiveness. Thus, there
can be no aggregation of prejudice from multiple ineffectiveness claims, and
Appellant’s claim of cumulative error fails. See id. Accordingly, we affirm the
order dismissing the PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/20
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