Submitted June 20, 2012
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Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, entered on November 16, 2007 denying the PCRA relief in the CCP, at No. CP-51-CR-1024821-1988. Trial Court Judge: William J. Mazzola, Senior Judge.
For Anthony Reid, Appellant: Daniel Silverman, Esq.
For Commonwealth of Pennsylvania, Appellee: Hugh J. Burns, Esq., Suzan Elena Willcox, Esq., Philadelphia District Attorney's Office; Amy Zapp, Esq., PA Office of Attorney General.
BEFORE: MADAME JUSTICE TODD. Mr. Chief Justice Castille and Messrs. Justice Eakin, Baer, McCaffery and Stevens join the opinion. Mr. Justice Saylor files a dissenting opinion.
This is a capital appeal from the order of the Court of Common Pleas of Philadelphia County denying Appellant Anthony " Tone Bey" Reid's petition for relief under the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S.A. § § 9541-9546. For the reasons that follow, we affirm the order of the PCRA court.
The facts underlying Appellant's sentence are more fully discussed by our Court on Appellant's direct appeal. Commonwealth v. Reid, 537 Pa. 167, 642 A.2d 453 (Pa. 1994). A brief summary of the facts, however, is required for our resolution of Appellant's collateral challenge to his conviction and sentence.
The evidence adduced at trial, and summarized in Reid, provides that on July 9, 1988, Mark Lisby (" the victim" ) took approximately $500 worth of crack cocaine capsules (" caps" ) from his uncle Terrance Lisby (" Lisby" ). The victim informed Lisby the next day that he had used the caps, but did not have the money to pay Lisby. Lisby worked for Lawrence Boston selling crack cocaine, and both of these individuals were attempting to obtain membership in the Junior Black Mafia (" JBM" ), a Philadelphia-based crime syndicate. Boston and Lisby, in turn, worked for JBM member Kevin Bowman. Once the victim understood that Bowman would be upset regarding the missing drugs, he met with Bowman to explain the situation, and offered to make up for the lost income the following week.
Two days later, Boston, who had not been paid by Lisby for the drugs, appeared at the victim's house at 2444 North Stanley Street in Philadelphia. Boston was joined by Appellant, who was a member of the JBM. After a brief conversation, Appellant, Boston, and the victim left the house and began walking west on Cumberland Street. As the men approached the intersection of Cumberland Street and 31st Street, Appellant drew a weapon and shot the victim once in the center of his chest, once in his upper right chest beneath the collar bone, and once in the back of his right leg. The victim died as a result of his wounds. Important for certain
issues discussed below, at Appellant's first trial, Lawrence Boston testified as an eyewitness. At Appellant's second trial, Boston invoked his privilege against self-incrimination under the Fifth Amendment to the United States Constitution, and, after establishing Boston was unavailable, Boston's testimony from his first trial in which he inculpated Appellant as the shooter was read into the record. Further, Michael Dozier testified that he witnessed the murder and that Appellant shot the victim.
After Appellant's arrest, he was charged with murder of the first degree, carrying a firearm without a license, possessing an instrument of crime, and criminal conspiracy. In December 1989, Appellant was brought to trial before Philadelphia Court of Common Pleas Judge Albert Sabo and a jury. The jury found Appellant guilty of criminal conspiracy, but was unable to reach a verdict on the remaining charges. Appellant was retried from December 12, 1990 through January 9, 1991, and convicted of the remaining charges.
During the penalty phase, the Commonwealth provided evidence that Appellant had been convicted of the March 13, 1989 murder of Neil Wilkinson and shooting of Darryl Woods, and the murder of Michael Waters, a 16-year-old boy, who had thrown snowballs at Appellant's car. The jury was also informed of Appellant's prior conspiracy conviction at his first trial in this matter. The record of the guilt trial was incorporated into evidence at the penalty phase. While the trial court refused to allow Appellant to present evidence regarding his specific religion (Muslim), he was permitted to explain that he had embraced a religious philosophy that had endorsed morality and that requires one to change and reform, and that he had become a new person as a result of his religion. He also presented background character evidence and his age at the time of his murder, 20 years old. Appellant did not testify. At the conclusion of the penalty trial, the jury found one aggravating circumstance -- Appellant had a significant history of felony convictions involving the use or threat of violence to the person -- and no mitigating circumstances, mandating the imposition of the death penalty. Thereafter, Appellant was sentenced to death for the first-degree murder conviction, 2 1/2 to 5 years imprisonment for the possession of an instrument of crime count, 2 1/2 to 5 years imprisonment for the carrying a firearm without a license count, to run consecutive to each other and the sentence of death, and 5 to 10 years imprisonment for the criminal conspiracy count from Appellant's first trial, to run consecutive to all other sentences. On direct appeal, Appellant was represented by his trial counsel, Samuel Stretton, Esquire. This Court affirmed Appellant's judgments of sentence. Reid, 642 A.2d at 463.
