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[U] Commonwealth v. McKant

Superior Court of Pennsylvania

February 21, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BRIAN W. MCKANT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of December 4, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1300294-2006

BEFORE: GANTMAN, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Brian W. McKant, appeals from an order entered on December 4, 2012 in the Court of Common Pleas of Philadelphia County that denied his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We previously summarized the historical facts in this case in our memorandum disposing of Appellant's claims on direct appeal.

On January 9, 2006, Appellant and two friends, Jerrell Smith and Bryheem Baldwin, were playing a dice game in front of 1117 West Tioga Street, Philadelphia, Pennsylvania. Lamont Sparrow approached Appellant and his friends. Hostile words were exchanged between the men.[1] Sparrow then walked away from the other men towards a basketball hoop at the end of West Tioga Street.
Baldwin watched Appellant walk up behind Sparrow and pull a handgun from is right jacket pocket. Appellant then shot Sparrow twice in the back of the head. Appellant immediately fled the scene. Smith and Baldwin also left the scene and ran towards their residences.
When police arrived at the scene, Sparrow was lying face down in the street covered with a white sheet. Witnesses told police that they heard two "pops" coming from the direction of the basketball hoop and saw Appellant, Smith, and Baldwin run in different directions.
Several days after the shooting, Smith and Baldwin both were questioned separately regarding the shooting. Both men stated that Appellant shot Sparrow. The two men also appeared at the district attorney's office and provided signed statements, again implicating Appellant as the shooter. On April 4, 2006, after eluding police for several months, Appellant was arrested and charged with shooting Sparrow.
Prior to trial, Smith and Baldwin both decided not to testify against Appellant and failed to appear at a preliminary hearing. The trial court ordered the two men to appear. At a rescheduled preliminary hearing, Baldwin appeared and recanted the statement he made to police. He testified that he did not see who killed Sparrow but that he heard the shots and ran from the scene.
A jury trial was held on August 2, 2007. Smith and Baldwin both testified and again tried to recant their pretrial statements. Appellant was convicted of first-degree murder, possession of an instrument of crime, and firearms not to be carried without a license.[2] That same day, Appellant was sentenced to life imprisonment without the possibility of parole for the murder offense and two and one-half to five years' imprisonment for possession of an instrument of crime, to be served concurrently. Appellant filed a post-sentence motion, which was denied. [Thereafter, Appellant lodged a timely notice of direct appeal and, on March 6, 2009, we affirmed Appellant's judgment of sentence. Commonwealth v. McKant, 972 A.2d 557 (Pa. Super. 2009) (unpublished memorandum). The Supreme Court denied Appellant's petition for allowance of appeal on November 5, 2009. Commonwealth v. McKant, 983 A.2d 727 (Pa. 2009).]

Commonwealth v. McKant, 972 A.2d 557 (Pa. Super. 2009) (unpublished memorandum) at 1-3 (original footnotes modified).

On August 23, 2010, Appellant, acting pro se, filed the instant petition pursuant to the PCRA. Counsel was appointed to represent Appellant in connection with his claims for collateral relief. On July 30, 2012, PCRA counsel moved to withdraw as Appellant's representative and filed a no- merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (enbanc). On August 3, 2012, the PCRA court forwarded Appellant notice pursuant to Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing. Appellant responded to the notice on August 9, 2012. On August 20, 2012, PCRA counsel filed a supplemental no-merit letter that addressed Appellant's additional claims. On November 1, 2012, the PCRA forwarded Appellant a second notice pursuant to Pa.R.Crim.P. 907 advising that his PCRA petition would be dismissed without a ...


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