The opinion
J-S62001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
JACQUEZ DAVON BROWN
Appellee No. 1669 MDA 2016
Appeal from the PCRA Order entered October 3, 2016
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0007081-2011
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2017
The Commonwealth appeals from the October 3, 2016 order entered in
the Court of Common Pleas of York County, granting in part the petition for
collateral relief filed by Appellee, Jacquez Davon Brown (“Brown”), pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and
awarding him a new trial. The Commonwealth argues the PCRA court erred
by finding counsel ineffective for failing to locate a witness whose testimony
was cumulative of other evidence presented at trial. Brown counters that the
testimony was not cumulative, that the testimony would have supported his
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* Retired Senior Judge assigned to the Superior Court.
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claim of self-defense, and that he was prejudiced by trial counsel’s failure to
interview and call the witness at trial. Following review, we affirm.1
Following a jury trial that concluded on November 14, 2013, Brown was
convicted of first-degree murder for the shooting death of 19-year old Tony
Wasilewski when Brown was 15 years old. On January 27, 2014, Brown was
sentenced to a term of 50 years to life in prison. On direct appeal, this Court
affirmed the judgment of sentence, rejecting Brown’s claims of insufficiency
of evidence, failure of the Commonwealth to disprove his self-defense claims
beyond a reasonable doubt, and excessive sentence. Commonwealth v.
Brown, 832 MDA 2014, unpublished memorandum (Pa. Super. filed April 24,
2015).
Brown filed a timely PCRA petition on April 22, 2016. Counsel was
appointed and a hearing was held on June 16, 2016. At the conclusion of the
proceedings, the PCRA court dismissed all but one of Brown’s claims and
reserved ruling on the final claim—relating to failure to call an eyewitness at
trial—pending continuation of the hearing to take the testimony of that
witness, Dominic Breeland (“Breeland”).2 The hearing resumed on September
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1The PCRA court rejected three additional claims of ineffectiveness raised by
Brown in his petition. Those three claims are not at issue in this appeal. We
shall confine our discussion to the claim upon which the petition was granted
and new trial awarded.
2At the time of the June 16, 2016 hearing, Breeland was incarcerated at SCI
Forest, serving a 30- to 60-year sentence for murder. Due to some confusion
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27, 2016. By order entered on October 3, 2016, the PCRA court granted
Brown a new trial based on trial counsel’s failure to interview Breeland. This
timely appeal followed. Both the Commonwealth and the PCRA court complied
with Pa.R.A.P. 1925.
On appeal, the Commonwealth asks us to consider one issue:
Whether [the] PCRA court erred in granting [the] PCRA petition
alleging ineffectiveness of counsel, where trial counsel had
insufficient information to locate [the] witness, and the witness’s
testimony was cumulative of existing testimony presented at trial,
and [Brown] suffered no prejudice.
Commonwealth’s Brief at 4 (some capitalization omitted).
As this Court has recognized:
This Court examines PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record.
Additionally, we grant great deference to the factual findings of
the PCRA court and will not disturb those findings unless they have
no support in the record. In this respect, we will not disturb a
PCRA court’s ruling if it is supported by evidence of record and is
free of legal error. However, we afford no deference to its legal
conclusions. Where the petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (quoting
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012)
(quotation marks and brackets omitted)).
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regarding transport to testify at the hearing, he was not available to testify
that day.
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In analyzing the claim of trial counsel ineffectiveness for failing to
investigate and call a potential witness at trial, the PCRA court looked to our
Supreme Court’s decision in Commonwealth v. Johnson, 966 A.2d 523 (Pa.
2009). There, the Court explained:
Counsel has a general duty to undertake reasonable
investigations or make reasonable decisions that render particular
investigations unnecessary. . . . The duty to investigate, of
course, may include a duty to interview certain potential
witnesses; and a prejudicial failure to fulfill this duty, unless
pursuant to a reasonable strategic decision, may lead to a finding
of ineffective assistance. Recently summarizing cases in
Commonwealth v. Dennis, 597 Pa. 159, 950 A.2d 945 (2008),
this Court stated that:
These cases . . . arguably stand for the proposition that, at
least where there is a limited amount of evidence of guilt, it
is per se unreasonable not to attempt to investigate and
interview known eyewitnesses in connection with defenses
that hinge on the credibility of other witnesses. They do not
stand, however, for the proposition that such an omission is
per se prejudicial.
