Commonwealth v. Ward

1

COMMONWEALTH OF PENNSYLVANIA v. ANTOINE WARD Appellant

No. 52 WDA 2022

No. J-S01039-23

Superior Court of Pennsylvania

May 23, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered December 10, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s) CP-02-CR-0001839-2014

Joseph D. Seletyn, Esq.

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Antoine Ward, appeals, pro se, from the order of the Court of Common Pleas of Allegheny County (trial court) that dismissed his first petition filed under the Post Conviction Relief Act (PCRA)^[1] without a hearing. After careful review, we affirm.

On October 22, 2015, Appellant was convicted by a jury of first-degree murder, third-degree murder, and carrying a firearm without a license. The facts out of which this conviction arose were set forth by this Court in Appellant's direct appeal:

On a snowy evening in January 2014, in the Mt. Oliver neighborhood of Pittsburgh, [a woman] heard gunshots and looked out a window to see a silver Lexus that appeared to be stopped at a stop sign. When she went outside to inquire if anyone was injured, there were four more shots and she saw sparks in the back of the car. [The woman] called 911, and paramedics arrived within minutes to find Jason Eubanks [Victim 1] and Cheryl[y]nn Sabatasso [Victim 2] dead in the car. Tracks in the snow led from the car to 302 Rochelle Street, where Appellant lived with [his girlfriend].

Commonwealth v. Ward, 188 A.3d 1301, 1304 (Pa. Super. 2018) (record citations omitted). A sock containing bullets and a plastic bag containing bloody clothing were recovered from a wooded area at the end of Appellant's street and the pistol used in the shooting and a magazine were retrieved from under a cabinet in the kitchen in Appellant's house. Id. at 1306; N.T. Trial at 607-11, 614-18. At trial, Appellant testified that he was in the car with Victim 1 and Victim 2 when they were shot and that he shot Victim 1, but contended that Victim 1 pulled the gun, that Victim 1 shot Victim 2 when he and Victim 1 were struggling over the gun, and that he was acting in self-defense when he shot Victim 1. N.T. Trial at 701-12.

On February 24, 2016, the trial court sentenced Appellant to consecutive sentences of life imprisonment for the first-degree and third-degree murder convictions, followed by two to four years' incarceration for carrying a firearm without a license.^[2] Appellant filed a timely direct appeal challenging the sufficiency of the evidence to disprove his claim of self-defense, the admission of testimony of the Commonwealth's medical expert, and the trial court's failure to exclude evidence from the car, which had been disposed of by a third party 10 months after the murders and 6 months after Appellant's trial counsel and investigators had inspected the car, but before Appellant's expert had examined it in person. 188 A.3d at 1304, 1307-08. On June 1, 2018, this Court affirmed Appellant's judgment of sentence. Appellant filed a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on December 19, 2018. Commonwealth v. Ward, 199 A.3d 341 (Pa. 2018).

On July 5, 2019, Appellant filed the instant timely pro se PCRA petition. The trial court appointed counsel to represent Appellant, but Appellant requested to represent himself and on October 7, 2020, after conducting a Grazier^[3] hearing, the trial court ordered that Appellant could proceed pro se. On November 17, 2021, the trial court issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the PCRA petition without a hearing. Appellant did not file a response to the trial court's Rule 907 notice. On December 10, 2021, the trial court entered an order dismissing Appellant's PCRA petition. This timely appeal followed.

In this appeal, Appellant argues the trial court erred in rejecting the following five PCRA claims: 1) that trial counsel was ineffective for not objecting to allegedly false testimony concerning Appellant's statements when he was first interviewed by the police; 2) that appellate counsel was ineffective for failing to argue that a limitation on cross-examination of that testimony violated Appellant's constitutional right to confront witnesses; 3) that trial counsel was ineffective for not objecting to allegedly improper statements by the prosecutor; 4) that trial counsel was ineffective in his questioning of Appellant; and 5) that appellate counsel was ineffective in litigating two of the issues raised in Appellant's direct appeal.

