Ralph Cappy

“ As noted above, at the time of the filing of Appellant's PCRA petition, section 9543 (a) (2) (vi) provided for post-conviction relief where a petitioner could prove a claim of newly discovered exculpatory evidence. In order to succeed on such a claim, the petitioner must establish that: (1) the evidence has been discovered after the trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) such evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) such evidence would likely compel a different verdict. ”

“ Upon review of this particular portion of the defense summation, we cannot conclude, as suggested by Appellant, that the jury would have believed that the imposition of a life sentence might have resulted in Appellant being released from prison. Instead we find that the jury was informed of precisely what Appellant now argues he was entitled; that a defendant sentenced to life is not likely to receive parole.
Appellant's final claim is that the cumulative effect of all his alleged errors denied him a fair trial. ”

“ The PCRA court found Harmon's testimony to be "absolutely incredible." In support thereof, the court cited not only his entire testimony, but also his demeanor, and defense counsel's obvious attempt to delay his testimony. We find support in the record for this conclusion; especially in light of the fact that Harmon's account of the shooting is at odds with virtually all of the other eyewitness testimony and since it was the PCRA court which personally observed his demeanor. As such, that finding of credibility is binding on this court. ”

“ In essence the defense argued that there should be no distinction between killing just anyone and killing a police officer. Pertinent to the instant claim of Appellant, the prosecution argued that Appellant's lack of concern and respect for the law and [P562] society was demonstrated by his murder of this police officer. In further support of that same theme, the prosecution detailed the instances throughout the proceedings where defendant displayed utter disrespect for the justice system. ”

“ Those challenges involve claims of intimidation or coercion against witnesses to alter their testimony and/or promises of economic or penal benefits in exchange for favorable testimony. Respecting virtually all of these witnesses, it is Appellant's contention that these tactics were employed to thwart the defense theory that the real shooter fled the scene before back-up police arrived and that this evidence constitutes "newly discovered evidence" because the prosecution withheld this evidence from the defense. ”

“ After both the officer and the driver of the Volkswagen had alighted from their vehicles, she saw them speak and then observed the occupant of the Volkswagen strike the officer in the cheek and observed the officer turn that individual as if to handcuff him. At that point, she saw Appellant run from an adjacent parking lot and, as he reached the curb, shoot the officer in the back. According to her testimony, as the officer was staggering, he seemed to be reaching for something. After the officer had fallen to the ground, she saw Appellant stand over the officer and shoot several more times. ”

“ Appellant also asserts that the court's decision to take away his pro se status and to direct back-up counsel to proceed, denied him his right to counsel of his choice. While an accused is constitutionally guaranteed the right to the assistance of counsel that right gives to a defendant only the right to choose, at his or her own cost, any attorney desired. ”

“ Eyewitnesses independently identified the defendant as the shooter. Defendant boasted in front of witnesses that he had killed the officer. Defendant's brother who was on the scene throughout the incident never mentioned a killer running away but stated to police arriving on the scene, "I ain't got nothing to do with this." (6-19-82 N.T. at 155) .
(Op. of Sabo, J. dated Nov. 1, 1996, pp. 7-12) .
Traditionally, issues of credibility are within the sole domain of the trier of fact since it is the trier of fact who had the opportunity to personally observe the demeanor of the witnesses. ”

“ Appellant claims he was not disruptive and asserts that it was error to remove him from the courtroom and [P547] thereby deny him of his right to represent himself. Disruptions, particularly those that are purposeful and persistent, are not to be tolerated as they threaten the court's ability to conduct a trial properly. Africa, at 863. Removing a disruptive defendant from the proceedings is a permissible means for a court to discharge its duty to defend the judicial process. ”

“ If a defendant succeeds in establishing a prima facie case of purposeful discrimination, the prosecution is [A114] then required to provide non-discriminatory reasons for striking the potential jurors.
This court's analysis of this issue on direct appeal indicated that the record reflected that the prosecution employed peremptory challenges to strike eight African-American venirepersons. It now appears, via a stipulation, that there may have been two more African-American venirepersons stricken by the prosecution. That evidence does not alter our original conclusion. ”

“ The judge, on petition or request, shall postpone or continue a hearing to provide either party a reasonable opportunity, if one did not exist previously, for investigation and preparation regarding any new issue of fact raised in an amended petition or amended answer.↑ Given Appellant's strenuous argument that he has proven his right to collateral relief, we find his current claim, that the order denying discovery significantly hampered his ability to conduct a reasonable investigation and to prepare for the PCRA hearing, to be somewhat disjointed. ”

“ If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual. (iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief. (4) That 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. ”

“ Appellant alleged specifically that Judge Sabo openly demonstrated, during Appellant's trial in 1982, his bias and hostility towards Appellant and that Judge Sabo had a reputation for bias against defendants in general and African American defendants in particular, such that the proceedings would be lacking the fundamental aspect of the appearance of fairness and impartiality. In his motion for recusal, Appellant set forth specific examples of rulings or comments allegedly made during trial which showed the judge's bias. ”

“ Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse of discretion. 565 A.2d at 763. In reviewing a denial of a disqualification motion, we recognize that our judges are honorable, fair and competent. Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291, 1300 (Pa. 1985) .
In arguing that the judge's hostility and bias towards Appellant was notorious, Appellant relies upon several newspaper and magazine articles which criticized Judge Sabo's behavior during the PCRA proceedings. ”