Id. at 960 [citations omitted].
...
When raising a failure to call a potential witness claim, the PCRA
petitioner satisfies the performance and prejudice requirement of
the Strickland[3] test by establishing that:
(1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have
known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have
denied the defendant a fair trial.
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3 Strickland v. Washington, 466 U.S. 688 (1984).
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Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586,
599 (2007). To demonstrate Strickland prejudice, the PCRA
petition must show how the uncalled witnesses’ testimony would
have been beneficial under the circumstances of the case.
Id. at 535-36 (some citations and quotations omitted).
In its Rule 1925(a) opinion, the PCRA court explained:
At the trial, and pertinent to the issue on appeal, the
Commonwealth presented witnesses who established that
[Brown] shot decedent with several shots while standing over him
and while backing away from the decedent. One witness recalled
hearing the victim and [Brown] arguing about a cell phone. The
victim had [Brown] in a headlock at one point, and then [that
witness, Ms. Altland,] heard a gunshot. Ms. Altland testified that
[Brown] was standing when he shot the victim, who was kneeling
down at the time.
After hearing the first shot, Ms. Altland said that the victim
was on the ground on his side when she saw [Brown] pause and
fire another shot into the victim. She also saw the victim put his
hand up over his face before [Brown] fired the second shot. Ms.
Altland heard three more shots and for every shot the victim was
still on the ground and made no attempts to get up. She also
stated that as the other shots were being fired, [Brown] was
walking away from the victim, towards an alleyway.
Another witness[, Mr. Altland,] testified that he was
standing directly in front of his residence, which was right across
the street from the murder. Like his wife, he saw [Brown] and
the victim arguing, but he was not sure what they were arguing
about. Mr. Altland testified that the victim had [Brown] in some
kind of hold and then “all heck broke loose.” Mr. Altland was on
his way across the street to break up the fight when he saw
[Brown] shoot the victim in the back, upper thigh area. Mr.
Altland saw the victim put his hand up after the first shot and saw
[Brown] shoot the victim again. The bullet went through the
victim’s hand and into his neck. [Brown] walked backwards as he
fired the second, third, fourth, and fifth shot. At no point did the
victim try to get up.
At the PCRA hearing, [Brown] called Dominic Breeland as a
witness. He testified that the victim wanted to buy some drugs
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earlier in the day. Later, and just before the shooting, Breeland
went to the home of another individual about five or six houses
away, and saw a fight develop between the victim and [Brown].
He further testified that the victim had [Brown] in a choke hold
and that during that struggle, the shots were fired. This
testimony, if believed, would have differed from the testimony of
the two Commonwealth witnesses. Breeland did not testify that
he saw [Brown] stand up and shoot while standing over the victim
and backing away. The proffered testimony would have supported
a self-defense claim by [Brown], and could have resulted in a
verdict of a lesser degree of murder or manslaughter.
[The PCRA c]ourt found no reason to disbelieve the
proffered testimony other than it differed in degree from that
presented by the Commonwealth’s witnesses at trial.
Testimony from trial counsel revealed that he did not know
Breeland’s full name, nor where to locate him. That testimony
was contradicted by PCRA Defense Exhibit B, p. 4-5, which was
the police report provided in discovery. That report clearly
identified Dominic Breeland by name as a possible eye witness
and indicates that he likely is in the York County Prison.[4]
PCRA Court Rule 1925(a) Opinion, 6/13/17, at 3-4 (references to notes of trial
testimony omitted).
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4 The parties agree that the exhibit identified the potential eyewitness as
“Dom.” See, e.g., Commonwealth’s Brief at 19; Brown’s Brief at 4. However,
in the exhibit, references are made to another witness, Corey Fitzkee. Fitzkee
in turn identified yet another eyewitness, “Dom,” and stated that he saw Dom
at the York County Prison when Fitzkee turned himself in for an unpaid fine.
The exhibit reflects that the assistant district attorney who interviewed Fitzkee
“showed Fitzkee a photo of Dominic Breeland on a laptop computer. Fitzkee
identified him as the subject he knows as ‘Dom.’” PCRA Defense Exhibit B at
5.
