United States District Court, E.D. Pennsylvania
[Copyrighted Material Omitted]
John Gassew, Plaintiff, Pro se.
ANITA B. BRODY, J.
Currently before me is John Gassew's pro se Motion Under 28 U.S.C. § 2255 to Vacate Set Aside, or Correct Sentence. For the reasons set forth below, I will deny Gassew's § 2255 motion.
On March 15, 2011, a grand jury in the Eastern District of Pennsylvania returned a superseding indictment charging Gassew with three counts of robbery which interfered with interstate commerce (" Hobbs Act robbery" ), in violation of 18 U.S.C. § 1951(a) (Counts One, Three, and Five), and three counts of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Counts Two, Four, and Six). Gassew pled not guilty to the charges and decided to represent himself. On January 23, 2012, Gassew's jury trial began. On February 1, 2012, the jury found Gassew guilty of two of the robberies (Counts One and Five) and the related firearms counts (Counts Two and Six), and not guilty of the robbery charged in Count Three and the related firearm count charged in Count Four. Specifically, the jury convicted Gassew of robbing Danny Boy's Bar and a 7-Eleven store while armed with a handgun. At trial, the government presented the following details about the robberies:
1) Danny Boy's Bar Robbery
On December 9, 2007, at approximately 1:30 a.m., four men with masks and guns entered Danny Boy's Bar located at 7447 Torresdale Avenue, Philadelphia, Pennsylvania. Gassew was one of the masked men, and appeared to be the leader. Armed with a gun, Gassew approached the patrons and employees of the bar and demanded that they give him their money, jewelry, and cellphones. Gassew stole $200 in cash from the register and an additional $1,000 in business proceeds from an employee's pocketbook, money from the bartender's tip jar, and cash and various personal belongings from other employees and bar patrons. At the time of the robbery, Danny Boy's Bar sold Miller and Budweiser beer, which were imported from other states.
Although Gassew was wearing a mask and a hood, the mask only covered the bottom half of his face, and the hood did not fully cover Gassew's hair. The witnesses from the bar observed that Gassew had either braids or corn rows in his hair. The day after the robbery, five witnesses from the bar positively identified Gassew, from an eight person photo array, as the robber who had stolen items from them and the bar. Three of these witnesses also made in court identifications of Gassew during the trial.
Additionally, on December 9, 2007, at approximately 8:30 a.m., the Philadelphia Police Department sent flash information over the radio that a crime was in progress and that police officers should be on the lookout for a small white vehicle. An officer located the small white vehicle, which was a Chevy Cavalier, and found Gassew and two other men standing two feet behind the car. Gassew fled, but was later stopped by another police officer. Two police officers had seen Gassew alone in the same white Chevy Cavalier in November 2007.
On the afternoon of December 9, 2007, after receiving a search warrant, officers processed and searched the Chevy Cavalier. No fingerprints were recovered from the car. However, many items were found in the car, including at least fifteen cellphones, a half ski mask meant to cover the bottom portion of a person's face, a Tweety Bird bracelet, a March birth stone ring, and rolls of quarters.
On December 10, 2007, several witnesses identified items recovered from the Chevy Cavalier as items involved in the Danny Boy's Bar robbery. One of the witnesses identified the Tweety Bird bracelet and the birth stone ring as items that had been
stolen from her while she was at Danny Boy's Bar. Another witness identified the ski mask as the mask that Gassew had worn when he robbed the bar, and the rolls of quarters as the same ones that had been stolen from the bar. A third witness identified one of the cellphones found in the Chevy Cavalier as his Motorolla cellphone that had been stolen from him while he was at Danny Boy's Bar.
2) 7-Eleven Store Robbery
On October 28, 2009, between 2:00 a.m. and 2:30 a.m., Gassew robbed a 7-Eleven store located at 8101 Oxford Avenue, Philadelphia, Pennsylvania. During the robbery, Gassew pointed his gun at the employee's face and hit the employee with his gun. Gassew stole $140 in cash from the register, and $4,854 in store merchandise, primarily cigars and cigarettes. The stolen merchandise included 35 cartons of Newport Cigarettes, which are manufactured and imported from out of state.
During the robbery, Gassew wore a blue hoodie, gloves, and a white undershirt on his face that he used as a mask. After the robbery, the store clerk told police officers that the robber fled in an older truck that looked brown. A witness, noticed Gassew exiting the store wearing a mask, carrying a black handgun and a black trash bag filled with stuff. The witness noticed that the robber was a light skinned black male wearing a blue hoodie. The witness saw Gassew get into an older model pickup truck that was a very dark color with a thick stripe down the side in a light color. The witness watched the robber head Eastbound on Rhawn Street. The witness then called 911 and reported what he observed. A video from the outside of the 7-Eleven store showed that the robber arrived at the store in a dark colored pickup truck with a wide light colored stripe on its side. In the video, the robber arrived wearing a white mask and a blue hoodie. The robber left the store wearing the same items and driving the same pickup truck.
The Philadelphia Police Department sent flash information over the radio that a gun point robbery was in progress. The suspect was described as a black male wearing a bandana and a dark hoodie, who fled the location in a dark pickup truck. Following the first flash information, the Philadelphia Police Department sent updated flash information that the truck had white stripes on the side and the suspect was last seen driving Southbound on Oxford Avenue from Rhawn Street. An officer responding to the flash information was at the intersection of Magee Avenue and Oxford Avenue when he saw Gassew driving a dark pickup truck with a broad white stripe on the side. Gassew was wearing a dark blue hoodie. The truck sped off and the officer chased it. When the truck came to the 6100 block of Oxford Avenue it spun out of control and hit into the wall of a cemetery. Gassew fled the truck and began to run. During the chase, the officer shot Gassew because he believed Gassew had a weapon. The officer caught Gassew and then sent him to the hospital. When Gassew arrived at the hospital the emergency room staff took off his clothing, including a blue-hooded jacket.
A black knit glove was discovered at the scene of the chase. Inside the truck, officers recovered a black handgun, a Newport cigarette butt, and a white tee shirt. The white tee shirt looked like the tee shirt the robber had worn as a mask on his face. Gassew's DNA was found on the glove, the Newport cigarette butt, and the white tee shirt.
At trial, Gassew testified that he was selling marijuana in the parking lot of the cemetery when he heard a vehicle crash. He came out of the parking lot to see what
had happened when a police officer started chasing him. Gassew denied being the driver of the pickup truck, but admitted that he was wearing a blue ...