We review the dismissal of a PCRA petition to determine whether the court's decision is supported by the record and free of legal error. Commonwealth v. Staton, 120 A.3d 277, 283 (Pa. 2015); Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019); Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012). All of Appellant's issues are claims of ineffective assistance of counsel. To be entitled to relief on a claim of ineffective assistance of counsel, the defendant must prove: (1) that the underlying claim is of arguable merit; (2) that counsel's action or inaction had no reasonable basis; and (3) that he suffered prejudice as a result of counsel's action or inaction. Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015); Commonwealth v. Burno, 94 A.3d 956, 972 (Pa. 2014); Commonwealth v. Ligon, 206 A.3d 515, 519 (Pa. Super. 2019). The defendant must satisfy all three prongs of this test to obtain relief under the PCRA. Mason, 130 A.3d at 618; Ligon, 206 A.3d at 519; Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa. Super. 2020) (en banc).

Appellant's first two issues fail because Appellant cannot show that the underlying claim had merit or that he was prejudiced by counsel's conduct. Both of these claims involve the testimony of Detective McGee concerning a police interview of Appellant on January 25, 2014. Detective McGee testified at trial that he and Detective Sherwood interviewed Appellant on that date and that Appellant told them that he did not see Victim 1, who was a friend of his, on the day of the shootings, but that he spoke to Victim 1 by phone that day. N.T. Trial at 270-82, 289, 345. While testifying, Detective McGee refreshed his recollection by looking a report of the interview, which was written by Detective Sherwood. Id. at 276-77, 279-80, 344-45, 351-52. During cross-examination, Appellant's trial counsel sought to question Detective McGee concerning disciplinary action against Detective Sherwood and the trial court sustained the Commonwealth's objection to any questioning beyond the fact that Detective Sherwood was no longer employed in the police department's homicide division. Id. at 352-554.

Appellant argues in his first issue that Detective McGee's testimony was false because he was not the author of the report of the January 25, 2014 interview and that his trial counsel was ineffective for failing to object to his testimony on this ground. Contrary to Appellant's contention, however, there was no error or falsity in Detective McGee's use of Detective Sherwood's report. Detective McGee testified to his own knowledge of the January 25, 2014 interview, not to the contents of the report, and used the report only to refresh his recollection. N.T. Trial at 270-82, 288, 343, 345. A witness may use a document that helps him refresh his recollection of matters of which he has personal knowledge, even if he did not author the document and regardless of whether the document is admissible in evidence. Pa.R.E. 612(a); Commonwealth v. Sal-Mar Amusements, Inc., 630 A.2d 1269, 1274 (Pa. Super. 1993); Dean Witter Reynolds, Inc. v. Genteel, 499 A.2d 637, 641 (Pa. Super. 1985); Commonwealth v. Ford, 184 A.2d 401, 404 (Pa. Super. 1962) (detective's use of report authored by other police officers to refresh his recollection was proper).

Appellant argues in his second issue that the restriction on cross-examining Detective McGee concerning disciplinary action against Detective Sherwood violated his right to confront witnesses and that appellate counsel was ineffective for failing to raise this issue on direct appeal. Here, too, the underlying claim is without merit. The evidence introduced at trial was Detective McGee's testimony, not Detective Sherwood's report, and only Detective McGee's credibility was at issue. Appellant's trial counsel was permitted to and did fully cross-examine Detective McGee and challenge his testimony. N.T. Trial at 286-92, 343-75. Because Detective Sherwood did not testify at Appellant's trial and her report was not introduced in evidence by the Commonwealth, there was no violation of Appellant's right to confront any of the witnesses against him. Appellate counsel cannot therefore have been ineffective for failure to assert such a claim.

In any event, neither the use of Detective Sherwood's report nor the limit on cross-examination concerning her conduct caused prejudice to Appellant. To satisfy the prejudice element of an ineffective assistance of counsel claim, Appellant must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Mason, 130 A.3d at 618; Burno, 94 A.3d at 972; Commonwealth v Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). None of the January 25, 2014 statements by Appellant to which Detective McGee testified implicated Appellant in the shootings. N.T. Trial at 270-82. Rather, the testimony concerning Appellant's January 25, 2014 statement was incriminating because it showed that Appellant lied to the police about the shootings. Ward, 188 A.3d at 1305-06. Appellant, however, admitted in his own testimony that he lied to...