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Commonwealth v. Sawyer

SUPERIOR COURT OF PENNSYLVANIA
Apr 13, 2018
No. 1370 EDA 2017 (Pa. Super. Ct. Apr. 13, 2018)

Opinion

J-S06035-18 No. 1370 EDA 2017

04-13-2018

COMMONWEALTH OF PENNSYLVANIA v. BRANDON SAWYER, Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order April 3, 2017 in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0012941-2011 BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:

Brandon Sawyer ("Sawyer") appeals from the Order dismissing his Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.

This Court previously summarized the factual history of this case as follows:

At approximately 1[:00] o'clock in the morning of November 4, 2008, Philadelphia Police Officer Sterling Staton [("Officer Staton")] and his partner, Officer Vance, were called to 54th Street and Florence Avenue in West Philadelphia. When they arrived at the scene, Officer Staton observed the body of the victim in this case, Charmaine McGuilken [(hereinafter "McGuilken" or "the decedent")], lying beneath a pay phone, unresponsive and bleeding from her face. She had the telephone handset in her hand, and the cord connecting it to the phone had been severed. When the medics arrived a few minutes later, they
pronounced her deceased at the scene. N.T. October 22, 2013, pp. 56-69.

Dr. Sam Gulino [("Dr. Gulino")], Chief Medical Examiner in the Office of the Medical Examiner of Philadelphia, performed an autopsy on the decedent .... The decedent sustained two perforating gunshot wounds, to the right side of her face and to her chest. [ Id. at] 76-100. Officer John Cannon [("Officer Cannon")] of the Firearms Identification Unit gave expert testimony that the ballistics evidence recovered at the scene and from the Medical Examiner all came from the same firearm. Id. at 153-164.

Corey Williams [("Williams")] lived in Southwest Philadelphia in 2008, where he knew two men named Aasim Stibbins [("Stibbins")] and Aaron McCallum [("McCallum")]. [] McCallum, also known as Beano, is [Sawyer's] cousin. On November 4th, 2008, at approximately 1[:00] in the morning, Williams was selling crack cocaine on the 5400 block of Belmar Terrace, which is a little less than two full blocks east of Florence Avenue. He heard shots, but he stayed on Belmar Terrace because they sounded sufficiently far away that he did not fear for himself. Shortly thereafter, he heard police cars rushing to the scene of the shooting and saw [Sawyer], Stibbins, and McCallum emerge from an alleyway, looking shocked and fearful. The three men went to Stibbins'[s] house. Earlier that day, Williams had seen McCallum with a gun. He knew McCallum to own two guns, a 40-caliber and a 9-millimeter. Id. at 170-181.

At some point after the shooting, Williams was at Stibbins'[s] house speaking with [Sawyer] and McCallum. [Sawyer] told him that he shot [] McGuilken in the head, and he and McCallum laughed off the incident. [Sawyer] said he came out of the alleyway, he shot [the decedent] in the head, and when he shot her the receiver on the phone came off. Stibbins seemed more troubled by what had happened. Id. at 182-187.

On November 6, 2008, Detective Keith Scott [("Detective Scott")] and his partner were working near 55th Street and Florence Avenue. He saw [Sawyer] and attempted to stop him, and [Sawyer] ran from him for approximately 100 feet. [Detective] Scott overcame [Sawyer] and took him into custody on an unrelated matter. N.T. October 23, 2013, pp. 36-40.
On February 9, 2011, Williams was arrested for selling narcotics. In order to avoid harsh penalties for his narcotics involvement, Williams agreed to give a statement about the murder of [] McGuilken. He told homicide detectives what he remembered from the night of the shooting, and from [Sawyer's] confession. N.T. October 22, 2013, pp. 188-197.

[] Stibbins knew the decedent, who was his mother's friend. On February 16th, 2011, he gave a statement to police in which he implicated [Sawyer]. In his statement, he says that he was leaving a woman's house sometime after midnight and saw [Sawyer] and [] McCallum coming out of a vacant lot, and then saw [Sawyer] raise a gun and shoot the decedent while she was on the phone. N.T. October 23, 2013, pp. 47-79.

On November 8, 2011, Stibbins and his lawyer signed a Memorandum of Agreement with the District Attorney memorializing their agreement that Stibbins [would] testify against [Sawyer] in this case, and that the District Attorney would agree to a sentence of time served on Stibbins'[s] open gun case. Stibbins testified at [Sawyer's] preliminary hearing that he saw [Sawyer] shoot the decedent. Id. at 104-145.

On the witness stand, [Stibbins] denied being present for [decedent's] shooting or involved in any way. Rather, he claimed that the detectives who took his statement used [] Williams'[s] statement in order to fabricate a statement for him as well, and that he was not present when the shooting occurred but he was threatened with being charged in this case if he did not put himself at the scene as a witness. Id. at 47-79.

