Com. v. Cam Ly

• Decision Date: 01 October 2009
• Docket Number: No. 465 CAP,465 CAP
• Citation: 980 A.2d 61
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. CAM LY, Appellant.
• Court: Pennsylvania Supreme Court

980 A.2d 61

COMMONWEALTH of Pennsylvania, Appellee v. CAM LY, Appellant.

No. 465 CAP

Supreme Court of Pennsylvania.

Submitted October 16, 2006.

Decided October 1, 2009.

Jules Epstein, Kairys, Rudovsky, Messing & feinberg, Philadelphia, for Ly, Cam.

Amy Zapp, Harrisburg, Hugh J. Burns, Jr., Philadelphia District Attorney's Office, Philadelphia, for Commonwealth of Pennsylvania.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.

OPINION

Justice BAER.

In this capital case, we consider Appellant Cam Ly's appeal from the order of the Court of Common Pleas of Philadelphia County denying relief under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 ("PCRA"). For the following reasons, we affirm the denial of PCRA relief.

I. Facts

A. Crime and Investigation:

At approximately 4:30 a.m. on August 14, 1983, one man, hereinafter "First Man," entered and requested a table at the Ho Sai Gai restaurant in the Chinatown section of Philadelphia. Minutes later, two others joined him, hereinafter, "Second Man" and "Third Man." All three were Asian men dressed in green military jackets. Upon being seated at a booth, the men drew the attention of the restaurant's customers and employees due to their loud and abusive behavior toward their waiter, Phong Ngo. One of the customers who observed the men was Charles Scanzello, an undercover police officer having lunch during his night shift.

After the other customers, including Scanzello, left the restaurant, the three informed Phong in Cantonese that they were "gangsters" from New York City and demanded that the restaurant pay them "protection money." With Phong providing translation, the restaurant manager, Jade Wong, refused to pay the demand.¹ First Man then rushed toward the cash register and attempted to open it. When Jade Wong followed him and demanded that they leave the restaurant, Second Man, later identified as Appellant Cam Ly (hereinafter "Second Man" or Appellant), and one of the other men placed their guns at the backs of Jade and Phong. The men corralled Jade and Phong into the kitchen, where Jade's sister, Janice Wong, had been watching the entire confrontation and was in the process of calling the police, without success. As Janice attempted to escape and seek help through the kitchen's side door, the three men pursued her. Eventually, Second Man grabbed her arm and turned her to face him at the well-lit street corner, allowing her ample time to view his face.

While the men pursued her sister Janice, Jade successfully reached the police. Jade was speaking with them by phone when the three returned with Janice in front of them. After taking several steps toward the dining area, Janice heard a gunshot and turned to see her sister Jade bleeding from her head and Second Man backing out of the side door of the kitchen, in the vicinity of where she would have expected the shooter to have been standing. Phong testified that he did not see the shooting but turned to see an arm in a green jacket, with gun in hand, going out the side door. Like Phong, Janice did not witness the actual shooting. When it occurred, however, Janice immediately ran to her sister, called police, and told Phong to lock all the doors of the restaurant.

At approximately the same time, a firefighter stationed at a nearby firehouse heard the gunshot and the commotion. He looked out the window to see two men running from the side door of the restaurant. Emergency personnel arrived at the restaurant soon after and took Jade to the hospital. After a week on life support, Jade Wong died due to the bullet wound to her head.

The Philadelphia police initially followed investigatory leads related to similar extortionate crimes in Chinese restaurants in Philadelphia. The evidence led them to investigate Chinese gang activity up and down the East Coast, in particular focusing on members of the New York City based "Flying Dragons." After viewing hundreds of photographs in both New York and Philadelphia without identifying any of the assailants, Janice Wong identified a photograph of Ah Thank Lee, on September 8, 1983, as the First Man.

Between September 1983 and August 1985, Philadelphia detectives pursued many leads, obtained statements from various informants, and received other pieces of information from New York and Washington D.C. detectives, some of which Appellant now claims were improperly withheld from the defense in this case and in the case against Ah Thank Lee, as discussed in detail infra at 75.

