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Smith v. Gilmore

United States District Court, W.D. Pennsylvania

July 13, 2015

ANTHONY TUSWEET SMITH, Petitioner,
v.
SUPT. ROBERT GILMORE; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

MEMORANDUM ORDER

MARK R. HORNAK, District Judge.

Anthony Tusweet Smith, ("Petitioner"), proceeding pro se, has filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") pursuant to 28 U.S.C. § 2254, challenging his conviction for Attempted Criminal Homicide. This conviction arose out of a shooting by Petitioner where Petitioner shot another person who survived the shooting and who testified at Petitioner's trial and identified Petitioner as the shooter.[1]

The case was referred to Chief Magistrate Judge Maureen Kelly in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Civil Rules 72.C and D.

Chief Magistrate Judge Kelly's Report and Recommendation, ECF No. 4, ("Report") filed on April 29, 2015, recommended that pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Petition be dismissed as time barred or as procedurally defaulted. Petitioner was informed that he could file Objections to the Report. Petitioner filed Objections on May 14, 2015. ECF No. 5.

After a de novo review, I conclude that the Petitioner's Objections do not merit rejection of the Report.

The Report concludes that the Petition was time-barred as well as procedurally defaulted. Petitioner's major objection (raised in his Objections) appears to be that there is an exception to the AEDPA statute of limitations for a Petitioner who is "actually innocent." ECF No. 5 at 4-5 (the AEDPA statute of limitations "does not impose an absolute bar to pursuit of a Petitioner's First Federal Habeas Corpus Petition that raises actual innocence and the presentation of fraudulent evidence in a Petitioner's state trial."). The Court understands Petitioner to also be arguing "actual innocence" or the "miscarriage of justice"[2] as an exception not only to the Report's conclusion that the Petition was barred by the AEDP A statute of limitations, but also as an exception to the Report's conclusions of a procedural default as well. See id. at 5 (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) (concerning the miscarriage of justice exception to a procedural default)). Petitioner is correct that there is an actual innocence exception to the application of the AEDPA statute of limitations, McQuiggen v. Perkins, 133 S.Ct. 1924 (May 28, 2013) as well as to the procedural default doctrine. Werts v. Vaughn, 228 F.3d 178, 202 (3d Cir. 2000). Moreover, the standards for establishing the actual innocence exception to the application of the AEDPA statute of limitations are the same as the standards for establishing the actual innocence exception to the procedural default doctrine. See, e.g., Sudduth v. Clements, Civ.A. No. 12-cv-00645, 2012 WL 5289592, at *15, n.19 (D. Colo. Oct. 26, 2012) ("The Court notes that the question of whether a claim of actual innocence excuses a habeas petitioner's failure to comply with the AEDPA statute of limitations is the same as whether such a claim constitutes a showing of a fundamental miscarriage of justice that excuses the habeas petitioner's procedural default of a claim in state court."). An actual innocence claim, also known as a miscarriage of justice claim, is a gateway claim, [3] meaning that Petitioner's claim is that because he is actually innocent, the Court should overlook his violation of the AEDPA statute of limitations and/or his procedural default (based upon his violating the PCRA statute of limitations as noted in the Report) and address his habeas claims on the merits.

However, the United States Supreme Court in McQuiggen stressed how narrow the miscarriage of justice exception is to the AEDPA's statute of limitations, and consequently, how rarely a successful miscarriage of justice exception would occur:

We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S., at 329, 115 S.Ct. 851; see House, 547 U.S., at 538, 126 S.Ct. 2064 (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. Schlup, 513 U.S., at 332, 115 S.Ct. 851.

McQuiggen, 133 S.Ct. at 1928 (emphasis added). See also id., at 1936 ("[t]o invoke the miscarriage of justice exception to AEDPA's statute of limitations, we repeat, a petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'") (quoting Schlup, 513 U.S., at 327) (emphasis added).

In order to make a showing of a gateway "actual innocence" claim, a petitioner "must satisfy a two-part test in order to obtain review of otherwise procedurally barred claims. First, the petitioner's allegations of constitutional error must be supported with new, reliable evidence not available at trial. Schlup, 513 U.S. at 327-28." Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001). Second, the petitioner must establish "that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. It is not enough that in light of the new evidence a reasonable doubt may exist as to the Petitioner's guilt; the test is even more substantial than that. In Schlup, the Supreme Court reiterated that "[t]he meaning of actual innocence as formulated by Sawyer and Carrier does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty." Schlup, 513 U.S. at 329.

