Opinion
2932 EDA 2022 2935 EDA 2022 2937 EDA 2022 2938 EDA 2022 2939 EDA 2022 J-S30012-23
11-22-2023
COMMONWEALTH OF PENNSYLVANIA v. OMAR A. RAHMAN Appellant COMMONWEALTH OF PENNSYLVANIA v. OMAR A. RAHMAN Appellant COMMONWEALTH OF PENNSYLVANIA v. OMAR A. RAHMAN Appellant COMMONWEALTH OF PENNSYLVANIA v. OMAR A. RAHMAN Appellant COMMONWEALTH OF PENNSYLVANIA v. OMAR A. RAHMAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered October 24, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012018-2013, CP-51-CR-0012044-2013, CP-51-CR-0013648-2013, CP-51-CR-0010006-2013, CP-51-CR-0009988-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM
BENDER, P.J.E.
Appellant, Omar A. Rahman, appeals pro se from the post-conviction court's order, entered in his five separate cases that were consolidated for trial, denying his petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
This Court summarized the facts of Appellant's underlying cases in our disposition of his appeal from his judgment of sentence, as follows:
The instant appeals concern a series of gunpoint robberies [Appellant] committed during the summer of 2013, beginning with the robbery of Krystal Cruz. On June 26, 2013, [Appellant]
approached Cruz on the 3100 block of Emerald Street, pointed a revolver at her stomach, and demanded money. Cruz gave [Appellant] $10. [Appellant] grabbed Cruz's phone and fled. Cruz went to her house and used her home phone to call 911. When the police arrived, she described her assailant as a tall, light-skinned man with dreadlocks.
On June 27, 2013, [Appellant] approached Jarrett Natson on the 5800 block of Washington Avenue, pointed a silver revolver in Natson's face, ordered him to the ground, and took his belongings. Natson described his assailant as a man in a hooded sweatshirt, with an exposed face and dreadlocks.
On July 19, 2013, [Appellant] approached Aaron Slaughter and Raheem Baynes on the 1200 block of South 58th Street, pointed a silver revolver at them, and ordered them to the ground. [Appellant] took their phones, wallets, and a duffle bag. Soon afterwards, Slaughter used a second cell phone to call the police. Contemporaneously, Slaughter's friend "Michael" drove by and attempted to locate the perpetrator. Michael saw someone drive away, and relayed the car's New Jersey license plate number to Slaughter. Slaughter, in turn, passed this information along to the police, and described the perpetrator as a light-skinned man with dreadlocks.
On July 20, 2013, [Appellant] approached Everal Laing on the 6000 block of Jefferson Street, held a silver revolver to his head, ordered him to his knees, and demanded money. [Appellant] took Laing's phone, money, and a bag containing some paperwork and clothing. When [Appellant] demanded money, Liang [sic] asked for his bag back so he could locate his money for [Appellant]. Liang [sic] instead took his wallet out of the bag and ran to a nearby police station, where he reported the robbery and described the perpetrator as a man with a light complexion, wearing his hair in braids or dreadlocks.
On July 21, 2013, [Appellant] approached Kyle Stanley on the 1500 block of West Allegheny Avenue, pointed a revolver at his temple, ordered him to the ground, and took his watch, money, and phone. Contemporaneously, Officers Donyul Williams and Ronald Gilbert drove by in a Ford Crown Victoria. Recognizing the Crown Victoria as an unmarked police vehicle, Stanley began physically struggling with [Appellant] and yelling for help, stating [Appellant] was armed. When Officer Williams approached the fracas, [Appellant] disengaged from Stanley and fled. Stanley told
Officer Williams that [Appellant] attempted to rob him at gunpoint. [Appellant] fled on foot, ignoring Officer Williams' demands to stop, only pausing to duck down by a parked minivan. The police caught up with [Appellant] and detained him. The officers proceeded to search for the gun described by Stanley and located a silver revolver in the wheel well of the minivan where Officer Williams observed [Appellant] stop and duck down. The police, however, did not recover the items [Appellant] took from Stanley.
