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HomeMy WebLinkAbout97-1081 criminalCOMMONWEALTH HARUN LESLIE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 97-1081 CRIMINAL TERM IN RE: PETITION FOR POST-CONVICTION RELIEF OPINION AND ORDER OF COURT Bayley, J., June 1, 1999:-- On September 24, 1997, a jury convicted Harun Leslie on counts of conspiracy to commit criminal homicide with Marcus Rose,1 and receiving stolen property,2 that occurred on June 5, 1997. Leslie was found not guilty of recklessly endangering another person. Leslie was tried jointly with Marcus T. Rose. Rose was found guilty of attempt to commit criminal homicide with Harun Leslie, codspiracy to commit criminal homicide, two counts of aggravated assault, recklessly endangering another person and receiving stolen property. On November 12, 1997, Leslie was sentenced on the count of conspiracy to commit criminal homicide to a term in a state correctional institution of not less than two and one-half years or more than seven years. On the count of receiving stolen property, he received a concurrent sentence of not less than six months or more than twenty-three months. The judgment of sentence was affirmed by the Superior Court of Pennsylvania on February 26, 1999. Leslie has filed a petition which was amended for relief under the Post- 1, 18 Pa.C.S. § 903. 2. 18 Pa.C.S. § 3925. 97-1081 CRIMINAL TERM Conviction Relief Act,3 upon which two hearings were conducted. Petitioner claims, inter alia, that his trial counsel was ineffective for failing to call Dane Spence as a witness on his behalf. In order to place this claim into context it is necessary to review the testimony in the trial and in the post-conviction hearings. TRIAL TESTIMONY Harun Leslie testified that on June 5, 1997, he and Dane Spence encountered Shawn Hodge and two other men in the Memorial Park in Carlisle around 2:30 p.m. to 3:00 p.m. Hodge asked him "Where's my boy at" and knocked him off a bench. One of the other men held him down while Hodge punched him. Hodge said 'q'his is for your boy, you know." He did not identify who the boy was but Leslie assumed it was Marcus Rose because of an incident four days earlier. Hodge and two men left the park but they came back fifteen to twenty minutes later and assaulted Leslie again. Leslie testified that Spence "was on the floor" during the fight. After the fight he and Spence went to his house where he put ice on his eye and Spence put ice on his jaw. Later in the day Leslie and Spence went out again. When they were on South Hanover Street, Leslie and Spence saw Terri Swartz driving a Toyota 4-Runner truck. Marcus Rose was with her. Leslie and Spence got into the truck. Leslie testified that Swartz started talking about Shawn Hodge "talking crazy like blow up his car and get his family, and all of that other crazy shit.''4 As they were driving on A 3. 42 Pa.C.S. § 9541, et seq. 4. Terri Swartz did not testify. -2- 97-1081 CRIMINAL TERM Street they saw Hodge. Leslie testified that "1 looked, and, you know, I was furious. I wanted to get back at him, beat him up." Leslie, Spence and Rose jumped out of the truck and Hodge ran. They chased him but they could not catch him. They then went back to the truck and continued to drive around town. Leslie testified that when they were in front of Adrian Barnes's house on Lincoln Street, "1 seen Shawn bolting inside, and when the truck stopped I opened my door, and no sooner than I did that I heard gunshots firing out." Leslie testified that it had been his intent to beat up Hodge but he closed the door of the truck because "1 think that if I would have ran out I probably would have been shot in the cross-fire." Leslie testified that Spence did not get out of the truck but he could not "speculate" as to whether Rose got out. He kept his head down because he did not want to get shot in the head. He did not know who fired the shots. Leslie testified that at some point Terri Swartz and Marcus Rose were in the back of the truck and Spence was in the front with Kevin Williams driving.5 Leslie testified that during this drive he discovered a handgun on the back floor of the truck. He did not know who put it there. He testified that they drove outside of town and he hid the gun in the woods because: I was scared. I seen a gun laying there, you know. Somebody stated, I can't remember who, that it's a five year charge, you know, if you get caught with a loaded gun. You know, if it's in the car it's a danger to me. I'm in the car. I just took it out. Leslie testified that they then drove to Terri Swartz's house. 