On March 8, 2011, Tyree Thomas [("Thomas")] gave a statement to police in which he reported that in February of 2009[,] he was at [] Stibbins'[s] house when Stibbins told him about the shooting. Stibbins said that "the boy, [Sawyer], shot the fiend in the head while she was on the phone" and that Stibbins had witnessed the shooting, having walked up to the intersection just as it was taking place. Id. at 211-224.

Tevin Clark [("Clark")], a friend of [] Stibbins, gave a statement on February 17, 2011[,] that Stibbins had told him that [Sawyer] shot the decedent in the eye without provocation, and that Stibbins witnessed the shooting but was not involved. At
trial, he claimed that the statement was inaccurate. Id. at 211-232.

At trial, the Commonwealth played recordings of two phone calls that [Sawyer] made while he was in custody awaiting trial. In the first one, he discusses the fact that "Corey" (presumably [] Williams) gave a statement in this case and "told" in some other cases as well. In the second call, he declares that he has statements made by Williams and "Diddy" and "two other young bouls [sic]" and "I'm' a send 'em jawns out tonight, you heard me?" N.T. October 28, 2013, pp. 59; Commonwealth Exhibit 39 (transcripts).
Commonwealth v. Sawyer , 122 A.3d 1118 (Pa. Super. 2015) (unpublished memorandum at 1-6) (citation omitted).

A jury found Sawyer guilty of first-degree murder, carrying a firearm on public streets or property in Philadelphia, and possessing an instrument of crime. Thereafter, the trial court sentenced Sawyer to a 42½ years to life in prison for his conviction of first-degree murder, and concurrent prison terms of one to two years for his convictions of carrying a firearm on the streets or property in Philadelphia and possessing an instrument of crime. This Court affirmed Sawyer's judgment of sentence, after which the Pennsylvania Supreme Court denied Sawyer's Petition for allowance of appeal. See Sawyer , 122 A.3d 1118 (Pa. Super. 2015) (unpublished memorandum), appeal denied 128 A.3d 1206 (Pa. 2015).

Sawyer was 15 years old at the time of the murder.

On November 2, 2016, Sawyer timely filed the instant PCRA Petition, his first. After the appointment of counsel and an evidentiary hearing, the PCRA court dismissed Sawyer's Petition. Thereafter, Sawyer filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

Sawyer presents the following claims for our review:

I. Were [Sawyer's] rights pursuant to the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the PA Constitution violated in that counsel failed to investigate and present an available witness and evidence that would have corroborated Stibbins['s] recantation at trial?

II. Were [Sawyer's] rights pursuant to the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the PA Constitution [] violated by counsel['s] failure to investigate and present available witnesses and evidence of an alternative suspect and the Commonwealth's abandonment of investigation of that person?

III. Were [Sawyer's] rights pursuant to the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the PA Constitution [] violated by trial counsel's failure to obtain and present available evidence that would prove that [] Williams['s] testimony that he had a conversation with [Sawyer] was contrary to the incontrovertible physical evidence of record and should be suppressed?

IV. Were [Sawyer's] rights pursuant to the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, sec. 9 of the PA Constitution [] violated by counsel's ineffective failure to object to the hearsay testimony of [] Clark?

V. Were [Sawyer's] constitutional right to due process of law and a fair trial ... violated by the cumulative impact
of trial counsel['s] ineffectiveness in violation of the Sixth Amendment?
Brief for Appellant at 3.

"In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Montalvo , 114 A.3d 401, 409 (Pa. 2015) (citation and internal quotation marks omitted). "Where a PCRA court fails to support its holding with sufficient explanations of the facts and law, or fails to provide an adequate opinion addressing all of the claims raised in a PCRA petition, including factual and credibility disputes, a remand is appropriate." Id. at 410.

Sawyer first claims that his constitutional right to effective assistance of counsel, pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 9 of the Pennsylvania Constitution, was violated by counsel's failure to investigate and present an available witness, and evidence that would have corroborated the recantation testimony of Stibbins. Brief for Appellant at 12. Sawyer directs our attention to Stibbins's trial testimony that the detectives interrogating him, including Detective Pitts, told Stibbins what to say, and corrected his statement about the incident. Id. at 14. Sawyer asserts that at trial, Stibbins denied telling Clark that Sawyer had shot the victim. Id. at 15. Sawyer states, "Stibbins testified at the trial that he only gave testimony at the preliminary hearing consistent with [his] statement because the [District Attorney] told him to." Id. In addition, Sawyer contends that at trial, Clark testified that the statement attributed to him was not correct, and he denied having spoken to Williams about the crime. Id.

