Commonwealth v. Bush

1

COMMONWEALTH OF PENNSYLVANIA v. JEREMIAH BUSH Appellant

No. 6 EDA 2023

No. J-A10009-24

Superior Court of Pennsylvania

June 7, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered December 2, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008142-2012

Benjamin D. Kohler, Esq.

BEFORE: PANELLA, P.J.E., BECK, J., and COLINS, J. ^[*]

MEMORANDUM

PANELLA, P.J.E.

Jeremiah Bush appeals pro se from the order entered on December 2, 2022, denying his first, timely petition pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Because we conclude that his claims either lack merit or are waived, we affirm.

A prior panel of this Court set forth the relevant factual history as follows:

At trial, [held January 27, 2014, through January 30, 2014,] the Commonwealth presented the testimony of Philadelphia Police Sergeant Steven Crosby, Philadelphia Police Detectives Michael Rocks and William Kelhower, Philadelphia Police Officers Robert Burrell, Ronald Weitman, Russell Seiberlich and Scott Pollack, Assistant Medical Examiner Dr. Edwin Lieberman, as well as Lorna Wall, Clarence Milton, K[h]alil Bell, and Robert Matthews. Bush testified on his own behalf. Viewed in [the] light most favorable to the Commonwealth as the verdict winner, the evidence established the following.

Bush, Clarence Milton, and Steven Brown were childhood friends who engaged in drug-selling activities for several years prior to 2006. As part of his drug operation, Steven Brown used to provide drugs to Kareem Brown. On March 26, 2006, Steven Brown was shot and killed. Bush and Milton had conversations regarding Steven Brown's death and street gossip indicated that Kareem Brown was the shooter.

On September 20, 2006, Bush attempted to locate Kareem Brown, in an attempt to exact revenge for the death of Steven Brown. While looking for Kareem Brown, Bush encountered Kareem Brown's brother-in-law, the decedent, Leary Wall. Bush demanded that Wall tell him where Kareem Brown could be found and, when Wall did not or could not tell, Bush shot him. Bush then left the area in a vehicle driven by an individual named Qua.

At approximately 9:45 p.m. that same evening, Philadelphia Police Detective Michael Rocks responded to a radio call on the 2100 block of Dover Street in Philadelphia. Upon arriving at the scene, Rocks observed Wall lying on the highway, having been shot four times. Wall was transported to Temple University Hospital, where he was later pronounced dead. Two bullets were recovered from Wall's body, while seven nine[-]millimeter cartridge cases were recovered from the homicide scene. Both recovered bullets were fired from the same firearm.

Some time following Wall's shooting, an individual by the name of "Bum" contacted Bush's friend Milton in order to buy a firearm. Milton contacted Bush, who indicated that he had a "dirty" gun to sell. Bush indicated that the firearm was "dirty" because he had used it to shoot Wall and further detailed the circumstances surrounding the shooting. Bush subsequently sold Bum a black nine[-]millimeter firearm for approximately $500.00.

On July 12, 2007, Bush was arrested and charged for a separate shooting that occurred on September 13, 2006, one week prior to the shooting of Wall. On that date, police responded to a reported shooting on the 1900 block of West Norris Street in Philadelphia. Upon arriving at the scene, police found Amin Payne and Timothy Fontaine, both suffering from gunshot wounds. Payne was shot a total of seven times and police recovered seven nine[-]millimeter fired cartridge casings. Charges against Bush were ultimately nolle prossed due to the lack of cooperation of the witnesses.

In 2009, Bush was in custody in Delaware County Prison with Robert Matthews as a cellmate. At some point, Payne, the victim of the September 13, 2006 shooting, was escorted into the cell block. Bush informed Matthews that he had shot Payne seven times "over a beef" using a nine[-]millimeter handgun. Upon noticing Bush, Payne alerted the prison officials and was escorted from the block. At a later time, while still in custody, Bush told Matthews that he had killed someone with the same firearm that he had used to shoot Payne. Bush thereafter informed Matthews of the circumstances of his shooting Wall.

On July 30, 2010, K[h]alil Bell, a friend of Bush, contacted the Philadelphia Police through a letter stating that he was willing to talk with police. Detective William Kelhower conducted an interview with Bell on February 7, 2011, concerning the death of Wall. In this interview, Bell stated that Bush had admitted to Bell that Bush had shot Wall while attempting to locate Kareem Brown.

