Com. v. Hammond, No. 1282 MDA 2007.

Decision Date11 June 2008
Docket NumberNo. 1282 MDA 2007.
Citation953 A.2d 544,2008 PA Super 128
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. Desmond Markel HAMMOND, Appellee.
CourtPennsylvania Superior Court

Andrew J. Serina, Asst. Dist. Atty., for Com., appellant.

Joseph P. Nahas, Jr., Frackville, for appellee.

BEFORE: STEVENS, PANELLA, and HUDOCK, JJ.

OPINION BY STEVENS, J.:

¶ 1 The Commonwealth appeals from the order entered in the Court of Common Pleas of Schuylkill County, which granted Appellee's petition filed under the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541-9546 vacated Appellee's judgment of sentence, and directed a new trial due to the ineffective assistance of trial counsel, coupled with after-discovered evidence.1 The Commonwealth contends the PCRA court erred in granting Appellee a new trial on the basis (1) trial counsel was ineffective in failing to call as a witness and investigate properly Achille Walker and (2) after-discovered evidence in the form of Kelvin Robertson's recanted testimony. We reverse the order granting a new trial and reinstate Appellee's judgment of sentence.

¶ 2 Relevant facts and procedural history are as follows: Following an altercation at a night club, Appellee fatally shot the victim, Clinton Hallick, in the parking lot of an apartment complex during the early morning hours of March 12, 2004. Represented by Jay Nigrini, Esquire, Appellee proceeded to a six-day jury trial, at which Appellee asserted a claim of self-defense and numerous witnesses testified on behalf of the Commonwealth and Appellee. Specifically, Leeann Santiago testified that there was a fight at a night club between Appellee and the victim, both of whom Ms. Santiago knew well. After the fight, Ms. Santiago and her friends went back to Ms. Santiago's apartment, and Appellee appeared at her door holding a gun at his side. N.T. 3/17/05 at 154-157. Ms. Santiago asked for the gun but Appellee would not relinquish it. N.T. 3/17/05 at 157-158. Ms. Santiago, her friends, and Appellee, who was still holding a gun, left the apartment and began walking across the parking lot with the intent of retrieving the children of one of Ms. Santiago's friends. N.T. 3/17/05 at 159-160. At this point, two vehicles pulled into the parking lot, and the victim and his friends exited the vehicles. N.T. 3/17/05 at 162-163. The victim and a girl approached Ms. Santiago, her friends, and Appellee, and Ms. Santiago told the victim to leave. N.T. 3/17/05 at 166. The victim pushed Ms. Santiago. N.T. 3/17/05 at 167. Ms. Santiago did not see the victim in possession of a gun, although she saw the victim put his hand under his shirt. N.T. 3/17/05 at 167, 199. Ms. Santiago then noticed her sister fighting with a girl, and while her attention was distracted, Ms. Santiago heard three gunshots. N.T. 3/17/05 at 168-169. The victim ran and Appellee drove away in his vehicle. N.T. 3/17/05 at 169. Ms. Santiago indicated she did not see the victim with a gun at the night club, prior to the parking lot shooting. N.T. 3/17/05 at 187. In fact, Ms. Santiago testified she only saw one person with a gun and that was Appellee. N.T. 3/17/05 at 169.

¶ 3 Hospedales, who was the victim's paramour, testified she never saw the victim with a gun. N.T. 3/18/05 at 243-245. Ms. Hospedales admitted that the victim was involved in an altercation with Appellee at a night club, and after the bouncers threw the men outside, Ms. Hospedales left with the victim in a vehicle. N.T. 3/18/05 at 252-253. Ms. Hospedales did not observe any guns while riding in the vehicle. N.T. 3/18/05 at 254, 260. At some point, "Smack"2 called the victim and told the victim to go to the apartment complex because "Smack" was concerned for his children's safety because Appellee had a gun. N.T. 3/18/05 at 256. Ms. Hospedales drove to the apartment complex, where "Smack's" children resided, and Ms. Hospedales saw Appellee standing with some girls in the parking lot. N.T. 3/18/05 at 260-263. Ms. Hospedales and the victim exited the vehicle; Ms. Hospedales did not see the victim carrying a gun. N.T. 3/18/05 at 310. Ms. Hospedales approached the girls, who were with Appellee, and engaged in a physical altercation; Ms. Hospedales admitted that she was carrying a knife. N.T. 3/18/05 at 270, 280. While she was fighting, she heard the victim yell, "[G]ive me a fair one." N.T. 3/18/05 at 271. Ms. Hospedales then heard gunshots and saw the victim running. N.T. 3/18/05 at 272-273. She saw Appellee jump into a vehicle, and a girl ran over to the vehicle and screamed at Appellee, "[W]hy did you have to shoot. We all have kids, and [Appellee] rambled on [about] something, he called her a bitch and left." N.T. 3/18/05 at 273-274. Ms. Hospedales ran to the victim, who was lying on the ground, and the victim said, "The pussy shot me." N.T. 3/18/05 at 275. Ms. Hospedales began searching for the bullet holes; she did not find a gun on the victim and no one removed a gun from the victim. N.T. 3/18/05 at 276, 318. Ms. Hospedales admitted that she threw her knife in the drain but no one disposed of a gun. N.T. 3/18/05 at 281.

