Com. v. Freeman, S.

J-S38024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

SULTAN FREEMAN :

:

Appellant : No. 2321 EDA 2023

Appeal from the PCRA Order Entered August 25, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0007026-2016

BEFORE: STABILE, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY BECK, J.: FILED NOVEMBER 27, 2024

Sultan Freeman (“Freeman”) appeals from the order dismissing his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 1

entered by the Philadelphia County Court of Common Pleas (“PCRA court”).

Freeman raises claims sounding in ineffective assistance of counsel. We

affirm.

Freeman was convicted of several crimes stemming from the shooting

of his uncle, Ibin Islam (“Islam”), on June 4, 2015. The Commonwealth

presented the following evidence to establish Freeman’s guilt. Sergeant

Randall Goodson responded to an apartment complex and upon arrival was

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

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directed to the ground floor elevator, where Islam was on the floor surrounded

by several onlookers. Islam, who had a gunshot wound to his abdomen, was

transported by medics for treatment. He was immediately taken for surgery

and spoke to Detectives William Knecht and Joseph Knoll the next day,

informing them that Freeman shot him when Islam said he could not

immediately pay a $1,500 debt. He then crawled to the elevator to seek help.

Islam signed and dated each page of an interview form, which included a

photograph of Freeman and notation that he was the shooter. Surveillance

video established that Freeman entered the apartment’s elevator around 5:15

p.m., and depicted Islam crawling towards the elevator at approximately 5:20

p.m.

Islam was the only witness who testified to the shooting. At trial,

however, he identified the shooter as his friend, Eric Teegle. He explained

that he was at his ailing mother’s apartment as he, Freeman, and other family

members all helped care for her. After Freeman relieved him that evening,

Islam went to the stairwell, where he met Teegle. The two began smoking

PCP and got into a fight over money, ending with Teegle shooting him. The

next thing he remembered was waking up in the hospital. Islam attributed

his contradictory hospital statements to receiving morphine for his injuries as

well as using PCP. The bulk of the Commonwealth’s case-in-chief therefore

relied on the introduction of his prior inconsistent statements to the police as

substantive evidence.

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Notably, Islam had criminal charges outstanding at the time he was

shot. During the pendency of this prosecution, Islam accepted a plea

agreement and participated in a presentence interview with Natalie Micche

(“Micche”), an employee of the probation department. During the interview,

Islam said he had been shot in the stomach by his nephew. Those statements

were also introduced as substantive evidence.

Relevant herein, on cross-examination of Islam, Freeman’s attorney

elicited that he had “said a lot of things” during his presentence interview

because he feared his plea deal would be pulled, but counsel did not ask details

about the charges. N.T., 7/10/2019, at 42. On cross-examination of Micche,

Freeman asked, “What crime was [Islam] convicted of that you were preparing

this report for?” Id. at 89. The trial court sustained the Commonwealth’s

objection.

Ultimately, the jury found Freeman guilty of aggravated assault,

firearms not to be carried without a license, and possession of an instrument

of crime. Separately, the trial court found him guilty of persons not to possess

a firearm. The trial court sentenced to an aggregate term of fourteen to

twenty-eight years of incarceration. He timely appealed and on May 14, 2021,

we discharged the conviction for carrying a firearm without a license as the

Commonwealth failed to present evidence concerning concealment.

Commonwealth v. Freeman, 1046 EDA 2020 (Pa. Super. May 14, 2021)

(non-precedential decision). Since that disrupted the trial court’s sentencing

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scheme, we vacated his judgment of sentence and remanded for resentencing.

In all other respects, we affirmed. Our Supreme Court denied Freeman’s

petition for allowance of appeal.2 Commonwealth v. Freeman, 266 A.3d

1071 (Pa. 2021).

Freeman then filed a timely, counseled PCRA petition on November 10,

2022, raising two claims alleging ineffective assistance of counsel: first, that

trial counsel failed to cross-examine Islam with the specific criminal charges

he was facing when he spoke to police, as those charges supplied a motivation

for Islam to lie; second, trial counsel ineffectively opened the door to

statements from third parties to police officers identifying Freeman as a

potential suspect.

