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Brown v. Wakefield

June 24, 2010


The opinion of the court was delivered by: Pollak, J.


Petitioner Anthony Brown filed a petition for a writ of habeas corpus (docket no. 1) seeking relief from his Pennsylvania state-court conviction for first-degree murder, recklessly endangering another person, and possession of an instrument of crime. Petitioner alleged ineffectiveness of counsel based on ten separate grounds. After reviewing the petition, Magistrate Judge Arnold C. Rapoport appointed counsel to represent Brown (docket no. 27) and determined that an evidentiary hearing was required (docket no. 32). On January 28, 2010, Judge Rapoport issued a Report and Recommendation ("R&R") (docket no. 77) recommending that Brown's petition be conditionally granted based on the ineffectiveness of petitioner's counsel due to counsel's failure to investigate alibi witnesses and failure to file a proper notice of alibi. In Judge Rapoport's view, (1) trial counsel's representation of petitioner fell below the standard of effective assistance of counsel prescribed by Strickland v. Washington, 466 U.S. 668 (1984), and (2) counsel's flawed representation of petitioner was likely to have seriously compromised petitioner's defense at trial.

On April 2, 2010, the Commonwealth filed objections to the R&R (docket no. 85-88). After reviewing Judge Rapoport's R&R, I have concluded that the R&R should be approved and adopted in large part.


Petitioner seeks relief from his Pennsylvania state-court conviction by alleging that his trial counsel, Tariq El Shabazz, provided ineffective assistance of counsel. Petitioner has argued that Shabazz provided ineffective assistance in several ways. The focus of this opinion, and the ground on which the R&R recommends granting the present petition, is Shabazz's failure to investigate potential alibi witness until shortly before trial, which resulted in the trial court excluding two of the alibi witnesses because Shabazz had failed to file a timely notice of alibi witnesses. Petitioner claims that at the time of the shooting, which took place at Conestoga Street and Girard Avenue, in Philadelphia, he was eating at a TGI Friday's on the Ben Franklin Parkway, a substantial distance away, and would not have been able to travel to the scene in time to have committed the crime. At trial, petitioner was able to present the testimony of friends and family members who saw him at the restaurant. However, one of the excluded alibi witnesses, Andre Osborne, the manager of the restaurant that night, would have been the only disinterested alibi witness to place him at the restaurant. Petitioner claims that the failure to find and present this witness was ineffective assistance of counsel that prejudiced him at trial. I agree.

Since the central issue is whether petitioner's trial counsel was gravely ineffective in failing to identify and present certain alibi witnesses, it is essential to view that issue in the context of the evidence which was presented at trial by the prosecution and by the defense. As the claimed error regards the failure to investigate and present alibi witnesses, the key facts relate to petitioner's location on Labor Day, September 7, 1998. Petitioner and several alibi witnesses have stated that petitioner was at a restaurant far from the shooting scene, between approximately 8 p.m., a time that prosecution witnesses testified they first saw him at the scene shortly before the shooting, and 8:23 p.m.when a police radio call reporting the shooting went out.

A. Prosecution's Case at Trial

Because Judge Rapoport's R&R provides an admirably detailed narrative, I will quote from it directly:

Petitioner was convicted on October 1, 2000, of first-degree murder, recklessly endangering another person, and possession of an instrument of crime by a death-qualified jury. The same jury imposed a life sentence for the murder charge and Brown received concurrent one to two year sentences on the other charges.

Mr. Brown's conviction arose from an incident that occurred on Labor Day, September 7, 1998 in the 600 block of Conestoga Street in Philadelphia that resulted in the death of Frances Rorie. Tamika Thompson, the twelve year old granddaughter of the victim, and Tamika's aunt, Yvonne Rorie, both testified that the family attended a Labor Day block party on Conestoga Street. (N.T. 9/22/00 at 460-61.) Earlier in the day, Tamika's cousins, who also lived on the block, had an argument with children who lived around the corner on Girard Avenue. (Id. at 464.) Shortly after the argument, Kim Brown, Anthony Brown's sister and the mother of the children from Girard Avenue, came to Conestoga Street to investigate the argument along with her friend Sharon Carter. (Id. at 470.) The two women approached Tamika, who told them to go see her mother at 647 Conestoga Street. Tamika's mother, Alanda Rorie, Frances Rorie and Yvonne Rorie became engaged in an argument with [] Kim Brown and Sharon Carter over the children. (Id. at 472-73.)*fn1