Appellant filed a timely pro se PCRA petition on December 12, 1996. Collateral review was assigned to the Honorable James Lineberger. Present appellate counsel, Daniel Silverman, was appointed on February 23, 1998. On January 27, Appellant filed an Amended PCRA Petition (" Amended Petition" ). Subsequently, Appellant filed a Supplemental Amended
PCRA Petition on April 15, 1999, a Second Supplemental Reproduced Record on May 3, 1999, a Second Supplemental Amended PCRA Petition on July 11, 2000, a Third Supplemental Amended PCRA Petition on February 13, 2001, a Petition to Review Police Archives on September 26, 2002, and an Addendum to the Amended Supplemental PCRA Petition on March 29, 2004. The Commonwealth, on November 21, 2001, filed a motion to dismiss Appellant's petition. As discussed more fully below, there is no indication that Appellant was granted permission to file late petitions or to submit amended petitions.
On May 6, 2005, the PCRA court entered a Notice to Dismiss pursuant to Pa.R.Crim.P 907, finding Appellant's PCRA petition to be without merit. Appellant objected, and, as explained more fully below, on July 8, 2005, the Commonwealth by letter agreed to a hearing on certain issues. On August 19, 2005, the PCRA court entered an order scheduling a hearing, so limited, but Appellant opposed the Commonwealth's proposal, and no hearing was conducted. Subsequently, Judge Lineberger retired, and the appeal was reassigned to Judge William Mazzola. Thereafter, Appellant filed additional motions, inter alia, for recusal, expert funds, and discovery regarding his Batson claims. The Commonwealth filed a response, in addition to a motion to dismiss. By order dated October 17, 2007, the PCRA court denied the request for a hearing and expert funds. Two days later, the court issued a notice of intent to dismiss. Thereafter, the PCRA court formally dismissed Appellant's petition.
On August 28, 2009, Appellant filed a Pa.R.A.P. 1925(b) statement, followed by a Supplemental Statement on September 10, 2009, and a Final Statement on October 1, 2009. On March 8, 2011, the PCRA court filed an extensive 260-page opinion addressing Appellant's claims in both this appeal and Appellant's collateral appeal regarding the Waters murder.
In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is " supported by the record and free of legal error." Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007). Counsel is presumed to be effective, and a petitioner has the burden to establish counsel was ineffective. Commonwealth v. Miller, 572 Pa. 623, 819 A.2d 504, 517 (Pa. 2002). To overcome this presumption, and to be entitled to PCRA relief, a petitioner must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2); his claims have not been previously litigated or waived; and the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel. Id. § 9543(a)(3), (a)(4). An issue is previously
litigated if " the highest appellate court in which [the appellant] could have had review as a matter of right has ruled on the merits of the issue." Id. § 9544(a)(2). An issue is waived if appellant " could have raised it but failed to do so before trial, at trial, . . . on appeal or in a prior state postconviction proceeding." Id. § 9544(b).
In order to obtain relief on a claim of ineffectiveness, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied the Strickland test by requiring a petitioner to establish that (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (Pa. 2001). Again, counsel is presumed to have rendered effective assistance, and, if a claim fails under any required element of the Strickland test, the court may dismiss the claim on that basis. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (Pa. 2010).