The PCRA court issued notice of its intent to dismiss the petition without

an evidentiary hearing. Freeman did not file a response and the PCRA court

thereafter dismissed the petition. Freeman timely appealed and complied with

the PCRA court’s order to file a concise statement, raising the same two claims

pursued in the petition. The PCRA court’s responsive opinion concluded that

Freeman was not entitled to impeach Islam with the specific convictions, citing

Pennsylvania Rule of Evidence 609(a). That Rule sets forth the general rule

that a witness may be impeached by evidence of a criminal conviction only if

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2 Freeman’s resentencing was postponed pending his petition for allowance of

appeal. He was later resentenced to an aggregate term of ten to twenty years

of imprisonment.

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the crime involved dishonesty or false statements (“crimen falsi”). The PCRA

court cited cases holding that neither possession of a firearm nor possessing

drugs with intent to deliver—the two crimes to which Islam pled guilty—qualify

as crimen falsi. See PCRA Court Opinion, 4/2/2024, at 8-9 (“Since [Islam]

was not convicted of prior crimin falsi [sic], however, the [c]ourt was correct

in precluding this evidence.”).3

As to the second claim, the PCRA court first concluded that Freeman

waived the claim by failing “to cite to any portion of the record or any

testimony in particular to support this claim[.]” Id. at 12. Alternatively, the

PCRA court concluded that Freeman’s counsel opened the door to the

statements. During cross-examination of Detective Knecht, counsel “elicited

testimony … to show that the detective’s paperwork included information from

other sources who identified [the] shooter as ‘Shakeem Freeman’ rather than

Sultan Freeman.” Id. Likewise, counsel “also elicited testimony from

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3 The PCRA court believed Freeman’s claim concerned the trial court’s decision

to disallow cross-examination of Micche as to the crimes to which Islam pled

guilty. While Freeman’s presentation was not the model of clarity, he was

referring to trial counsel’s failure to impeach Islam during that cross-

examination. See also Freeman’s Brief at 15 (claiming that counsel failed “to

confront [ ] Islam with his pending criminal charges and the penalties he was

facing”). We note that the PCRA’s eligibility requirements require that “the

allegation of error has not been previously litigated or waived.” 42 Pa.C.S. §

9543(a)(3). Thus, the PCRA court erred by revisiting the original trial court

ruling as to the attempted introduction of the prior convictions on cross-

examination of Micche, as that error could have been reviewed on direct

appeal and claims of trial court error are generally not cognizable under the

PCRA. See Commonwealth v. Ford, 809 A.2d 325, 329 (Pa. 2002).

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Sergeant Goodson that his paperwork listed the shooter as ‘Shakeem Jordan’

and not Sultan Freeman.” Id. The Commonwealth then asked Detective

Goodson to read from his report, in which third parties “also indicated that the

shooter was the complainant’s nephew.” Id. The PCRA court opined that

these were reasonable strategic choices, designed “to re-direct the jury’s

attention from his client to other possible suspects. Clearly, trial counsel’s

strategy was to show that there were other suspects whose names sounded

like [Freeman]’s who were not investigated by the police.” Id. at 13.

Freeman presents the following two claims for our review.

1. Was trial counsel constitutionally ineffective by failing to

confront the Commonwealth’s main witness, who was [the] victim

of the shooting, or present extrinsic evidence regarding the

witness/victim’s specific criminal charges pending against him

when he made his prior statements to a detective and probation

officer implicating [Freeman] in the shooting in violation of

[Freeman]’s confrontation rights under the Sixth Amendment to

the United States Constitution and Article 1, Section 9 of the

Pennsylvania Constitution and in light of the Supreme Court’s

holding in Davis v. Alaska, 415 U.S. 308 (1974)?

2. Was trial counsel constitutionally ineffective by allowing into

evidence inadmissible and incriminating hearsay from police

witnesses who testified that out-of-court declarants said or

implied [Freeman] was the shooter in violation of [Freeman]’s

constitutional rights to confrontation and to a fair trial?

Freeman’s Brief at 4.

Our standard of review is well-settled:

Our review of a PCRA court’s decision is limited to examining

whether the PCRA court’s findings of fact are supported by the

record, and whether its conclusions of law are free from legal

error. We view the findings of the PCRA court and the evidence

of record in a light most favorable to the prevailing party.

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Commonwealth v. Wilson, 273 A.3d 13, 18 (Pa. Super. 2022) (citations

omitted).

Both claims challenge trial counsel’s stewardship, alleging violations of

Freeman’s right to effective counsel under both the federal and state

constitutions. The United States Supreme Court has “recognized that the

Sixth Amendment right to counsel exists, and is needed, in order to protect

the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S.

