Commonwealth v. Smith

1

COMMONWEALTH OF PENNSYLVANIA v. FEROCK SMITH Appellant

No. 1698 EDA 2023

No. J-S11035-24

Superior Court of Pennsylvania

September 10, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered June 1, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006875-2009

BEFORE: BOWES, J., McLAUGHLIN, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Ferock Smith, appeals from the order dismissing his first petition filed under the Post Conviction Relief Act ("PCRA").^[1] We affirm.

The trial court summarized the factual background of this case:

In the early morning hours of July 18, 2008, the decedent Barry Jacobs Jr., was selling crack cocaine in the Liddonfield public housing development in the Holmesburg neighborhood of Philadelphia. Antoinette Gray went to Liddonfield to purchase crack cocaine. Co-defendant Alonzo Ellison approached Gray to sell her crack cocaine but Gray declined due to its poor quality. Gray was then approached by Jacobs, from whom she bought $10 worth of crack cocaine. After Gray completed the transaction with Jacobs, as she headed to a friend's house in the area to use the drugs, [Appellant] and co-defendants Ellison and Mikechel Brooker approached Jacobs. [Appellant] shot Jacobs in the head. Jacobs fell to the ground and Ellison and Brooker began shooting him as well, striking him in the head and chest. The three men then fled toward the parking lot. [Appellant] was not licensed to carry a firearm on the day of the murder. At approximately 2:30 a.m. on the morning of July 18, 2008, police responded to a report of a shooting on the 8700 block of Glenloch Place in the Liddonfield public housing development where they found Jacobs lying on the ground unresponsive with multiple gunshot wounds. Jacobs was pronounced dead by responding medics at 2:36 a.m. The medical examiner observed that Jacobs had multiple gunshot wounds including one to his right shoulder, one to his left chest, one to the front of his face, three perforating wounds to the side of his face, and a graze wound to his ear. The medical examiner determined that either the shot to the front of Jacobs' face or the shot to his left chest would have been fatal alone and determined that his manner of death was homicide. The day after the shooting, Gray was at her friend's house where all three co-defendants had gathered. The three men discussed committing the murder and began laughing about Jacobs' death.

PCRA Court Opinion, 9/13/23, at 5-6 (citations and footnotes omitted).

On July 16, 2012, a jury found Appellant guilty of murder in the first degree, conspiracy to commit murder, carrying a firearm without a license, and possession of an instrument of crime.^[2] On December 17, 2012, the trial court sentenced Appellant, who was a juvenile at the time of his offense, to 50 years to life imprisonment for first-degree murder, as well as a concurrent term of 6 to 12 years' imprisonment on the firearms charge. The court imposed a term-of-years sentence rather than a life without parole sentence for first-degree murder in light of the then-recent decision of Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory life without parole sentences for individuals under the age of 18 at the time of their crime violated the Eighth Amendment prohibition on cruel and unusual punishment.

Appellant filed a timely appeal, and this Court affirmed his judgment of sentence. See Commonwealth v. Smith, No. 188 EDA 2013, 2014 WL 10575374 (Pa. Super., filed Sept. 23, 2014). Appellant filed a petition for allowance of appeal, which our Supreme Court denied on April 29, 2015. See Commonwealth v. Smith, 114 A.3d 1040 (Pa. 2015) (table).

On March 22, 2016, Appellant filed a timely pro se petition.^[3] PCRA Counsel was appointed to represent Appellant, who filed an amended petition and then three supplemental petitions. In his latter two supplemental petitions, counsel raised the issue of whether the trial court complied with the requirements of Miller when imposing sentencing upon Appellant for first-degree murder and whether trial and direct appeal counsel were ineffective for failing to object to the procedure employed. Upon motion by the Commonwealth, the PCRA proceedings were stayed in 2018 pending a determination of whether a discretionary term-of-years sentence imposed on a juvenile may be so long as to trigger the protections of Miller.

