Opinion
3430 EDA 2019 3431 EDA 2019 J-S28023-21
02-01-2022
COMMONWEALTH OF PENNSYLVANIA v. FERNANDO REAL Appellant COMMONWEALTH OF PENNSYLVANIA v. FERNANDO REAL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered November 8, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008511-2008, CP-51-CR-0008526-2008
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J. [*]
MEMORANDUM
DUBOW, J.
Appellant, Fernando Real, appeals from the November 8, 2019 Order of the Court of Common Pleas of Philadelphia County, which dismissed without a hearing Appellant's first petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46. Appellant's PCRA counsel, John M. Belli, Esquire, has filed a Turner/Finley "no merit" letter and Application to Withdraw as Counsel. After careful review, we affirm the court's denial of PCRA relief and grant counsel's Application to Withdraw.
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
In the early morning hours of September 9, 2002, Appellant used a nine-millimeter pistol to shoot and kill Byron Story and Marcus Herbert. Story and Herbert had been sitting on the front porch of a home occupied by Herbert's stepfather, Karl May. Hearing the gunshots, May went to a window and witnessed the shooter fleeing the scene. May told police immediately after the shooting that he witnessed a black male fleeing but, as discussed below, May testified at trial that the shooter was a Hispanic male matching Appellant's description.
Story died at the scene, and Herbert died from his injuries approximately a year later.
At the time of the shooting, Appellant's companion, Terrell Boyd, was acting as lookout around the corner. The pair returned to their car where Appellant informed Boyd that he had shot two men.
Two days later, on September 11, 2002, Appellant shot and killed Levon Wilson. Brian Heard and Ronald Milburn witnessed the shooting. Police Officer Christine Hilbert immediately responded to the shooting and saw Appellant fleeing from the scene. Police recovered the murder weapon-a nine-millimeter pistol-and determined it was the same pistol used to shoot Story and Herbert two days earlier.
A jury convicted Appellant of Wilson's murder in a separate proceeding on June 28, 2005. Wilson's murder is not at issue in this appeal.
Appellant's consolidated jury trial for Story and Herbert's murders began on February 18, 2014. The Commonwealth presented testimony from 24 witnesses. Karl May, victim Herbert's stepfather, testified to witnessing a Hispanic male fleeing the scene of the shooting and Appellant's counsel cross-examined May using his prior inconsistent statement to police. Officer Hilbert testified to her identification of Appellant running away from the Wilson murder and investigation involving the firearm used in the three murders.
It is not clear from the record why Appellant's trial occurred over 10 years after his arrest. The timeliness of Appellant's trial is not at issue in this appeal.
In addition, the court permitted Heard and Milburn, the witnesses to the unrelated Wilson shooting, to testify generally that they saw Appellant fire the pistol on September 11, 2002. The court, however, did not permit them to testify that Appellant shot and killed Wilson. The trial court also allowed Milburn to testify that he saw Appellant fire the same gun into the air a week before the Story and Herbert murders. When charging the jury, the court gave a specific limiting instruction that the jury could consider Heard's and Milburn's testimony only for purposes of establishing Appellant's access to the murder weapon.
At some point between Appellant's preliminary hearing and trial, Milburn suffered a severe brain injury in an automobile accident. As a result, the court found Milburn unavailable to testify at Appellant's trial and allowed the Commonwealth to introduce his preliminary hearing testimony into evidence pursuant to Pa.R.E. 804.
On February 25, 2014, a jury convicted Appellant of, inter alia, two counts of First-Degree Murder for killing Story and Herbert. On May 1, 2014, the court imposed two consecutive life sentences. This Court affirmed Appellant's Judgment of Sentence and, on May 10, 2016, our Supreme Court denied allowance of appeal. Commonwealth v. Real, 134 A.3d 499 (Pa. Super. 2015) (unpublished memorandum), appeal denied 138 A.3d 4 (Pa. 2016).
On July 15, 2016, Appellant pro se filed the instant, timely PCRA Petition, his first. Appellant thereafter pro se filed several amended petitions, which the court accepted.
After a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the PCRA court permitted Appellant to proceed pro se.
On November 18, 2019, after issuing a notice pursuant to Pa.R.Crim.P. 907, the court dismissed Appellant's petition without a hearing. On the same day, the court appointed counsel to represent Appellant on appeal.