5. Kevin Williams did not testify. -3- 97-1081 CRIMINAL TERM Leslie further testified that he gave a statement to Detective Ronald Egolf of the Carlisle Police and that he lied to Egolf by telling him what he wanted to hear. Those lies were that (1) he and Rose got out of the truck at the time of the shooting, and (2) when Rose got back in the truck he saw that he had a gun and Rose handed it back to him. In the statement, Leslie told Detective Egolf that after they were in the country he put the gun that Rose had handed to him in a bag by his feet and then they stopped and he buried the gun in the woods.6 Shawn Hodge testified that on the day of the shooting, he saw Leslie in the park and told him that "[y]ou're boy tried to stab me" a few days before, meaning Marcus Rose. Hodge asked Leslie where Rose was. That led to a fight in which he, Hodge, got '~the better end of the deal." Hodge testified that the fight was between himself and Leslie, not Dane Spence. Hodge testified that later in the day he was sitting on the steps of a house when a vehicle pulled up and Rose, Leslie and Spence got out. The driver did not get out. Rose and Leslie had handguns and they chased him with Leslie yelling that "he's dead, he's dead." Hodge ran to the house of Adrian Barnes. There were gunshots and bullets hit the house. Barnes got a gun and fired back. Rose and Leslie then left. On cross-examination, Hodge acknowledged that at a preliminary hearing he had testified that (1) only Rose jumped out of the vehicle 6. The owner of a 25 caliber handgun testified at trial and identified it as having been stolen from her home on January 27, 1997. The police learned of the location of the buried gun from Terri Swartz. A ballistics examiner testified that it was the gun used to fire the shots in this case. Leslie's conviction of receiving stolen property was with respect to this handgun. -4- 97-1081 CRIMINAL TERM with a gun and started shooting, (2) Leslie and Spence were in the vehicle, (3) only Rose had a gun, (4) only Rose fired shots at him, and (5) he did not know who yelled "he's dead, he's dead.''? Deana Moore testified that at about 6:15 p.m. on June 5, 1997, she saw a truck and heard shots. She saw Marcus Rose leaning on the driver's side of a truck firing a gun. Moore saw a guy go into the door of a house and then she saw the glass door shatter. Moore testified that a girl was driving the truck and she briefly saw someone else standing next to the passenger door of the truck. Katrina Washington testified that she saw Shawn Hodge at the door of the house where Adrian Barnes lived. A truck came up the street and "[t]hese boys just jumped out and was hollering, and they started shooting." Washington testified that "1 thought there were three, but I wasn't sure because I was in a rush to get my kids because I knew something was going on." Evalind Goen$ testified that she saw a vehicle come up and Marcus Rose got out with a gun. He leaned on the vehicle and he fired it at the front door of a house and the door shattered. Sharea Vasser testified that she saw a truck pull up and "some guys jumped out." She saw one gun. The guys chased Shawn Hodge. They were Rose, Leslie and Spence. She believed that Rose had the gun. Leslie and Spence did not have a gun. Vasser testified that she saw Hodge run to the back of her house and into a No one was struck by any of the bullets the combatants fired. -5- 97-1081 CRIMINAL TERM field. Marsha Washington testified that she saw the vehicle come up and two men jumped out. She saw one gun and she heard shots. Washington testified that one of the men was Leslie. She could not identify the other man. She did not know who fired the shots. On cross-examination Washington changed her testimony and stated that the person she saw was Spence.8 The testimony of police officers and a ballistics expert revealed that a 25 caliber handgun was found buried in a Kmart bag off of Grahams Wood Road outside of Carlisle. One 25 caliber bullet was found in the screen door of 137 Lincoln Street. Two live rounds were found on the street in front of the house. The officers recovered the 9 millimeter handgun that Adrian Barnes fired from inside 137 Lincoln Street. One 9 millimeter bullet was found outside the front door of the house and another was stuck in the Toyota 4-Runner truck. POST-CONVICTION HEARING TESTIMONY Dane Spence testified in a post-conviction hearing that on June 5, 1997, Shawn Hodge beat up Leslie and himself in a park. Later that day, he and Leslie got into a truck driven by Terri Swartz in which Marcus Rose was a passenger. Spence testified that Leslie told Swartz to drop him off at his girlfriend's house. They started to drive and Rose said "1 got something for him," meaning Hodge. Terri Swartz was mad. Spence testified that he did not know that Rose had a gun. They saw Hodge 8. Marcus Rose did not testify at trial. -6- 97-1081 CRIMINAL TERM and Rose got out of the truck and chased him. He and Leslie also got out of the truck but stood at a stop sign watching as Rose chased Hodge down the street. Rose then returned and they all got into the truck and continued to drive to Leslie's girlfriend's house. They then saw Hodge again. Rose got out of the truck. Spence testified that he held his head down when he heard shots. Leslie was in the back of the truck with him. He heard Swartz yell "he's dead, he's dead." Rose, who shot at