668, 684 (1984). That necessarily includes a right to effective assistance. Id.

at 686. Counsel is presumed effective, and a petitioner must establish two

components to receive relief. First, “that counsel’s performance was

deficient.” Id. at 687. Second, that the defective performance was

prejudicial. Prejudice is defined as “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694.

Our Supreme Court has held that Article I, Section 9 of the Pennsylvania

Constitution carries the same level of protection as its federal counterpart.

See Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987). That court

has “refined the Strickland performance and prejudice test into a three-part

inquiry.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The

petitioner must plead and prove the following three prongs: “(1) his

underlying claim is of arguable merit; (2) counsel had no reasonable basis for

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his action or inaction; and (3) the petitioner suffered actual prejudice as a

result.” Id. (citation omitted). “If a petitioner fails to prove any of these

prongs, his claim fails.” Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). We may affirm the denial of PCRA relief on any ground supported by

the record. Commonwealth v. Parker, 249 A.3d 590, 595 (Pa. Super.

2021).

Freeman’s first claim contains several components, but, at bottom, the

claim is that trial counsel ineffectively failed to ensure that the jury knew Islam

had pending firearm and drug charges at the time he made statements to

police and Micche. Freeman’s Brief at 16. Freeman argues that the PCRA

court misconstrued his claim by exclusively focusing on the fact that those

charges do not qualify as crimen falsi. Id. He maintains that under Alaska

v. Davis, 415 U.S. 308 (1974), the jury was entitled to assess whether Islam

had a subjective motivation to lie, and that this motivation exists regardless

of whether the crimes would be admissible to impeach Islam’s credibility. Id.

at 14. The Commonwealth, for its part, adopts the PCRA court’s rationale in

that regard and adds that the claim lacks arguable merit, focusing on the fact

that neither offense was crimen falsi. Commonwealth’s Brief at 9-10

(“[Islam]’s prior convictions were not crimen falsi, making them inadmissible.

Therefore [Freeman] cannot establish arguable merit to his underlying

claim.”)

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We first review Davis. In that case, the United States Supreme Court

determined that a state rule shielding a juvenile adjudication of delinquency

must yield to Davis’ confrontation rights under the circumstances. Davis, 415

U.S. at 318. Davis was arrested and charged with stealing a safe that was

discovered near the home of Jess Straight. Id. at 309. Straight’s stepson,

Richard Green, who was on probation following a juvenile adjudication of

burglary, implicated Davis in the theft when interviewed. Id. at 309-10.

Green “was a crucial witness for the prosecution.” Id. at 310.

The State moved to bar admission of any reference to Green’s

probationary status pursuant to a statute protecting juveniles, which Davis

opposed. He “made it clear that he would not introduce Green’s juvenile

adjudication as a general impeachment of Green’s character as a truthful

person but, rather, to show specifically that at the same time Green was

assisting the police in identifying petitioner he was on probation for burglary.”

Id. at 311. The trial court denied the request, and the Supreme Court

reversed. The Court began by stressing the importance of cross-examination,

“the principal means by which the believability of a witness and the truth of

his testimony are tested.” Id. at 316. Introducing evidence of a prior

conviction is “a general attack on the credibility of the witness,” whereas

“revealing possible biases, prejudices, or ulterior motives of the witness as

they may relate directly to issues” in the case are “a more particular attack”

on credibility. Id. While the trial court permitted Davis to ask Green if he

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was biased, “counsel was unable to make a record from which to argue why

Green might have been biased or otherwise lacked that degree of impartiality

expected of a witness at trial.” Id. at 318. This violated his confrontation

rights.

The Commonwealth and the PCRA court did not address Freeman’s

citation to Davis. Instead, the PCRA court relied on Rule 609(a), which

permits what the Davis Court described as “general attacks” on a witness’

credibility based on crimen falsi convictions. In contrast, the line of

impeachment that Freeman argues should have been pursued is a more

specific attack and would not be used to suggest that Islam is not a credible

witness generally. Instead, the criminal charges and subsequent conviction

would aid the jury in determining whether, in this particular instance, Islam

had something to gain by lying, i.e., potential favorable treatment with respect

to the criminal charges he was facing. Therefore, there is arguable merit to

the claim that Freeman’s attorney could have sought to introduce the specific

charges.4

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4 While we accept that the underlying argument has arguable merit, we do not

suggest that the trial court would be required to allow Freeman to cross-

examine Islam on the specific charges. “Generally speaking, the

Confrontation Clause guarantees an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S.