Although the two women from Girard Avenue retreated, the inter-family argument continued to escalate through[out] the day at the corner of Conestoga and Girard with Kim Brown's son, Hakim, throwing a rock at Yvonne's son, Rafeek, the Rorie women then renewing the confrontation with the Brown women, the wielding of brooms and kitchen knives, and a threat by a friend of the Browns named Kareema to "spray the whole corner." (Id. at 476-492; N.T. 9/25/00 at 610-616.). Later Kareema was seen standing at the corner with the Petitioner, Anthony Fingers a/k/a "Black Anthony," Kevin Johnson, and two other unidentified males. Kareema was seen pointing toward the Rorie house. (N.T. 9/22/00 at 492-96; N.T. 9/25/00 at 619-20.)

R&R 1-3.

Tamika Thompson and Yvonne Rorie were the witnesses who testified that they saw petitioner standing on the corner with Kareema, Anthony Fingers, Kevin Johnson, and two other unidentified males. R&R 2.Yvonne Rorie testified that after she saw this occur:

Then say about 15, 20 minutes later we heard a gunshot. It was a single gunshot. And my niece Tiffany ran around the corner of Popular and Conestoga and she said, here come the guys with the guns. And we told her to stop playing. She's like, I swear to F'ing God, ans she ran into the house. And that's when I saw a gentleman step around the corner of Poplar and Conestoga Street and he started shooting.

N.T. 620. On cross examination, Yvonne Rorie confirmed that the shooting occurred 15-20 minutes after the meeting between the men and Kareema. N.T. 652. Tamika Thompson also testified that Kareema met petitioner and pointed down the block. N.T. 492-96. On cross examination, she was unsure about the time between the meeting and the shooting, stating that "[i]t wasn't no five minutes later. It was longer than that. I wasn't counting time." N.T. 570-71.

Following this encounter:

Tamika Thompson saw her cousin Tiffany Thompson come around the corner yelling "they're coming, they got a gun." Tamika and Yvonne both testified that they saw four men at the corner; at least two had guns and one pointed at the Rorie home and started shooting. Frances Rorie was fatally shot in the head. Tamika described the assailant to the police shortly after the incident. She stated that he was tall, light-skinned, skinny, about 22 years old, was wearing a blue cap with a red brim, a white shirt and blue jean shorts and drove a four-door gray car. (N.T. 9/22/00 at 519-21.) Tamika identified Anthony Brown from a photo spread three days after the shooting. (N.T. 9/26/00 at 745.) At the preliminary hearing and again at trial, Tamika Thompson identified Anthony Brown as one of the shooters. (N.T. 9/22/00 at 493, 500, 527.)

Yvonne Rorie identified Anthony Brown as the specific shooter who aimed at and fired upon her mother, Frances Rorie, who was sweeping the sidewalk at the time. (N.T. 9/25/00 at 620-625.) Yvonne also picked out Brown's picture from a photo spread shortly after the murder. (Id. at 641; N.T. 9/26/00 at 748.) Shortly after the murder, Yvonne described the assailant as light-skinned and taller than herself, wearing a white shirt, blue or black shorts and a white baseball cap. (N.T. 9/25/00 at 643-47.)

Philadelphia Police Officer Anthony Griffin testified that he heard a flash radio call at 8:23 or 8:24 p.m. reporting the shooting. (N.T. 9/21/00 at 350, 366.) At the scene, Tiffany Thompson told the responding officers that the shooter lived at 5408 Girard Avenue. (Id. at 357-59.) The officers knocked on the door of the home, announced their presence, and were let in the residence by Sharon Carter. (Id. at 360.) After a search warrant was obtained, officers discovered clothing matching the description given by Yvonne and Tamika, including a plain white tee shirt, dark blue jean shorts, brown boots and an Atlanta Braves baseball cap; a photograph of the Petitioner; mail in his name; and a moving violation citation. (N.T. 9/ 25/00 at 723- 25.) The murder weapon was never recovered. (N.T. 9/25/00 at 696.) However, forensic evidence determined that the weapon used was a 9 mm Uzi pistol. (Id.)

R&R 3-4.