Appellant timely filed a Notice of Appeal. Through the course of a complex procedural history not relevant here, Appellant's counsel, on January 27, 2021, filed a Statement of Intent to file a no-merit letter pursuant to Pa.R.A.P. 1925(c)(4), indicating that Appellant wished to raise numerous issues of ineffective assistance of counsel ("IAC"), Brady violations, after-discovered evidence, and PCRA court error. The PCRA court filed a responsive Rule 1925(a) Opinion comprehensively addressing each of Appellant's issues.
The Commonwealth charged Appellant separately at docket numbers 8511-2008 and 8526-2008 for Story and Herbert's murders. Appellant filed separate Notices of Appeal at both dockets, each listing both docket numbers in compliance with Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc).
Brady v. Maryland, 373 U.S. 83 (1963).
In this Court, counsel has filed a Turner/Finley letter addressing the following issues:
[1.] The PCRA court committed an abuse of discretion by denying Appellant's discovery request.
[2.] Did the PCRA court commit an abuse of discretion by failing to grant relief or an evidentiary hearing relating to [newly]-discovered evidence provided by witness Brian Heard?
[3.] Did the PCRA court commit an abuse of discretion by failing to grant relief or an evidentiary hearing on his Brady claim relating to the Commonwealth's failure to disclose exculpatory evidence, namely, the recantation of witness Brian Heard, identification information concerning an alleged eyewitness named Lisa, statements allegedly made by Herbert regarding what he allegedly told his mother, and contact information concerning Milburn's mother?
[4.] Did the PCRA court commit an abuse of discretion by failing to grant relief or an evidentiary hearing on the following claims asserting that trial counsel provided Appellant with ineffective assistance of counsel for the following reasons:
[A.] Trial counsel did not investigate appellant's alibi defense. []
[B.] Trial counsel did not properly prepare for trial because he did not investigate or interview witnesses named "Lisa," an alleged eyewitness, three friends of co-defendant Terrell Boyd who would have stated that appellant and Boyd were not friends or a[c]quaintances, and Karl May who told police that he knew a female witness.
[C.] Trial counsel failed to retain a DNA expert to test the hat collected by police, the gun, and any and all physical evidence.
[D.] Trial counsel failed to attack the completeness and reliability of the investigation conducted by police by presenting evidence that the police did not: (a) interview "Lisa" despite having her description; (b) interview a second female witness identified by Karl May; (c) compare Boyd's DNA to that found on the hat; and (d) consider Boyd as the shooter and primary suspect despite word on the street that he was the shooter; and (e) show Appellant's photograph to "Lisa, ["] Lane, and Herbert.
[E.] Trial counsel failed to object when the Commonwealth called Karl May as a witness because May broke sequestration.
[F.] Trial counsel failed to object to the identification of Appellant made by police officer Christine Hilbert because it was deemed unconstitutional by another judge during the litigation of a PCRA petition involving Appellant's other unrelated murder conviction.
[G.] Trial counsel failed first to move to prohibit the Commonwealth from introducing evidence of an unrelated crime indicating that Appellant fired a gun in the air a week prior to the incident in the instant matter and second, for not objecting to closing comments made by the prosecutor during closing argument.
[H.] Trial counsel failed to make a Batson objection to the use of peremptory challenges by the Commonwealth to strike all potential Hispanic voir dire persons.Turner/Finley Ltr. at 7-9 (capitalization omitted, reordered for ease of analysis). Counsel has also filed an Application to Withdraw as Counsel.
On July 6, 2021, Appellant filed a response to counsel's Turner/Finley Letter in which he raised, verbatim, the following two issues:
[1.] Cumulative material weight of the suppressed evidence;
[2.] Cumulative effect of errors denied Appellant a fair trial.Response to Turner/Finley Ltr. at 18, 26.
Counsel's Application to Withdraw
Before we consider Appellant's issues, we must review counsel's request to withdraw. Counsel is required to review the record and submit a "no merit" letter (1) detailing the nature and extent of his or her review; (2) listing each issue the petitioner wishes to have raised on review; and (3) explaining why the petitioner's issues are meritless. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel must also send to the petitioner: "(1) a copy of the 'no merit' letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel." Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation omitted).
Counsel has complied with each of the above requirements. Counsel has presented a comprehensive review of the issues Appellant seeks to raise on appeal, the appropriate standard of review, and addressed the PCRA court's analysis where appropriate. Turner/Finley Ltr. at 10-11, 16-41. Counsel concludes that Appellant's claims are without merit. Id. at 43-44. In addition, counsel sent Appellant copies of the Turner/Finley letter and his Application to Withdraw, and he advised Appellant of his rights in lieu of representation. See Application to Withdraw as Counsel, 4/15/21, Exh. 1.
