Opinion
1229 WDA 2022 896 WDA 2023 897 WDA 2023 898 WDA 2023 J-S41011-23
01-12-2024
COMMONWEALTH OF PENNSYLVANIA v. JAURVON HOPKINS Appellant COMMONWEALTH OF PENNSYLVANIA v. JAURVON JAMES HOPKINS Appellant COMMONWEALTH OF PENNSYLVANIA v. JAURVON JAMES HOPKINS Appellant COMMONWEALTH OF PENNSYLVANIA v. JAURVON HOPKINS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered September 8, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016617-2004, CP-02-CR-0010644-2004, CP-02-CR-0012416-2004, CP-02-CR-0016615-2004
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E. [*]
MEMORANDUM
PANELLA, P.J.
Jaurvon Hopkins appeals from the orders denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. Hopkins argues that his trial counsel was ineffective for failing to investigate and present an alibi defense and for failing to object to and request a mistrial based upon the prosecution's closing argument in which the prosecutor vouched for the veracity of a key witness. We affirm.
In violation of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), Hopkins initially filed a single appeal, despite the fact that there were four trial court docket numbers. Subsequently, counsel asked for permission to file amended notices of appeal pursuant to Commonwealth v. Young, 280 A.3d 1049, 1057 (Pa. Super. 2022). This Court directed counsel to file amended notices of appeal, each listing one separate trial court docket number in the caption and the text. Counsel filed the notices of appeal, listing separate trial court docket numbers in each. Therefore, Hopkins corrected the defect, see Pa.R.A.P. 902, and we will address the appeals.
A jury convicted Hopkins of the kidnapping and second-degree murder of James Jones and Shawnte Betts, among other crimes. This Court previously set forth the underlying facts as follows:
On July 25, 2004, in the Lincoln/Lemington section of Pittsburgh, [Hopkins] and his co-defendant Lester Johnson ["Johnson"] were seen forcing James Jones ["Jones"] and Shawnte Betts ["Betts"] into a white Toyota Camry. One witness, Taban Howze, heard gun shots, then reported seeing Johnson force Jones, who had been shot, into the backseat of the white car with a black man and black woman in the front seat. Another witness, Dorian Perry, after hearing gunshots, saw Jones run down the street and then either pass out or lie down on the street, saw the white car pull up, and saw Johnson drag Jones into the car. Perry testified that he saw two people in the front seat of the car, but could not describe or identify them. Both witnesses saw the car drive off toward Penn Hills.
At the same time, an ambulance happened to be driving by. The ambulance driver, Samuel Walter ["Walter"], also saw Jones slumped on the street, and pulled over. Before Walter pulled away to take his patient to the hospital, the white car pulled up. Jones was loaded into the car and the car drove off. Police officers visited Walter two days later and showed him a photo array. On the first try, Walter could not identify [Hopkins]. The officers left for a minute or two, then returned and asked Walter to look at the array again. Walter then identified [Hopkins], claiming he was too nervous and scared to identify him the first time. Walter identified [Hopkins] in court as well.
Another witness testified similarly. Charles Scott ["Scott"] was talking with other people on the street when he observed [Hopkins] pulling Jones by the collar and Johnson pulling Betts into an opening between an apartment building and a garage. A few seconds later, Scott saw [Hopkins] leading Betts to the car by her hair and Johnson holding a gun on Jones and ordering Jones into the car. Scott saw Jones refuse and Johnson shoot Jones. Scott saw Jones start to run down the street and Johnson fire three or four times at Jones' back. Scott observed Jones fall to the ground, the car stop by Jones, and Johnson pick Jones up and put him in the backseat.
[Hopkins] offered the testimony of police witnesses and Scott's sister to impeach Scott's testimony. The two men Scott was speaking with, Dale Jones and Brian Jones, described the incident in a similar manner, but both said neither [Hopkins] nor Johnson was involved. Another witness also denied seeing [Hopkins] at the crime scene.
Donna Peoples, while driving by, saw Jones leaning on the ground. She got out of her car and called 911. While on the phone, Peoples saw the white car stop, saw Johnson hit Jones in the face, then saw Johnson put Jones in the car. Peoples noted the car's license plate.
Jones' wife, Annette Kennedy-Jones, testified that Jones left the house with approximately $10,000 in cash. Around 8:30 p.m. on July 25, 2004, she received a phone call. The caller demanded $80,000 or drugs, and threatened to kill Jones if she did not comply. Under cross-examination, Kennedy-Jones could not recall making several statements to police at the time of the kidnapping regarding Jones' involvement with drugs, pending charges, involvement as an informant, or money he owed various people. [Hopkins] also presented testimony of police witnesses to the effect that Kennedy-Jones did indeed make statements about those things.
