Com. v. Grant

• Decision Date: 31 December 2002
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Taibu Modamu GRANT a/k/a Bryant Damu Taibu a/k/a Tyrone Gramm, Appellant.
• Court: Pennsylvania Supreme Court

813 A.2d 726

572 Pa. 48

COMMONWEALTH of Pennsylvania, Appellee v. Taibu Modamu GRANT a/k/a Bryant Damu Taibu a/k/a Tyrone Gramm, Appellant.

Supreme Court of Pennsylvania.

Argued March 4, 2002.

Decided December 31, 2002.

William C. Kaczynski, Pittsburgh, for appellant.

Michael Wayne Streily, Kevin Francis McCarthy, Pittsburgh, for appellee, Com.

Stuart B. Suss, Westchester, for appellee amicus curiae, Atty. Gen. of PA.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

Justice CAPPY.

This court granted the instant appeal to consider whether the Superior Court erred in failing to remand Appellant's claims related to prosecutorial misconduct and trial counsel ineffectiveness for an evidentiary hearing to the trial court. For the reasons stated herein, we affirm the order of the Superior Court.

The facts surrounding the case are as follows. The victim, Keith Gilliam, and his wife were leaving the Where's It At Bar when gunshots were heard. The victim was killed. Shortly thereafter, a maroon car drove by and a second round of shots rang out, wounding two other people. Various witnesses testified to the details of the shooting, the police response, and the forensic evidence. The Commonwealth presented one witness who identified Appellant, Taibu Grant, as the shooter.

At trial a public defender represented Appellant. Following the conclusion of trial, a jury convicted Appellant of first-degree murder and sentenced him to life imprisonment. An appeal was filed by another member of the public defender's office. The trial court found the existence of a conflict of interest and appointed new counsel to represent Appellant on appeal. On appeal, the Superior Court remanded the matter to allow Appellant to file a post-sentence motion nunc pro tunc to challenge the weight of the evidence. The court affirmed the judgment of sentence as to the remainder of Appellant's claims. The court reviewed the substance of most of Appellant's claims and concluded they were without merit. However, the court dismissed two of Appellant's claims related to trial counsel's ineffectiveness for his failure to adequately develop the claims. See Superior Court slip opinion at 5-6.

This court granted limited allowance of appeal to consider three of Appellant's claims. Further, we directed the parties to present argument on whether this court should reconsider the practice first announced in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), requiring that claims related to counsel ineffectiveness be raised at the earliest stage of the proceedings at which the allegedly ineffective counsel no longer represents the defendant.

Appellant argues that the Superior Court erred in affirming the judgment of sentence. Specifically, Appellant contends that the Commonwealth committed misconduct when it failed to reveal that its only eyewitness, Christopher Moore, was on probation at the time of trial and that he had more than one crimen falsi conviction. Appellant also argues that the Superior Court erred in dismissing his ineffectiveness claims for failure to adequately develop those claims, since case law prevents an appellant from referring to matters outside the record in a direct appeal. Related to this claim, Appellant approves of the practice set forth in Hubbard. Lastly, Appellant asserts that the court erred in permitting evidence to be introduced regarding the fact that he was not licensed to carry a firearm.¹

The Commonwealth responds that the Superior Court did not err in concluding that ineffectiveness claims must be supported by sufficient facts for a court to ascertain whether counsel may have been ineffective. Further, Appellant's claim related to alleged prosecutorial misconduct was not sufficiently developed to warrant review of the issue. Related to this claim, the Commonwealth points out that Hubbard provides the proper procedure for appeals alleging ineffectiveness in order to ensure that the claims are disposed of in an efficient fashion. Lastly, the Commonwealth argues that the trial court did not err in allowing it to introduce evidence that Appellant was not licensed to carry a gun at the time of the instant incident.

In order to effectively evaluate Appellant's arguments, rather than addressing the claims in the order in which they are presented, we will first consider the claims that do not implicate trial counsel's ineffectiveness. Following our review of those issues, we will consider the remaining issues, which are presented as claims of trial counsel ineffectiveness.

