Commonwealth v. Washington

245 A.3d 1039 (Table)

COMMONWEALTH of Pennsylvania, Appellee v. Leon WASHINGTON, Appellant Commonwealth of Pennsylvania, Appellee v. Leon Washington, Appellant Commonwealth of Pennsylvania, Appellee v. Leon Washington, Appellant

No. 3250 EDA 2018

No. 3251 EDA 2018

No. 3252 EDA 2018

Superior Court of Pennsylvania.

Filed December 1, 2020

MEMORANDUM BY KING, J.:

Appellant, Leon Washington, appeals from the order entered in the Philadelphia County Court of Common Pleas, which dismissed his first petition under the Post Conviction Relief Act ("PCRA"). ¹ After careful review, we affirm in part, vacate in part, and remand for further proceedings consistent with this decision.

The relevant facts and procedural history of this appeal are as follows. Appellant's convictions stem from two shootings that took place in West Philadelphia on July 24, 2008 ("the Robinson Street Shooting") and July 30, 2008 ("the Ruby Street Shooting"). The instant appeal concerns the Ruby Street Shooting only, which the trial court described as follows:

[O]n July 30, 2008, a second shooting took place in the neighborhood. This time it was on Ruby Street between Ludlow and Chestnut. Near sundown, eyewitness Levi Green walked toward the front door of his home at 40 South Ruby Street to call his ten-year-old daughter, Victoria, to come inside. The girl was playing up the street on the front steps of a friend's house at 30 South Ruby, near the Ruby–Ludlow intersection. Before she turned around to go home, Victoria looked down the block and noticed several people arguing outside a bar at the corner of Ruby and Chestnut. Aware of mounting tension, Victoria and her friend decided to go inside the friend's house immediately, but before they were safely inside, one of the men outside the bar, dressed in all black, pulled something out of his pocket and pointed north toward Ludlow Street. Victoria saw flashes, and a bullet pierced her left leg as she ran for cover.

From a half block away, the initial shots sounded like firecrackers to Victoria's father, Levi Green. But when he reached his front door, he heard several loud cannon-like booms coming from the opposite direction. As he ducked, Green saw light flashes as gunfire erupted near 36 South Ruby, in between his home and the steps where Victoria had been playing. The second round of shots was aimed south toward Ruby and Chestnut where the man dressed in black had been standing as he fired north toward Ludlow. When the shooting stopped, Levi Green looked up and saw a man on the ground outside his house. The man had been shot. Meanwhile, Green ran to help his daughter Victoria.

Within minutes, patrolling officers arrived on the scene. They found a man later identified as Anthony Mitchell, walking near Ruby and Ludlow with a gunshot wound to the leg. Although several bystanders warned officers that Mitchell was armed, a search revealed no gun. Officers then transported Mitchell to a hospital.

At approximately the same time, additional responding officers were flagged down near 113 South Ruby, just south of the Chestnut Street intersection. There, they found [Appellant] laying on the sidewalk in a white t-shirt and boxer shorts with gunshot wounds to his arm and side. Police later discovered 113 South Ruby was [Appellant's] aunt's residence. The officers placed [Appellant] in the back of their car and rushed him to the hospital. On the way, [Appellant] claimed he was simply walking down Ruby Street when he suddenly heard gunshots and got hit.

Back at the Ruby Street crime scene, other police officers found eight .45 caliber cartridge casings and one live round outside the corner bar where the gunman who shot Victoria had been standing. Subsequent analysis by Officer John Cannon of the Philadelphia police Firearms Unit (who testified as a firearms expert at trial) concluded those shell casings were fired by the same gun used to shoot Lyndon McBride six days earlier. See N.T. 6/10/10 at 99–100. No shell casings were found near 36 South Ruby, suggesting that the second gunman had used a revolver which, unlike the semiautomatic handgun used outside the corner bar, does not expel fired cartridges.

When detectives arrived at the hospital to question Mitchell and [Appellant], they found the two men gesturing back and forth as they received treatment in beds just a few feet apart. Both men initially refused to give formal statements, but each was arrested for shooting the other.

The following day, [Appellant] changed his mind and decided to talk to police. His new account of the events the night before on Ruby Street differed significantly from what he told the officers as they drove him to the hospital. [Appellant] now claimed he was at 113 South Ruby, the home of his aunt, Sophia Dessus, when he noticed two women arguing near Ludlow Street. He claimed that he and a friend walked to the corner of Ruby and Chestnut and began arguing with the women, further antagonizing them. According to [Appellant], one of the women phoned a man named Jameer, who drove up moments later and started shooting.

Unpersuaded by [Appellant's] story and knowing that the cartridge casings found at the July 24 and July 30 shootings were from the same gun, detectives executed a search warrant on [Appellant's] house at 413 South Ruby approximately eighteen hours after the second shooting. The house had been unguarded by the police during the interim and the gun was not found.

(Trial Court Opinion, dated December 28, 2012, at 3-5).

The Commonwealth charged Appellant in connection with both shootings with three counts each of attempted murder, aggravated assault, conspiracy to commit murder, violations of the Uniform Firearms Act ("VUFA"), carrying a firearm on public property in Philadelphia, possessing instruments of crime ("PIC"), terroristic threats, simple assault, and recklessly endangering another person ("REAP"). The trial court granted the Commonwealth's motion to consolidate the cases, and Appellant proceeded to a jury trial in June 2010.

At the conclusion of the Commonwealth's evidence, the trial court granted Appellant's motion for judgment of acquittal on the attempted murder charges relating to the Ruby Street Shooting, but denied it as to all other counts. Ultimately, the jury found Appellant guilty on the aggravated assault, PIC, and VUFA charges. On August 17, 2010, the trial court sentenced Appellant to an aggregate term of fifteen to thirty years' imprisonment, followed by five years of state-supervised probation. This Court affirmed the judgment of sentence on May 16, 2014, and Appellant did not file a petition for allowance of appeal. See Commonwealth v. Washington , 104 A.3d 50 (Pa.Super. 2014) (unpublished memorandum).

On May 7, 2015, Appellant filed a timely pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition on December 3, 2016. On May 18, 2017, the Commonwealth filed a motion to dismiss the petition without an evidentiary hearing. On June 7, 2018, the PCRA court issued its Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing. Appellant did not respond to the Rule 907 notice, and the PCRA court dismissed the petition without a hearing on October 11, 2018.

On November 8, 2018, Appellant timely filed separate notices of appeal for each of the underlying dockets. ² The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and none was filed.

Appellant raises the following issue on appeal:

Where a PCRA petition raises substantial issues of material fact should the court hold an evidentiary hearing to determine whether relief should be given?

(Appellant's Brief at 11).

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).

Although Appellant includes one issue in his statement of questions presented, he actually raises two distinct arguments. In his first argument, Appellant asserts that trial counsel was ineffective for failing to call an eyewitness, Denya Martin. Appellant posits that Martin would have testified that she witnessed the Ruby Street Shooting, and she saw that Appellant did not have a firearm. Appellant further asserts that Martin was available and willing to testify on his behalf at trial. Based upon the foregoing, Appellant maintains trial counsel's decision not to call Martin was unreasonable. Appellant also avers that the PCRA court erred in denying relief on this claim, because it speculated about whether trial counsel had a rational basis for not calling Martin. Appellant concludes some relief is warranted. We agree.

Pennsylvania law presumes counsel has rendered effective assistance. Commonwealth v. Williams , 597 Pa. 109, 950...