Important for our review, Appellant's direct appeal was resolved before our Court's decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (Pa. 2002). In Grant, our Court abrogated the rule that ineffectiveness claims must be raised at the first opportunity where a defendant has obtained new counsel. Under the pre-Grant rule, however, an appellant was not required to raise ineffectiveness claims until he obtained new counsel. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (Pa. 1977). The underlying theory of such an approach was that it is unrealistic to expect appellate counsel to raise his or her own ineffectiveness. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332 (Pa. 1999). Here, as noted above, trial was held in late 1989 and early 1991, and Appellant was represented at trial by Samuel Stretton, Esquire. Attorney Stretton also represented Appellant on direct appeal. Finally, because this matter pre-dates Grant, and trial counsel represented Appellant on direct appeal, for any claim of trial counsel ineffectiveness that was not offered on direct appeal, which might otherwise be deemed to be waived, and which would necessitate " layering" as explained in Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (Pa. 2003), such layering is not required, as this was Appellant's first opportunity to challenge trial counsel's stewardship, as well as a failure of appellate counsel (here the same) to preserve issues on direct appeal. See Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1117 n.7 (Pa. 2012).
Furthermore, as noted above, Appellant has filed a series of supplemental PCRA petitions. The Commonwealth offers, and the PCRA court found, that the record does not indicate that Appellant ever sought or received permission to file serial amended petitions. Brief of Commonwealth at 7. Under our Rules of Criminal Procedure, " [t]he judge may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice." Pa.R.Crim.P. 905(A).
In its opinion in this case, the PCRA court recognized the plethora of supplements filed in this case, and observed:
[I]n no case is there any indication of a court being requested to grant or otherwise granting permission to file late petitions or to submit amended ones, let alone establishing a time frame within
which to do so. It should therefore be incumbent upon the defendant to explain why any of his various submissions should be considered in the first place. We realize of course that there have been several status listings of both cases, the proceedings and outcome of most of which do not appear of record. It is possible that the court may have entertained and extended off-the-record accommodations, but, if that were the case, the defendant should have clarified those omissions by utilizing the procedures for establishing a reconstructed record. Not having done so, the black letter law would seem to require an outright dismissal of the petitions at issue. Again, however, recalling the Court's inclination to liberality in these proceedings, this court will, of course, address all of the issues raised by the submissions, limited to those particular issues addressed by the defendant's statement of matters complained of on appeal.
PCRA Court Opinion, 2/14/11, at 17.
Notwithstanding the PCRA court's indulgence in addressing all of Appellant's claims, it was Appellant's duty to identify where in the record the supplemental petitions were authorized and/or reconstruct the record if such authorization was provided off the record. Appellant has failed to do so, even though this defect was raised by both the PCRA court and the Commonwealth. This Court has condemned the unauthorized filing of supplements and amendments to PCRA petitions, and has held that such claims raised in such supplements are subject to waiver. See Commonwealth v. Elliott, J-81-2013 (on November Vote List); Commonwealth v. Roney, 79 A.3d 595, 615 (Pa. 2013); Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 12 (Pa. 2012). Thus, although the vast majority of Appellant's claims were raised in his first counseled Amended Petition, certain claims, which are discussed below, were raised for the first time in an apparently unauthorized supplemental petition; accordingly, we find those claims to be waived.
A. Exculpatory Witnesses
Appellant first argues that trial counsel was ineffective, as he failed to investigate and present the testimony of what he asserts to be " exculpatory" witnesses. In sum, Appellant submits the " sworn declarations" of seven potential witnesses, who claim that: Boston was the shooter; Dozier did not witness the murder; or that it was not Appellant who murdered the victim. Appellant asserts that all of these witnesses were available at the time of trial, their identities should have been discovered, there was no reasonable basis for counsel to fail to investigate and obtain these witnesses' statements, and that he was prejudiced by trial counsel's failure to obtain the testimony from these witnesses. Moreover, Appellant faults the PCRA court for failing to hold an evidentiary hearing on this claim. Appellant requests an evidentiary hearing to resolve the " material issues of fact" implicated by this claim.
