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[U] Commonwealth v. Sparks

Superior Court of Pennsylvania

February 20, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAVID SPARKS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 4, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001327-2007

BEFORE: BOWES, MUNDY, and FITZGERALD, [*] JJ.

MEMORANDUM

BOWES, J.

David Sparks appeals from the May 4, 2012 order denying his first counseled PCRA petition. We affirm.

The PCRA court carefully summarized the procedural and factual background of this matter as follows.

On May 23, 2008, following a bench trial, appellant was convicted of first degree murder, firearms not to be carried without a license, possession of a firearm by a minor and possession of an instrument of crime, and sentenced to life in prison without parole for the shooting death of Gary Hall. The evidence at trial established that on September 4, 2006 around 11:35 PM, officers responded to radio calls of a shooting in the area of the 1700 block of Wingohocking Street in the City and County of Philadelphia. Philadelphia Police Officer Jason Reid and his partner Officer Colville arrived at the scene to find a very large chaotic crowd of about 50-100 people, including several juveniles. Officer Reid exited his vehicle and was informed that a male, later identified as Gary Hall (Hall), was shot and had been transported to the hospital in a private vehicle. Officer Reid notified police radio that the shooting was founded then began to push back the crowd and cordon off the area and hold it for the Crime Scene Unit (CSU). Officer Reid observed numerous shell casings, a black holster and a silver bicycle in fro[nt] of 1728 Wingohocking Street. Hall was pronounced dead at Einstein Hospital at 11:44 PM. The subsequent autopsy determined that Hall's death was caused by multiple gunshot wounds. One bullet was recovered from the body and submitted to the Police Laboratory for analysis.
Officer Lamont Fox of the CSU processed the crime scene. He photographed the area, prepared a scale sketch and collected ballistic evidence. He recovered nine .40 caliber fired cartridge casings (FCC's), a .40 caliber bullet, a bullet core and a black holster, all of which were placed on a property receipt and submitted for analysis. A latent fingerprint exam performed on the FCC's and the holster was negative. Microscopic comparison of the ballistic evidence determined that all of the FCC's were fired from the same firearm and that the bullet was a full metal jacket with characteristics of six lands and grooves with a right hand twist. The bullet core was unsuitable for microscopic comparison. The bullet recovered from Hall also had six lands and grooves with a right hand direction of twist but there were insufficient corresponding microscopic markings to permit a positive identification or to determine that the bullet specimens were fired from the same firearm. In addition, DNA comparison of blood from Hall and a swab from appellant with the black holster excluded both appellant and Hall as sources of DNA on the holster.
Lieutenant Aisha Perry of the 39th Police District, arrived shortly after 11:35 PM, noticed a video surveillance camera outside of the Far East Chinese restaurant located on the corner of 18th and Wingohocking Street and had a sergeant acquire the corresponding videotape. The videotape showed the interior of the Chinese restaurant and the outside area in front of the restaurant before, during and after the shooting. It showed appellant, and brothers Marquis Lawrence and Ivan Simmons along with several others that were inside and outside of the Chinese restaurant. Lieutenant Perry instructed officers on the scene to round up potential curfew violators who were out there on the street. At around 11:45 PM, Officer Deirdre Still of the 35th District and Officer Allen of the 39th District observed the appellant, who appeared to be a juvenile, walking northbound on Cleveland Street, about one street west of 18th Street, and questioned him regarding his name and age. Appellant told the officers his name and that he was 16 years old. He had no identification. Given the time of the night, appellant's age and his presence in a public area, Officer Still instructed Officer Allen to write appellant up for violation of Philadelphia's curfew ordinance. Officer Allen escorted appellant to his patrol car to be issued a curfew violation citation. While appellant was waiting inside the patrol car and Officer Allen was writing up the curfew violation paperwork, appellant's 15 year old brother, Dominic White, approached and was detained by Officer Still. About this time, Tamika Sparks approached Officer Still and identified herself as the mother of both juveniles. Officer Still advised her that they were conducting curfew investigations and that appellant was in the patrol car awaiting his citation from Officer Allen. Officer Still established an address for both juveniles and released White to Tamika Sparks. However, Detective James Sloan, who had received information that appellant was the shooter from Karen Reddy, mother of eyewitnesses Kalisha and Markita Reddy, informed Officer Allen and appellant that he was looking for appellant in connection with the shooting. Appellant was then taken out of the [sic] Officer Allen's patrol car, handcuffed and transported to the Homicide Unit for questioning. Kalisha and Markita Reddy each gave a statement to detectives and testified at trial that they saw appellant shoot Hall. Both were familiar with appellant from the neighborhood. Kalisha testified that she saw Marquis Lawrence and Hall arguing. Then Hall got on his bike and rode away toward 15th and Wingohocking. She heard 9-10 shots and saw appellant holding his right arm out with a clenched fist about shoulder level in the direction Hall was riding. She did not see a gun, but observed sparks coming from appellant's hand. Markita testified that she heard appellant and Marquis confront Hall and an argument ensued. Hall became angry, got on his bike and rode away. Appellant came from across the street and began shooting at Hall as he rode away. Markita also identified appellant in a photo array.