After apprehending [Appellant], the officers returned to their vehicle. The officers then noticed a woman sitting in a parked car that was stuck behind the officer[s'] hastily parked police cruiser. Officer Williams began questioning her, thinking she might have been a witness. The woman identified [Appellant] as her boyfriend. Officer Williams then noticed an iPad and several phones in the front of the car. [Appellant] was arrested and officers secured the vehicle, a H[y]undai Elantra ("the Elantra") with New Jersey plates. The police applied for and received a search warrant for the Elantra, pursuant to which they seized eleven phones, an iPad Mini, and various documents, including Liang's [sic] bank statement and [Appellant's] driver's license.
These items helped lead police to the above-named victims. One cell phone led detectives to Cruz, who identified [Appellant] in an eight-person photo array as the individual who robbed her at gunpoint. Detectives questioned Laing after discovering his bank statement during the search of the Elantra. Liang [sic] identified the bank statement as his. He was then shown an eight-person photo array and identified [Appellant] as the man who robbed him. Another cell phone led police to Natson, who was unable to make a positive identification of the perpetrator from an eight-person photo array. He was, however, able to identify his phone as the one taken from him during the June 27, 2013 robbery. Natson subsequently attended an in-person lineup and identified [Appellant] as the man who robbed him. The police located Slaughter after searching for reports of gunpoint robberies committed by an individual with dreadlocks using a silver revolver during late June and July of 2013. Slaughter subsequently identified [Appellant] as his assailant from a photo array provided by detectives.Commonwealth v. Rahman, No. 3556 EDA 2017, unpublished memorandum at *3-7 (Pa. Super. filed July 1, 2019) (lead docket number only used).
Appellant represented himself at his jury trial, with backup counsel's assistance. On December 14, 2016, the jury convicted him of six counts of robbery, 18 Pa.C.S. § 3701(a)(1)(ii), and five counts of possessing an instrument of crime, 18 Pa.C.S. § 907. On May 17, 2017, the trial court sentenced him to an aggregate term of 25 to 53 years' incarceration. Appellant timely appealed, and on July 1, 2019, this Court affirmed his judgment of sentence in four of his five cases (Nos. CP-51-CR-0012044-2013, CP-51-CR-0013648-2013, CP-51-CR-0010006-2013, and CP-51-CR-0009988-2013). See id. Appellant's judgment of sentence in his fifth case (No. CP-51-CR-0012018-2013) was dismissed on November 17, 2019, due to his failure to file a brief. See Commonwealth v. Rahman, No. 2550 EDA 2018, unpublished judgment order (Pa. Super. filed Nov. 27, 2019). Our Supreme Court denied Appellant's subsequent petitions for allowance of appeal on March 24, 2020, and September 15, 2020. See, e.g., Commonwealth v. Rahman, No. 512 EAL 2019, No. 513 EAL 2019, No. 514 EAL 2019, No. 515 EAL 2019 (Pa. filed Mar. 24, 2020) (denying allowance of appeal in Nos. CP-51-CR-0012044-2013, CP-51-CR-0013648-2013, CP-51-CR-0010006-2013, and CP-51-CR-0009988-2013); Commonwealth v. Rahman, 120 EAL 2020 (Pa. filed Sept. 15, 2020) (denying allowance of appeal in No. CP-51-CR-0012018-2013).
On March 3, 2021, Appellant filed a timely, pro se PCRA petition in each of his five cases. After a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), the PCRA court permitted Appellant to represent himself. Appellant filed an amended PCRA petition on September 14, 2021. The Commonwealth filed a motion to dismiss his petition on November 19, 2021. On March 22, 2022, and June 3, 2022, the court held a bifurcated PCRA hearing. On October 24, 2022, the court issued, in each case, an order and opinion (titled "Findings of Fact and Conclusions of Law Sur Amended PCRA Petition") denying Appellant's petition.
On October 31, 2022, Appellant filed timely, pro se notices of appeal in each case. The court did not direct him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and in lieu of a Rule 1925(a) opinion, the court notified us that it is relying on the rationale set forth in its October 24, 2022 opinion accompanying its order denying Appellant's petition.