Sawyer asserts that his trial counsel rendered ineffective assistance by not investigating the detectives involved in taking Stibbins's statement, especially Detective Pitts. Id. at 15, 17. Sawyer contends that had counsel investigated Detective Pitts,

she would have learned that [Detective] Pitts has a documented, admissible, pattern and practice of holding suspects and witnesses in isolation, often handcuffed, for prolonged interrogation periods, threatening, bullying and physically and psychologically coercing suspects and witnesses into giving statements that incriminate a pre-ordained suspect. In other words, [Detective] Pitts had a pattern and practice of making the evidence fit the intended suspect[,] as he did in the instant case.
Id. at 17. Sawyer contends that Detective Pitts was the subject of six civil lawsuits, each of which accused Detective Pitts of misconduct, including excessive use of force and false arrest. Id. at 18. According to Sawyer, the City of Philadelphia settled several lawsuits against Detective Pitts. Id. at 18 n.3. Sawyer asserts that an evidentiary hearing is required, during which trial counsel can be questioned about her failure to call Detective Pitts, as well as the men who had filed civil claims against Detective Pitts. Id. at 18. Sawyer details the cases against these men, Unique Drayton, Nafis Pinkney and Amin Speaks. Id. at 19-21. Sawyer also disputes the PCRA court's conclusion that he did not suffer prejudice from counsel's inaction, and its conclusion that the jury considered and rejected Stibbins's trial recantation testimony. Id. at 22. According to Sawyer, had the evidence of the pattern and practices of Detective Pitts been presented to the jury, it would have corroborated the recantation testimony of Stibbins and Clark. Id. at 23.

As this Court has explained,

[t]o be entitled to relief on an ineffectiveness claim, [the petitioner] must prove the underlying claim is of arguable merit, counsel's performance lacked a reasonable basis, and counsel's ineffectiveness caused him prejudice. Prejudice in the context of ineffective assistance of counsel means demonstrating there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. This standard is the same in the PCRA context as when ineffectiveness claims are raised on direct review. Failure to establish any prong of the test will defeat an ineffectiveness claim.
Commonwealth v. Solano , 129 A.3d 1156, 1162-63 (Pa. 2015) (citations omitted).

In its Opinion, the PCRA court addressed Sawyer's claim and concluded that it lacks merit. See PCRA Court Opinion, 5/10/17, at 9-10. The PCRA court's findings are supported in the record, and we discern no abuse of discretion by the PCRA court in rejecting Sawyer's claim. See id. We therefore affirm on the basis of the PCRA court's Opinion with regard to this claim. See id.

Sawyer also has filed a Petition for Remand based upon newly obtained evidence. Specifically, Sawyer points out other cases in which it was alleged that Detective Pitts had physically assaulted and coerced witnesses. However, this evidence does not contradict the PCRA court's determination that Sawyer "neither alleges that Stibbins was physically coerced by Detective Pitts before giving his statement, nor does he argue that Stibbins would testify that he was." See PCRA Court Opinion, 5/10/17, at 9. Further, Sawyer does not assert that any of the people allegedly assaulted by Detective Pitts would be available to testify upon remand to the PCRA court. Finally, Sawyer does not explain how this information was not available at the time he filed his PCRA Petition or during the PCRA hearing in 2017. Accordingly, we deny Sawyer's Petition for remand.

In his next claim, Sawyer argues that counsel rendered ineffective assistance by failing to adequately investigate and present available witnesses regarding an alternative suspect, Joseph Brunner ("Brunner"). Brief for Appellant at 24. Sawyer contends that Brunner had a lengthy criminal history involving firearms, drugs and violent crimes. Id. at 25. Sawyer contends that counsel's trial strategy, i.e., to implicate Stibbins rather than Brunner, was not reasonable. Id. at 24. Further, Sawyer contends that the circumstantial evidence provided by these witnesses would have established reasonable doubt as to his own involvement. Id. at 27.

In particular, Sawyer points out that Denise Webster ("Webster"), in her statement to police, observed Brunner running out of Ridgewood Street just minutes after the shooting. Id. Webster also told police that Brunner carried a silver-colored revolver, and had previously threatened to "Fuck her up[,]" referring to the decedent. Id. Sawyer also states that his trial counsel was aware that Jeanine Jones had told police that she had seen Brunner running through the nearby driveway following the shooting. Id. at 29. Similarly, Sawyer points out that LaVerne McCall could have testified regarding animosity between Brunner and the decedent. Id. at 30. Sawyer argues that these witnesses would have rebutted the testimony of Detective Morton, who had testified that the case had "gone cold," and that they had no suspect in December 2008. Id. at 31. Sawyer takes exception to his trial counsel's failure to investigate Brunner, and should have argued that the police believed that Brunner was the primary suspect. Id. at 32. According to Sawyer, "Brunner had both motive and opportunity to kill the victim." Id. at 33. Sawyer also disputes the PCRA court's determination that trial counsel's strategic decisions were reasonable. Id. at 34.

