Commonwealth v. Carr

1

COMMONWEALTH OF PENNSYLVANIA v. REGINALD CARR Appellant

No. 58 EDA 2023

No. J-S30028-23

Superior Court of Pennsylvania

November 29, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered November 22, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011216-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM

LAZARUS, J.

Reginald Carr appeals from the order, entered in the Court of Common Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After review, we affirm.

The Honorable Rose Marie DeFino-Nastasi summarized the pertinent facts as follows:

On June 9, 2009, the decedent, Kyree Young, was shot and killed during the commission of a robbery by [Carr] and co-defendant, Omar Roane. Tyreese Gibson was shot in the shoulder and survived.

Tyreese Gibson testified that[,] at approximately 1:11 a.m he was walking on 56th and Greenway Street[s], in the city and county of Philadelphia, when he observed the decedent. Gibson did not know the decedent but asked him for a cigarette. The decedent gave him a cigarette and the two were walking toward Woodland Avenue when two (2) males riding bikes asked the decedent if he had any weed. The decedent said he only had pills.

As the males pulled over to speak to the decedent, Gibson walked off. Gibson heard someone say, "don't run[,]"[] followed by gunshots. Gibson heard approximately nine (9) gunshots as he was running. He looked back and saw one of the males on the bike holding a gun. Gibson was struck by a bullet in his shoulder.

Gibson gave a description of the two males on the bikes to police later that morning. He described the male with the gun as approximately 5'10", dark-skinned, wearing a blue sweat suit with a white stripe down the side. The other male was approximately 5'7", light-skinned, short hair slanted eyes, tattoo on his face, and beard. Both males were riding BMX bikes. The gun was a semi-automatic weapon.

On July 22, 2010, Gibson was shown a photo array by homicide detectives. He identified [Carr] and co-defendant, Omar Roane, as the males on the bikes. He identified [Carr] as the male that was holding the gun.

At trial, Gibson testified that he could not identify [Carr] and that the detectives had forced him to pick [Carr] out of the photo array. Gibson was impeached with his prior statement and prior identification of [Carr].

Jessica McNeil testified that she was in her house watching television at approximately 1:10 [a.m.] when she heard approximately five (5) gunshots and looked out of the window. She observed a young black male, wearing a white cap and a blue sweat suit with a light blue stripe down the side, running from 56th and Yocum Street[s] to 55th and Yocum Street[s], holding a gun in his right hand. A few minutes later, McNeil went outside and saw a bike laying in the middle of the street and police near the decedent's body.

The co-defendant, [] Roane, testified that he knew [Carr] for eight (8) years. The two hung out together. In the early morning hours of June 9, 2009, an associate by the name of Jermaine Graham called Roane and gave him the name of someone Roane and [Carr] could rob. Graham said the person would have drugs on him. Roane and [Carr] [rode] to 56th and Paschall Street[s], on their bikes, to meet up with Graham. Graham described the individual they could rob and told [Carr] and Roane that the individual was walking on 56th Street between Woodland and Greenway. [Carr] and Roane went to the area and observed the decedent, who fit the description, in the company of another person. Roane asked the decedent if he had weed. The decedent said he did not have weed but he had some pills. At that point, Roane rode up the street to look out for police and [Carr] pulled out a gun. Roane heard [Carr] tell someone not to move and then heard gunshots. Roane [rode] back toward [Carr], to see if he was okay, and then [rode] off. Initially, [Carr] was following behind him on his bike, but then dropped the bike, and began running on foot. Roane further testified that [Carr] had a tattoo of a teardrop on his cheek in the courtroom that he did not have on the night of the incident. On the night of the incident, Roane was wearing a black Adidas sweat suit with a white stripe down the side and a white hat. [Carr] was wearing a blue (turquoise) sweat suit with a dark stripe down the side and a grey hat.

Cory Williams testified that he knew [Carr] from the neighborhood. On the night of June 9, 2009, he was sitting on the steps at 54th and Belmar Street with Tymeer Workman and some other friends when he heard a couple of gunshots. Approximately one (1) hour later, [Carr] came around and said that it was "hot" on Woodland Ave. When Williams asked [Carr] why it was "hot," he responded that he and "O" went on a "mission." [Carr] went on to describe that he and "O" attempted to rob a guy, but the guy ran and they fired shots at him. Williams testified that "O" is Omar, but that he did not know his last name. Williams gave his statement to homicide detectives after he was arrested in February, 2011.

