IN THE SUPERIOR COURT OF PENNSYLVANIA v. : : SHAWN BISHOP, : No EDA 2012 : Appellant :

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1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF PENNSYLVANIA v. : : SHAWN BISHOP, : No EDA 2012 : Appellant : Appeal from the PCRA Order, March 14, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND JENKINS, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2014 Shawn Bishop appeals from the order of March 14, 2012, dismissing his PCRA 1 petition without hearing. We affirm. In a prior opinion dated March 11, 2004, the trial court summarized the facts of this case as follows: On April 23, 2001, Officer James Abadie was working radio patrol duties with his partner Officer Hogue when they received a call at around 12:30 A.M. to go to 1220 South 18 th Street in South Philadelphia. When Officer Abadie responded to the call, he observed a gray Chevy Caprice with the passenger s door open. The decedent, Asmar Byron Davis, was slumped over in the passenger seat with his eyes closed and blood on his T-shirt. Mr. Davis appeared to have been shot multiple times in the neck, chest and face and the officer felt no vital signs. The post mortem examination confirmed that 1 Post-Conviction Relief Act, 42 Pa.C.S.A

2 the cause of Mr. Davis death was multiple gun shot wounds. On the evening of April 22, 2001, at around 11:00 P.M., Darren Birch was driving in the 500 block of Cross Street in Philadelphia when he saw Mr. Davis. The two men were hungry, so Mr. Davis got into the passenger s side of Mr. Birch s car and, together, they went to South Street to get some pizza. After they drove around for a little while, the two headed back to Mr. Birch s house at 1218 South 18 th Street. Mr. Birch agreed to let Mr. Davis borrow his car for the night if Mr. Davis agreed to pick Mr. Birch up at a club later in the night. Mr. Birch parked outside his house and was about to run inside to change his shoes when he heard a series of about seven to ten gun shots and saw flashes of light coming in through the passenger side window. After the shots ended, Mr. Birch got out of the car and called the police. The same evening, three men, Harry Gadson and defendants Bishop and [Kamil] McFadden, were also driving around in South Philadelphia. Mr. Gadson relayed that at some point when the three rode around, defendant McFadden expressed his desire to kill Mr. Davis, and further, that he was going to get paid $10,000 to do so.[footnote1] Mr. Gadson stated that defendant McFadden wanted to find Mr. Davis, and that when they spotted him enter a grey Chevy Caprice, defendant McFadden instructed defendant Bishop, the driver of the car, to continue following him. [Footnote 1] At trial, Mr. Gadson s preliminary hearing testimony from, December 11, 2002, was read into the record by Mr. Reed-Domer upon a judicial finding of unavailability. The three men followed the Caprice for several blocks until they saw the Caprice pull over and park at 18 th and Federal Streets. At this point, defendant McFadden instructed defendant Bishop to pull over - 2 -

3 and park at 17 th and Federal Streets. Defendant Bishop parked the car and defendant McFadden got out and ran toward the parked Caprice. When Mr. Gadson asked defendant Bishop where defendant McFadden was going, defendant Bishop said that McFadden was going to merk Mr. Davis, meaning that he was going to murder Mr. Davis. Mr. Gadson then heard a series of gunshots and about one minute later, defendant McFadden returned to defendant Bishop s car. Defendant McFadden, while bragging about killing Davis, racked his gun to show it was empty. After defendant Bishop drove away, they rode around for approximately more minutes and then dropped off Mr. Gadson. Rahjai Black, an acquaintance of the defendants from the neighborhood, saw an altercation between Mr. Gadson and defendant McFadden ensue because defendant McFadden was angry that Mr. Gadson was telling his business. On more than one occasion, defendant McFadden told Mr. Black that he followed Mr. Davis, put on a mask and shot him several times in the chest and head. According to Mr. Black, defendant McFadden often bragged about killing Mr. Davis, but was angry at Mr. Gadson for telling other people about this incident because it was not his business. Mr. Black also testified that defendant McFadden mentioned that he had been paid to kill Mr. Davis. Trial court opinion, 3/11/04 at 2-4 (citations to the record and additional footnotes omitted). On November 1, 2002, the defendant, Kamil McFadden was arrested and charged with murder, criminal conspiracy and possessing a criminal instrument ( PIC ). On November 2, 2002, the defendant Shawn Bishop was arrested and charged with murder, conspiracy and PIC. On November 3, 2003, the defendants jury trial began before this court and on November 12, 2003 both the defendants were found guilty of first degree murder and criminal conspiracy. Defendant - 3 -