¶ 4 Crabbe testified she never saw the victim in possession of a firearm while riding in the vehicle with him and Ms. Hospedales. N.T. 3/18/05 at 344. Ms. Crabbe indicated that, at the apartment complex parking lot, the victim exited the vehicle and approached Appellee and the girls. N.T. 3/18/05 at 353-354. She heard the Santiago girls yell, "[D]on't, don't, don't, Clint, don't. He got a gun." N.T. 3/18/05 at 354. She then saw that Appellee was carrying a gun. N.T. 3/18/05 at 355. As an altercation between the girls ensued, Appellee pointed the gun at her and told her to "stay down;" she ducked behind a vehicle, which she later discovered was Appellee's vehicle. N.T. 3/18/05 at 355-356. Appellee pointed the gun at her and the victim, and the victim yelled, "[P]ut the gun down. Be a man. We could fight this out." N.T. 3/18/05 at 356. Every time Ms. Crabbe "popped her head up" to look, Appellee pointed the gun at her and told her to "stay down." N.T. 3/18/05 at 356-357. Ms. Crabbe testified she believed Appellee had targeted her, as well as the victim, because she was "dressed more like a male figure." N.T. 3/18/05 at 359. Appellee then fired a shot at the victim, and Ms. Crabbe lay flat behind the vehicle. N.T. 3/18/05 at 360-361. She heard the victim say, "Drop the gun." N.T. 3/18/05 at 379. She quickly heard several more shots and saw the victim running. N.T. 3/18/05 at 361. Appellee then entered his vehicle, and Ms. Crabbe was afraid Appellee would open the passenger-side door and shoot her; however, he just drove away. N.T. 3/18/05 at 362. Ms. Crabbe ran to the victim; she did not see the victim in possession of a gun and no one removed a gun from the victim's possession. N.T. 3/18/05 at 364-365. Ms. Crabbe indicated the victim did not have a gun with him that night and no one hid a gun in the vehicle. N.T. 3/18/05 at 377-378.

¶ 5 Jenni Santiago testified that Appellee appeared at Leeann Santiago's apartment holding a gun, and Leeann told him to go home. N.T. 3/18/05 at 398. While they were talking, a vehicle pulled into the parking lot, and a group of people, including the victim, exited the vehicle. N.T. 3/18/05 at 403. The victim approached the general vicinity of Appellee, and Jenni Santiago told the victim to "just go home, Clint, you don't know what he has[.]" N.T. 3/18/05 at 413. Jenni Santiago saw the victim raise his hands and say, "Let's box it out." N.T. 3/18/05 at 404-405. Jenni Santiago understood this to mean that the victim wanted to fist fight with Appellee; she did not see the victim with a gun. N.T. 3/18/05 at 404-405. Appellee stared at the victim, and Ms. Hospedales started physically fighting with Jenni Santiago. N.T. 3/18/05 at 407. Jenni Santiago heard three quick gunshots and saw the victim running with an obvious injury. N.T. 3/18/05 at 411.

¶ 6 Athena Sacco testified "Smack" is her paramour, and she never saw the victim in possession of a gun. N.T. 3/18/05 at 430-432. Ms. Sacco testified that "Smack" and Appellee did not like each other, and after the night club altercation, "Smack" called the victim and told him they were going to the apartment complex to get the children. N.T. 3/18/05 at 444. Ms. Sacco feared that Appellee might come to the apartment complex, where one of the Santiago sisters also lived. N.T. 3/18/05 at 446-447. At some point, she heard three gunshots; however, she, "Smack," and the children stayed in their apartment. N.T. 3/18/05 at 447.

¶ 7 Kelvin Robertson testified his nickname is "Smack," and he is in jail for possession of narcotics with the intent to deliver. N.T. 3/21/05 at 465-466. He never knew the victim to carry a gun. N.T. 3/21/05 at 468. Mr. Robertson was at the night club and observed Appellee dancing and throwing hand signals towards the victim. N.T. 3/21/05 at 475-476. As Appellee pointed his finger at the victim, Appellee said, "That's for your man." N.T. 3/21/05 at 476. In response, the victim punched Appellee and an altercation between numerous people occurred. N.T. 3/21/05 at 475-477. At some point, he saw a girl holding a gun, and one of Appellee's friends smacked it out of her hands. N.T. 3/21/05 at 479. Mr. Robertson did not see anyone retrieve the gun. N.T. 3/21/05 at 479. Mr. Robertson did not observe the victim with a gun during the night club fight, and he noted that the victim was wearing sweatpants and "you can't tuck nothing in the waistband of sweat pants." N.T. 3/21/05 at 480. After the fight, Mr. Robertson, who went to the hospital with a friend, called the victim and asked him to go to the apartment complex to check on his children because they were with a babysitter. N.T. 3/21/05 at 483-484, 498. The victim said he would call back Mr. Robertson, and when he did so, the victim indicated he was on his way to the apartment complex. N.T. 3/21/0...

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