The Petitioner has not alleged or shown that it is more likely than not that no reasonable juror would have convicted him in light of the only allegedly new evidence that he points to, namely, an asserted discrepancy in the inventory numbers concerning physical evidence admitted at trial, one of which related to the glove that was identified by the victim to have been the glove that Petitioner wore when he shot the victim and which, according to testimony during the trial and according to a stipulation by Petitioner's trial counsel, was the very same glove that tested positive for gun residue. See ECF No. 5-1 at 6-8. While facially, such a discrepancy in the inventory numbers might establish a question in the chain of custody of the glove that tested positive for gun residue, a review of Petitioner's allegations and the applicable law reveals that it cannot carry the day here.

First, a close reading of the Petitioner's Petition, Memorandum and Objections, even giving him the benefit of all close calls, does not in the Court's estimation reveal any such "discrepancy" at all, or that it is "new." This is best seen in the "unsworn affidavit" which Petitioner asked his trial counsel to sign (he refused). ECF No. 3 at 38. What that (and all of Petitioner's filings) reveals is that at trial, his lawyer stipulated to the chain of custody of Commonwealth Exhibits 37 (a gun) and 22 (a black fleece glove). Those Exhibits had different police property numerical identifiers, ECF No. 3 at 7 and 38, something Petitioner's papers indicate was known at trial. From the very fact that there were two different numerical property identifiers, Petitioner now argues that there "must be" a chain of custody discrepancy of sufficient heft to call into question the veracity of that physical evidence.

Not only did Petitioner's trial counsel stipulate at trial to the chain of custody, the record reveals that he did so based on his professional consideration of his review of the involved property records. ECF No. 3 at 35. Simply put, the Petitioner contends that from the fact alone of two (2) different numerical State Police property records for two (2) different pieces of tangible evidence, ECF No. 3, at 16, there is necessarily a "discrepancy" which would then cause any reasonable juror to find him not guilty.

Even accepting that the fact of two inventory numbers of two (2) pieces of physical evidence could theoretically call into question whether the glove that was tested by the crime lab was the very same glove found to be in the apartment where Petitioner was arrested by the police (something that would require a notable logical leap if not outright speculation), such evidence, which based on the Petitioner's own filings appears to not be "new" at all, does not demonstrate that no reasonable juror would have convicted Petitioner in light of it, given the overwhelming unrelated, evidence of Petitioner's guilt.

That trial evidence includes: 1) the victim's eyewitness identification of Petitioner as the shooter, 2) the victim having a pre-existing relationship with the Petitioner (making identification far more precise), who had called the victim earlier in the day for the victim to pick up nine ounces of cocaine, and 3) the corroboration of the victim's testimony provided by another of Petitioner's friends, who witnessed Petitioner get into the victim's car, and who then saw Petitioner and the victim exchange punches in the car and saw the victim drive into the wall and flee the car thereafter. Trial Court Slip op. at 1-3, 13, Appendix I.[4]

This trial evidence also includes the fact that the victim testified that after Petitioner got into the victim's car, he noticed a gun on Petitioner's person and further that he was afraid that Petitioner was going to kill him. Immediately before the exchange of blows between the victim and Petitioner, which was witnessed by the Petitioner's friend, the victim testified that Petitioner called the victim a "snitch" based upon Petitioner's apparent belief that the victim had told the police about drug activities in the area. The victim testified that as he then ran from the car, he heard what sounded like an explosion from a firearm, and that while running away, he felt a cold dripping on the back of his neck, which was later determined to be blood. The victim was transported to a hospital where the treating emergency room nurse testified that the first thing the victim said to her was that he had been shot in the back of the head by Petitioner. /d. at 2-4.

Given the victim's pre-existing relationship with Petitioner, and the corroboration of much of the victim's testimony by another friend of Petitioner, who observed the altercation between victim and Petitioner, we conclude that the evidence of Petitioner's guilt, even disregarding the glove, is especially weighty. Further, we conclude that the evidence of the alleged discrepancy between the inventory control numbers is not "new" evidence of actual innocence within the meaning of Schlup. Why so? Even if there were discrepancies in the inventory control numbers concerning the glove, such discrepancies would not have barred admission of the glove. Rather, under Pennsylvania law, a discrepancy in the inventory numbers, which would be relevant to the chain of custody as Petitioner seemingly contends, [5] would go only to the weight that the jury should accord to the evidence of the glove, and the gun residue found on the glove, and not to its admissibility vel non. See, e.g., Pa.R.E. Rule 901(a); Commonwealth v. Royster, 372 A.2d 1194 (Pa. 1977) ("(P)ositive testimony that the knife in question was actually the murder weapon is not required prior to introduction into evidence... If a proper foundation for the admission of the evidence has been laid, as here, then admission into evidence is permissible.... The fact that the knife could not be positively identified affects the weight of such evidence, but not its admissibility...."); Com. v. Feliciano, 67 A.3d 19, 29 (Pa.Super., 2013) ("Gaps in the chain of custody, the underlying issue of Appellant's argument, go to the weight of the evidence and not its admissibility.").