4 Id. at 1-2. McFadden was also convicted of PIC. Following receipt and review of pre-sentence and psychiatric reports, on January 9, 2004, this Court sentenced each of the defendants to concurrent sentences of life imprisonment on the murder in the first degree conviction and no less than ten (10) and no more than [twenty] ([20]) years in prison for the criminal conspiracy convictions. This Court also sentenced defendant McFadden to a consecutive term of no less than two (2) and no more than four (4) years in prison on the PIC conviction. Appellant took a direct appeal, and this court affirmed on July 22, Commonwealth v. Bishop, 883 A.2d 684 (Pa.Super. 2005) (unpublished memorandum), appeal denied, 948 A.2d 802 (Pa. 2008). Following the reinstatement of appellant s right to file a petition for allowance of appeal with the Pennsylvania Supreme Court, his appeal was denied on April 22, Id. Appellant filed a timely pro se PCRA petition on January 26, Counsel was appointed and filed an amended petition on appellant s behalf. On March 14, 2012, following Rule notice, appellant s petition was dismissed without a hearing. Appellant filed a timely notice of appeal on April 12, The PCRA court filed an opinion on April 2, Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A. 3 PCRA counsel was permitted to withdraw on April 10, We remanded for appointment of substitute counsel to represent appellant on this appeal, and new counsel was appointed and entered his appearance on April 19, The PCRA court notes that on August 17, 2012, it had ordered a Rule 1925(b) statement which was never filed. Pa.R.A.P., Rule 1925(b), - 4 -

5 On appeal, appellant argues the PCRA court erred in dismissing his petition without an evidentiary hearing. This Court s standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 582 Pa. 164, 870 A.2d 795, 799 n. 2 (2005). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001). Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007), appeal denied, 940 A.2d 365 (Pa. 2007). [T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super.2001). It is within the PCRA court s discretion to decline to hold a hearing if the petitioner s claim is patently frivolous and has no support either in the record or other evidence. Id. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing. 42 Pa.C.S.A.; PCRA court opinion, 4/2/13 at 2. However, in its Rule 1925(a) opinion, the PCRA court addresses all of appellant s issues raised in his petition. Under the circumstances, it is unnecessary to remand for the filing of a Rule 1925(b) statement nunc pro tunc. See Pa.R.A.P. 1925(c)(3) ( If an appellant in a criminal case was ordered to file a Statement and failed to do so, such that the appellate court is convinced that counsel has been per se ineffective, the appellate court shall remand for the filing of a Statement nunc pro tunc and for the preparation and filing of an opinion by the judge. )

6 Commonwealth v. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, (1997). Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238, (Pa.Super. 2004). To prevail on a claim alleging counsel s ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel s course of conduct was without a reasonable basis designed to effectuate his client s interest; and (3) that he was prejudiced by counsel s ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999); Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226, 230 (1994). Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001). In his first issue on appeal, appellant claims that trial counsel was ineffective for failing to raise a defense of diminished capacity. 4 According to appellant, he suffers from a mental disability. (Appellant s brief at 11.) Diminished capacity is a limited defense, which does not exculpate the defendant from criminal liability entirely, but instead negates the element of specific intent. Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, (2008) (citations omitted). Thus, a defendant asserting a diminished capacity defense admits responsibility for the underlying 4 We note that appellant fails to divide the argument section of his brief in violation of the Rules of Appellate Procedure. See Pa.R.A.P., Rule 2119(a), 42 Pa.C.S.A. ( The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part--in distinctive type or in type distinctively displayed--the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent. )

7 action, but contests the degree of culpability based upon his inability to formulate the requisite mental state. Id. at Commonwealth v. Williams, 980 A.2d 510, 527 (Pa. 2009). Instantly, there is no evidence that appellant is mentally disabled, as he alleges. Furthermore, as the PCRA court observes, diminished capacity would not apply where appellant s defense was that he had nothing to do with the shooting of Davis. (PCRA court opinion, 4/2/13 at ) Appellant did not admit responsibility for the underlying crime. Therefore, the defense of diminished capacity, which may only be used to reduce murder from a higher degree to a lower degree, was unavailable and trial counsel cannot be held ineffective for failing to raise it. Next, appellant complains that the prosecuting attorney was permitted to instruct the jury on the law. (Appellant s brief at 11.) Appellant cites page 92 of the notes of testimony from November 7, (Id.) Appellant is mistaken. In fact, that was the trial court s charge to the jury. (Notes of testimony, 11/7/03 at ) Next, appellant argues that the timing of the court s jury charge, i.e., prior to closing arguments, confused the jury. (Appellant s brief at 11.) The record reflects that appellant specifically agreed to this procedure. (Notes of testimony, 11/7/03 at ) Moreover, there is nothing to support appellant s claim that the jury was confused, and they were properly instructed on specific intent to kill. (Id. at 95.) - 7 -