There are two requirements for relief on an ineffectiveness claim for a failure to present witness testimony. The first requirement is procedural. The PCRA requires that, to be entitled to an evidentiary hearing, a petitioner must include in his PCRA petition " a signed certification as to each intended witness stating the witness's name, address, date of birth and substance of testimony." 42 Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P 902(A)(15). The second requirement is substantive. Specifically, when raising a claim for the failure to call a potential witness, to obtain relief, a petitioner must establish that: (1) the witness existed; (2) the witness was available; (3) counsel was informed or should have known of the existence of the witness; (4) the witness was prepared to cooperate and would have testified on defendant's behalf; and (5) the absence of such testimony prejudiced him and denied him a fair trial. Commonwealth v. Carson, 559 Pa. 460, 741 A.2d 686, 707 (Pa. 1999)
Appellant, without explanation, failed to include in his PCRA petition certification information that satisfied the certification requirements of Section 9545(d)(1) or Rule 902(A)(15), with the exception of the affidavit of Damien Williams. Appellant's failure to comply with the simple and straightforward rules governing entitlement to an evidentiary hearing should preclude Appellant's requested relief of an evidentiary hearing. Moreover, although the Commonwealth did not object to a hearing on certain after-discovered/recantation witnesses, Appellant refused such a hearing. Even if such foundational and simple requirements can be overlooked, and even if we overlook Appellant's rejection of the Commonwealth and the PCRA court's offer of a hearing on at least certain of these witnesses, as discussed below, Appellant has failed to satisfy the further requirements for relief. Specifically, globally speaking, for each proposed witness, Appellant fails to indicate how counsel was informed or should have known of the existence of these witnesses, and the witnesses' willingness to cooperate and to testify on Appellant's behalf. Before our Court, Appellant does not attempt to explain his failure to comply with the PCRA or our Rules. These failures are fatal to his claim. See Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 748 (Pa. 2004) (failure to make proffer as to whether witness was willing and able to testify was factor regarding ineffectiveness claim for failure to call a witness). Thus, on this basis alone, Appellant is not entitled to relief. Nevertheless, after individualized consideration of each of the witnesses trial counsel allegedly failed to present, they do not bring the reliability of the death verdict into legitimate question, and, thus, conclude that Appellant is not entitled to relief. We address each witness in turn.
1. Kevin Bowman
Appellant first claims Boston confessed to Kevin Bowman that he, and not Appellant, shot the victim; that Boston shot the victim out of fear of being attacked; and that Boston had a weapon and Appellant did not. Additionally, Appellant claims that Bowman would have purportedly testified that Michael Dozier, a witness to the shooting who testified at Appellant's trial, told Bowman, contrary to his trial testimony, that he did not actually see the shooting.
The Commonwealth points out that Bowman, along with Appellant, was convicted of the murder of Neil Wilkinson. Further, the Commonwealth offers, as noted above, that Boston worked for Bowman, who was a JBM member. The Commonwealth argues that, in 1999, Bowman claimed that Boston told him, in
front of Appellant, that he shot the victim. The Commonwealth asserts that Appellant, however, does not explain why he waited more than 10 years to provide this information, whether Bowman would have been willing to cooperate or testify on Appellant's behalf, and whether Appellant ever informed trial counsel of Bowman's conversation with Boston. Finally, the Commonwealth maintains that, because Bowman's statement is hearsay, it is inadmissible and Appellant could not be prejudiced by trial counsel's failure to use that statement. The PCRA court rejected the claim, noting the hearsay nature of the proffered statements, that there was no indication the information was available for trial or that trial counsel could have discovered such information, that it would have been used only for impeachment purposes, and that it was cumulative of Boston's prior inconsistent statements.
As offered by the Commonwealth, and noted by the PCRA court, Bowman's testimony would have constituted hearsay. Hearsay is inadmissible and, thus, Appellant's claim fails on the merits. See Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 278 (Pa. 2008). Moreover, while Bowman signed a statement claiming Boston's confession was made to Bowman in front of Appellant, Appellant in his PCRA petition never claimed that he informed trial counsel of Bowman's supposed conversation in which Boston confessed to being the shooter. Likewise, the failure to show that Bowman would have been willing to cooperate and testify on Appellant's behalf also defeats Appellant's claim of ineffectiveness.
2. Darryl Gray
Appellant also points to Darryl Gray, whom Appellant submits was an eyewitness to the shooting, and who claims that, while Appellant was present when the victim was shot, it was another man who fired the gun. Moreover, Appellant offers that Gray saw Dozier immediately after the shooting, at which time Dozier asked, " What happened?" The implication of this statement was that Dozier did not see the murder. The Commonwealth responds that, while in prison in 1999, Gray claimed to have been an eyewitness to the shooting, but there is no indication as to why Gray waited more than 10 years to come forward. Further, the Commonwealth argues that Appellant does not allege he informed trial counsel of this witness. The PCRA court rejected this claim, finding that Appellant failed to state that Gray would have been willing to cooperate and to testify on Appellant's behalf.
