Commonwealth v. Epps

• Decision Date: 23 September 2020
• Docket Number: No. 1526 EDA 2019,No. 1529 EDA 2019,No. 1527 EDA 2019,1526 EDA 2019,1527 EDA 2019,1529 EDA 2019
• Citation: 240 A.3d 640
• Parties: COMMONWEALTH of Pennsylvania v. Keith EPPS, Appellant Commonwealth of Pennsylvania v. Keith Epps, Appellant Commonwealth of Pennsylvania v. Keith Epps, Appellant
• Court: Pennsylvania Superior Court

240 A.3d 640

COMMONWEALTH of Pennsylvania

v.Keith EPPS, Appellant

Commonwealth of Pennsylvania

v.Keith Epps, Appellant

Commonwealth of Pennsylvania

v.Keith Epps, Appellant

No. 1526 EDA 2019

No. 1527 EDA 2019

No. 1529 EDA 2019

Superior Court of Pennsylvania.

Submitted June 29, 2020

Filed September 23, 2020

Karl D. Schwartz, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Robert F. Petrone, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.^*

OPINION BY PELLEGRINI, J.:

Keith Epps (Epps) appeals from the order entered in the Court of Common Pleas of Philadelphia County (PCRA court) dismissing his timely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. We affirm.

I.

This case arises from Epps’ jury conviction at the above-listed docket numbers of two counts each of second-degree murder and robbery, one count of burglary and three counts criminal conspiracy¹ for the June 27, 2009 shooting deaths of Rian Thal (Thal) and Timothy Gilmore (Gilmore). The shootings occurred during a botched robbery inside of an apartment complex located in the Northern Liberties section of Philadelphia where Thal resided. Thal was a party promoter and was involved in a cocaine shipment that was transported by Gilmore and Edward Emerson by tractor-trailer from Texas to Philadelphia. Thal's business partner, Leon Woodard (Woodard), arranged the drug deal and moved the cocaine into Thal's apartment, accompanied by Vernon Williams (Williams). Unbeknownst to Thal or Woodard, Williams² told Epps about the cocaine and the money tied to it and they hatched a plan to steal it.

Epps contacted a friend who lived in Thal's building, Katoya Jones (Jones) and she agreed to provide access to the building in exchange for a cut of the drug proceeds.³ Epps coordinated with Donnell Murchison (Murchison), Langdon Scott (Scott) and Edward Daniels (Daniels) to carry out his plan. Scott initially participated under the impression that he was purchasing drugs only. He refused to be a part of the plan once he learned of the robbery. Antonio Wright (Wright) became involved instead.

Wright, Murchison and Daniels entered the apartment building at about 5:00 p.m. to wait for Thal and Gilmore. Epps waited in a van and called Murchison as the two victims entered the building. When Thal and Gilmore exited the elevator, Wright and his co-defendants announced the robberies. Wright shot Gilmore when he resisted. Murchison shot Thal in the head, killing her instantly. Murchison then shot Gilmore twice in the head after he noticed that Gilmore was still alive.⁴ The men fled the building and entered Epps’ van without the money or cocaine. Police recovered four kilos of cocaine and over $100,000.00 from Thal's apartment. They arrested Epps and his co-conspirators after examining surveillance video footage, cell phone records and ballistics tests.⁵

On December 1, 2011, a jury convicted Epps, along with Wright and Daniels, of the above-mentioned charges. The trial court sentenced Epps to consecutive life terms for second-degree murder, with concurrent sentences on the remaining charges. On direct appeal, this Court vacated two of the three conspiracy convictions but affirmed the judgment of sentence in all other respects. (See Commonwealth v. Epps , 2015 WL 7571700, Pa. Super. filed Nov. 24, 2015) (unpublished memorandum). Our Supreme Court denied Epps’ petition for allowance of appeal on May 24, 2016.

On February 1, 2017, Epps filed this counseled PCRA petition followed by several court-permitted supplements raising multiple claims of ineffective assistance of counsel as well as an after-discovered evidence claim relating to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).⁶ On April 16, 2019, the PCRA court entered its order dismissing the petition without a hearing after it issued a Rule 907 notice. See Pa.R.Crim.P. 907(1). Epps timely appealed and he and the PCRA court complied with Rule 1925. See Pa.R.A.P. 1925(a)-(b).

II.