In light of the particularly strong and corroborated evidence of Petitioner's guilt, we conclude that the claimed discrepancy in the inventory numbers is not of such an evidentiary quality that Petitioner can show that no reasonable juror would have convicted him in light of the new evidence he posits. Having failed to carry his heavy burden to show the existence of new evidence demonstrating actual innocence under the demanding Schlup standard, the Court may not address Petitioner's claims on the merits. Petitioner has not established that he is entitled to the application of the miscarriage of justice exception, and as such, his habeas claims are barred by the AEDPA statute of limitations and/or by his procedural default of his claims.[6]

Accordingly, after de novo review of the pleadings and the documents in the case, together with the Report and Recommendation, the following order is entered:

AND NOW, this 13th day of July, 2015;

IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus is DISMISSED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that the Report and Recommendation, ECF No. 4, of Chief Magistrate Judge Kelly, dated April 29, 2015, is adopted as the opinion of the Court as supplemented by this Memorandum Order.

APPENDIX I

IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY PENNSYLVANIA CRIMINAL DIVISION

OPINION

After a jury trial[1], Anthony Tusweet Smith (hereinafter referred to as the defendant) was found guilty of one (1) count of Aggravated Assault[2] and one (1) count of Criminal Attempt to Commit Homicide.[3] Defendant was sentenced by this Court on April 17, 2002 to serve a term of imprisonment not less than 120 months nor more than 240 months.

STATEMENT OF FACTS

On March 20, 2001, Kyle Rashaud Goosby (hereinafter referred to as Goosby) reported to work at Oasis Auto in Ambridge as part of the work release section of the Beaver County Jail. (Trial Testimony, "T.T." at pgs. 176-180). As part of the work release section, Goosby was able to work at Oasis Auto during the day. He was then required to report back to the jail at 5:15 p.m. each evening to spend the night in the Beaver County Jail. Between 3:00 and 4:00 p.m. that day, Goosby received a call from the defendant informing Goosby that the defendant had some work for him to do from his friend "OB."[4] (T.T. at 180). The defendant called Goosby back at approximately 4:50 p.m. that same day to make arrangements for Goosby to pick up a "nine pack, " which was a code name for nine ounces of cocaine. (T.T. at 282).

Goosby met the defendant in the parking lot of the nearby Hot Dog Shoppe and followed him to Harmony Township. (T.T. at 186). While still in his car, Goosby pulled up next to the defendant's vehicle at a "Y" intersection of three roads: Fifth, Howard, and Virginia. (T.T. at 186). The defendant was accompanied by another male, who would later be identified as Monte Jackson, the boyfriend of the defendant's sister. As the defendant exited his vehicle to get into Goosby's vehicle, Goosby noticed the outline of a pistol under the defendant's right rear hip pocket area. (T.T. at 187). In addition, the defendant was wearing one black glove on his right hand. (T.T. at 187-188). Goosby testified that the defendant made sure he touched everything with his gloved hand. (T.T. at 189).

After the defendant entered Goosby's car from the passenger's side, he instructed Goosby to drive down the road to get the nine pack. (T.T. at 190). Goosby refused and attempted to put the car in reverse. When Goosby did this, the defendant reached over with his gloved hand and shifted the car into drive, instructing Goosby to drive down the road. (T.T. at 190). Goosby worried that the defendant was going to attempt to kill him, so he tried to pat down the defendant. At this point, the defendant called Goosby a "snitch" and a "mother tucker" based on his belief that Goosby had talked to the police about drug activities in the area. (T.T. at 190). After the defendant hit Goosby in the mouth, Goosby drove the vehicle into a brick wall located on the side of the road a few feet away. (T.T. at 190).

After Goosby exited the car, be ran towards a hill as the defendant was calling Goosby's name. (T.T. at 200). As he was running towards the hill, Goosby heard what sounded like an explosion from a firearm. (T.T. at 200). While running down the hill, Goosby felt a cold dripping on the back of his neck, which later was determined to be blood. (T.T. at 200). In addition, Goosby fell and suffered several lacerations as he was running from the defendant. (T.T. at 206). Goosby passed one house and entered the home of Mr. and Mrs. Horniak. (T.T. at 208). Goosby informed them that he had been shot and needed to use the phone to call 911 emergency services. (T.T. at 209).