Appellant designated October 21, 2022, as the date of the order appealed from on all five notices of appeal. The trial court dockets indicate the orders dismissing Appellant's PCRA petitions were filed on October 24, 2022. Accordingly, on January 20, 2023, and January 23, 2023, this Court entered an order, at each appeal docket, for Appellant to show cause why the appeal should not be quashed as having been taken from a purported order which is not entered upon the trial court docket. See Pa.R.A.P. 301(a). On January 30, 2022, Appellant responded to the orders to show cause, indicating that he is appealing from the PCRA court's October 24, 2022 order denying his petition. Thus, our rule to show cause was discharged and the appeal dockets were corrected to reflect that the appeals lie from the October 24, 2022 orders. The cases were also sua sponte consolidated on February 27, 2023.
Herein, Appellant states six issues for our review:
1) Whether the PCRA [c]ourt erred by determining that Appellant did not demonstrate that he was denied a fair trial and prejudiced by the denial of the motion in limine to exclude irrelevant and prejudicial evidence?
2) Whether the PCRA [c]ourt erred by determining that Appellant did not demonstrate that he was[] denied the right to face his accuser, denied the right to a fair trial and, prejudiced by the admission of Raheem Baynes' out-of-court statement in to [sic] evidence?
3) Whether the PCRA [c]ourt erred by determining that Appellant did not demonstrate that he was[] denied compulsory process, denied the right to a fair trial and, prejudiced by the exclusion of the testimony of Joseph Kmetz, Maurine Treston, Kevin Boston, Aerni Dunlap, Officer Ruggia, Detective Daniel Murawski, and Detective Joseph Murano?
4) Whether the PCRA [c]ourt erred by determining that Appellant did not prove a Brady violation by a preponderance of the evidence?
5) Whether the PCRA [c]ourt erred by determining that Appellant did not demonstrate that the cumulative effect of the above errors violated his right to due process?
6) Whether the PCRA [c]ourt erred and abused its discretion by disposing of Appellant's motion for discovery while the Commonwealth did not produce the December[] 2016 trial subpoena for Raheem Baynes?Appellant's Brief at 2.
To begin, we note that:
"In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error." Commonwealth v. Johnson, … 966 A.2d 523, 532 ([Pa.] 2009). We pay great deference to the findings of the PCRA court, "but its legal determinations are subject to our plenary review." Id.Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013).
Brady v. Maryland, 373 U.S. 83 (1963).
Here, in reviewing Appellant's first five issues, we have considered the briefs of the parties, the certified record, and the applicable law. We have also assessed the October 24, 2022 opinion of the Honorable Giovanni O. Campbell of the Court of Common Pleas of Philadelphia County. We conclude that Judge Campbell's well-reasoned opinion completely and correctly explains why the first five issues Appellant raises on appeal do not warrant relief. Accordingly, we adopt Judge Campbell's opinion as our own regarding Appellant's first through fifth issues herein.
In Appellant's sixth issue, he contends that the PCRA court erred in disposing of his motion for discovery seeking a copy of a 2016 subpoena for Raheem Baynes. By way of background, at the March 25, 2022 PCRA hearing, Courtney Malloy, Esq., testified that she was the Assistant District Attorney who prosecuted Appellant's case, and she had issued a subpoena for Baynes, but that she was "unsuccessful in locating Mr. Baynes to serve him with [that] subpoena…." N.T., 3/25/22, at 91-92, 94, 113. On March 31, 2022, Appellant filed a "Petition for PCRA Discovery" requesting that the Commonwealth turn over a copy of that subpoena. The PCRA court granted Appellant's motion, and at the June 3, 2022 PCRA hearing, the Commonwealth produced a screenshot from its "computer service, which indicate[d] that on April 26, 2016, a subpoena was sent to Mr. Raheem Baynes for December 6, 2016, which would have been the date of the trial in this case." N.T., 6/3/22, at 6. The Commonwealth explained that it only could provide a screenshot from its computer system because it was "impossible … to access a digital copy of a subpoena" that was issued "six years in the past…." Id. In response, Appellant argued that the Commonwealth should be required to present someone to authenticate the screenshot, especially as it showed both a date of April 26, 2016, and a date of June 2, 2022, suggesting that the Commonwealth had created the document on the later date. Id. at 7-8. He reiterates these arguments on appeal. No relief is due.