[Doctor Edwin] Lieberman from the medical examiner's office testified that the decedent suffered six (6) gunshot wounds.

The defense presented testimony from Ishon Coleman who testified that [Carr] was at home with him the entire night on the night of the incident.

Rashod Carr[, Carr's brother,] testified that Roane made a statement to him that he was framing [Carr] for this murder because [Carr] was "messing" with his girlfriend.

Annette Rodriquez, Roane's girlfriend, testified that Roane made a statement to her that he was blaming [Carr] for the homicide because he heard that [Carr] was "messing" with her.

Michele Coleman testified that she is [Carr]'s aunt and that he lived with her at the time of the incident. She testified that she remembers the date of the incident because she was celebrating the fourth anniversary of a relationship she was in, and was supposed to go out to dinner, but was too tired. She recalled looking in on [Carr] after midnight and he was asleep in his bedroom.

Tymeer Workman testified that he was not with Cory Williams on June 9, 2009, and never overheard [Carr] admit to Williams that [Carr] robbed and shot the decedent.

Sharmella Lewis testified that she knew the decedent from the neighborhood. On June 9, 2009, she was sitting on her front porch at approximately 12:30 a.m. when she saw two males ride by on bikes asking people if they had weed. She could only describe one (1) of the males. She described the male as wearing a black Adidas sweat suit with a white stripe down the side. She stated that she observed a gun on that male's waist. Approximately ten (10) minutes after seeing the males, she heard gunshots.

Trial Court Opinion, 5/3/18, at 4-7 (citations to the record omitted).

On February 10, 2014, after a jury trial, Carr was found guilty of second-degree murder,^[1] robbery,^[2] and conspiracy to commit robbery.^[3] On April 27, 2015, Carr was sentenced to 30 to 60 years' imprisonment for second-degree murder and 10 to 20 years' imprisonment for conspiracy to commit robbery; the sentences were ordered to run concurrently.

On May 26, 2015, Carr filed a timely notice of appeal to this Court. On March 1, 2016, we dismissed the appeal for failure to file a brief. On January 17, 2017, Carr filed a timely pro se PCRA petition. Carr's court-appointed counsel filed an amended petition on August 3, 2017. On January 10, 2018, the PCRA court reinstated Carr's direct appeal rights, nunc pro tunc.

On January 17, 2018, Carr filed a pro se nunc pro tunc direct appeal to this Court. On April 17, 2019, we affirmed the judgment of sentence, concluding that the evidence was sufficient to sustain Carr's convictions and that Carr had waived his claim that the verdict was against the weight of the evidence. See Commonwealth v. Carr, 216 A.3d 399 (Pa. Super. 2019) (Table). On May 17, 2019, Carr filed an unsuccessful petition for allowance of appeal with the Pennsylvania Supreme Court.

On February 6, 2020, Carr filed a pro se PCRA petition. The PCRA court appointed counsel. On October 25, 2021, PCRA counsel filed an amended petition, raising a single claim of after-discovered evidence. This evidence was a letter purportedly written by Roane, indicating that Roane had killed Young and was planning to implicate Carr to avoid additional prison time.^[4] Carr argued that the letter would have strengthened Carr's defense and was a confession that Roane killed Young. Carr further argued that the letter, in conjunction with testimony from Romel Moten, the recipient of the letter, would entitle him to a new trial.

On May 17, 2022, the PCRA court issued Pa.R.Crim.P. 907 Notice of its Intent to Dismiss, stating that the petition was untimely filed. See 42 Pa.C.S.A. § 9545(b).^[5] On June 28, 2022, Carr filed another pro se PCRA petition, which the PCRA court treated as a response to the Rule 907 Notice. The PCRA court formally dismissed Carr's PCRA petition, without an evidentiary hearing, on November 22, 2022. On December 23, 2022, Carr timely filed the instant notice of appeal.^[6] Carr subsequently filed a court-ordered Pa.R.A.P. 1925(b) statement.

Carr sets forth the following issues on appeal:

[1.] Whether [Carr] has after-discovered evidence that a letter written by Omar Roane showed that Roane had committed the murder and had planned to fabricate a story to pin the murder on [Carr.]

[2.] Whether the PCRA court abused its discretion by failing to hold an evidentiary hearing even though [Carr] presented a genuine issue of material fact[.]

[3.] Whether the PCRA [

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