Goosby was taken to Heritage Valley Health System Hospital.[5] Connie Compton, an emergency room nurse, performed the initial assessment of Goosby. (T.T. at 395). Nurse Compton stated that the first thing Goosby said to her was that he had been shot in the back of the head by the defendant. (T.T. at 399). Nurse Compton stated that Goosby's wound was a laceration five to six inches in length. (T.T. at 401).

On March 27, 2001, the defendant was apprehended at Monte Jackson's apartment. (T.T. at 445-446). After obtaining Jackson's consent, the police searched his apartment and found a plastic bag containing the defendant's black glove and a box of.22 caliber ammunition. (T.T. at 450, 509). On a later date, Jackson turned over to the police a.22 caliber pistol. (T.T. at 458). This weapon was thought to be the weapon used by the defendant on Goosby. Jackson admitted that he had made a deal with the Commonwealth that if he gave truthful testimony at the defendant's trial any charges against him would be dropped. (T.T. at 458).

A jury trial was held from March 11, 2002 to March 15, 2002. The defendant was found guilty of one (1) count of Aggravated Assault and one (1) count of Criminal Attempt to Commit Homicide. On April 17, 2002, this Court sentenced the defendant to serve not less than 120 months nor more than 240 months imprisonment in a state penal or correction institution or facility as determined by the Bureau of Corrections. In addition, the defendant was ordered to make restitution to the victims. After sentencing, the defendant's trial counsel was replaced by different counsel.

On April 25, 2002, the defendant's post-sentence counsel filed post-sentence motions with the Clerk of Courts. This Motion was in the form of a motion to modify the sentence and was never presented to the court. Furthermore, the Motion set forth no grounds for post-sentence relief. On June 13, 2002, the Commonwealth filed a motion to disqualify the defendant's post-sentence counsel because counsel had previously represented the victim, Kyle Goosby. After a hearing on that Motion, this Court granted that motion on July 2, 2002. On July 16, 2002, this Court dismissed defendant's post-sentence motions as being without merit and for having never been properly presented to this Court.

On July 23, 2002, new counsel entered his appearance for the defendant. On August 9, 2002, that counsel filed a Notice of Appeal to the Superior Court. On August 29, 2002, this Court granted counsel's Motion for an Extension of Time in which to file his Concise Statement of Matters Complained of on Appeal (hereinafter referred to as Statement of Matters). On December 6, 2002, the defendant filed his Statement of Matters, and this Opinion is filed pursuant to Pa.R.A.P. 1925(a).

This Court granted the defendant's appellate counsel a lengthy period of time to file a Concise Statement of Matters Complained of on Appeal. The Statement was not concise nor did it set forth in any comprehensible manner issues that could be argued on appeal. For that reason, this Court will attempt to discuss what we think the defendant is attempting to raise.

There are numerous allegations of ineffectiveness set forth in the Statement of Matters. However, these issues have never been before the trial court. This Court has never had an opportunity to address any ineffectiveness claim. Appellate counsel entered his appearance on July 23, 2002. No additional post-sentence motions were filed. The appeal was filed on August 9, 2002, divesting this Court of jurisdiction. There was no opportunity for a hearing on the ineffectiveness issues, and therefore, there is nothing in the record upon which these issues could be decided. Therefore, this Court will not address those claims.

STATEMENT OF MATTERS ISSUES
1. Was this appeal timely filed? No.
2. Did the court err in sustaining an objection during cross-examination of the victim about pending offenses? No.
3. Whether some constitutional right of the defendant was violated by the victim's sentence on other charges? No.
4. Did the trial court err in admitting the.22 caliber pistol into evidence? No.
5. Did the court err in not giving the corrupt and polluted source charge to the jury? No.
6. Was there anything objectionable in either the charge of the court or the Commonwealth's closing argument? No.

DISCUSSION

1. Right of Confrontation

The defendant first argues that the trial court erred by denying his right to confrontation during the cross-examination of Kyle Goosby by limiting trial counsel's questions concerning the sentences that Goosby was facing. The defendant cites to Commonwealth v. Wilson, 422 Pa.Super. 489, 619 A.2d 1063 (1992), to support his position.

Pending charges against a witness is a proper topic for cross-examination. Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986). This is a proper topic because it reveals a possible reason for witness bias in the Commonwealth's favor. The accused has a right to have this information revealed to the jury so that they can properly evaluate the credibility of the witness.

