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HomeMy WebLinkAbout1994-1499 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 94-1499 CRIMINAL TERM : CHARGE: (A) CRIMINAL HOMICIDE : (1ST DEGREE) : (B) ROBBERY : (C) CRIMINAL CONSPIRACY : (HOMICIDE) : (D) CRIMINAL CONSPIRACY : (ROBBERY) SEIFULLAH ABDUL-SALAAM : AFFIANT: PTL. ROBERT SMEE IN RE: THIRD PROTECTIVE PETITION FOR HABEAS CORPUS AND CONSOLIDATED MOTION FOR DISCOVERY BEFORE HESS, J. OPINION AND ORDER Sixteen years ago, the defendant, Seifullah Abdul-Salaam, was convicted of robbery, conspiracy, and first degree murder in the shooting death of police officer Willis Cole. The jury voted, unanimously, in favor of the death penalty and the sentence of death was formally imposed on March 24, 1995. For a decade and a half this case has been in litigation of some sort or another. Before the Court is a post- conviction petition raising a claim under Brady v. Maryland, 373 U.S. 83 (1963). Defendant contends, specifically, that the Commonwealth suppressed evidence of blood on the steering wheel of the get-away vehicle and that the blood was not that of the defendant but rather of his co-defendant, Scott Anderson. In determining whether this issue is of any merit, a review of the facts is essential. We paraphrase from the brief filed by the Commonwealth. On the morning of August 19, 1994, Scott Anderson and his passenger, the defendant, drove to Camp Hill, Cumberland County, in a Suzuki Sidekick vehicle. They encountered one Donald Grosz at the Camp Hill Shopping Center and asked for directions to New Cumberland. Shortly thereafter, the Suzuki entered the parking lot of a McDonald’s at the New Cumberland exit of Route 83 South. In the parking lot, Anderson asked a Ms. Peters for directions to “Fourth Street.” She told Anderson to get directions inside. When Anderson returned, the defendant asked if he had received directions to which Anderson replied, “We’re gonna make it.” On the date in question, the D & S Coin Shop, run by Dale Rishel, was located at 224 Fourth Street in New Cumberland. The shop did some walk-in trade but, generally, did not specialize in retail sales. Inside, a counter ran along the west and south sides of the room. Behind the counter were Mr. Rishel’s stock, a desk and a chair. Between 10:30 a.m. and 10:45 a.m., Mr. Rishel was sitting at his desk in his coin shop. Vin Tran, who resides at 218 Fourth Street, sat on an outside step at 220 Fourth Street. David Michaels, who owns a barbershop at 214 Fourth Street, was preparing to open for the morning. Steve Vaughn was near the area to deliver some wood chips. At the aforementioned time, the defendant walked out of Maple Alley. Fourth Street runs east and west. Maple Alley, which runs north and south, bisects the block of Fourth Street where the coin shop was located. Mr. Tran watched the defendant pass by him on the sidewalk and knock on the door of the coin shop. Mr. Tran thought that unusual because few people knock before entering D & S. Once inside, the defendant asked about gold coins. Mr. Rishel told him that he had no such inventory and suggested another dealer. In the meantime, Mr. Tran observed Mr. Anderson emerge from Maple Alley. His curiosity was aroused because Mr. Anderson was dressed in heavy clothing for such a hot August morning and was carrying gloves and a bag. Anderson also walked into the coin shop. Inside the coin shop, the defendant pulled a chrome revolver and pointed it at Mr. Rishel. Both the defendant and Anderson then struggled with Mr. Rishel breaking the front window of the coin shop in the process. Mr. Rishel was then tied up and tape placed across his face and from knees to ankles. The defendant then held Mr. Rishel while Anderson rummaged through Rishel’s goods. In the meantime, having heard the noise from inside the shop and the breaking glass, Mr. Tran alerted his landlord, James Howie, who called 911. Officer Cole responded to the scene, parked in front 2 of Michael’s shop and walked towards D & S. Since there was no rear door, the defendants, now aware of police presence, exited through the front door. Abdul-Salaam headed west on Fourth Street. Anderson, who had emerged from the shop second, was apprehended by Officer Cole. As Cole was preparing to handcuff Anderson, the defendant, observed by Mr. Michaels, reappeared at the end of Maple Alley and, with gun in hand, looked towards Officer Cole and Anderson. The defendant then ran towards Officer Cole, shooting at the officer as he ran. Officer Cole was able to return fire, hitting the defendant in the leg. Officer Cole then staggered into the middle of Fourth Street and collapsed. He died moments later. Having freed his accomplice, the defendant and Anderson ran from the scene dropping the murder weapon in the process. They entered the Suzuki vehicle and sped past witness Vaughn. They then proceeded towards the expressway to Harrisburg. In the meantime, Mr. Howie’s description to 911 of the men in the vehicle was broadcast on police channels. Officer Rodney Smith heard the description as he neared the South Bridge into Harrisburg where he saw the Suzuki on the bridge and began to follow it. In the course of chasing the vehicle, it reached a speed of eighty miles per hour. Officer Smith remained in pursuit with his siren on and lights flashing. Eventually, while traveling on the streets of Harrisburg, the Suzuki jumped the curb and stopped. The defendants abandoned the