In rejecting Appellant's challenges at the PCRA hearing, the court explained:
[The Court: The Commonwealth] can't generate a copy of the actual subpoena, but what [the Assistant District Attorney, Joseph Duffy, Esq.,] did do was look in the system, take a screenshot --and correct me if I'm saying this incorrectly, Mr. Duffy -- and printed out that screenshot. That's the reason for the printout date at the bottom of 6/2 because that's the date he printed it out. And that is all you have. It does not require someone to testify as a custodian of records or anything else.Id. at 9. The court also explained that Appellant "could … make an argument against the weight of the evidence, the evidence being [Attorney] Malloy's testimony, [and] argue against her credibility because they don't have the actual subpoena." Id. at 10.
We discern no abuse of discretion in the court's handling of Appellant's discovery request. The Pennsylvania Rules of Criminal Procedure state that "no discovery shall be permitted at any stage of the [PCRA] proceedings, except upon leave of court after a showing of exceptional circumstances." Pa.R.Crim.P. 902(E)(1). Here, the court granted Appellant's request for the Commonwealth to produce the 2016 subpoena for Baynes. The court clearly found credible the Commonwealth's explanation that, due to the passage of time, it could only produce a screenshot showing the issuance of that subpoena. The court explained that Appellant could challenge the weight of Attorney Malloy's testimony that a subpoena was issued for Baynes on the basis that the actual subpoena could not be produced. We conclude that the PCRA court's rulings adequately addressed Appellant's discovery request, and did not constitute an abuse of the court's discretion.
Finally, we address a pro se "Motion to Remand" filed by Appellant during the pendency of this appeal. In that motion, Appellant claims that "[o]n August 24, 2023, [he] received a Philadelphia Police Department Misconduct Disclosure from the Philadelphia District Attorney's Office wherein Detective Joseph Cremen had been found guilty of 'failure to comply with any Police Commissioner's orders, directives, memorandums, or regulations; or any oral or written orders of Supervisors' on June 29, 2021." Motion to Remand, 9/5/23, at ¶ 5. Appellant claims that he "could have used this information to impeach Detective Cremen at the June 3, 2022 evidentiary hearing[,]" at which the detective testified about his attempts to get Baynes to appear for trial and conversations he had with Baynes. Id. at ¶ 6.
Appellant additionally avers that
[t]he Misconduct Disclosure also contained numerous allegations of serious misconduct committed by Philadelphia Police Officer Ronald Gilbert[,] including false arrest, physical abuse, and verbal abuse on November 4, 1998[,] that was sustained by Commanding Officer Mark A. Jones of the Philadelphia Police
Department's Internal Affairs Division. Officer Gilbert was one of the arresting Officers in Appellant's case pertaining to Complainant Kyle Stanley.Id. at ¶ 7.
Appellant insists that the Commonwealth had a duty, under Brady, to disclose the misconduct of Detective Cremen to him prior to the PCRA hearing, and the misconduct of Officer Gilbert to him prior to his trial. Because it failed to do so, Appellant asks that we remand for the PCRA court to consider this new "Brady material…." Id.
We have explained that,
[i]n Brady, the United States Supreme Court held that "suppression by the prosecution of favorable evidence to an accused upon request violates due process where the evidence is material either to guilt or to punishment…." Brady, 373 U.S. at 87…. Brady's mandate is not limited to pure exculpatory evidence; impeachment evidence also falls within Brady's parameters and therefore must be disclosed by prosecutors. U.S. v. Bagley, 473 U.S. 667, 677 … (1985).
***
[T]o establish a Brady violation, a defendant must demonstrate that: (1) the evidence was suppressed by the Commonwealth, either willfully or inadvertently; (2) the evidence was favorable to the defendant; and (3) the evidence was material, in that its omission resulted in prejudice to the defendant. The burden rests with the defendant to "prove, by reference to the record, that evidence was withheld or suppressed by the prosecution."
***
To demonstrate prejudice, "the evidence suppressed must have been material to guilt or punishment." Commonwealth v. Gibson, 951 A.2d 1110, 1126 ([Pa.] 2008). Evidence is material under Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the trial could have been different. Kyles v. Whitley, 514 U.S. 419, 433-34 … (1995).
***
A reviewing court is not to review the evidence in isolation, but, rather, the omission is to be evaluated in the context of the entire record. When conducting this analysis in the PCRA context, a defendant must establish that the alleged Brady violation "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i); Commonwealth v. Copenhefer, 719 A.2d 242, 259 ([Pa.] 1998).Commonwealth v. Haskins, 60 A.3d 538, 546-47 (Pa. Super. 2012) (some internal citations and quotation marks omitted).