However, it is within the discretion of the trial court to determine the scopes and limits of cross-examination, and an appellate court cannot reverse a finding in that regard absent a clear abuse of discretion or error of law. Commonwealth v. Whiting, 668 A.2d 151, 157 (Pa.Super. 1995). From pgs. 360 to 367 of the record, defense counsel cross-examined the victim extensively about charges that were pending against him. The victim testified that there were drug charges pending but that he had not yet been arrested. (T.T. at 365). The victim was asked if he knew there was a mandatory sentence for conviction of the drug charges. He testified that he was not aware of that. The Commonwealth then objected to what was obviously the next question which was how much the sentence would be. That objection was sustained. Goosby could not have had any expectation of what deal he could have received from the Commonwealth considering he did not even know the sentence he was facing.

In Commonwealth v. Reiss, 655 A.2d 163 (Pa.Super. 1995), the Superior Court upheld the trial court's decision to limit the defendant's cross-examination of a witness concerning his maximum penalty for a burglary charge. The Superior Court found no abuse of discretion since defense counsel was permitted to question the witness about his pending burglary conviction and the fact that his cooperation with the police was done with the hope of receiving consideration for ARD. Reiss, 655 A.2d at 168. In the present case, defense counsel was not limited in the questions he could ask Goosby concerning his past convictions or any current pending charges. More than ten pages of the trial transcript are filled with testimony from Goosby relating to charges that were pending against him at the time and prior convictions that he had. Defense counsel was also allowed to question Goosby concerning his hopes for favorable treatment from the Commonwealth. (See T.T. at 340 and 360). This Court denied trial counsel's request to pursue further questioning concerning mandatory sentencing for a narcotics offense because Goosby stated that he was unaware that there was a mandatory sentence. Defense counsel wanted the victim to testify as to what the possible sentences could be. This clearly would have been improper. In addition, this Court asked defense counsel to produce case law that supported his position. Defense counsel failed to do so.

A fact finder is free to believe all, some, or none of the evidence presented at trial and also to determine the weight to be given each witness' credibility. Commonwealth v. Costa-Hernandez, 802 A.2d 671 (Pa.Super. 2002). The jury had ample testimony from Goosby concerning his prior and current criminal history in which to assess his credibility. Limiting defense counsel's ability to question Goosby as to sentences he was unaware of did not violate the defendant's right to confront Goosby.

Therefore, this Court did not err by refusing to allow trial counsel to pursue this particular line of questioning.

2. Disclosure of Victim's Sentence

The defendant next argues that he was denied Due Process when it was not disclosed that Kyle Goosby would receive a sentence far less than the mandatory sentence based upon his cooperation and testimony against the defendant.

Since the defendant is not specific with respect to this issue, this Court must surmise that the defendant is referring to charges brought against Goosby (January 2002) after this incident took place (March 2001) but before the trial was held (March 2002).

The defendant's argument here is ridiculous. At the time this trial took place, Goosby had not yet been sentenced. While it may be true that the Commonwealth was awaiting the conclusion of this trial before dealing with Goosby, the fact remains that Goosby had not yet been sentenced. In fact, Goosby had not been officially charged or arraigned. (See T.T. at 363). At the time of trial, the only thing that had occurred was that Goosby had appeared at a preliminary hearing in order to have his bond set for one of the charges. (See T.T. at 362).

Since the defendant had not been sentenced at the time this trial took place, there was nothing for the Commonwealth to disclose at that time pertaining to the sentence. As the trial transcript indicates, the defendant's trial attorney questioned Goosby about the charges brought against him in January 2002, so the defendant cannot now argue that not everything was disclosed. At the time of the trial, everything that was known was disclosed. (See T.T. starting at 360).

Therefore, the defendant was not denied Due Process because Goosby had not been sentenced at the time of the trial and full disclosure was given regarding the charges that were pending against Goosby.

3. Admissibility of the Gun

The defendant next argues that the trial court erred in ruling that the.22 caliber gun introduced by the Commonwealth was admissible because no foundation was made and its probative value was outweighed by its prejudicial effect.

An admission of evidence of a weapon is a matter within the sound discretion of the trial court, and absent an abuse of discretion, the trial court's decision to admit the evidence must stand. Commonwealth v. Spotz, 552 Pa. 499, 521, 716 A.2d 580, 590 (1998). "The Commonwealth need not establish that a particular weapon was actually used in the commission of a crime in order for it to be introduced at trial." Id., citing Commonwealth v. Thomas, 522 Pa. 256, 273, 561 A.2d 699, 707 (1989). "Rather, the Commonwealth need only show sufficient circumstances to justify an inference by the finder of fact that the particular weapon was likely to have been used in the commission of the crime charged." Id.