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The Commonwealth concedes Brown met his burden as to the first two
factors of the Strickland test, i.e., that the witness existed and was available
to testify for the defense. Commonwealth’s Brief at 18. However, the
Commonwealth takes issue with the remaining factors. The Commonwealth
contends trial counsel had no knowledge of Breeland’s name, other than a
reference to “Dom” that was unaccompanied by any other identifying
information. Further, the Commonwealth argues, there is nothing to suggest
Breeland ever contacted the police or defense counsel to make himself known
as a potential witness. Id. at 18-19. Further, while trial counsel hired an
investigator to research other witnesses, counsel was not aware of Breeland’s
existence or his availability or willingness to testify. Id. at 19.
Brown counters that he spoke with trial counsel about Breeland as a
potential witness. Notes of Testimony, PCRA Hearing, 6/29/16, at 5-6.
Although he never talked with the investigator, Brown testified he told counsel
that Breeland could verify Brown’s story. Id. Nevertheless, Breeland was
never interviewed for trial. Id.
Trial counsel acknowledged he was aware of Tobias Banks, whom Brown
identified as an eyewitness. Attempts to locate that witness were
unsuccessful. Id. at 34-35, 38-39. Counsel testified he was not aware of
Breeland, whose name he said he had never heard before reviewing the PCRA
petition. Id. at 40. However, the PCRA court rejected counsel’s claimed
unawareness, noting it “was contradicted by PCRA Defense Exhibit B, p. 4-5,
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which was the police report provided in discovery. That report clearly
identifies Dominic Breeland by name as a possible eye witness and indicates
that he likely is in the York County Prison.” PCRA Court Rule 1925(a) Opinion,
6/13/17, at 4.
As for the fifth Strickland factor, the PCRA court recognized that failure
to call a witness does not, by itself, afford relief and that Brown was required
to prove that the failure prejudiced him. PCRA Court Rule 1925(a) Opinion,
6/13/17, at 7 (citing Johnson, supra). The court stated:
In this case, we already noted that the proffered witness’s
testimony would have provided the jury a different point of view
than that testified to by the Commonwealth witnesses. The
testimony, if believed by a jury, would have provided a basis for
a verdict of a lesser degree of murder (third degree) or a verdict
based on imperfect self-defense (voluntary manslaughter) or a
complete defense to the charge.
Had the jury been able to hear the proffered testimony, we
conclude that there is a reasonable probability that the outcome
would have been different. Having been deprived of the
opportunity to present that evidence because of counsel’s
ineffectiveness, [Brown] has suffered prejudice as a result.
Id.
The Commonwealth argues that Brown cannot establish prejudice
resulting from the absence of Breeland’s testimony. As the PCRA court
recognized, Breeland “did not see the shooting. [He] heard shots and then he
saw [Brown] run away. . . . Breeland testified that he heard gunshots but did
not actually see the shooting.” Id. Therefore, the Commonwealth asserts,
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Breeland’s testimony would not “have served any purpose other than to
corroborate the Commonwealth’s witnesses.” Commonwealth’s Brief at 31.
The Commonwealth’s argument focuses on whether Breeland’s
testimony is appropriately classified as “cumulative,” noting that counsel is
not ineffective for failing to pursue cumulative evidence. Commonwealth’s
Brief at 19 (citing Commonwealth v. Showers, 782 A.2d 1010, 1022 (Pa.
Super. 2001)). The Commonwealth contends Breeland’s testimony would be
cumulative because Breeland testified consistently with the other witnesses
regarding the fight prior to the shooting, “BUT as to the shooting itself, [] he
heard but did not see the shooting occur.” Commonwealth’s Brief at 16
(capitalization in original). It is true that Breeland testified he did not see that
Brown had a gun and did not see him fire any shots. However, giving great
deference to the factual findings of the PCRA court as we must, we conclude
Breeland’s description of the fight and struggle between Brown and the victim
is sufficiently different from the testimony of the Commonwealth’s witnesses
and, if believed, could support a self-defense claim by Brown or a conviction
for a less serious offense than first-degree murder. Therefore, we shall not
disturb the PCRA court’s findings in that regard.
We find the PCRA court’s factual findings are supported by the record
and that its ruling is free of legal error. Therefore, we shall affirm the PCRA
court’s October 3, 2016 order granting Brown’s petition and awarding a new
trial.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
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