“ As noted above, the witness testified at trial to a similar encounter with uniformed police officers in January of 1982 who asked her to identify the defendant as the shooter at the trial. Consequently, the testimony of Ms. Jones, was that on two occasions police/detectives promised favorable treatment if she would identify the defendant as the shooter. However, despite these promises or threats, as she described them, she did not identify the defendant as the [P525] shooter. The promises or threats caused her to only deny seeing two men running away. ”

“ Appellant's counsel did, indeed, inform the jury that life imprisonment meant precisely that and that parole was an unlikely event. Contrary to Appellant's assertion, the trial court's interruption of the summation was not done in a manner so as to instill in the jury's minds the notion that some persons [P569] sentenced to life imprisonment are "out in a few years." ”

“ It is only where it is shown that the interests of justice warrant recusal that a matter will be assigned to a different judge. Commonwealth v. Rashed, 496 Pa. 26, 436 A.2d 134 (Pa. 1981) . For all the reasons discussed, this standard has not been met in the instant matter. In conclusion, we simply cannot discern from the record that Judge Sabo abused his discretion in denying recusal.
A second argument reiterated by Appellant throughout the PCRA proceedings [A91] is that the PCRA court erred in denying his discovery requests. ”

“ In providing for "investigation," the rule clearly contemplates only that each party be given a reasonable opportunity to further investigate and/or prepare where such opportunity did not previously exist. ”

“ When confronted upon her return, she commented: "I don't care what Judge Sabo or anybody says, I do what I have to do. Nobody is going to stop me." Prior to the beginning of testimony the following day, a conference was held in the judge's chambers respecting numerous issues, one of which involved Ms. Dawley's violation of sequestration. Present during the relevant discussion was the judge, the court crier, the prosecutor and Appellant's counsel, Anthony Jackson. It appears that Appellant was not present due to the court's prior ruling barring him from the proceedings due to his misbehavior. ”

“ African-Americans peremptorily stricken by the Commonwealth. In support thereof, Appellant relies on a stipulation entered into during the collateral proceedings regarding the fact that two venirepersons, whose races were not recorded at trial, would now testify that they are African Americans and that they were peremptorily challenged by the Commonwealth. [40]
In order to establish a Batson claim, a defendant must establish a prima facie case of purposeful discrimination. To do so, a defendant must demonstrate that he/she is of a cognizable racial group ”

“ During this conference, the defense argued that because the witness had been paid for committing this arson, such conviction qualified as crimen falsi and the defense should, therefore, be permitted to cross-examine the witness as to that crime. The trial court ultimately ruled that arson did not qualify as crimen falsi and, accordingly, precluded the cross-examination. ”

“ Thus, Appellant's claim regarding trial counsel's performance with respect to Officer Wakshul warrants no relief. In any event, had Wakshul testified, that testimony would not have benefited Appellant; rather, it would have prejudiced him since it would have been consistent with Durham and Bell's trial testimony.
Finally, there is no evidence that the prosecution orchestrated Officer Wakshul's unavailability. Officer Wakshul testified that all officers were asked to "try" to be available during their vacations. (N.T. 8/1/95 pp. 80-83) . ”

“ Significantly, the PCRA court cited McCleskey for the proposition that a claim of constitutional violation cannot be established merely upon an allegation that a certain percentage of murderers sentenced to death in Pennsylvania are African-American. Appellant submits this was an erroneous application of that case since the PCRA court precluded his proffered evidence to support the claim. Appellant's claim is disingenuous. ”

“ Appellant steadfastly refused to permit his back-up counsel to take part in any of the proceedings and argued vehemently that the court should not perform the voir dire questioning. We find that the court properly took over the questioning and then properly ordered that back-up counsel take control.
[P546] All defendants, even those who may display the potential to be disruptive, have the right to self-representation. Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855, 864 (Pa. 1976) . In such instances, however, it is advisable that stand-by counsel be appointed. ”

“ Rather, the comments were limited to a plea to convict Appellant based solely on the actions committed in the instant matter, and, thus, were within the bounds of proper oratorical flare. C f. Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221 (Pa. 1995) (it is improper for the prosecutor to urge the jury to sentence a defendant to death as a means of retribution for the ills inflicted on society by drug dealers rather than based on statutorily enumerated aggravating circumstances) . ”

“ Officer Vernon Jones testified that he saw Singletary, with whom he was familiar, at the scene and that Singletary asked him what had happened. (N.T. 8/14/95 pp. 18-19) . According to Jones, when he told Singletary that a police officer was shot, Singletary responded that he heard shots, but believed them to be firecrackers and that after that several police cars arrived. (N.T. 8/14/95 p. 21) . When Jones asked Singletary whether he had seen the shooting, Singletary replied "no." Id. Jones had recorded this precise account in a statement given to homicide detectives on December 17, 1981. ”

“ Magilton then turned and lost sight of the man. Magilton heard some shots, looked over, did not see the officer, went back across the street, looked down and saw the officer laying on the sidewalk and the other man sitting on the curb. The police then arrived, handcuffed the man and put him in the wagon. When taken to the wagon, he identified Appellant as the man he had seen crossing the street. (N.T. 6/25/82 pp. 2.76-2.80) . At trial Magilton, via a stipulation necessitated by Appellant's absence from the courtroom, also identified Appellant as the man he saw running across the street. ”