Epps’ contends, for many reasons, that his trial counsel was ineffective. See 42 Pa.C.S. § 9543(a)(2)(ii) (listing ineffective assistance of counsel as basis for PCRA relief).⁷ "To be entitled to relief on an ineffectiveness claim, a PCRA petitioner must establish that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) he suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability the result of the proceeding would have been different." Commonwealth v. Treiber , 632 Pa. 449, 121 A.3d 435, 445 (2015) (citation omitted). We presume that counsel has rendered effective assistance. See id. Counsel cannot be found ineffective for failing to raise a baseless or meritless claim. See id.

Additionally, "[a] petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings." Commonwealth v. Adams-Smith , 209 A.3d 1011, 1019 (Pa. Super. 2019) (citation omitted). A PCRA court's decision to deny a request for an evidentiary hearing will not be overturned absent an abuse of discretion. See Commonwealth v. Mason , 634 Pa. 359, 130 A.3d 601, 617 (2015).

A.

Epps raises myriad claims contending that trial counsel was ineffective for failing to object to certain comments made by the prosecutor during his jury trial. He argues that counsel should have objected when the prosecution: improperly vouched for the credibility of Commonwealth witnesses by arguing that they were telling the truth; argued and elicited testimony that its witnesses feared for their safety, even though the threats of harm could not be connected to Epps; emphasized in his opening statement that some codefendants had already entered a guilty plea; expressed his personal disagreement with defense counsel by stating "There are a lot of things I disagree with him [defense counsel]"; compared Epps’ rights at trial with those of the victims and their families; and commented on the defendants’ collective decision not to testify at trial. We will address these arguments which, when reduced to their core center on allegations of prosecutorial misconduct, together for ease of disposition.

Generally, a prosecutor's arguments to the jury do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and hostility towards the defendant which would prevent them from properly weighing the evidence and rendering a true verdict. See Commonwealth v. Poplawski , 852 A.2d 323, 327 (Pa. Super. 2004). "A prosecutor must have reasonable latitude in fairly presenting a case to the jury and must be free to present his or her arguments with logical force and vigor." Id. (citation omitted).

"Our review of prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial." Commonwealth v. Judy , 978 A.2d 1015, 1019 (Pa. Super. 2009) (citation omitted). We must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct, and that the prosecutor may fairly respond to points made by the defense. See id. Moreover, prosecutorial misconduct will not be found where statements were based on the evidence or proper inferences therefrom or were only oratorical flair. See id.

In this case, the PCRA court rejected Epps’ claims of ineffectiveness for counsel's failure to object to the prosecutor's instances of alleged misconduct, explaining:

There is no indication in the parts of the record to which [Epps] refers that the prosecutor sought to convince the jury that its witnesses were more believable than any other witnesses based on information known only to the Commonwealth. [Epps’] argument assumed that the prosecutor improperly vouched for his witnesses in this case, without any consideration of the context of those comments or the fact that the goal of defense counsel in this matter was to convince the jury that the cooperators were not telling the truth. At no time did the prosecutor provide assurances of the credibility of its witnesses based on either the prosecutor's personal knowledge or other information not contained in the record. Clearly then, [the prosecutor's statements] did not amount to vouching. See Commonwealth v. Fisher , 813 A.2d 761, 768 (Pa. 2002) (finding no merit in claim challenging that prosecutor improperly vouched for credibility of prosecution witness, because when read in context it was clear prosecutor was only attempting to counter defense counsel's attack on their testimony.) Counsel, thus had no basis for objecting to the cited testimony.

To the extent that [Epps] argues that counsel should have objected because the jury could have inferred from testimony given by Jones, Scott and Murchison that they had been threatened that they were telling the truth, the record does not support his claim. With regard to Jones, she testified that she was afraid because, "I don't know what the outcome [of the trial] is going to be" and that she was, therefore, worried about her safety and that of her ex-fiancé and family. (N.T. Trial, 11/15/11, at 192-93). Concerning Scott, he testified that [Daniels] stabbed him and in no way implied that [Epps] played any role in the assault. (See N.T. Trial, 11/16/11, at 88-92). Regarding Murchison, this Court instructed the jury to strike Murchison's testimony in toto . (See N.T. Trial, 11/21/11, 20-26). See Commonwealth v. Brown , 987 A.2d 699, 712 (Pa. 2009) (‘‘A pillar upon which our system of trial by jury is based is that juries

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