The admission of the gun goes to the weight of the evidence. This Court found that a sufficient foundation had been laid by the Commonwealth to allow for the admissibility of the.22 caliber gun. First, Monte Jackson testified that he found a.22 caliber gun on the windowsill outside of his bedroom window. (T.T. at 456). Jackson found this gun while cleaning up his apartment after the police had searched it following the arrest of the defendant. Jackson identified the weapon introduced by the Commonwealth as the.22 caliber gun found outside his bedroom window. (T.T. at 457). Jackson also testified that the ammunition found behind his couch was.22 long rifle caliber. (T.T. at 457-458).

Second, FBI Agent Werstak testified that while searching Jackson's apartment, he found a plastic bag behind a couch that contained a black glove similar to that worn by the defendant on the day of the shooting along with a box of.22 caliber bullets. (T.T. at 509). Third, Trooper Miller of the Pennsylvania State Police verified everything that Agent Werstak had previously testified. (See T.T. at 525-528).

Fourth, A.J. Schwoeble, an employee of the R.J. Lee Group, an analytical laboratory that analyzed the residue found on the black glove, testified that gunshot residue particles were found on both the back of the glove and on the web of the glove. (T.T. at 626-633).

Therefore, given the testimony of the witnesses, the Commonwealth laid a proper foundation to allow for the admissibility of the gun.

4. Corrupt and Polluted Source Instruction

The defendant next argues that trial counsel was ineffective for failing to request a corrupt and polluted source instruction concerning Monte Jackson. In essence, the defendant is arguing that the trial court erred in not giving this instruction. In the present case, Jackson was charged with conspiracy to commit homicide. (T. T. at 460). At trial, Jackson stated that if he testified truthfully, the charges against him would be dropped. (T.T. at 458).

Jackson testified that on the day in question he traveled with the defendant from Pittsburgh to Beaver County. (T.T. at 421). While riding with the defendant, Jackson stated that the defendant received a phone call and then told him that he needed to take care of some business. (T.T. at 422). Jackson testified that they met Goosby at a local Hot Dog Shoppe in Ambridge, and then proceeded to drive to Harmony Township. (T.T. at 423). Jackson observed the defendant get into Goosby's car, and shortly thereafter punches were thrown by each person. (T.T. at 428). Jackson then testified that he saw Goosby drive the vehicle into a nearby brick wall, wherein Goosby immediately jumped out of the car and ran down a hill. (T.T. at 428-429).

Jackson also testified to the events that occurred in the days following the incident. He testified that the defendant stayed at his apartment for several days until the police showed up to arrest the defendant. (T.T., beginning on 433). While cleaning his apartment, Jackson testified that he followed a trail of marijuana outside his bedroom window where he found a.22 caliber gun. (T.T. at 456). Eventually, Jackson turned the gun over to the police. (T.T. at 458).

It is important to note that even had trial counsel requested a corrupt and polluted source instruction, this Court would have denied that request. Based upon the testimony presented in this case, a corrupt and polluted source instruction was unnecessary. It is clear that "where an accomplice implicates the defendant, the judge should tell the jury that the accomplice is a corrupt and polluted source whose testimony should be viewed with great caution." Commonwealth v. Fisher, 559 Pa. 558, 580, 741 A.2d 1234, 1245 (1999), quoting Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9, 13 (1994). When there is no evidence to indicate that a Commonwealth witness was an accomplice, no charge is warranted. Commonwealth v. Tervalon, 463 Pa. 581, 593, 345 A.2d 671, 677-678 (1975).

In Fisher, the Supreme Court held that a corrupt and polluted source instruction was improper as to the witness who was present in a car when the defendant shot the victim, as the evidence did not permit the jury to infer that the witness was an accomplice. Rather, the record demonstrated that the witness knew nothing of the defendant's plans. Fisher, 559 Pa. at 581, 741 A.2d at 1246.

As in Fisher, Jackson was in the car with the defendant when the incident took place. Nothing in the record indicates that Jackson knew what the defendant was planning to do. In fact, Jackson testified that he only knew that the defendant needed to take care of some business. (T.T. at 422). Trial counsel did not introduce any evidence that indicated that Jackson knew what was about to happen. This lack of evidence would not permit a jury finding that Jackson was an accomplice.

APPENDIX II

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence, April 17, 2002, in the Court of Common Pleas of Beaver County Criminal Division at No. 967 of 2001

BEFORE: FORD ELLIOTI, MUSMANNO, AND LALLY-GREEN, JJ.

This is an appeal from the judgment of sentence entered April 17, 2002, following the conviction of appellant, Anthony Tusweet Smith, of one count of aggravated assault and one count of criminal attempt to commit homicide.[1] We affirm in part and vacate in part.