In its Opinion, the PCRA court addressed this claim and concluded that it lacks merit. See PCRA Court Opinion, 5/10/17, at 5-8. We agree with the sound reasoning of the PCRA court, and its conclusion that the claim lacks merit. See id. We therefore affirm on the basis of the PCRA court's Opinion with regard to this claim. See id.

In his third claim, Sawyer asserts that his trial counsel rendered ineffective assistance by failing to present evidence contradicting Williams's testimony, requiring its suppression. Brief for Appellant at 37. Sawyer states that in Williams's February 9, 2011 statement to police and trial testimony, he recalled an incriminating statement by Sawyer wherein Sawyer referred to decedent saying that he had "rocked" her and stated, "I shot her in the head." Id. According to Sawyer, he told trial counsel that Williams's statement was a lie, because Sawyer was in police custody at the time. Id. Sawyer disputes the PCRA court's finding that the claim is frivolous, based upon the parties' stipulation that Sawyer was not in Philadelphia from November 2008 through February 2010. Id. at 38. In spite of the stipulation, Sawyer argues that his counsel should have subpoenaed records showing that he was not in Philadelphia during this time period. Id. at 39.

In its Opinion, the PCRA court addressed this claim and concluded that it lacks merit. See PCRA Court Opinion, 5/10/17, at 10-11. We agree with the sound reasoning of the PCRA court, as expressed in its Opinion, and discern no abuse of discretion in this regard. See id. Accordingly, we affirm on the basis of the PCRA court's Opinion with regard to this claim. See id.

In his fourth claim, Sawyer argues that his counsel rendered ineffective assistance by not objecting to the hearsay testimony of Clark. Brief for Appellant at 44. According to Sawyer, his counsel should have objected to the following statement, wherein the prosecutor read out loud, to Clark, Clark's prior statement:

[The Prosecutor, reading from Clark's Statement]: I have a friend named [Stibbins]. We've been hanging around together for about a year or two. In February of '09[,] I was at [Stibbins's] house when he told me about the shooting of the lady at 54th and Florence Avenue back in November the year before. [Stibbins] told me that the boy, [Sawyer], shot the friend in the head while she was on the phone. [Stibbins] told me that Brandon was with another guy named Aaron[,] but he didn't say what Aaron did.
[Stibbins] said that he was out there when this happened and he saw what they did. He had just walked up when it happened.

So, [] Clark, my first question is[,] did I get that right? Did I read that accurately?

[Clark]: Yes, you read it accurately.

Q. And that's what's on the statement?

A. Yes.

Q. Do you recall that question and answer?

A. No.
Brief for Appellant at 43 (citation omitted). Sawyer contends that because there was no hearing, there is no evidence as to why counsel failed to object to this hearsay testimony. Id. at 44. Sawyer insists that a hearing is necessary, at which time counsel can testify as to his reasons for not objecting to this testimony. Id.

In its Opinion, the PCRA court addressed this claim and concluded that it lacks merit. See PCRA Court Opinion, 5/10/17, at 11-12. We agree with the sound reasoning of the PCRA court, and affirm on this basis as to Sawyer's fourth claim. See id. We additionally note the following.

The record supports the trial court's determination that the statement at issue was offered to impeach the earlier testimony of Stibbins. In addition, our review of the record discloses that the statement at issue was used to impeach Clark's own testimony. At trial, Clark represented that he was under the influence and tired at the time he spoke with homicide detectives on February 17, 2011. N.T., 10/23/13, at 220. When confronted with each statement that he made to the homicide detectives, Clark could not recall making the statement. See id. 220-25 (wherein the prosecutor confronted Clark with each statement that he made to the detectives, and Clark denied remembering his statements). We conclude that the evidence also was properly admitted to refute Clark's claim that he was under the influence at the time he spoke with homicide detectives, and could not recall major portions of his statement. See id.

In his fifth and final claim, Sawyer argues that he is entitled to relief based upon the cumulative effect of all of his prior claims. Brief for Appellant at 45. However, because we conclude that the PCRA court did not abuse its discretion or err, Sawyer is not entitled to relief on this claim.

Petition for Remand denied. Order affirmed.

Judge McLaughlin joins the memorandum.

Judge Bowes concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/13/18

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Summaries of

Commonwealth v. Sawyer

SUPERIOR COURT OF PENNSYLVANIA
Apr 13, 2018
No. 1370 EDA 2017 (Pa. Super. Ct. Apr. 13, 2018)
Case details for

Commonwealth v. Sawyer

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. BRANDON SAWYER, Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Apr 13, 2018

Citations

No. 1370 EDA 2017 (Pa. Super. Ct. Apr. 13, 2018)