15, 20 (1985). See also Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986) (“It does not follow, of course, that the Confrontation Clause of the

Sixth Amendment prevents a trial judge from imposing any limits on defense

counsel’s inquiry into the potential bias of a prosecution witness.”).

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However, Freeman fails to establish that he was prejudiced. “Not every

denial of an accused’s right to cross-examine with respect to an unrelated

case requires a new trial.” Commonwealth v. Mullins, 665 A.2d 1275, 1279

(Pa. Super. 1995) (citing Van Arsdall, 475 U.S. at 681). “Surmounting

Strickland’s high bar is never an easy task,” Padilla v. Kentucky, 559 U.S.

356, 371 (2010), and the error must be “so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S.

at 687. We find that the result is reliable notwithstanding any failure to

impeach Islam because Islam’s testimony was such that, if believed by the

jury, it would have fully exonerated Freeman. The United States Supreme

Court has reiterated that “the right to confrontation is a trial right,

Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987), and cross-examination is

thought to best get to the truth because “[i]t is always more difficult to tell a

lie about a person ‘to his face’ than ‘behind his back.’” Coy v. Iowa, 487 U.S.

1012, 1019 (1988). Here, Islam was not an adversarial witness at trial and

was not lying to Freeman’s face because his testimony was that Teegle, and

not Freeman, was the shooter. Thus, evidence that Islam had a motive to lie

when he inculpated Freeman would have no conceivable effect on the jury’s

assessment. Whatever value would be gained by showing that Islam

previously had a motive to lie outside of court is minimally helpful in

comparison to his insistence to the jury, under oath, that Teegle shot him.

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Freeman attempts to evade this conclusion by emphasizing that the

Commonwealth relied on Islam’s prior statements. Thus, his credibility at that

time was at issue, and it follows that the jury should have been allowed to

consider what charges Islam was facing when he made the prior statements.

Freeman’s Brief at 14-15 (“[T]rial counsel should have introduced this

evidence to allow the jury to determine whether [] Islam might have been

initially motivated by hopes of favorable treatment at the time in the event

the jury chose to believe he actually made those past statements.”). We again

conclude that Freeman cannot establish prejudice. Notably, Islam claimed

memory loss, telling the jurors that he did not remember speaking to the

police at the because of a combination of ingesting PCP and receiving

morphine for his injuries. As a practical matter, arguing to the jury that Islam

consciously chose to pin the crime on Freeman in a quest to receive favorable

treatment from the Commonwealth would undermine Islam’s trial testimony

that he was too high to know what he was saying at the hospital. Therefore,

counsel was not ineffective for failing to impeach Islam with his prior

convictions.

Freeman’s second claim alleges that trial counsel ineffectively opened

the door to hearsay evidence. Freeman’s Brief at 17. We agree with the PCRA

court and the Commonwealth that this claim is waived, as Freeman fails to

cite any portion of the record. See Pa.R.A.P. 2119(c) (“If reference is made

to … any other matter appearing in the record, the argument must set forth,

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in immediate connection therewith, or in a footnote thereto, a reference to the

place in the record where the matter referred to appears.”). Freeman merely

alludes to generic descriptions of the purported hearsay statements. This is

insufficient under our rules. See Commonwealth v. McIntyre, 314 A.3d

828, 850 (Pa. Super. 2024) (deeming claim waived: “[McIntyre] does cite

testimony he seems to argue was contradictory, but he does not make any

reference to where that testimony can be found in the record in violation of

Pa.R.A.P. 2119(c)”). It is not this Court’s responsibility to scour the entire

transcript and identify which statements were potentially problematic. See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007).

Alternatively, even if preserved we again conclude that Freeman has

failed to establish prejudice. Indeed, based on the summary set forth in

Freeman’s brief it is clear that he was not prejudiced. Freeman argues:

In the present case, the inadmissible and damaging hearsay

presented to the jury included (1) Detective Knecht’s testimony

that he developed [Freeman] as a suspect based on interviews of

family members and neighbors, (2) Detective Knecht’s testimony

that Lieutenant Davis told him that [] Islam said that [Freeman] -

his nephew - was the shooter, and (3) Sergeant Goodson[’s]

testimony that other out-of-court declarants told him that

[Freeman] - his nephew - was the shooter. Neither Lieutenant

Davis nor any of the other out-of-court family members,

neighbors or declarants were called as witnesses at trial.