Thus, according to the testimony presented at trial, the shooting would have had to occur before 8:23, as the police radio call reporting the shooting came out over the air at 8:23 or 8:24 p.m. R&R 4. Petitioner's asserted meeting with Kareema Latimer would have had to have been seen by Yvonne and Tamika at or shortly after 8:00 p.m., making the assumption that the police radio call occurred immediately subsequent to the shooting.

B. Petitioner's Alibi Defense at Trial

During trial, when petitioner's counsel attempted to call alibi witnesses, the prosecution objected to their testimony because Shabazz failed to file a notice of alibi, which would list the alibi witnesses that would testify. N.T. 902.*fn2 Shabazz claimed that notice was filed, but later admitted he did not file the notice. N.T. 902-03, 922. The prosecution did not want the court to prevent the witnesses from testifying, because it feared a later ineffective assistance of counsel claim. N.T. 905. It requested that a jury instruction explain that no notice was filed for the alibi witnesses. N.T. 905. Instead of granting the prosecution's request, the trial court allowed only three of the five proposed alibi witnesses to testify because the prosecution had received written statements from them. N.T. 922-25. The trial court excluded the only alibi witnesses who did not have prior connections to petitioner, the manager of the TGI Friday's, Andre Osborne, and the waitress who served petitioner, Stacy Szmyt. N.T. 924-25. Following the exclusion of these witnesses:

At trial, Brown presented both a misidentification defense and an alibi defense. Gary Jones, a grandson of Frances Rorie, testified on direct examination for the defense that the shooter was short and dark-skinned, wore a plaid shirt, blue shorts, black Timberland boots and a red and blue Atlanta Braves baseball cap. (N.T. 9/26/00 at 788, 792.) He described another person at the scene who was not the shooter as a light-skinned, bald, mustachioed man wearing a white tee shirt, blue shorts, and Reebok sneakers. (Id. at 790.) On cross-examination, Mr. Jones was impeached with a statement he gave to police on the night of the murder, in which he described the shooter as tall and light-skinned, wearing an Atlanta Braves cap, light blue shorts, white shirt and black boots. (Id. at 805.)

Timmsel Rorie, another of Frances Rorie's daughters, testified on direct examination for the defense that she described the shooter to police on the day of the murder as tall and light-skinned, and wearing a red plaid shirt. (Id. at 821.) She also described one of the other men with the shooter as being Anthony Brown, a tall, light-skinned man of 18 or 19, wearing a white shirt and long blue jeans. (Id. at 822-23.) Nonetheless, a few days later, she picked Anthony Brown's photo out of a photo spread indicating he was the shooter. (Id. at 837.) Ms. Rorie also made an in-court identification of Mr. Brown as the person who shot her mother. (Id. at 850.) She testified on cross-examination by the Commonwealth that she did not correct her initial statement to the police because she wanted her boyfriend to kill Mr. Brown. ( 860.)

Petitioner's alibi defense consisted of several witnesses. Terrence Devero, who was alleged to be one of the other men at the corner of Girard and Conestoga when the shooting erupted, testified that he was at his mother's home at the time of the incident. (N.T. 9/26/00 at 762.) While the time line he presented for the day of the shooting was impeached by the Commonwealth, his testimony was corroborated by his mother, Lauren Woodson. (Id. at 783.)

Lynnette Bright testified that she was the college roommate of Tiyana Miller, Mr. Brown's cousin. Ms. Bright testified that, on the day of the murder, she and Ms. Miller went to the TGI Friday[']s restaurant at 17th Street and the Benjamin Franklin Parkway, to buy some take-out food for dinner, arriving at approximately 7:30 p.m. (N.T. 9/27/00 at 930.) Ms. Bright testified that approximately fifteen minutes after they arrived Miller saw her cousin, Anthony Brown, walking from the interior of the restaurant toward the front of the restaurant. ( 930.) They spoke for a while, then Brown cut the conversation short because his food had arrived at his table. (Id. at 931.) Ms. Bright testified that she and Miller were seated at the front of the restaurant near the door and could see who came in and left. (Id. at 932.) She testified that they waited a considerable amount of time to get their take-out order, and left the restaurant sometime between 8:15 and 8:20 p.m. During that time, she had not seen Mr. Brown leave. (Id.)

