Commonwealth v. Garland

245 A.3d 1108 (Table)

COMMONWEALTH of Pennsylvania, Appellee v. Raymond GARLAND, Appellant

No. 2678 EDA 2019

Superior Court of Pennsylvania.

Filed: December 29, 2020

MEMORANDUM BY KING, J.:

Appellant, Raymond Garland, appeals from the order entered in the Philadelphia County Court of Common Pleas, which dismissed his first petition filed under the Post Conviction Relief Act ("PCRA"). ¹ We affirm.

The PCRA court opinion set forth the relevant facts of this appeal as follows:

On October 20, 2014, at around 1 a.m., Khary Ford (known as "Deals"), Steven Robinson ("Shooter"), and [Appellant] ("Ghost") were selling drugs in the area of Jasper and Thayer Streets in Philadelphia.... At around this time, [Appellant] approached Ford and Robinson, who were in the same drug organization, and claimed that "four n*ggaz" just robbed him of his cell phone and $700. [Appellant] told Ford to grab his pistol. Ford, Robinson, and [Appellant] then searched the area for the alleged robbers.

On the night of the shooting, [Appellant] was the drug organization's caseworker. The caseworker holds the majority of the money and passes out the bulk of the drugs to the distributors. After searching for a short time with [Appellant], Ford suspected that [Appellant] had faked the robbery and had stolen the drug money.

After they failed to locate anyone, Robinson and [Appellant] left Ford and walked to a Chinese restaurant at around 2:20 a.m. Around the same time, the decedent, Kevin Parker[,] who was not involved in any drug organization[,] left his home on the 1800 block of East Ontario for a 7-Eleven located on the same block to buy cigarettes. On the way to the Chinese restaurant, [Appellant], walking on the same block, spotted Parker, from around 130 feet away. After spotting Parker, [Appellant] said to Robinson, "I think that's the little motherf**ker right there." [Appellant] pulled out a black semiautomatic firearm and attempted to fire at Parker, but the safety was on. After removing the safety, he fired, killing Parker and hitting a windowsill of a house.

[A] medical examiner ... determined that Parker's cause of death was a penetrating gunshot wound to the back. The bullet entered Parker's right, upper back and into the right chest cavity. The bullet passed through the lower left lobe of Parker's right lung and into the central portion of his chest cavity, perforating the lower airway and aorta, and stopping behind his left collarbone. The manner of death was homicide.

The Crime Scene Unit recovered projectile fragments on the ground in front of 1822 East Ontario Street. The frames for the window and the front door ... had bullet holes. There was also a bullet hole in the window frame of 1818 East Ontario. The Crime Scene Unit recovered five Remington 9mm Luger fired cartridge casings ("FCCs") within a few feet of each other, diagonally across the street in front of 1839 East Ontario. All five FCCs were fired from the same firearm. The distance from the sidewalk in front of 1822 to the sidewalk in front of 1839 was roughly 130 feet.

After shooting Parker, [Appellant] and Robinson ran, eventually finding Ford. [Appellant] told Ford that he had "dropped him," referring to the person he had just shot. Moments later, [Appellant] handed Ford a Luger firearm rolled inside a t-shirt and asked Ford to hide it inside his house. Later, Nate, a member of the same drug organization, retrieved the firearm from Ford's house. On November 20, 2014, Ford, in an interview with Philadelphia Police detectives, identified [Appellant], who[m] he knew as "Ghost," as the person who gave him the firearm the night of the shooting. Ford also selected [Appellant]'s photograph from an eight-person photograph array[ ] and identified himself in a still photograph taken from a 7-Eleven surveillance camera from the night of the shooting.

On November 19, 2014, Robinson, in an interview with detectives, identified [Appellant] as the shooter from a photograph array. He also identified himself, Ford, and [Appellant] in a still photograph taken from the 7-Eleven footage the night of the shooting. On December 8, 2014, Robinson told detectives that he saw [Appellant] while in custody at Curran-Fromhold Correctional Facility ("CFCF"). There, [Appellant] told Robinson that "they got [me] for that shooting," referring to the shooting on Ontario Street.