There can be little debate over the hearsay nature of these

statements.

Freeman’s Brief at 18.

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We do not agree that it is obvious these statements constituted hearsay,

which is definitionally a statement offered for the truth of the matter asserted.

Pa.R.E. 801(c)(2) (“‘Hearsay’ means a statement that … a party offers in

evidence to prove the truth of the matter asserted in the statement.”).

Freeman concedes that Detective Knecht used the statements to develop

Freeman as a suspect, which means their value was in explaining his course

of conduct. See Commonwealth v. Cruz, 489 414 A.2d 1032, 1035 (Pa.

1980). (“[A]n out-of-court statement offered to explain a course of conduct

is not hearsay.”) For example, on cross-examination Detective Knecht was

asked why he had a photo of Freeman when he spoke to Islam at the hospital.

He replied, “Because there were other interviews done of the medics. There

were interviews done of the defendant’s family, multiple family members.

There were interviews done with neighbors of the defendant. And we were

able to obtain information from inside the apartment.” N.T., 7/10/2009, at

75. Even assuming this exchange implicitly represents that these unnamed

parties named Freeman as the shooter, they were not used for their truth.

Freeman also complains about statements made by Lieutenant Keith

Davis to Detective Knecht, presumably referring to this exchange on re-direct

examination:

Q. Detective, if I can direct your attention to C-8, the statement

that you took from Lieutenant Keith Davis from fire and rescue.

Did Lieutenant Davis indicate what [] Islam’s first response was

when asked who did this to him?

* * *

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A. He said, “I asked the victim, ‘Who did this to you?’ He stated,

‘My nephew shot me.’ I asked, ‘What is your nephew’s name?’ He

said, ‘Shakeem Freeman.’”

Id. at 83-84.

As the PCRA court explains in its opinion, this exchange was in response

to counsel’s cross-examination of Detective Knecht. For example, the

following exchange occurred on cross:

Q. What efforts did you make to determine whether he had a

nephew by the name of Shaheem?

A. Shaheem?

Q. Correct.

A. I didn’t.

Q. What about Shakeem?

A. I didn’t.

Q. What about Shaheed?

A. I didn’t.

Id. at 78.

We agree with the PCRA court that the alleged double hearsay (what

Islam told Lieutenant Davis, which in turn was related to Detective Knecht)

was not used for its truth but rather to show the developing investigation and

why the name Shakeem appeared in the paperwork. PCRA Court Opinion,

4/2/2024, at 12. Moreover, the Commonwealth was obviously not using the

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statement for its literal truth, i.e., that another nephew named Shakeem

Freeman shot Islam.5

Our conclusion that these statements were not hearsay establishes that

Freeman’s confrontation rights were not violated. Freeman argues that these

statements prejudiced him because only Islam identified him as the shooter,

and he recanted that allegation. See Freeman’s Brief at 17-18 (“Testimonial

hearsay also offends the essential concept that an accused has a fundamental

right to confront his accuser.”) (citing Crawford v. Washington, 541 U.S.

36 (2004)). Even if we assume that the statements were testimonial, the

Confrontation Clause “does not bar the use of testimonial statements for

purposes other than establishing the truth of the matter asserted.”

Crawford, 541 U.S. at 59 n.9. See also Commonwealth v. Dargan, 897

A.2d 496, 500 (Pa. Super. 2006) (“A statement admitted for a purpose other

than establishing the truth of the matter asserted — such as, in this case, the

investigating officers’ course of conduct — does not violate the Confrontation

Clause.”). Because his prejudice argument relies on the premise that

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5 Freeman’s argument in his brief illustrates why waiver is an appropriate

sanction for failing to cite the record. Freeman’s argument describes the

statement of Lieutenant Davis as introduced through Detective Knecht relating

that Islam blamed Freeman, but the testimony shows Islam said “his nephew”

followed by the name Shakeem Freeman. Thus, Freeman wrongly asserts that

the statement named Freeman himself as the culprit, and trial counsel argued

that the Commonwealth failed to investigate any other nephew.

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introducing the statements violated his constitutional rights, he has failed to

carry his burden.

Order affirmed.

Date: 11/27/2024

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