Nearly two years after the murder, in August 1985, the police obtained a photograph of Appellant after he was arrested in New York on other charges. Janice Wong identified Appellant's photograph out of an array as the Second Man, the individual who grabbed her in the street and who shot her sister Jade. On the same day, however, officers showed Janice a single photograph of another individual, whom she identified as playing the role of First Man. The individual depicted, however, was Wong Kin Fung, and not Ah Thank Lee whom she had identified as First Man in 1983. Wong Kin Fung was known by the nickname Kwa Jai, which translates to "Bad Boy." As is relevant to Appellant's issues, the names Wong Kin Fung, Kwa Jai, and Bad Boy repeatedly appear in the documents obtained by Philadelphia detectives during their investigations. A central dispute in the current appeal concerns whether Janice Wong's conflicting identifications of Ah Thank Lee and Wong Kin Fung/Kwa Jai as First Man were disclosed to the defense before trial, and, if not, whether the failure to disclose the conflicting identifications and the other documents referencing Wong Kin Fung/Kwa Jai affected Appellant's ability to formulate a defense.

The array and the single photograph were also shown to Officer Scanzello on September 25, 1985. He positively identified Appellant as one of the individuals he noticed in the restaurant on the morning of the murder, but stated that he had not seen the individual in the single photograph (Wong Kin Fung/Kwa Jai).

Police arrested Appellant in New York and charged him with the murder of Jade Wong and other related offenses. Originally, Appellant and Ah Thank Lee were to be tried jointly; however, the trials were severed when Ah Thank Lee's counsel became ill. Third Man was eventually identified as Chanh Ta Luong, also known as Benson Luong (hereinafter "Benson Luong"); however, he was not arrested until April 1989, after Appellant's trial.

B. The Trial of Cam Ly, Appellant

In January 1988, Appellant's case went to trial. The Commonwealth's theory of the case assigned the role of Second Man, the principal assailant and shooter, to Appellant, and the role of First Man to Ah Thank Lee, with Benson Luong as Third Man. Janice Wong identified Appellant as her sister's killer, testifying that she would never forget his face. She noted that she had observed Appellant while he was eating and facing the kitchen, during the confrontation around the cash register, under the streetlights when he prevented her escape, and, finally, in the kitchen following the shooting of her sister. Janice Wong claimed to be "100 percent" certain of the identification, but also testified that she was equally certain of her identifications of Ah Thank Lee and Benson Luong.² Notes of Testimony of Jury Trial ("N.T.(Jury)"), 1/26/1988, at 75, 99-100.

Waiter Phong Ngo also identified Appellant from the witness stand as one of the three men upon whom he had waited and to whom he provided translation prior to the robbery and shooting, even though he had been unable to pick Appellant's photograph out of the array. Similarly, Officer Scanzello testified that Appellant was one of the individuals he saw in the restaurant.

Appellant's brother presented alibi testimony claiming that Appellant was in New York with him on the night of the killing. On cross-examination, the prosecutor asked the brother whether Appellant was a member of the Flying Dragons gang, and after counsel's objection was overruled, the brother testified that he did not have any knowledge of gang membership but admitted that Appellant had a dragon tattoo on his arm.

On February 1, 1988, at the close of the guilt phase, the trial court instructed the jury. Following some deliberation, the jury requested that the court repeat the instructions regarding the difference between murder in the first degree and murder in the second degree. Eventually, the jury convicted Appellant of first-degree murder, robbery, criminal conspiracy, and possession of an instrument of crime.

Immediately following the guilt phase, the penalty phase began. Without specifically informing the defense prior to the hearing of the aggravators to be pursued, the Commonwealth based its argument for the death penalty primarily on the record in the guilt phase. It additionally introduced evidence that Appellant had pled guilty to two robberies and an attempted robbery in New York. In closing, the prosecutor made several comments regarding Appellant's lack of remorse, past violent acts, and his lack of respect for the rule of law.

Defense counsel presented mitigation testimony focused on Appellant's three-year-old son in an attempt to humanize Appellant. Appellant testified during the penalty phase and professed his innocence, but did not provide any other mitigating information. During defense counsel's closing statement, he suggested that Appellant could be paroled if sentenced to life in prison. On February 2, 1988, upon finding three aggravating factors³ and no mitigating factors, the jury returned the statutorily mandated death sentence. 42 Pa.C.S. § 9711(c)(iv). Following the denial of post-verdict motions, the trial court imposed consecutive sentences of seventeen and one-half to thirty-five years of imprisonment for the remaining charges.

C. The Trial of Ah Thank Lee

A jury convicted Ah Thank Lee of second-degree murder and related charges in June 1988 for which he...