Appeal from the Order of the PCRA Court denying relief on appellant's third petition for Post-Conviction Relief in the Court of Common Pleas of Cumberland County, Criminal Division, at No. 94-1499, on April 1, 2011
SUBMITTED: August 29, 2011
AND NOW, this 5th day of April, 2012, the Order of the Court of Common Pleas of Cumberland County, denying relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541-9546, is hereby AFFIRMED. We write in elaboration primarily to address concerns of the federal district court, which has pending before it appellant's petition for a writ of habeas corpus.*fn1
This matter involves capital appellant Seifullah Abdul-Salaam's appeal from the denial of relief related to a third PCRA petition. See Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002) (second petition) ("Abdul-Salaam III") and Commonwealth v. Abdul-Salaam, 808 A.2d 558 (Pa. 2001) (first petition) ("Abdul-Salaam II"). The petition involves a return to Pennsylvania state court to exhaust a Brady*fn2 claim that emerged in federal habeas corpus proceedings. Notably, in directing appellant to exhaust this claim, the Honorable John E. Jones, III, of the U.S. District Court for the Middle District of Pennsylvania, opined that a proper assessment of the "materiality" of the allegedly suppressed evidence required consideration of the cumulative effect of this evidence with evidence that was the subject of another Brady claim appellant raised in a prior PCRA petition. Abdul-Salaam v. Beard, 2008 WL 2704605 (M.D.Pa. 6/7/2008) (unreported).
The legal basis for this cumulation inquiry is found in Kyles v. Whitley, 514 U.S. 419 (1995), wherein the U.S. Supreme Court held that a court conducting a Brady materiality analysis must consider the "cumulative" or "collective" effect of the suppressed evidence. See also Bell v. Cone, 129 S.Ct. 1769, 1782-86 (2009) (discussing Kyles and considering whether cumulative or collective effect of suppressed evidence was material). Judge Jones articulated his concern as follows: "Our decision to withhold judgment here is rooted in the potentially pending cumulative analysis of the PCRA court with respect to the materiality of all of the undisclosed evidence.. The Court is convinced that, for purposes of a determination of materiality of any allegedly suppressed evidence under Kyles, the DNA evidence must be placed into the proverbial mix along with the previously weighed Clifton evidence." See Abdul-Salaam v. Beard, 2008 WL 2704605 at *18.
Out of respect for the concerns of Judge Jones, and cognizant that appellant adverts to the cumulation theory in his brief, albeit he does not separately argue the point, we will address Brady cumulation. As Judge Jones noted, for purposes of any cumulation analysis, there are two separate pieces of evidence: (1) allegedly suppressed evidence relating to a police interview conducted prior to trial with Tony Clifton, the contents of which were memorialized in "the Harlacker report," and the non-disclosure of which was the basis for a Brady claim in appellant's first PCRA petition; and (2) "newly discovered" blood evidence that emerged during the federal habeas proceedings before Judge Jones, which was the primary subject of this serial PCRA petition.
Respecting the Clifton evidence, it appears that the Harlacker report was not turned over to the defense before trial. The interview with Clifton occurred on or about January 10, 1995 (2 months before trial).*fn3 Detective John Harlacker testified to the contents of the report during the first PCRA proceeding. Specifically, his testimony outlined that Clifton had stated that he was with appellant's co-conspirator, Scott Anderson, and another individual six hours prior to the robbery during which appellant murdered New Cumberland Police Officer Willis Cole. At that time, Clifton overheard the two men discussing a robbery. Clifton also told Detective Harlacker that he was intoxicated when he was with the two men. Furthermore, Clifton told Detective Harlacker that he was able to identify Anderson, but was unable to identify the man who was with him. Clifton also testified at the first PCRA proceeding and claimed that the man he saw with the co-conspirator six hours prior to the robbery and murder was not appellant.
The initial PCRA court addressed this claim on the merits in its opinion, concluding that the Clifton evidence was neither material nor exculpatory:
Clifton's observations were made at a time when he was highly intoxicated. Clifton, himself, had he been called as a witness would have been confronted with his prior record for crimen falsi. The incident which he describes is separated from the actual robbery by many hours. It does not serve, in any way, to contradict the accounts of eyewitnesses to the crime and forensic evidence which point with certainty to the guilt of petitioner. As noted above, there is no violation of principles enunciated in Brady v. Maryland unless the evidence involved is material and exculpatory. The testimony of Tony Clifton was neither.
PCRA court opinion, 11/12/1998, at 9. On appeal, this Court did not engage in a merits analysis of this claim, indicating that it was defaulted. See Abdul-Salaam II, 808 A.2d at 560.
For purposes of the Kyles/Brady cumulation analysis now of concern to Judge Jones, even if it is assumed that this information in the possession of governmental authorities was subject to Brady disclosure under U.S. Supreme Court precedent governing in March of 1995, we agree with the initial PCRA court's determination that the Clifton interview was neither material nor exculpatory. Clifton's account may have been relevant to further inculpate Anderson, indicating his intention to commit a robbery, but it did nothing to exculpate appellant. Detective Harlacker's testimony indicated that Clifton claimed that he was able to identify Anderson, but was unable to identify the individual who was with Anderson. Clifton's inability to identify the other individual to Detective Harlacker does not exculpate appellant, it just fails to inculpate him in an association many hours before the robbery and murder. By the same token, Clifton's account to police that he had overheard Anderson and another individual discussing a robbery six hours before it occurred does nothing to exculpate appellant for his conduct, attested to by numerous eyewitnesses, and corroborated by, among other things, the gunshot wound he suffered in his exchange of lethal gunfire with Officer Cole. Therefore, it is not apparent that this evidence should even be considered in a cumulative effect of "suppressed" evidence analysis under Kyles and Brady.
For purposes of a Kyles/Brady cumulation inquiry, there is a similar difficulty with appellant's new claim deriving from blood/DNA evidence uncovered through federal habeas supplemental discovery. This evidence showed that DNA testing of another sample of blood on the steering wheel of the getaway car, which testimonial and other evidence at trial had shown had been driven by Anderson, was consistent with Anderson's DNA profile. Evidence that would further incriminate Anderson, and corroborate the Commonwealth's evidence that he was the driver of the getaway vehicle, does not tend to exculpate appellant.*fn4
In any event, assuming that both the Clifton evidence and the new blood evidence should be considered in a Kyles cumulation analysis, the cumulative effect of these allegedly suppressed items of evidence does not warrant relief. In the Brady context, materiality includes an assessment of whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles, 514 U.S. at 433-34; see also Strickler v. Greene, 527 U.S. 263, 280 (1999); Commonwealth v. Lambert, 884 A.2d 848, 854 (Pa. 2005). Notably, in his argument on Brady materiality, appellant fails to address the breadth of the trial evidence.*fn5 That evidence makes clear that whatever marginal use may have been made of Clifton's ...