Gray's statement is similar to that offered by Bowman, and fails for the same reasons. With respect to his testimony regarding Dozier, it is pure hearsay, and, thus, cannot support a claim that trial counsel was ineffective for failing to present it. Puksar, supra. Moreover, because Gray fails to indicate he would be willing to cooperate and testify on Appellant's behalf, Appellant's claim fails on that basis as well.
3. Robert Durand and Frank Bynum
Appellant submits that Robert Durand, an investigator for the Federal Court Division of the Defender Association of Philadelphia, would testify, inter alia, that Frank Bynum told him that Boston confessed to Bynum that Boston shot the victim and that he did so because he was in fear of being attacked. Also, Appellant offers that Bynum stated to Durand that eyewitness Dozier was a heavy user of crack cocaine and had been smoking crack for days before the murder. According to Durand, while Bynum did not dispute the accuracy of these statements, Bynum refused to sign an affidavit and refused to
testify. As noted by the Commonwealth, the PCRA court found the statements of both Durand and Bynum to be hearsay, but, also, that Bynum could only hurt Appellant's case because, if he testified, he would have been open to potentially detrimental cross examination, including that Bynum was with Appellant when Appellant admitted that he killed the victim, that Bynum was a JBM member who threatened Dozier at gunpoint after he testified against Appellant, and that Bynum shot Randall and Terrance Lisby when they confronted Boston about the victim's murder.
The PCRA court's hearsay analysis concerning both Durand's and Bynum's testimony is correct, with Durand's assertions constituting double hearsay; accordingly, trial counsel was not ineffective for failing to provide such testimony. See Puksar. Moreover, Durand's statements do not explain how counsel was informed or should have known of the existence of these witnesses, and the witnesses' willingness to cooperate and to testify on Appellant's behalf. For all of these reasons, Appellant is not entitled to relief on this claim.
4. Kevin Brown
Appellant contends that Kevin Brown would testify that Bowman's trial testimony was untrue, and that it was common knowledge in his neighborhood that Boston shot the victim. As noted by the Commonwealth, Brown was a JBM drug dealer who grew up with the victim and Appellant. At trial, Brown testified that he loaned Appellant his bicycle which was found at the scene of the murder, and that he heard Appellant state, " get down or lay down," which, according to him, was a warning to the victim to cooperate with the JBM or he would be killed. The Commonwealth adds that, on cross-examination, Appellant accused Brown of implicating Appellant to gain favorable treatment in his own criminal case and impeached him with inconsistencies between his statement and his testimony. The PCRA court found Brown's statements to be hearsay, insignificant in light of two witnesses to the murder who had not recanted, and lacked any indication Brown would have provided this information at trial.
Appellant fails to provide how counsel should have been aware of this post-trial recantation. Indeed, we find it hard to understand how counsel could be deemed to be ineffective for not eliciting the recantation testimony that Brown, who was a prosecution witness at trial, would provide a decade after trial. Finally, Brown did not indicate that he would be willing to cooperate with the defense or to testify on behalf of Appellant. Appellant is not entitled to relief on this claim.
5. Willie Brown
Appellant also submits Willie Brown witnessed the shooting, stated that Appellant was not the shooter, and that Dozier did not witness the events. The Commonwealth notes that Brown did not offer why he failed to come forward earlier in support of Appellant, and did not indicate that he would be willing to cooperate with the defense or to testify on behalf of Appellant. Further, the Commonwealth argues that Appellant, who was present at the scene, failed to indicate that he informed trial counsel about this witness. The PCRA court offered that Brown's claims are questionable regarding the factual basis for his observations, as he knew both Appellant and Boston, but referred to
them as the " shooter and the other man," and provided that, even if Appellant were not the shooter, there was sufficient evidence to convict him as an accomplice.
As Brown did not explain why he failed to come forward earlier in support of Appellant, and did not indicate that he would be willing to cooperate with the defense or to testify on behalf of Appellant, and, because Appellant failed to establish how counsel was informed or should have known of the existence of the witness, we find Appellant failed to establish that trial counsel was ineffective and is not entitled to relief on this claim. Moreover, we note that Appellant failed to include this witness in his " Statement of Matters Complained of Pursuant to Rule 1925(b)," and it was not until a subsequent " Supplemental Statement," which was filed seemingly without leave of court, was this name added. For all of these reasons, Appellant's claim fails.