Lieutenant Perry was on her way from the crime scene to Einstein Hospital when she learned that Hall had expired. She then returned to the crime scene and was approached by Barry McShore (McShore), who she was familiar with as a resident of the neighborhood. McShore informed her that he knew who the shooter was but did not want to be seen because he knew both families and had lived in the area for over forty years. Lieutenant Perry placed McShore in the rear of her patrol car. McShore then pointed out appellant as the shooter. At the time appellant was being detained by Officer Allen for the curfew violation. Lt. Perry instructed officers to have appellant transported to Homicide.
McShore was transported to the Homicide Unit to be interviewed. He gave a written statement to Homicide Detective John Verricchio who questioned McShore and recorded his responses verbatim. McShore stated, in pertinent part, that he was outside when Hall was shot. There was a block party going on that day and Hall was gambling with other males in a dice game at 18th and Wingohocking Streets. All day long at the block party, McShore observed a male whose name he did not know, walking around with a gun in his pocket: McShore saw Hall ride off on his bike from where the males were gambling and the male with the gun in his pocket all day, who McShore identified as appellant, took aim and fired at Hall. McShore was unable to see a gun in appellant's hand but saw sparks and the Smoke. Hall fell off the bike in front of 1729 Wingohocking Street and appellant then ran down 18th Street. Police arrived and McShore told the lieutenant what he saw. He heard her tell officers to arrest kids out there for curfew violations. He then observed that appellant being detained for a curfew violation and told the lieutenant that that was the boy who shot Hall. At the time, he did not know appellant's name but knew his face. Upon completion of the interview, Detective Verricchio asked McShore to read the statement and, if it was accurate, sign each page. McShore signed each page indicating that, he had read the statement and agreed that it was accurate. He made no additions or corrections. McShore also signed a statement adoption attestation. However, at trial McShore testified that he had never seen appellant before seeing him at trial; that he did not see the shooting or know anything about the shooting; and that he did not give the statement, the detectives wrote it up and he just signed it so he could leave. However, during questioning he did acknowledge that he was interviewed by Detective Verricchio and that it was his signature that appeared on each page and the attestation. He also testified that the biographical information in the statement was accurate.
Latisha Lowery, a friend of appellant's from the neighborhood testified on his behalf. Lowery testified that Hall argued with Marquis Lawrence and that Lawrence's brother, Ivan Simmons shot Hall. Appellant was standing on the other side of 18th Street before the shooting. She did not see appellant with a gun. However, Lowery was not sure of appellant's whereabouts at the time of the shooting. Appellant also presented evidence by way of stipulation that Detectives Crystal Williams or Grady Patterson would testify that on December 12, 2006, they contacted brothers, Ivan Simmons and Marquis Lawrence who went to the Homicide Unit with their mother to give a statement but were advised against it by their attorney and no interview was recorded. Counsel further represented to the Court that Marquis Lawrence had been placed at George Junior Republic, and while counsel had experienced some difficulty having Lawrence brought down to testify, he made a strategic decision to proceed without his testimony. Appellant testified under oath that he understood and agreed with trial counsel's decision, that there were no other witnesses or evidence he wished to present and that he was satisfied with the representation of his lawyer. Following presentation of all the evidence, appellant was found guilty of 1st degree murder, firearms not to be carried without a license, possession of a firearm by a minor and possession of an instrument of crime and was sentenced to life imprisonment without parole. Appellant did not file a direct appeal.
On June 2, 2009, appellant filed a pro se petition for post-conviction relief claiming eligibility for relief based on trial counsel's ineffectiveness for failing to interview Marquis Lawrence, Tyrell Hood, Lillian Hall, Taheed Hood, Lakeena Parker, Amanda Boyd, Aleesha Byrd and Nakia Akins; for failing to request DNA results; for failing to ask defense witness Barry McShore whether he was referring to the shooter as David or Ivan; and for failing to ask defense witness Barry McShore whether David or Ivan was walking around with a gun in his pocket all day. Additionally, appellant claimed that, while talking to Renada Council, he learned that she gave a statement to a Detective Pitts indicating that appellant was innocent, and [told] the detective that Ivan Simmons committed the murder. Appellant did not attach any documentation of the witnesses' proposed testimony. PCRA counsel was appointed and, on February 9, 2011, filed an Amended Petition presenting two claims - that appellant is entitled to a new trial because trial counsel provided ineffective assistance by not presenting the testimony of alibi witness Renada Council and that appellant is entitled to resentencing pursuant to Graham v. Florida, 130 S.Ct. 2011 (2010). On May 19, 2011, the Commonwealth responded with a motion to dismiss the claims as meritless.
Between May 20, 2011 and January 13, 2012, PCRA counsel filed and litigated several motions to compel additional discovery, including requesting fund[s] to obtain a private investigator. On March 13, 2012, PCRA counsel filed a Second Amended Petition raising four claims of ineffective assistance of counsel, requesting an evidentiary hearing and reiterating her Graham v. Florida claim. The Court undertook a thorough review of appellant's voluminous filings, the Commonwealth's responses, the record and the controlling law and determined that appellant was not entitled to PCRA relief and further proceedings were unwarranted. On March 23, 2012, the Court filed, and served on appellant, a notice pursuant to Pa.R.Crim.P. 907 indicating that his petition would be denied/dismissed after twenty days without further proceedings. Appellant responded ...

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