Betts' mother, Tiffanee Smith, testified that Betts had borrowed the white Toyota Camry from her. On July 26, when Betts did not return home, Smith filed a missing person's report.
On July 26, police received a report of a dead body found in a white car in an alley in Wilkinsburg. The victim was identified as Jones, who had been shot three times - in the back, arm, and leg. On July 30, police received a report of another dead body in Wilkinsburg. The body was identified as that of Betts, who died of a gunshot wound to the head.Commonwealth v. Hopkins, 373 WDA 2010 (Pa. Super. filed Mar. 19, 2012) (unpublished memorandum at 1-5) (footnotes and citations omitted).
Hopkins was arrested and charged with numerous crimes. Ultimately, a jury found Hopkins guilty of two counts each of second-degree murder, kidnapping, unlawful restraint, and criminal conspiracy. The trial court sentenced Hopkins to two life sentences on the second-degree murder convictions, two 10 to 20 years in prison for kidnapping convictions, two sentences of 5 to 10 years in prison for the conspiracy convictions, and one sentence of 5 to 10 years in prison for an unlawful restraint conviction. All of the sentences were imposed consecutively.
This Court affirmed in part, vacated in part, and remanded for resentencing, finding that the sentences for the kidnapping convictions should have merged with the sentences for the second-degree murder convictions, and the unlawful restraint sentence should have merged with the kidnapping sentence. See id., appeal denied, 51 A.3d 838 (Pa. 2012). On January 2, 2013, in accordance with this Court's holding, the trial court resentenced Hopkins to an aggregate term of life in prison. Hopkins did not file a direct appeal.
On January 2, 2014, Hopkins filed a PCRA petition. The PCRA court appointed counsel, who, after a protracted procedural history not relevant to this appeal, filed an amended PCRA petition in February 2018. The Commonwealth filed an answer to the amended petition. Subsequently, the PCRA court held a hearing on April 5, 2022; thereafter, the PCRA court denied the amended petition. This timely appeal followed.
On appeal, Hopkins raises the following questions for our review:
I. Is [] Hopkins is eligible for relief under the Post Conviction Relief Act?
II. Did the lower court abuse its discretion in denying the PCRA petition as amended insofar as trial counsel was ineffective for failing to investigate and present an alibi defense?
III. Did the lower court abuse its discretion in denying the PCRA petition as amended insofar as trial counsel was ineffective for failing to object and move for a mistrial following improper argument by the prosecution?Appellant's Brief at 4 (some capitalization omitted).
This Court's standard of review regarding a PCRA court's denial of a PCRA petition is whether the PCRA court's decision is supported by the evidence of record and is free of legal error. See Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).
In his first claim, Hopkins argues that he is eligible for relief under the PCRA because he was resentenced on January 2, 2013, and filed a PCRA petition within one year of his sentence becoming final. See Appellant's Brief at 9-10. The Commonwealth acknowledges that Hopkins filed a timely PCRA petition, and that this Court should address the merits of his claims. See Brief for the Commonwealth at 9. Since Hopkins was re-sentenced as a result of his direct appeal, we agree and will address Hopkins's claims. See 42 Pa.C.S.A. § 9545(b)(3) (stating that judgment of sentence becomes final at the conclusion of direct review).
In his second claim, Hopkins contends that trial counsel provided ineffective assistance by failing to investigate and present an alibi defense at trial. See Appellant's Brief at 11. Hopkins argues that he provided counsel with a potential alibi witness, his mother, Alice M. Richardson. See id. at 12. According to Hopkins, counsel did not interview Richardson as to Hopkins's whereabouts at the time of the shootings, and did not call her to testify. See id. Hopkins notes that Richardson indicated that she was willing to testify on his behalf and would have testified that Hopkins was at home at a family barbeque at the time of the shooting. See id. at 13.
Hopkins also argues that his brother, Devon Hopkins, was willing and available to testify at trial, and would have provided the same alibi as Richardson. See id. Hopkins further claims that he was willing to testify that he was home when the shooting took place. See id. Hopkins asserts that counsel's belief that the alibi was weak due to the fact his mother was testifying and he lived ten minutes from the scene of the shooting does not establish a reasonable basis for not asserting the defense, as the jury should have been able to weigh the alibi evidence. See id. at 14. He contends that the evidence of his guilt was not overwhelming and the alibi evidence could have given rise to a reasonable doubt about his guilt. See id.