On September 20, 2010, Mat[t]hews gave a statement to police concerning what Bush had told him while in custody. On November 8, 2011, Clarence Milton, Bush's friend, provided a statement to the police indicating that Bush confessed to killing Wall during their discussion about the sale of the "dirty" gun. Subsequent testing confirmed that the seven bullet casings recovered from the scene of the homicide matched the seven casings recovered a week prior to the homicide from the shooting of Payne. An arrest warrant was issued for Bush on February 6, 2012, and Bush was taken into custody two days later, on February 8, 2012.

Commonwealth v. Bush, 2015 WL 7587344, unpublished memorandum, at *1-2 (Pa. Super. filed February 17, 2015) (quoting Trial Court Opinion, 9/12/14, at 1-4) (brackets omitted). At the conclusion of trial, the jury convicted Bush of first-degree murder, firearms not to be carried without a license, and possessing instruments of crime.^[1] On January 30, 2014, Bush was sentenced to life imprisonment for his conviction of first-degree murder, and no further penalty on the remaining charges.

Bush appealed, and this Court affirmed his convictions on February 17, 2015. Bush petitioned for allowance of appeal to our Supreme Court, which the Supreme Court denied on July 29, 2015.

On February 1, 2016, Bush filed a timely pro se PCRA petition. Bush thereafter filed multiple pro se supplemental PCRA petitions wherein he raised multiple claims of ineffective assistance of trial and direct appeal counsel^[2] and Brady^[3] violations. The PCRA court^[4] appointed counsel to represent Bush during the PCRA proceedings. The PCRA court granted an evidentiary hearing on some, but not all, of Bush's claims.

Bush believed his interests were not being adequately represented, so he elected to proceed pro se. The PCRA court held a Grazier^[5] hearing and granted his request. However, Bush allowed stand-by counsel to conduct the three evidentiary hearings held August 12, 2022, October 12, 2022, and November 28, 2022. At the conclusion of the three evidentiary hearings, the PCRA court dismissed Bush's PCRA petition.

Bush appealed and complied with the PCRA court's order to file a Rule 1925(b) statement. See Pa.R.A.P. 1925(b). He now raises 14 claims of error:

1. Did the PCRA [c]ourt err in denying [Bush's] claim that trial counsel provided ineffective assistance of counsel where he failed to interview and present Timothy Fontaine as a witness during trial?

2. Did the PCRA [c]ourt err in denying [Bush's] claim that trial counsel provided ineffective assistance of counsel where he failed to present letters from Clarence Milton to Khalil Bell?

3. Did the PCRA [c]ourt err in denying [Bush's] claim that direct appeal counsel was ineffective for failing to raise on direct appeal that the trial [c]ourt abused its discretion by admitting evidence of the Amin Payne shooting during [Bush's] trial?

4. Did the PCRA [c]ourt err in denying [Bush's] claim that the Commonwealth committed a Brady violation by suppressing evidence of Khalil Bell's letter to homicide detectives and also Bell's statement falsely implicating [Bush] for the murder of Sharieff Lighty?

5. Was PCRA counsel ineffective for failing to properly cross-examine witness Clarence Milton and present evidence regarding letters that Milton wrote to Kenneth Whitley?

6. Was PCRA counsel ineffective for failing to raise the claim of after discovered/newly discovered evidence consisting of the evidentiary testimony of Clarence Milton and Khalil Bell, where both witnesses testified that [Bush] did not kill Sharieff Lighty, and the allegations against [Bush] were fabricated?

7. After discovered/[n]ewly discovered evidence consisting of Brady material that the Commonwealth intentionally suppressed from the defense relating to the credibility and impeachment evidence of witness Amin Payne?

8. Did the PCRA [c]ourt abuse its discretion in failing to hold an evidentiary hearing on claims where [Bush] had raised genuine issues of material fact that entitle him to relief?

A) Trial counsel provided ineffective as[sis]tance when he failed to object to the introduction of a statement from witness Khalil Bell, thus violating [Bush's] right to confrontation.

B) Trial counsel provided ineffective assistance when he failed to investigate, interview, and call Alfonso Holder as a defense witness at trial.

C) Direct [a]ppeal counsel failed to raise trial court abuse of discretion by allowing prejudicial evidence at trial related to the shooting of Amin Payne.

D) Direct appeal counsel failed to raise trial court abuse of discretion when overruling trial counsel's objection to the prosecutor questioning [Bush] on cross-examination about carrying guns.

E) The Commonwealth committed a Brady violation by failing to disclose that witness Clarence Milton was arrested and convicted for possession of the same caliber firearm used in the instant murder case; also [Bush] was denied due process and a fair trial as a

...