(PCRA Court Opinion, filed August 15, 2019, at 2-3) (quoting Commonwealth v. Garland , No. 2153 EDA 2016, unpublished memorandum at 2-4 (Pa.Super. filed March 13, 2017) (internal footnotes omitted)).

Following trial, a jury convicted Appellant of third-degree murder, carrying a firearm without a license, and possession of an instrument of crime ("PIC"). At a separate waiver trial, the court found Appellant guilty of persons not to possess firearms. On June 16, 2016, the court sentenced Appellant to an aggregate term of twenty-one (21) to forty-two (42) years' imprisonment. Appellant timely filed a notice of appeal. This Court affirmed Appellant's convictions for third-degree murder, PIC, and carrying a firearm without a license. Nevertheless, this Court reversed the conviction for persons not to possess firearms. ² On August 22, 2017, our Supreme Court denied Appellant's petition for allowance of appeal.

On October 17, 2018, Appellant timely filed a pro se PCRA petition. Current, private counsel entered his appearance on November 4, 2018, and he filed an amended petition on Appellant's behalf on February 14, 2019. The amended petition raised multiple allegations of trial counsel's ineffectiveness. On June 7, 2019, the Commonwealth responded, asserting Appellant's claims lacked merit. The PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a hearing on July 11, 2019. Appellant did not respond to the Rule 907 notice, and the court dismissed the petition on August 15, 2019.

On September 5, 2019, Appellant timely filed a notice of appeal. The court did not order Appellant to file a Pa.R.A.P. 1925(b) statement, and none was filed.

Appellant now raises six issues for our review:

[Were Appellant's] rights to compulsory process ... violated by trial counsel's ineffectiveness; and pursuant to 42 Pa.C.S.[A.] § 9543(a)(2)(vi) ?

[Whether t]he Commonwealth violated due process of law when it failed to disclose that Detective Nordo—who had interviewed the Commonwealth's key witness, Steven Robinson—had a history of misconduct, including paying for and coercing false witness statements?

[Whether t]rial counsel was ineffective for failing to investigate and present motive evidence that contradicted the [C]ommonwealth's trial theory?

[Whether t]rial counsel was ineffective for failing to introduce flash information that the shooter was on a bicycle?

[Whether t]rial counsel was ineffective for failing to object to the introduction of prejudicial and irrelevant testimony about ammunition found in a room containing Appellant's personal effects?

[Whether] Appellant should be granted relief based on the cumulative effect of counsel's ineffectiveness and due process violation?

(Appellant's Brief at 1-2).

Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101 (Pa.Super. 2011), appeal denied , 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513 (Pa.Super. 2007), appeal denied , 593 Pa. 754, 932 A.2d 74 (2007). We do not give the same deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190 (Pa.Super. 2012).

To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing. We stress that an evidentiary hearing is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness.

Commonwealth v. Roney , 622 Pa. 1, 17-18, 79 A.3d 595, 604-05 (2013), cert. denied , 574 U.S. 829, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014) (internal citations and quotation marks omitted).

In his first issue, Appellant contends trial counsel subpoenaed a witness, Leon Freeman, who failed to appear or testify at trial. Appellant asserts Mr. Freeman's "testimony would have provided an exculpatory version of the events preceding the shooting ... such that the jury likely would have returned a verdict of not guilty on the homicide count." (Appellant's Brief at 16). Appellant claims trial "counsel gave up on securing [Mr.] Freeman's attendance" once trial commenced, counsel "was ineffective for not requesting one more overnight attempt to find him," and counsel's ineffectiveness violated Appellant's right to compulsory process. ( Id. at 20 ).

Appellant emphasizes: 1) his trial was brief, with the Commonwealth resting its case on the second day; 2) the court would have been obliged to grant a continuance if counsel had requested additional time to locate Mr. Freeman after the Commonwealth rested; and 3) law enforcement ultimately took Mr. Freeman into custody on a bench warrant on the third day of trial. Appellant maintains counsel was ineffective for failing to request that the court reopen the record after Mr. Freeman was taken into custody, because the jury was still deliberating at that point. Appellant reiterates that Mr. Freeman's testimony would have cast doubt on the Commonwealth's theory of the case, counsel had no reasonable strategic basis for his inaction, and, "but for counsel's failure, there is a reasonable probability that the outcome of the proceedings would have been...