On cross-examination, Ms. Bright was impeached with evidence that she knew several of Brown's relatives, with inconsistent statements regarding the time that she arrived at the restaurant, and with her asserted failure to cooperate with the District Attorney's investigation. (Id. at 939-956; 961-67.) She was also unable to describe the clothing that Mr. Brown was wearing. (Id. at 957.) Finally, she reputed [sic] part of the statement she had given to a defense investigator. In the statement she asserted that she saw Mr. Brown with a few of his friends and saw him still eating at his table when she left. She admitted, however, that she did not actually see him seated at a table with his friends at any time that she was in the restaurant. (Id. at 972-73.)

Tiyana Miller testified that she arrived home from work on the day of the murder between 6:45 and 7:00 p.m. and went to the TGI Friday[']s restaurant between 7:15 and 7:30 p.m. (Id. at 977-78.) She remembered that it was already dark when they walked to the restaurant. (Id. at 978.) She and Ms. Bright then waited 15 to 20 minutes to place their take-out order. (Id.) While they waited, she saw her cousin Anthony Brown come out to the entrance area to use the telephone. (Id. at 979.) She recalled chatting with him. (Id.) Miller testified that they waited approximately one hour for their take-out food, leaving the restaurant at approximately 8:20 p.m. (Id.) She stated that Brown was still in the restaurant when they left, seated with Black Anthony, Kevin Johnson, and two women, eating their dinner. ( 979-80; 982.)

When she learned that Mr. Brown had been arrested for the murder, she went back to the TGI Friday[']s to find out if they had a video surveillance system that could pinpoint the time that Brown left the restaurant. (Id. at 980-81.) However, on cross examination, Ms. Miller was impeached with evidence that she never contacted any member of her family after she learned of her cousin's arrest to let them know she had seen him on the night of the murder. (Id. at 990-94.) She also did not contact the police with her information, and did not respond to letters from the district attorney. (Id. at 1006-07; 1011-13.) She also could not describe what clothing Mr. Brown was wearing at the restaurant. ( 997.)

Petitioner Brown testified in his own defense. He told the jury that on September 7, 1998 he was driving to the TGI Friday[']s restaurant located on City Line Avenue in Philadelphia when he was stopped for a traffic violation. (Id. at 1015.) The citation lists the time of the traffic stop as 6:41 p.m. (Id. at 1016.) [The parties stipulated that he was released by the officer at 6:46 p.m.. N.T. 1196.] Mr. Brown testified that he gave the officer an alias and an incorrect address because he was a traffic scofflaw and feared being arrested if he gave his correct information. (Id. at 1038.) When he arrived at the City Avenue location with Kevin Johnson, Black Anthony and three women they had met that afternoon at a radio station-sponsored baseball game, the restaurant was quite crowded. (Id. at 1017-18.) They then decided to go to the TGI Friday[']s location on the Parkway, driving back into town on the Schuylkill Expressway. (Id. at 1019.) He testified they arrived at approximately 7:10 to 7:15 p.m. and had to wait to be seated. (Id.) They were eventually seated at a booth in the bar area. (Id.) After they were seated, he saw his cousin, Tiyana Miller near the door with her roommate. (Id. at 1021.) He walked over to talk to her briefly before his food arrived, but did not see her leave. (Id. at 1021-22.) He testified that he left the restaurant at 8:45 p.m. (Id. at 1023.)

Mr. Brown testified that, after paying the check and leaving the restaurant, he, Black Anthony and Kevin Johnson drove to Johnson's automotive detail shop located at 59th and Race Streets, where they spent about ten minutes. (Id. at 1022.) He then drove home to Girard Avenue where he saw police cars at the corner of Girard and Conestoga. (Id. at 1023.) The police arrested Black Anthony and Kevin Johnson after Timmsel Rorie identified them to the police as the assailants. (Id. at 1025- 29.[)] He only discovered later in the week that there was a warrant for his arrest as well. (Id. at 1029.)

Kevin Johnson also testified for the defense. He stated that the party arrived at the TGI Friday[']s restaurant on the Parkway while it was still daylight. (Id. at 1043.) He could not state the time with any certainty, but testified it was before 7:00 p.m. (Id.) He stated that they left after it was dark. (Id.) Johnson testified that the restaurant was not crowded and that the group was seated without waiting. (Id. at 1172.) He ...

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