To succeed on an ineffectiveness claim, Hopkins must demonstrate by a preponderance of evidence that "(1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice as a result of counsel's action or inaction." Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018) (citation omitted). Counsel is presumed to be effective, and the burden is on the appellant to prove otherwise. See Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. See Commonwealth v. Montalvo, 244 A.3d 359, 368 (Pa. 2021).
"Counsel has a general duty to undertake reasonable investigations or make reasonable decisions that render particular investigations unnecessary." Commonwealth v. Johnson, 966 A.2d 523, 535 (Pa. 2009). "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." Id. at 535-36. Further, when raising a claim of ineffectiveness for the failure to call a potential witness, petitioner must establish that
(1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial.Commonwealth v. Medina, 209 A.3d 992, 998 (Pa. Super. 2019) (citation omitted).
Failure to call a witness is not per se ineffective assistance of counsel, for such a decision implicates matters of trial strategy. It is the petitioner's burden to demonstrate that trial counsel had no reasonable basis for declining to call a particular person as a witness. Generally, where matters of strategy and tactics are concerned, counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests. A claim of ineffectiveness generally cannot succeed through comparing, in
hindsight, the trial strategy employed with alternatives not pursued.Commonwealth v. Weimer, 167 A.3d 78, 92 (Pa. Super. 2017) (citations, quotation marks, brackets, and emphasis omitted). To demonstrate prejudice, "a petitioner must show how the uncalled witnesses' testimony would have been beneficial under the circumstances of the case." Commonwealth v. Matias, 63 A.3d 807, 811 (Pa. Super. 2013) (citation omitted). "Counsel will not be found ineffective for failing to call a witness unless the petitioner can show that the witness's testimony would have been helpful to the defense." Id. (citation and quotation marks omitted).
At the PCRA hearing, trial counsel testified that his defense theory was to attack the credibility of the two witnesses who put Hopkins at the scene of the crime, as there was no physical evidence tying Hopkins to the scene. See N.T., 4/5/22, at 5, 19. Counsel stated that Scott's testimony that he had seen Hopkins at the scene of the murders could be challenged, as Scott had lied to the police and in his prior statements concerning Hopkins. See id. at 13-14. Trial counsel indicated that he discussed an alibi defense with Hopkins, and that Hopkins mentioned Richardson, his aunt, and girlfriend. See id. at 6-8. Trial counsel stated that Hopkins then advised him that his aunt and girlfriend did not need to be interviewed. See id. at 8.
Counsel testified that he did not present an alibi defense because the main alibi witness was Hopkins's mother, the scene of the crime was a ten-minute drive away from the murder scene, and the Commonwealth was prepared to call a rebuttal witness to Richardson's testimony. See id. at 8-9, 19-20; see also id. at 8-9 (wherein counsel admits he could not remember what the Commonwealth learned during its interview with Richardson). Further, counsel testified that although he could not recall exact details, he spoke with Richardson during the presentation of the defense, and she made statements that caused him to conclude that she would not be a good alibi witness. See id. at 9-10. Counsel advised Hopkins of this decision. See id. at 10.
Hopkins testified that he was home on July 25, 2004, with his mother, Richardson, and Devon, and there was a small family gathering that day. See id. at 23-24. Hopkins stated that he did not leave the gathering until 10:00 p.m., which was well after the shootings had occurred See id. at 25. Hopkins indicated that he informed trial counsel he was home, and that he wanted to testify at trial. See id. at 26-27. However, Hopkins acknowledged that he never informed the police that he was not at the scene of the shootings. See id. at 29-30.
Richardson testified that she was living with Hopkins and Devon at the time of the shootings. See id. at 31. Richardson stated that they hosted a barbeque at their home and that Hopkins was at the home until 10:30 p.m., and that he did not return that night. See id. at 33-34. Richardson indicated she informed trial counsel about Hopkins's whereabouts and was willing to testify at trial. See id. at 34-35.
Devon testified he lived with his mother and Hopkins on the day of the shooting. See id. at 42. Devon emphasized that Hopkins did not leave the barbeque at their home until after 10:00. See id. at 43-44, 48.
Despite this testimony, we conclude that Hopkins has not demonstrated that counsel's chosen strategy was unreasonable. See Commonwealth v. Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) ("Where matters of strategy and tactics are concerned, a finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." (citation omitted)). In fact, Hopkins merely speculates that the alibi testimony from Richardson and Devon would have established a different result. See Matias, 63 A.3d at 811. To that end, Hopkins does not explain why he did not inform the police about his whereabouts during the shooting. This is simply insufficient to establish that presentation of the alibi testimony offered a substantially greater chance for success than the strategy chosen by counsel.