Here, Appellant has failed to demonstrate that the evidence of Detective Cremen's and Officer Gilbert's misconduct in wholly unrelated cases was material to Appellant's case or the PCRA proceedings, such that its omission resulted in prejudice to Appellant. We find Commonwealth v. Brown, 134 A.3d 1097 (Pa. Super. 2016), instructive, although it addressed an after-discovered-evidence claim rather than a Brady violation. There, this Court rejected Brown's claim that he deserved an after-discovered-evidence hearing based on two newspaper articles discussing the misconduct of Philadelphia Police Detectives Ronald Dove and James Pitts in unrelated cases. Id. at 1108. Detectives Dove and Pitts had both been directly involved in Brown's case, taking statements from Brown and another witness, who later recanted that statement. Id. Despite this direct involvement, we concluded that Brown was not entitled to an evidentiary hearing to explore whether the detectives had committed misconduct in his case. Id. at 1108-09. We reasoned that, with respect to Detective Dove, Brown had relied only "on [a] newspaper article reporting on Dove's possible misconduct" in an unrelated case, and he did "not articulate what evidence he would present at the evidentiary hearing on remand." Id. at 1109. Pertaining to Detective Pitts, Brown only specified witnesses that he would call to testify about Pitts' improper interrogation techniques in other cases. Id. We concluded that, absent proof that Detective Pitts had committed misconduct in Brown's case, the evidence of his improper interrogation tactics from other cases could only be used by Brown to attack Pitts' credibility, which cannot satisfy the after-discovered evidence test. Id. Therefore, because "an evidentiary hearing is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim," we held that Brown had not demonstrated that a hearing was warranted. Id.
See also Commonwealth v. Johnson, 179 A.3d 1105, 1122-23 (Pa. Super. 2018) (affirming the denial of a PCRA after-discovered evidence claim based on criminal convictions of a police detective who testified at the defendant's trial and was involved in questioning a witness who identified the defendant, where convictions occurred years after the defendant's trial and arose out of conduct in an unrelated case); Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa. Super. 2016) (reversing the grant of a new trial based on after-discovered evidence of misconduct of a police officer who testified at the defendant's trial where alleged misconduct was in unrelated case); Commonwealth v. Foreman, 55 A.3d 532, 534-35, 537 (Pa. Super. 2012) (affirming the denial of a PCRA after-discovered evidence claim based on criminal charges against a police detective who testified at the defendant's trial, where the charges arose out of conduct in an unrelated case that occurred more than two years after the defendant's trial).
Likewise, in this case, Appellant has failed to establish a nexus between his convictions and the misconduct of Detective Cremen or Officer Gilbert in other, unrelated cases. Appellant never claimed - and does not assert now - that he was mistreated during his arrest by Officer Gilbert. Thus, Appellant has not pleaded any facts that would indicate that the officer's misconduct in conducting an arrest 15 years before he was involved in Appellant's arrest would have been favorable or material to Appellant's case, or that its omission resulted in prejudice to Appellant.
Additionally, Appellant does not elaborate on how he could have used Detective Cremen's wholly unrelated, irrelevant misconduct to impeach his credibility at the PCRA hearing. Moreover, to warrant a new trial based on after-discovered evidence, the appellant must show that the evidence "(1) could not have been obtained prior to trial by exercising reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely to impeach a witness's credibility; and (4) would likely result in a different verdict." Commonwealth v. Castro, 93 A.3d 818, 821 (Pa. 2014) (citation omitted; emphasis added). It is logical then, that for Appellant to demonstrate he is entitled to a new PCRA hearing based on the after-discovered evidence of Detective Cremen's misconduct, he must also demonstrate that that evidence would not be used solely to impeach the detective's testimony. As that is precisely the purpose for which Appellant states he would use Detective Cremen's misconduct report, no remand is warranted.
In sum, none of the issues raised in Appellant's PCRA petition warrant relief, based on the rationale set forth in the PCRA court's opinion, which we adopt herein. Additionally, the court did not err in handling Appellant's discovery motion, and his request that we remand based on the evidence of Detective Cremen's and Officer Gilbert's misconduct in other cases is hereby denied.
Orders affirmed.
(Image Omitted).