The facts, taken from the trial court opinion and supported by the record, follow:

On March 20, 2001, Kyle Rashaud Goosby (hereinafter referred to as Goosby) reported to work at Oasis Auto in Ambridge as part of the work release section of the Beaver County Jail. (Trial Testimony, T.T.' at pgs. 176-180). As part of the work release section, Goosby was able to work at Oasis Auto during the day. He was then required to report back to the jail at 5:15 p.m. each evening to spend the night in the Beaver County Jail. Between 3:00 and 4:00 p.m. that day, Goosby received a call from the defendant informing Goosby that the defendant had some work for him to do from his friend OB.'[Footnote 4] (T.T. at 180). The defendant called Goosby back at approximately 4:50 p.m. that same day to make arrangements for Goosby to pick up a nine pack, ' which was a code name for nine ounces of cocaine. (T.T. at 282).
Goosby met [appellant] in the parking lot of the nearby Hot Dog Shoppe and followed him to Harmony Township. (T.T. at 186). While still in his car, Goosby pulled up next to [appellant's] vehicle at a Y' intersection of three roads: Fifth, Howard, and Virginia. (T.T. at 186). [Appellant] was accompanied by another male, who would later be identified as Monte Jackson, the boyfriend of [appellant's] sister. As [appellant] exited his vehicle to get into Goosby's vehicle, Goosby noticed the outline of a pistol under [appellant's] right rear hip pocket area. (T.T. at 187). In addition, [appellant] was wearing one black glove on his right hand. (T.T. at 187-188). Goosby testified that [appellant] made sure he touched everything with his gloved hand. (T.T. at 189).
After [appellant] entered Goosby's car from the passenger's side, he instructed Goosby to drive down the road to get the nine pack. (T.T. at 190). Goosby refused and attempted to put the car in reverse. When Goosby did this, [appellant] reached over with his gloved hand and shifted the car into drive, instructing Goosby to drive down the road. (T.T. at 190). Goosby worried that [appellant] was going to attempt to kill him, so he tried to pat down [appellant]. At this point, [appellant] called Goosby a snitch' and a mother fucker' based on his belief that Goosby had talked to the police about drug activities in the area. (T.T. at 190). After [appellant] hit Goosby in the mouth, Goosby drove the vehicle into a brick wall located on the side of the road a few feet away. (T.T at 190).
After Goosby exited the car, he ran towards a hill as [appellant] was calling Goosby's name. (T.T. at 200). As he was running towards the hill, Goosby heard what sounded like an explosion from a firearm. (T.T. at 200). While running down the hill, Goosby felt a cold dripping on the back of his neck, which later was determined to be blood. (T.T. at 200). In addition, Goosby fell and suffered several lacerations as he was running from [appellant]. (T.T. at 206). Goosby passed one house and entered the home of Mr. and Mrs. Horniak. (T.T. at 208). Goosby informed them that he had been shot and needed to use the phone to call 911 emergency services. (T.T. at 209).
Goosby was taken to Heritage Valley Health System Hospital.[Footnote 5] Connie Compton, an emergency room nurse, performed the initial assessment of Goosby. (T.T. at 395). Nurse Compton stated that the first thing Goosby said to her was that he had been shot in the back of the head by [appellant]. (T.T. at 399). Nurse Compton stated that Goosby's wound was a laceration five to six inches in length. (T.T. at 401).
On March 27, 2001, [appellant] was apprehended at Monte Jackson's apartment. (T.T. at 445-446). After obtaining Jackson's consent, the police searched his apartment and found a plastic bag containing [appellant's] black glove and a box of.22 caliber ammunition. (T.T. at 450, 509). On a later date, Jackson turned over to the police a.22 caliber pistol. (T.T. at 458). This weapon was thought to be the weapon used by [appellant] on Goosby. Jackson admitted that he had made a deal with the Commonwealth that if he gave truthful testimony at [appellant's] trial any charges against him would be dropped. (T.T. at 458).
[Footnote 4] OB' was in reference to Jaime Brown, a friend of both Goosby and [appellant].
(Footnote 5] Heritage Valley Health System Hospital was formerly known as The Medical Center.

Trial court opinion, 1/24/03 at 1-4.

A jury convicted appellant of aggravated assault and criminal attempt to commit homicide. Appellant was sentenced on April 17, 2002 to serve 120 to 240 months of imprisonment. Appellant was also ordered to pay restitution. After sentencing, different counsel replaced trial counsel and filed post-sentence motions to modify sentence on April 25, 2002. Appellant's motions were dismissed on July 16, 2002, as being meritless and not properly presented to the trial court. In the interim, the Commonwealth filed, on June 13, 2002, a motion to disqualify appellant's post-sentence counsel because counsel previously represented Goosby. The trial court granted that motion on July 2, 2002.