6. Randall Lisby
Appellant merely offers that Randall Lisby, the victim's brother, " is on record for saying numerous different things about what he was or knew about the killing of his brother - including a shifting 'identification' of the shooter and what if anything was ever 'confessed' to him by [Appellant] or anyone else." Brief of Appellant at 12. According to the Commonwealth, Randall Lisby gave a statement to police that Appellant told him he killed the victim, he was a member of the JBM, and that the drug-related killing was because Appellant " had a job to do." Brief of Commonwealth at 17. Initially, while Lisby presently recants this statement, he did not aver he had been willing to cooperate with the defense and to testify on behalf of Appellant. Moreover, like Brown, Randall was a witness at trial and Appellant engaged in cross-examination of him. Trial counsel elicited, inter alia, that Randall did not mention that Appellant had confessed to him at Appellant's earlier trial, did not tell police about Appellant's confession, and had indicated Bynum had killed the victim. As counsel had no reason to investigate Randall as a potential defense witness, let alone not foreseeing Randall's recantation, we find that Appellant has failed to establish that trial counsel was ineffective and that he is not entitled to relief.
7. Damien Williams
Finally, Appellant offers that Damien Williams heard on the street that Boston stated that he lied to save himself from a potential sentence of life imprisonment. Evidently, Williams confronted Boston with these allegations in 1992 and Boston confirmed that he had lied. While Appellant claims that " [t]his evidence was available at the time of trial," Brief of Appellant at 12, the Commonwealth notes that these statements allegedly were made by Boston to Williams nearly two years after Appellant's trial, and, thus, could not serve as a basis for an ineffectiveness of counsel claim. Again, before us, Appellant makes no claim with respect to after-discovered evidence. Moreover, William's statements regarding the " word on the street," constitute inadmissible hearsay. Finally, no assertion is offered that Randall was prepared to cooperate and would have testified on Appellant's behalf. For all of the above-stated reasons, Appellant fails to establish his claim of trial counsel ineffectiveness.
B. Conflict of Interest
At his first trial, Appellant was represented by Harry Seay, Esquire. Lawrence Boston, who, as noted above, was with Appellant at the time of the shooting, testified against Appellant, claiming Appellant
was the shooter. Boston was cross-examined by Attorney Seay. At Appellant's second trial, at which he was represented by Samuel Stretton, Esquire, Boston exercised his Fifth Amendment privilege against self-incrimination and did not testify. The trial court declared Boston unavailable, and Boston's testimony from Appellant's first trial was read into the record.
According to Appellant, at the time of his first trial, Attorney Seay was either concurrently representing Boston, or had previously represented Boston. This, according to Appellant, was a conflict of interest and resulted in Boston not being fully cross-examined by Attorney Seay at his first trial. While trial counsel at Appellant's second trial objected that Boston was not " unavailable," Attorney Seay's alleged conflict of interest, which allegedly resulted in the lack of a full and fair opportunity to confront Boston, was not raised. Appellant maintains that, because Attorney Seay represented Boston at Appellant's first trial, Attorney Seay could not have attempted to show that Boston was the actual murderer or to otherwise impeach his testimony. Thus, Appellant claims that trial counsel at his second trial was ineffective for failing to allege a conflict of interest with prior counsel. Appellant adds that there was no tactical basis for failing to object, and that he suffered prejudice as a result of counsel's failure because, had Boston's testimony been excluded at Appellant's second trial, he likely would have been acquitted. Finally, Appellant urges that, even if there was an attorney-client relationship between Boston and Seay prior to trial, issues of fact regarding that relationship remain and an evidentiary hearing is required.
The Commonwealth contends first that Attorney Seay did not represent Appellant and Boston at the same time. While Attorney Seay had represented Boston at the preliminary stages of an assault case, he did not represent Boston at Appellant's first trial. Further, the Commonwealth asserts that Appellant did not lack a full and fair opportunity to cross examine Boston, as Attorney Seay " aggressively and extensively" cross-examined him. Brief of Commonwealth at 21. Finally, the Commonwealth contends that ...