While the case was stayed, Appellant's appointed PCRA counsel passed away, and he retained private counsel to pursue his claims. On February 23, 2022, our Supreme Court held in Commonwealth v. Felder, 269 A.3d 1232 (Pa. 2022), that "[s]o long as the sentence imposed is discretionary and takes into account the offender's youth, even it amounts to a de facto life sentence, Miller is not violated." Id. at 1246. The stay was lifted, and privately retained counsel filed two additional amended petitions on Appellant's behalf, with the October 14, 2022 filing being the operative pleading. The PCRA court granted an evidentiary hearing on two issues raised by Appellant in that proceeding: (1) a claim under Brady v. Maryland, 373 U.S. 83 (1963), regarding the Commonwealth's alleged failure to provide Appellant with an exculpatory statement made to police by James Robinson, an alleged eyewitness to the shootings, and (2) an ineffective assistance of counsel claim concerning advice on a plea offer. See N.T., 3/2/23, at 3-5 (PCRA court granting hearing on two claims and Appellant withdrawing the remaining three claims asserted in the October 14, 2022 petition).

At the June 1, 2023 hearing, Appellant elected to proceed only on the Brady claim. See N.T., 6/1/23, at 4-9.^[4] Robinson was the sole witness to testify at the hearing. The PCRA court accurately summarized Robinson's testimony in its opinion:

Robinson testified that, in the early morning hours of July 18, 2008, he was sitting in his car in the parking lot of the Liddonfield public housing development talking with his then-girlfriend Tiffany. [Id.] at 12-13, 38-39, 46. A blue four-door car pulled into the parking lot, parked, and the decedent, Barry Jacobs, Jr[.] approached it. Id. at 15, 19, 41. Three men got out of the car and started walking toward Jacobs. Id. at 15. However, one of the men got right back into the driver's seat. Id. at 15, 41, 50. Robinson had never seen these men before and has never seen them since that day. Id. at 15-17, 29, 41-42. Jacobs and these unknown individuals began to argue. Id. at 15. The fight became physical and, after approximately 20-30 seconds, the two men outside the car began to shoot at Jacobs. Id. at 15, 18-19. The two men ran back to the blue car and all three men left the scene. Id. at 20, 50. Robinson and Tiffany left right after. Id. at 20, [50-]51. Robinson drove Tiffany to North Philadelphia and dropped her off at her house on "a little small side street" off Allegheny Avenue. Id. at 53-54.

Robinson described one shooter as approximately 5 feet 10 inches tall and 200 pounds with a light complexion. Id. at 15, 42. The other shooter was approximately 6 feet tall and 200 pounds with a dark complexion. Id. at 15, 42-43. He described the driver as approximately 5 feet 10 inches tall and 200 pounds with a medium complexion. Id. at 41. He stated that the shooters both used black automatic handguns. Id. at 49-50. Robinson, who had known [Appellant] from the neighborhood for approximately 5 years at the time of the murder and had seen [Appellant] approximately 100-200 times in the year or two before the murder, stated that he did not see the [Appellant] at the scene during the shooting. Id. at 14, 17.

Robinson returned to Liddonfield on the morning after the shooting. Id. at 55. He was only there a few minutes before four detectives arrived in a silver Taurus, "grabbed" him, and brought him to the Homicide unit in handcuffs. Id. at 20-21, 57-59. He stated that all four detectives went back to the [H]omicide unit in the silver Taurus with Robinson seated in the middle backseat between two of the detectives. Id. at 57-59. The two detectives in the back with Robinson were the detectives that questioned him at [H]omicide. Id. at 58. Robinson did not remember the names of any of the detectives that picked him up but described the two detectives that questioned him as "white, older, gray hair, skinny, kind of tall." Id. at 24, 57.

Robinson was at the [H]omicide unit for "two or three days" as detectives pressured him to implicate [Appellant] and his co-defendants. Id. at 21, 25, 29. Detectives told Robinson that if

he did not implicate [Appellant] and his co-defendants, he would be charged for marijuana found in his cell while he was previously incarcerated. Id. at 21-23, 62-64. Robinson stated that the detectives seemed to be focused on co-defendant Ellison and kept showing Robinson video of Ellison, who was in the next room. Id. at 66-68. When Robinson refused to implicate [Appellant] and his co-defendants, detectives took him to a police district office where he was charged for the marijuana found in his cell. Id. at 62-64, 71. He was then taken back to the [H]omicide unit and placed in the same interview room but was not asked anymore questions before he was released. Id. at 23, 62-64, 71. Robinson stated that he did not think any of the detectives were taking notes during his questioning and that none of the detectives believed his story. Id. at 24-25.

Robinson heard [Appellant] was on trial for murder from people in the neighborhood, but Robinson was incarcerated during the trial. Id. at 25-26, 72-73. He stated that he could have reached out to [Appellant's] family but that he did not let anyone know that he could testify on behalf of [Appell...