New counsel entered his appearance for appellant on July 23, 2003. A notice of appeal was filed on August 9, 2002. The trial court granted appellant's motion for an extension of time to file a concise statement of matters complained of on appeal. Appellant's statement was filed on December 6, 2002. The trial court filed its opinion on January 24, 2003.

The issues raised by appellant are as follows:

1. Whether the trial court denied Appellant the right to confrontation during the cross-examination of Kyle Goosby by limiting counsel's questions concerning the sentences that Goosby was facing?
2. Whether post-sentencing counsel gave ineffective assistance for failing to raise the ineffective assistance of trial counsel for failing to request a corrupt and polluted source' instruction with respect to the testimony of Monte Jackson?
3. Whether the sentencing court erred in sentencing Appellant to pay restitution?

Appellant's brief at 4.

"It is well-settled that it is within the discretion of the trial court to determine the scope and limit of cross-examination and that this court cannot reverse those findings absent a clear abuse of discretion or an error of law. Commonwealth v. Nolen, 535 Pa. 77, 82, 634 A.2d 192, 195 (1993) (citation omitted). With this standard in mind, we review appellant's first issue. Our supreme court has held that evidence of a witness' interest or bias is admissible and is a proper subject for cross-examination. Commonwealth v. Sattazahn, 563 Pa. 533, 542, 763 A.2d 359, 364 (2000). This is true even to the extent that the witness hopes for favorable treatment when no promises have been made. Id.

Appellant contends that the trial court erred by denying him the right to confrontation by limiting cross-examination of Goosby. (Appellant's brief at 12-20.) Specifically, counsel was permitted to question Goosby concerning his hope for favorable treatment by the Commonwealth on pending charges. However, counsel was denied his request to question the victim/witness about any potential mandatory sentences because Goosby stated he was unaware of those sentences. Appellant supports his position that cross-examination was improperly limited by citing this court's decision in Commonwealth v. Wilson, 619 A.2d 1063 (Pa.Super. 1992). In Wilson, this court held that the judgment of sentence should be vacated and a new trial granted because the trial court erroneously did not allow the defendant to cross-examine the Commonwealth's witness regarding the witness' exposure to a mandatory sentence. Id. at 1065. The difference, however, between Wilson and this case is that here there is nothing in the record to indicate that the victim would be excluded from the mandatory minimum sentence, and in Wilson the prosecution's witness had been excluded from the mandatory minimum sentence by entering into a plea agreement. Id.

After a careful review of the record, it is clear that not only was Goosby cross-examined by appellant's counsel at trial regarding past convictions and pending charges against him, but he did not know that those pending charges against him carried a mandatory minimum sentence. (Notes of testimony, 3/11-15/02 at 366-367, 371.) As the trial court points out, at the time of trial the victim had only appeared at a preliminary hearing and was not officially charged or arraigned. (Trial court opinion, 1/24/03 at 10.) Furthermore, the victim was cross-examined regarding receiving early parole for a previous sentence for possession with intent to deliver. Therefore, we hold that the trial court did not abuse its discretion or commit an error of law.

Appellant's second issue raises an ineffectiveness of counsel claim. Appellant recognizes that ineffectiveness of counsel claims should not be reviewed on direct appeal pursuant to our supreme court's holding in Commonwealth v. Grant, ___ Pa. ___, 813 A.2d 726 (2002); reargument denied, 821 A.2d 1246 (2003). Appellant, however, asserts that this court has jurisdiction over his ineffectiveness claim because the record is clear regarding counsel's ineffectiveness. (Appellant's brief at 21.) Specifically, appellant argues that trial counsel failed to request a corrupt source jury instruction. The trial court effectively addresses appellant's issue in its opinion; however, pursuant to this court's interpretation of Grant, supra , and because there was no evidentiary hearing below, we are constrained to dismiss appellant's ineffectiveness claim without prejudice to raise such claims in a first Post Conviction Relief Act ("PCRA") petition. Id. at ___, 813 A.2d at 738-739.

We next turn to appellant's third issue regarding the determination of restitution appellant owes. We note that the Commonwealth acknowledges its obligation to raise appellant's meritorious claim for relief. (Commonwealth's brief at 20.) After a careful review of the sentencing transcript, we find that the sentencing court's attempt to set the amount of restitution is inadequate and improperly delegates the restitution decisions to the probation department. See Commonwealth v. Walker, 666 A.2d 301, 310-311 (Pa.Super. 1995). Therefore, we must vacate the restitution portion of appellant's judgment of sentence and remand to the trial court to determine the proper amount of restitution. 18 Pa.C.S.A. § 1106(c)(2).

Judgment of sentence affirmed in part and vacated in part.

Jurisdiction relinquished.


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