Hodge, returned and got into the back of the truck. Spence climbed into the front seat and Swartz drove off. When they stopped everyone got out of the truck. Spence testified "1 went to pee -- I ain't seen nobody bury nothing -- everybody got into the bushes to take a leak -- I didn't help bury the gun." Spence further testified that he was at Leslie's trial when he told Leslie's trial counsel that (1) Leslie had nothing to do with the shooting, (2) Leslie did not get out of the truck at the time of the shooting, and (3) the only person who did get out was Rose. Spence testified that he told trial counsel that he was scared to testify. On September 9, 1997, two weeks before Leslie's trial, Dane Spence pled guilty to a count of recklessly endangering other person, graded a misdemeanor of the second degree, which was taken in satisfaction of charges of criminal attempt to homicide, criminal conspiracy to homicide, aggravated assault and receiving stolen property. The facts upon which .the plea was entered were: It]hat on June the Sth, 1997, at approximately 6:18 p.m. in the afternoon of that day, Mr. Spence was in the company of a Harun Leslie and Marcus Rose. He, with these two other defendants, had been involved in an altercation with the victim in this case, a Shawn -7- 97-1081 CRIMINAL TERM Hodge, in a fist fight in the Memorial Park area. That fist fight had dissipated. These individuals then got together, and the factual basis for this plea is that this defendant, Dane Spence, recklessly aided and abetted these other two individuals who then tracked down Mr. Hodge, and the other individuals armed with a handgun fired shots at Mr. Hodge, though he was not hit. They were then apprehended. The basis of this plea, again, is that the recklessness of this individual being in the presence or the company of the other three, riding in a car with them, aiding them and looking for Mr. Hodge and subsequently finding him so that the shots were then fired. He is not admitting that he knew that the gun was present. (Emphasis added .)9 R. Mark Thomas, Esq., trial counsel, testified that the gist of what Spence told him during Leslie's trial was the same as Spence's testimony at the post-conviction hearing. He stated that during the trial he did not believe that Spence would be a credible witness because he was not forthright. Spence told him that he did not want to testify. He decided in the middle of trial not to call Spence as a witness: Because I couldn't put him on the stand to just say that Harun wasn't involved. I needed him to be able to testify about the details, the gun being passed around inside the vehicle when they got back in the car. His testimony was different from Harun's in that Harun had stated that he had gotten out of the car, at least started to get out of the car when they stopped, and it was only after the shots were fired that he got back in the car. And so there were some discrepancies between his testimony and Harun's testimony to boot. Trial counsel testified that he told Leslie that the reason he was not calling Spence was: [H]arun could testify to many of the same things that Dane Spence was going to testify to, and at that time I felt the case had gone quite 9. Spence had not been sentenced at the time of Leslie's trial. -8- 97-1081 CRIMINAL TERM favorable toward Harun and if he took the witness stand and said the same thing that he had told me about this case that we had a very good chance that he would be found not guilty. [b]ecause he was so difficult to understand and the fact that his testimony was at odds with Harun's with regard to getting out of the car and with regard to the gun, when they got back in the car the gun was passed around and supposedly that's when Harun and Dane Spence first saw the gun, and you know then there was talk about what do we do with this gun and that sort of thing, and they were different. Trial counsel testified that Leslie concurred at trial that Spence would not be called.TM DISCUSSION The law presumes that trial counsel was effective. Commonwealth v. Crawley, 663 A.2d 676 (Pa. 1995). The standard for determining claims of ineffective assistance of trial counsel requires that petitioner demonstrate that (1) the issue underlying the claim of ineffectiveness has merit, (2) the course of action or inaction chosen by counsel had no reasonable basis in advancing his interest, and (3) he suffered prejudice as a result of counsel's action or inaction. Id. "Prejudice in this context has been defined to mean that [petitioner] must establish that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different." Id. In order to establish that trial counsel was ineffective for failing to present witnesses, petitioner must establish that: (1) the witness existed, (2) the witness was available, (3) counsel was informed of the existence of the witness 10. In the post-conviction hearing, Leslie testified that he did not feel he had any choice but to follow that advice of his counsel. -9- 97-1081 