Moreover, although counsel's strategy did not acquit Hopkins, we conclude that counsel had a reasonable strategy to attack the credibility of the Commonwealth's two main witnesses. See Weimer, 167 A.3d at 92. Notably, trial counsel elicited testimony from Scott's sister, Sakeria Coffey, who stated that she asked Scott to solve the issue of Hopkins and other men loitering in her mother's backyard. See N.T., 11/12/09, at 111-15. Coffey noted that
Scott was a drug addict and stole money from her and her mother. See id. at 110, 116. Coffey testified that she learned that a warrant had been issued for Scott's arrest in July 2004 and confronted him about the warrant. See id. at 117-18. Scott told Coffey that to stop Hopkins from loitering in her mother's yard, and to resolve his outstanding warrant, he would lie and tell the police that Hopkins was a shooter in this case. See id. at 119-20. As counsel had a reasonable strategy to effectuate Hopkins's interests, we conclude that Hopkins's claim is without merit.
In his final claim, Hopkins contends that his counsel was ineffective for failing to object to and move for a mistrial after the prosecutor committed misconduct by vouching for the credibility of a witness during closing argument. See Appellant's Brief at 15, 19. Hopkins notes the prosecutor stated that Scott named names the first time he talked to the police and that he would not do so "unless it was true." Id. at 15 (quoting N.T., 11/16/09, at 275). Hopkins argues that Scott committed perjury during the preliminary hearing. See id. at 19, 20. Hopkins additionally asserts that several witnesses indicated that Scott had a reason to lie in this case. See id. at 20.
Hopkins claims that despite this evidence, the prosecutor bolstered Scott's testimony by stating it was credible. See id. at 20-21. Hopkins maintains that Scott's testimony was crucial to the outcome of the case. See id. at 21. Moreover, Hopkins notes that the jury had two questions about Scott's testimony, which established he was prejudiced by the prosecutor's conduct. See id. According to Hopkins, the prosecutor's statement made it impossible for the jury to properly weigh Scott's testimony. See id. Hopkins maintains that had counsel objected, the jury would have decided for themselves whether Scott was credible or not. See id. at 21-22. Hopkins seeks a new trial. See id. at 22.
It is 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. Lawrence, 165 A.3d 34, 43 (Pa. Super. 2017) (citation omitted). Further, "[a]ny challenged prosecutorial comment must not be viewed in isolation, but rather must be considered in the context in which it was offered." Commonwealth v. Chmiel, 30 A.3d 1111, 1146 (Pa. 2011) (citation and emphasis omitted).
Hopkins challenges this portion of the prosecutor's closing statement:
It was this guy right here. Is it fanciful that Charles Scott could identify that same person and truthfully do so? … The fact that from day one when he talked to the police, at least when he talked on that tape that you heard which is also in evidence. If you don't remember the details, perhaps you can listen to it again. He named names the first time that the police talked to him. Why would he do that unless it was true?N.T., 11/16/09, at 274, 275.
Notably, during his closing argument, Hopkins's trial counsel stated that Scott was lying and "playing the system to the hilt." Id. at 223. In fact, counsel stated that Scott lied under oath in identifying Hopkins, noting Scott faced criminal charges and by giving a statement to the police, the charges went away. Id. at 223-26. The prosecutor's remarks addressed the issue of Scott's credibility raised by Hopkins's trial counsel during closing arguments, and were within the bounds of a proper prosecutorial response. See Lawrence, 165 A.3d at 44 (noting that "[t]he prosecutor's remarks, therefore, addressed issues of witness credibility raised by [a]ppellant's opening and closing arguments and were, accordingly, within the 'fairly wide latitude' of permissible bounds of prosecutorial response." (citation omitted)). Moreover, at the PCRA evidentiary hearing, trial counsel stated that he did not believe the prosecutor gave his personal opinions during the closing argument. See N.T., 4/5/22, at 17. The PCRA court reviewed the entirety of the prosecutor's closing argument and found that he did not provide his personal opinion of Scott's testimony. See PCRA Court Opinion, 5/17/23, at 5. We agree with the PCRA court's finding in this regard. In any event, the trial court instructed the jury that the attorneys' statements during closing argument did not constitute evidence. See N.T., 11/16/09, at 296-97; see also Commonwealth v. Purnell, 259 A.3d 974, 986 (Pa. 2021) (stating that "[t]he law presumes that the jury will follow the instructions of the court." (citation omitted)). Further, the trial court instructed the jury that it must determine the credibility and weight of the testimony. See N.T., 11/16/09, at 302. Accordingly, Hopkins cannot establish that he was prejudiced by trial counsel's failure to object or seek a cautionary instruction, and this ineffectiveness claim is without merit.
Order affirmed.
[*] Former Justice specially assigned to the Superior Court.