Once we determine that counsel has complied with the Turner/Finley requirements, this Court must conduct an independent review of the record to determine the merits of Appellant's claims. Wrecks, 931 A.2d at 721. As discussed below, our independent review confirms that Appellant's issues are without merit.
Standard/scope of review
We review an order denying a petition for collateral relief to determine whether the PCRA court's decision is supported by the evidence of record and free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)). "This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings." Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted).
Discovery request
Appellant's first issue involves the PCRA court's denial of Appellant's discovery request. Pa.R.Crim.P. 902(E)(1) prohibits discovery in PCRA proceedings "except upon leave of court after a showing of exceptional circumstances." What constitutes an exceptional circumstance is within the trial court's discretion to determine, and we will not disturb that determination unless the court has abused its discretion. Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012).
After a thorough review of the certified record, briefs of the parties, applicable law, and PCRA court's opinion, we conclude that there is no merit to Appellant's claim. The Honorable Glenn B. Bronson has authored a comprehensive and well-reasoned analysis addressing this claim with reference to the record and relevant legal authority. Accordingly, we adopt the PCRA court's opinion in part as our own and affirm the court's denial of relief on these claims. See PCRA Ct. Op., 3/12/21, at 29 (explaining that Appellant's discovery request was inadequate to establish exceptional circumstances, as it was "comprised entirely of conjecture").
Newly discovered evidence
In his second issue, Appellant asserts that a recantation by Heard in the unrelated Wilson murder is newly discovered exculpatory evidence for which the PCRA court should have held a hearing in the instant case. See Petition, 7/15/16, at 2-3; Turner/Finley Ltr. at 19-21.
To obtain relief based on newly discovered evidence, the petitioner must prove, inter alia, that the new evidence would likely change the verdict at a new trial. Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018). In addition, to prevail on a claim that the PCRA court should have held a hearing, the petitioner must prove the existence of an issue of fact that would entitle him to relief. Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
After a thorough review of the certified record, briefs of the parties, applicable law, and PCRA court's opinion, we conclude that there is no merit to Appellant's claim. The Honorable Glenn B. Bronson has authored a comprehensive and well-reasoned analysis addressing this claim with reference to the record and relevant legal authority. Accordingly, we adopt the PCRA court's opinion in part as our own and affirm the court's denial of relief on these claims. See PCRA Ct. Op. at 8 (explaining that Heard's recantation of his eyewitness testimony in the unrelated trial would not have changed the verdict in the instant case because, among other things, it did not exculpate Appellant of the instant murders and Heard's testimony in the instant case only proved Appellant's access to the murder weapon).
Brady claims
In his third issue, Appellant asserts that the Commonwealth committed multiple Brady violations by withholding four pieces of allegedly exculpatory evidence. "To establish a Brady violation, [the] appellant must demonstrate [that]: the evidence at issue was favorable to him, because it was either exculpatory or could have been used for impeachment; the prosecution either willfully or inadvertently suppressed the evidence; and prejudice ensued." Commonwealth v. Walker, 36 A.3d 1, 9 (Pa. 2011) (citation omitted). To satisfy the prejudice prong, the evidence must have been material to the appellant's guilt or punishment. Commonwealth v. Cam Ly, 980 A.2d 61, 76 (Pa. 2009). Evidence is material if there is a reasonable probability that, had the Commonwealth disclosed it to the defense, the result of the proceeding would have been different. Id.
Finally, in the PCRA context, an appellant "must establish that the alleged Brady violation 'so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.'" Commonwealth v. Haskins, 60 A.3d 538, 547 (Pa. Super. 2012) (quoting 42 Pa.C.S. § 9543(a)(2)(i)).
After a thorough review of the certified record, briefs of the parties, applicable law, and PCRA court's opinion, we conclude that there is no merit to Appellant's Brady claims. The Honorable Glenn B. Bronson has authored a comprehensive and well-reasoned analysis addressing each of these claims with reference to the record and relevant legal authority. Accordingly, we adopt the PCRA court's opinion in part as our own and affirm the court's denial of relief on these claims. See PCRA Ct. Op. at 8-14 (explaining that Appellant failed to prove that he suffered prejudice from the Commonwealth's alleged suppression of evidence that was either not exculpatory (Heard's recantation of unrelated murder testimony), non-existent ("Lisa" or any statement by Herbert), or "that the Commonwealth had knowledge of any contact information for Milburn's mother that was not available to the defense.").
