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Commonwealth v. Reed

June 16, 2009


Appeal from the Judgment of the Superior Court entered on October 17, 2007 at No. 982 EDA 2007 reversing the April 9, 2007 Order and remanding to the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0608121-2002.

The opinion of the court was delivered by: Madame Justice Todd


SUBMITTED: August 18, 2008


In this appeal, we consider whether the filing of a deficient appellate brief constitutes a complete denial of counsel so as to warrant a presumption of prejudice in the context of an ineffective assistance of counsel claim. In the instant case, the Superior Court reversed the PCRA court's denial of Appellee Adam Reed's petition for relief under the Post Conviction Relief Act ("PCRA")*fn1 on the basis that the filing of a deficient appellate brief by Reed's direct appeal counsel created a presumption of prejudice, and, therefore, that Reed successfully established he was denied effective assistance of counsel. Accordingly, the Superior Court reinstated Reed's appellate rights nunc pro tunc. As we conclude that the Superior Court erred in this regard, we reverse.

On March 29, 2002, Reed fatally shot 18-year-old Kenneth Ross on the 2100 block of South 22nd Street in Philadelphia. On April 16, 2003, Reed pled guilty to the general crime of murder and possession of an instrument of crime ("PIC"). At a degree of guilt hearing, the Commonwealth presented the testimony of two eyewitnesses to the shooting, as well as testimony of the medical examiner. In support of a diminished capacity claim, Reed presented the testimony of Dr. Lenae White, a forensic psychiatrist.

The trial court summarized the evidence presented at the degree of guilt hearing as follows:

Denise Gill, who saw the shooting, was with [Reed] on the day in question from early afternoon until his arrest shortly after the shooting. She testified that [Reed] smoked marijuana earlier that day, and that he had gone to the hospital afterward because he had a fever. According to Ms. Gill, [Reed] left the hospital without seeing a doctor because he did not want to give his name. At about 9:00 p.m., [Reed] got into an argument with someone she identified as "the mafia guy." Gill told this individual to ignore [Reed] and that [Reed] was "messed up." She and [Reed] left the area . . . and [Reed] went home and got a duffel bag containing some clothes and a gun. [Reed] and Gill then went to her mother's house. There [Reed] changed clothes and smoked some "wet," meaning PCP, along with Gill and her aunt. Gill testified that [Reed] then tried to confront "the mafia guy," but too many people were around so he chose not to do so.

Around midnight, Gill, Elese Lyles and the decedent were inside a take-out Chinese food store at 22nd and McKean Streets. [Reed] was outside. Ms. Gill testified that the decedent stated that he was going to "pop" [Reed]. Decedent had no weapon when he allegedly made this comment. At some point, Lyles ran out of the store. Gill thought Lyles told [Reed] what the decedent had said. Gill came out afterward and saw [Reed] standing in a nearby alley with his .9mm hand gun cocked. Gill stated that she thought [Reed] was acting irrationally and asked him to give her his handgun to hold and to come home with her. [Reed] refused and told her to lure the decedent outside so he could shoot him. Gill refused, and told [Reed] to forget about decedent's comments. [Reed] then asked Lyles to lure [the decedent] outside. Lyles agreed and went back into the store, where she accomplished her mission by promising to have sex with the decedent.

A short time later, Gill saw [Reed] and the decedent arguing near the intersection of 22nd Street and Snyder Avenue. According to Gill, [Reed] told the decedent, "I don't care whether you said it or not." He then pulled out his gun and fired five or six shots. The decedent was about six to eight feet away when [Reed] began shooting. He attempted to run but was struck several times. . . . The fatal shot severed decedent's spinal cord and penetrated his lungs and several major arteries.

Gill, who was standing nearby, was grazed in the leg by one of the shots. She immediately ran to her mother's house on 23rd street. [Reed] followed her and disposed of the gun on the way. [Reed] changed his clothes while inside and told Gill that he was going to flee to Cuba. [Reed], Gill and Lyles then got in a cab. They were apprehended by police shortly thereafter.

Trial Court Opinion, 6/30/04, at 2-3 (record citations omitted).

Gill's mother, Mora Collick, also testified that she saw Reed at her house between 9:00 and 10:00 p.m. on the night of March 29, 2002. She stated that at one point she looked inside Reed's duffel bag and saw a .9 mm and two other handguns. When Collick and her sister confronted Reed for bringing a gun into their home, Reed became angry and threatened Collick's sister with the .9 mm. According to Collick, Reed was "acting crazy" and threatened to kill "the mafia guy" and another individual named Kenny.

Another witness, Selina Looney, who was thirteen at the time, was sitting across the street when Reed shot the decedent and Looney positively identified Reed as the shooter.

She testified that Reed continued to shoot at the victim even after he had fallen to the ground.

Finally, Reed presented expert testimony by Dr. White to support his claim of diminished capacity, which the trial court summarized as follows:

Dr. White stated that the effects of PCP are generally both immediate and long lasting, and that some of the effects of PCP use often include paranoia, aggression and impulsive or hostile behavior. Prior to trial, Dr. White interviewed [Reed], who told her that the decedent had threatened him in the past. Dr. White also reviewed [Reed's] juvenile record, family background and considered [Reed's] medical state on the night in question, that [Reed] could have become paranoid as a result of ingesting PCP. Based upon this data, Dr. White opined that [Reed's] PCP use definitely accentuated any paranoia he may have been feeling on the night in question.

Dr. White also stated, however, that [Reed] told her using PCP often made him feel mellow or depressed. Finally, Dr. White testified that PCP use would not prevent someone from formulating and beginning to carry out a specific intent, but it would make it more difficult to control oneself enough to change their mind and stop before completing the intended action.

Id. at 4 (record citations omitted).

Based on the foregoing testimony, the trial court found Reed guilty of first-degree murder and sentenced him to life imprisonment for murder, plus a concurrent sentence of 21/2 to 5 years for PIC. Reed's post-sentence motions were denied, and he filed a direct appeal in which he raised a single issue, namely, whether the trial court erred in admitting at trial "irrelevant and unduly prejudicial evidence of a prior bad act against [Reed], such that the court was unable to accept [Reed's] defense of diminished capacity?" Commonwealth v. Reed, No. 2909 EDA 2003, unpublished memorandum at 5 (Pa. Super. filed June 9, 2005) ("Reed I"). Reed's argument was based on the admission of evidence that hours before he killed the victim, Reed had armed himself and prepared to go out and kill a different individual 3/4 "mafia guy" 3/4 but ultimately was dissuaded by Gill.

After setting forth the relevant case law concerning the admission of testimony regarding prior bad acts, the Superior Court concluded:

We have examined the record in light of these standards, and conclude that [Reed] is not entitled to relief for several reasons. First, [Reed's] argument is not developed sufficiently for us to conduct meaningful appellate review. Failure to provide argument ...

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