Appellant first argues that the prosecutor failed to reveal that the key Commonwealth witness, Christopher Moore, had more than one crimen falsi conviction in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Additionally, the Commonwealth failed to disclose that Moore was on state parole at the time of the trial. According to Appellant, he was prejudiced by the prosecutor's failures since this information may have provided Appellant with additional evidence to impeach the testimony of Moore.

In order for a defendant to establish the existence of a Brady violation, he must establish that there has been a suppression by the prosecution of either exculpatory or impeachment evidence that was favorable to the accused, and that the omission of such evidence prejudiced the defendant. See Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 305 (2002)

. Further, no Brady violation occurs where the parties had equal access to the information or if the defendant knew or could have uncovered such evidence with reasonable diligence. Id.

In this case, before trial, the Commonwealth gave the defense information that Christopher Moore had a theft and burglary conviction dating from 1983. Appellant attempted to impeach Moore with this information, but the trial court did not allow the introduction of the evidence due to the age of the convictions. However, Appellant now alleges that there was at least one more crimen falsi conviction dating from 1984² related to this witness as well as additional information that Moore was incarcerated during the intervening years. Additionally, Appellant alleges that Moore was on state parole at the time of the instant incident, which may have colored his testimony. According to Appellant, such additional information may have changed the trial court's decision to allow Appellant to impeach Moore with his prior convictions. However, Appellant fails to argue that the Commonwealth had such evidence in its possession at the time of trial and knowingly withheld such information. Instead, Appellant acknowledges that the failure of the Commonwealth was most likely an oversight on its part. Further, the public defender's office uncovered this evidence after the trial. At trial, Appellant was represented by a public defender. Appellant failed to explain why the public defender could not have procured this same information before or during trial. Thus, by Appellant's own admission, he has not demonstrated that there has been a suppression of such information by the Commonwealth that violated the dictates of Brady. Additionally, it appears that Appellant may have had equal access to this information before or during trial. In fact, Appellant alternatively raises this issue as one of trial counsel's ineffectiveness for failing to uncover this evidence. It appears that the ineffectiveness claim presents a better avenue to address Appellant's issue.³ Accordingly, as stated previously, we will discuss the ineffectiveness claims later in the opinion. Second, Appellant asserts that the trial court erred in admitting the Commonwealth's evidence of the fact that Appellant was not licensed to carry a firearm over defense counsel's objection. At trial, the Commonwealth submitted into evidence a certified copy of a document indicating that Appellant was not licensed to carry a firearm. Then, during the discussion of what charges the court would give to the jury, the Commonwealth requested that the jury be given a charge based upon 18 Pa.C.S. § 6104. Section 6104 provides:

In the trial of a person for committing or attempting to commit a crime enumerated in section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms), the fact that that person was armed with a firearm, used or attempted to be used, and had no license to carry the same, shall be evidence of that person's intention to commit the offense.

18 Pa.C.S. § 6104. The court agreed to give such a charge.⁴

Appellant argues that in order for § 6104 to apply in a particular case, the Commonwealth must establish a violation of 18 Pa.C.S. § 6106.⁵ However, the plain language of § 6104 does not support Appellant's argument. In order for § 6104 to apply to a particular case, it requires that the Commonwealth establish as a fact: 1) that a crime has been committed as enumerated in § 6105; 2) that the person committing the crime was armed with a firearm; 3) that the firearm was used or attempted to be used; and 4) that the person had no license to carry the same. When these facts are established, they "shall be evidence of that person's intent to commit the offense." See § 6104. None of these requirements includes a mandate that the Commonwealth establish a violation of § 6106. Thus, contrary to Appellant's argument, § 6104 does not require that the Commonwealth establish a predicate violation of § 6106.⁶

Appellant next raises two claims of trial counsel ineffectiveness.⁷ On appeal to the Superior Court, Appellant raised these same two claims of in effectiveness. Appellant argued that trial counsel was ineffective for failing to uncover impeachment evidence regarding Christopher Moore. Additionally, Appellant argued that trial counsel was ineffective for failing to call two Commonwealth witnesses. The Superior Court dismissed both of these claims for lack of adequate development. Appell...