8 Next, appellant argues that trial counsel was ineffective for failing to move to sever his trial from that of his co-defendant, McFadden. (Appellant s brief at 12.) The decision of whether to sever trials of co-defendants is within the sound discretion of the trial court. Commonwealth v. Lopez, 559 Pa. 131, 739 A.2d 485 (1999). Both this Court and the United States Supreme Court have recognized that joint trials of co-defendants play a crucial role in the criminal justice system. See Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987); Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992); Commonwealth v. Jackson, 451 Pa. 462, 303 A.2d 924 (1973); Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). It would impair both the efficiency and the fairness of the criminal justice system to require... that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability. Richardson, 481 U.S. at 210, 107 S.Ct. at Commonwealth v. Travers, 768 A.2d 845, (Pa. 2001). Separate trials of co-defendants should be granted only where the defenses of each are antagonistic to the point where such individual differences are - 8 -

9 irreconcilable and a joint trial would result in prejudice. Commonwealth v. Lambert, 603 A.2d 568, 573 (Pa. 1992). Here, appellant has failed to demonstrate how his defense was antagonistic to that of his co-defendant, McFadden. Appellant has failed to show how he was prejudiced by a joint trial. The fact that appellant and McFadden were charged as co-conspirators was another factor in favor of a joint trial. See Kloiber, 106 A.2d at 823 ( Especially is a joint trial permissible, if not advisable, when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to both defendants. ) (citations omitted). Furthermore, appellant offers no real argument as to why separate trials were necessary, except for his unsupported allegation that he is mentally defective, which is entirely irrelevant. (Appellant s brief at 12.) The underlying claim, that severance was appropriate, lacks merit. Trial counsel was not ineffective for failing to file such a motion. Finally, appellant argues that trial counsel was ineffective for failing to object to a purported Brady 5 violation. Appellant contends that the Commonwealth should have disclosed Officer Yolanda Bunch as a potential witness prior to trial. (Appellant s brief at 12.) In order to succeed on a Brady claim, a defendant must establish that the evidence withheld was favorable to him, i.e., that it was exculpatory or had impeachment value; the evidence was suppressed by 5 Brady v. Maryland, 373 U.S. 83 (1963)

10 the prosecution; and prejudice resulted. Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 658 n. 12 (2008). In order to establish prejudice, a defendant is obliged to show that the evidence in question was material to guilt or punishment, and that there is a reasonable probability that the result of the proceeding would have been different but for the alleged suppression of the evidence. Commonwealth v. James Dennis, 597 Pa. 159, 950 A.2d 945, 966 (2008) (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194; Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). Commonwealth v. Miller, 987 A.2d 638, 655 (Pa. 2009). Appellant completely misconstrues Brady. Officer Bunch testified that she had seen appellant and McFadden together in the neighborhood with Omar Hutchins (the man who paid McFadden to kill Davis). (Notes of testimony, 11/5/03 at 77.) Officer Bunch s testimony was not exculpatory, nor was it suppressed by the Commonwealth. Officer Bunch was a prosecution witness. Therefore, Brady is inapposite. Appellant does not argue that failure to disclose Officer Bunch as a witness prior to trial was a discovery violation. In addition, appellant has failed to demonstrate prejudice, i.e., that but for Officer Bunch s testimony, the outcome of the trial would have been different. The evidence was sufficient to convict appellant of first-degree murder as an accomplice independent of Officer Bunch s testimony

11 Having determined that appellant s issues are patently without merit, with no support in the record or from other evidence, the PCRA court did not err in dismissing appellant s petition without a hearing. Order affirmed. Petition for remand is denied. 6 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/16/ On October 22, 2013, new PCRA counsel filed a petition for remand, stating that appellant is dissatisfied with the issues raised in his PCRA petition and wishes to raise additional issues, including a claim of newly discovered evidence. (Petition for remand, 10/22/13 at 2.) Appellant requests that we remand this matter to develop the record and for an investigator, if necessary. (Id. at 2-3.) Appellant also makes allegations concerning the effectiveness of original PCRA counsel. Appellant will have to bring these claims in a serial PCRA petition and layer them appropriately, should he desire to file one