Appellant asserts that he suffered prejudice from the cumulative effect of these Brady claims. See Response to Turner/Finley Ltr. at 18. "The cumulative impact of meritless Brady claims cannot be grounds for relief." Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005). As discussed above, each of Appellant's Brady claims is meritless and, thus, this claim fails.
Ineffective assistance of counsel
In his fourth issue, Appellant asserts eight IAC allegations. The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). "[T]he burden of demonstrating ineffectiveness rests on [the] appellant." Id. To satisfy this burden, the appellant must plead and prove by a preponderance of the evidence that: "(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceeding would have been different." Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003) (citation omitted). Failure to satisfy any prong of the test will result in rejection of the appellant's claim. Id.
Several of Appellant's IAC claims relate to counsel's decision not to investigate certain issues or interview and call certain witnesses to testify at trial. Where a petitioner alleges ineffectiveness for failure to call a witness, the petitioner must prove that (1) the witness existed and was available and willing to testify; (2) counsel knew or should have known of the witness; and (3) there is a reasonable probability that the witness's testimony would have led to a different outcome at trial. See Commonwealth v. Dennis, 17 A.3d 297, 302 (Pa. 2011); Commonwealth v. Pander, 100 A.3d 626, 639 (Pa. Super. 2014).
After a thorough review of the certified record, briefs of the parties, applicable law, and PCRA court's opinion, we conclude that there is no merit to Appellant's IAC claims. The Honorable Glenn B. Bronson has authored a comprehensive and well-reasoned analysis addressing each of Appellant's first six claims with reference to the record and relevant legal authority. Accordingly, we adopt the PCRA court's opinion in part as our own and affirm the court's denial of relief on these six claims. See PCRA Ct. Op. at 16 (concluding that Appellant provided mere conjecture that he was at work at the time of the murders and, therefore, failed to prove the arguable merit of his underlying alibi defense); 16-18 (Appellant failed to prove that "Lisa," a different "female witness" allegedly known to May, or Boyd's friends were available and willing to testify and that their individual testimonies would have changed the outcome of trial); 19-23, 28-29 (Appellant failed to prove that trial counsel's decisions (1) not to retain a DNA expert to conduct testing when the Commonwealth's expert did not incriminate Appellant; (2) to attack the adequacy of certain elements of the police investigation, (3) to cross-examine May using May's prior, inconsistent statement rather than seeking to strike May's testimony, and (4) not to lodge a meritless objection to Officer Hilbert's trial testimony, were unreasonable and caused Appellant to suffer prejudice).
Failure to object to testimony by Milburn
In his seventh IAC claim, Appellant alleges that his trial counsel was ineffective for failing to object to Milburn's testimony that he saw Appellant firing the murder weapon into the air outside of a bar a week before the Story and Herbert murders. See Petition, 4/26/18, at 12-14; Turner/Finley Ltr. at 42-46. See also N.T. Trial, 2/24/14, at 130-31, 137-40.
At trial, Milburn testified that, in addition to seeing Appellant with the murder weapon a week before the Story and Herbert's murders, he also witnessed Appellant shoot the same pistol at a craps game on September 11, 2002, after the murders. N.T. Trial, 2/24/14, at 131-37, 140-41. Milburn's testimony, therefore, proved that Appellant possessed the firearm used to kill Story and Herbert both before and after their murders and, thus, demonstrated that Appellant had access to the murder weapon. See PCRA Ct. Op. at 26.
We affirmed the admissibility of Milburn's testimony regarding the September 11, 2002 shooting on direct appeal. See Real, 2015 WL 7354731 at *2, *9-10. At issue presently is Milburn's testimony that he saw Appellant with the gun a week before the Story and Herbert murders.
Pa.R.E. 404(b)(1) precludes evidence of a crime, wrong, or other act to prove that a person acted in accordance with a particular character trait. This evidence may be admissible for another purpose, however, such as proving identity. Id. at 404(b)(2). Appellant does not challenge the relevance of Milburn's testimony to establish Appellant's identity as Story and Herbert's killer.
At the close of trial, the court instructed the jury to consider Milburn's testimony "only for [the] limited purpose" of demonstrating access to the murder weapon and not that Appellant was a person of bad character:
[You may consider Milburn's testimony only] for the purpose of showing defendant's alleged access to the weapon that was allegedly used to kill the decedents in this case. This evidence must not be considered by you in any other way other than for the purpose I just stated. You must not regard this evidence as showing that the defendant is a person of bad character or criminal tendencies from which you might be inclined to infer guilt.N.T. Trial, 2/25/14, at 27-28.