CRIMINAL TERM or should have known of the witness's existence, (4) the witness was available and prepared to cooperate and would have testified on petitioner's behalf, and (5) the absence of the testimony prejudiced petitioner. Id. In claiming that trial counsel was ineffective for failing to call Dane Spence as a witness, and that he was prejudiced thereby, Leslie argues in his brief: Dane Spence was the only third-party witness available to the defense in this case to corroborate the Defendant's position that he had no knowledge of Rose's possession of a weapon; that he had no prior knowledge of Rose's intentions as to Shawn Hodge; that to the best of Defendant and Spence's knowledge, they were receiving a ride to Defendant's home; and that Defendant did not actively participate in any way in the assault upon Hodge by Rose. In other words, despite his shortcomings, Dane Spence was an essential witness to Defendant's case. The testimony of the witnesses to the shooting was, to say the least, conflicting. The victim Shawn Hodge testified that Rose, Leslie and Spence got out of the vehicle and that Rose and Leslie had guns and chased him. Leslie yelled "he's dead, he's dead." Hodge stuck to this testimony despite acknowledging that at a preliminary hearing he had testified that only Rose got out of the vehicle with a gun and shot at him, and he did not know who yelled "he's dead, he's dead." Deana Moore saw Rose leaning on the driver's side of the truck firing the gun with another person briefly standing next to the passenger door. Katrina Washington thought three people jumped out of the truck but she was not sure. She heard "shooting." Evalind Goens saw Rose get out of the truck, lean against it and fire a gun. Sharea Vasser said Rose, Leslie and Spence got out of the truck and chased Hodge. She -10- 97-1081 CRIMINAL TERM believed Rose had a gun and Leslie and Spence did not. Hodge ran to the back of her house and into a field.TM Marsha Washington said two men got out of the truck and one had a gun. One of the men was Leslie although she did not know who fired the shots. She then said that the person she saw was Spence. Harun Leslie said that he opened the door of the truck but did not get out when he heard shots. He could not "speculate" as to whether Rose got out and he did not know who fired the shots. He discovered a handgun on the back floor of the truck but did not know who put it there. They drove outside of town and he hid the gun in the woods. In a prior statement he told a detective that he and Rose got out of the vehicle at the time of the shooting and that when Rose got back in he saw that he had a gun and Rose handed it to him. When they were in the country he put the gun in a bag and buried it in the woods. The conflicts between the testimony of Leslie at trial and Spence in the post- conviction hearing are striking. Spence testified that when they first got into the truck Terri Swartz was driving and they started to go to Leslie's girlfriend's house. Leslie testified that he was furious at Hodge and wanted to get back at him by beating him up. Spence testified that when they saw Hodge on A Street only Rose chased Hodge while he and Leslie stood by a stop sign and watched. Leslie testified that he, Spence and Rose got out of the truck and chased him. Spence testified that 11. This testimony relates to the confrontation with Hodge on A Street before the shooting on Lincoln Street. -11- 97-1081 CRIMINAL TERM when they got back inside the truck they continued to drive to Leslie's girlfriend's house. When they saw Hodge again only Rose got out of the truck and shot at Hodge while he and Leslie stayed inside. Leslie testified that he opened the door of the truck because he wanted to beat up Hodge. Leslie heard shots but could not "speculate" as to whether Rose got out of the truck.~2 He did not know who fired the shots. Spence testified that when Rose returned to the truck he got into the back seat and he climbed into the front seat. Swartz then drove away. Leslie testified that Swartz and Rose wound up in the back seat and Kevin Williams drove the truck away. Spence testified that he did not know anything about a gun. Leslie testified that he discovered the gun on the back floor of the truck and buried it in the woods?3 Spence testified that Leslie had nothing to do with the shooting yet, when he pled guilty to recklessly endangering Shawn Hodge, he admitted that he "recklessly aided and abetted [Leslie and Hodge] who then tracked down Mr. Hodge, and the other individuals armed with a handgun fired shots at Mr. Hodge, although he was not hit. ·. [he was] aiding them and looking for Mr. Hodge and subsequently finding him so that the shots were then fired." The facts in this case are in stark contrast to the type of case in which a new trial has been granted for the ineffectiveness of trial counsel in not calling witnesses. 12. The third version was Leslie's statement to Detective Egolf that he and Rose got out of the truck at the time of the shooting. 