Appellant alleges that counsel's failure to object to Milburn's testimony that he had fired the murder weapon in the air the week before using it to kill Story and Herbert invited the jury to consider Appellant's past deeds as evidence of his bad character, causing Appellant to suffer prejudice. Petition, 4/26/18, at 12-13.
We disagree. A cautionary jury instruction may ameliorate the prejudicial effect of evidence of a defendant's relevant prior conduct. Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014). This is because "[j]urors are presumed to follow the trial court's instructions." Id.
The trial court's cautionary instruction in this case ameliorated any chance that Milburn's testimony caused Appellant to suffer prejudice because the court specifically instructed the jury not to consider Milburn's testimony as evidence of Appellant's bad character and we presume that jurors follow court instructions. As a result, we conclude that Appellant has failed to prove that counsel's inaction caused him to suffer prejudice and this claim fails.
Appellant also alleges that his counsel was ineffective for failing to object to the Commonwealth's statement during closing that Milburn's testimony proved Appellant's access to the murder weapon. Turner/Finley Ltr. at 44-45. See N.T. Trial, 2/24/14, at 249-50, 275-76. Since Appellant has failed to prove that Milburn's testimony was inadmissible, however, Appellant has not established that the Commonwealth's commentary on Milburn's testimony was improper. Appellant has, therefore, failed to prove the underlying merit of this IAC claim and, as a result, it fails.
Failure to make second Batson objection
In his final IAC claim, Appellant alleges that his trial counsel was ineffective for not objecting to the Commonwealth's use of a preemptory challenge to strike a Hispanic juror. See Petition, 4/26/18, at 11-12; Turner/Finley Ltr. at 38-42.
In total, the Commonwealth used four preemptory challenges to remove several prospective jurors who were Hispanic from the jury panel. Turner/Finley Ltr. at 38-39; PCRA Ct. Op. at 25. After the Commonwealth struck the third Hispanic juror, Appellant lodged a Batson objection, arguing that the Commonwealth struck the jurors based on race. PCRA Ct. Op. at 25. The court overruled Appellant's objection, finding that the Commonwealth provided race-neutral reasons for each preemptory challenge. Id. (citing N.T. trial, 2/11/14, at 224-36). The Commonwealth later exercised an additional preemptory challenge to strike a fourth Hispanic juror. Id. Appellant's trial counsel did not assert a second Batson objection.
Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting the use of race-based preemptory challenges).
Appellant is critical that his counsel did not lodge a second Batson objection when the Commonwealth struck a fourth Hispanic juror because it resulted in a fully non-Hispanic jury. See Petition, 4/26/18, at 12; Turner/Finley Ltr. at 40.
Where, as here, a petitioner alleges ineffective assistance of counsel for failure to make a Batson challenge, the petitioner "must prove actual, purposeful discrimination by a preponderance of the evidence[.]" Commonwealth v. Sepulveda, 55 A.3d 1108, 1132 (Pa. 2012) (citation omitted). Critically, "mere disparity of number in the racial make-up of the jury, though relevant, is inadequate to establish a [Batson claim]." Commonwealth v. Wilson, 649 A.2d 435, 443 (Pa. 1994) (citation omitted).
Appellant makes no effort to prove actual, purposeful discrimination. Instead, he simply alleges that because "every juror was white or black[, ]" then the Commonwealth must have violated Batson and his trial counsel should have objected. Petition, 4/26/18, at 12 (unnecessary capitalization omitted). Since racial disparity is inadequate to establish a Batson violation, Appellant has not proved the underlying merit of this IAC claim. As a result, this claim fails.
Cumulative prejudice
In his pro se reply to counsel's Turner/Finley Letter, Appellant argues generally that he suffered prejudice from the cumulative effect of the alleged ineffectiveness of his trial counsel. See Petition, 4/26/18, at 15-16; Response to Turner/Finley Ltr. at 26.
Beyond citing to case law recognizing that a claimant may potentially suffer cumulative prejudice, Appellant has failed to set forth any factually and legally supported argument for his claim. An appellant must develop claims with citation to the record and relevant case law, and a failure to do so will result in waiver. Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). See Pa.R.A.P. 2111 and 2119 (listing argument requirements for appellate briefs), 2101 (explaining that substantial briefing defects may result in dismissal of appeal). Appellant's failure to develop this issue renders it waived.
Conclusion
Based on the foregoing, we affirm the PCRA court's denial of relief. The parties are instructed to annex the PCRA Court's March 12, 2021 Opinion to any future filings.
Application to Withdraw as Counsel granted. Order affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.