13. The third version was Leslie's statement to Detective Egolf that when Rose got back in the truck he saw that he had a gun and Rose handed it to him. -12- 97-1081 CRIMINAL TERM In Commonwealth v. Abney, 465 Pa. 304 (1976), defendant was convicted of murder in the second degree, aggravated assault and criminal conspiracy on the strength of one identifying Commonwealth witness. Defense counsel knew of and failed to produce four eyewitnesses who had said that defendant had no involvement in the homicide. One of those witnesses told defense counsel that he did not want to testify because he was scared. The Supreme Court of Pennsylvania reversed the judgment of sentence stating: Here appellant was convicted on the strength of the testimony and credibility of one Commonwealth witness. No significant effort was made to produce any of at least four other known eyewitnesses to challenge the Commonwealth's version of the facts. On this record counsel's failure to present any or all of the other eyewitnesses cannot be said to have been reasonably designed to effectuate the client's interests.6 6. The Commonwealth contends that counsel's failure to call 'Doc' Hendricks was reasonable because of Hendricks' reluctance to testify. We reject this contention because trial counsel knew that, as of the day before trial, Hendricks did not retract his statement favorable to appellant .... In the case sub judice, we find the decision of trial counsel not to call Dane Spence as a witness had a reasonable basis in advancing petitioner's interest. The victim, Shawn Hodge, was the only witness who testified that Leslie fired a gun at him and his credibility was severely challenged when he admitted that he had testified at a preliminary hearing that only Rose got out of the vehicle with a gun and shot at him. Likewise, Hodge testified that Leslie yelled "he's dead, he's dead," but at a preliminary hearing he had testified he did not know who said that. Of the five independent -13- 97-1081 CRIMINAL TERM witnesses none of them saw Leslie firing a gun and they were at odds as to how many men got out of the truck. No evidence of any "second gun" was ever discovered. As trial counsel testified at the post-conviction hearing, he felt that given all of this testimony the case was going quite favorably for petitioner. With the severe conflicts between the testimony of Leslie at trial and Spence in the post-conviction hearing, counsel's concern that Spence would not be a credible witness has been shown to be quite reasonable. That Spence was not being forthright is pretty obvious. Accordingly, we find that counsel's course of action had a reasonable basis in advancing petitioner's interest. Furthermore, we find that petitioner did not suffer prejudice as a result of counsel's course of action because we cannot say that but for the failure to call Dane Spence as a witness at trial there was a reasonable possibility that the result for petitioner would have been different. Leslie raises three other claims for post-conviction relief. He maintains that his conviction resulted from prosecutorial misconduct in that Dane Spence was coerced by the Commonwealth into not testifying with threats of further prosecution or greater penalty of sentencing. There is not an iota of credible evidence to support this claim. While Dane Spence did not want to testify and said that he was afraid to testify, that does not translate into coercion by the Commonwealth. Spence was at the trial and was available to be called by the defense to testify. Leslie further maintains that his trial counsel did not tell him the elements of conspiracy to commit criminal homicide. Trial counsel testified that he is sure that he went over with petitioner the elements of -14- 97-1081 CRIMINAL TERM criminal conspiracy to commit homicide. We believe trial counsel. Furthermore, the trial judge charged the jury in petitioner's presence of the elements of conspiracy to commit criminal homicide. Leslie also maintains that trial counsel did not advise him of the opportunity to waive a trial by jury?4 Petitioner testified that it would have been easier for the judge to find the truth. However, he testified on cross-examination that it was because of some comments of the trial judge during the trial that he now feels it would have been better to waive a jury. None of these claims provides a basis for post-conviction relief. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this ~&~"" day of June, 1999, the petition of Harun Leslie for post-conviction relief, IS DENIED. Jaime Keating, Esquire For the Commonwealth Robert P. Kline, Esquire For Petitioner Edgar B. Bay[ey, J. :saa 14. When this case was tried the Commonwealth could not object to a defendant waiving a trial by jury. Section 6 of Article I of the Constitution of Pennsylvania has since been amended to provide that "[i]n criminal cases the Commonwealth shall have the same right to trial by jury as does the accused." -15-