vehicle and fled. At one point, defendant Salaam looked directly at Officer Smith. It is important to observe that, according to witnesses to the chase, defendant Anderson was the driver of the vehicle and defendant Salaam was the passenger. The police found Anderson several blocks away and he was arrested at approximately 11:40 a.m. The defendant, Salaam, was arrested while in the company of a Christine Darden. Salaam was known to have occasionally spent the night at Darden’s home. The police searched her home with her consent and, in her bedroom, found a briefcase. It contained ammunition and correspondence belonging to the defendant. Following his arrest Salaam invoked his right to remain silent but at one point questioned a police detective concerning his options. He was re-advised of his Miranda rights and not 3 questioned but volunteered that he would tell his lawyer that “Scotty Love did it.” Scotty Love is another name for his co-defendant, Anderson. Following the trial of this case, the matter was appealed to the Pennsylvania Supreme Court where the sentence of death was affirmed. The petition for post-conviction relief was filed in May of 1997. Among the myriad of claims for relief was a claim that the Commonwealth violated the defendant’s constitutional rights under Arizona v. Youngblood, 488 U.S. 51 (1988) by consuming the entire sample of blood, taken from the Suzuki vehicle, during testing. This court, disagreeing with the defendant that the blood sample had been consumed in bad faith, denied post-conviction relief. During the hearings on this issue, there was no inquiry as to whether or not there had been additional blood on the steering wheel of the get-away vehicle. In December of 2001, the defendant filed a petition for habeas corpus relief with the United States District Court for the Middle District of Pennsylvania. The case was assigned to the Honorable John E. Jones, III. Among the many claims for habeas corpus relief, the defendant raised the same Youngblood claim previously considered by this court. In the course of the disposition of the petition in federal court, discovery was conducted and it was learned that there had been additional blood on the steering wheel of the Suzuki vehicle. Apparently, this additional blood had not been disturbed because a Pennsylvania State Police lab technician was concerned that there was a fingerprint on that portion of the bloody steering wheel. On November 16, 2006, Judge Jones ordered the remaining blood to be analyzed for DNA comparison. It turned out that the blood was that of Mr. Salaam’s co-defendant, Anderson. The habeas petition was then amended to add a claim that the Commonwealth had violated Salaam’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963), for failing to disclose that there was additional blood on the steering wheel. Judge Jones concluded that the Brady claim was unexhausted and needed to be presented to state court. The issue then remained unaddressed by us for more than two years because of 4 procedural machinations which we will not belabor. We now address the rather narrow question of whether or not the failure of the Commonwealth to disclose evidence of additional blood and the concomitant potential for DNA testing violated the principles of Brady v. Maryland. We are satisfied that there is no Brady violation in this case and that the defendant’s contentions are without merit. We note at the outset that this case has already been subject to exhaustive review on direct appeal and in post-conviction proceedings. We believe that the petitions before us are in the nature of a second or subsequent post-conviction request for relief and, therefore, that the defendant must now make a strong prima facie showing that a miscarriage of justice has occurred in order to be entitled to relief. Such a showing involves a demonstration “that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he [is] innocent of the crimes for which he was charged.” Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa. 1999) quoting Commonwealth v. Morales, 701 A.2d 516, 520-21 (Pa. 1997). Examining the facts of this case, it is clear that no miscarriage of justice has occurred and that, in fact, the evidence of the defendant’s guilt is nothing short of overwhelming. The Brady rule applies to evidence that is exculpatory as to either the defendant’s guilt or punishment. Specifically, it was noted in Commonwealth v. Santiago, 654 A.2d 1062 (Pa.Super. 1994): To establish a Brady violation a defendant must show (1) that the prosecution suppressed evidence, (2) that the evidence suppressed was favorable to the defendant or exculpatory, and (3) that the evidence suppressed was material to the issues at trial. United States v. th Burroughs, 830 F.2d 1574, 1577-1578 (11 Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1243, 99 L.Ed.2d 442 (1988). . . . . “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been 5 different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Pennsylvania v. Ritchie, supra, 480 U.S. at 57, 107 S.Ct. at 1001, 94 L.Ed.2d at 57, quoting United States v. Bagley, supra, 473 U.S. at 682, 105 S.Ct. at 3383, 87 L.Ed.2d at 494 (Opinion by Blackmun, J. Announcing the Judgment of the Court. . . . . “[A] rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor and would undermine the interest in the finality of judgments.” United States v. th Abello-Silva, 948 F.2d 1168, 1179 (10 Cir. 1991), cert. denied, 506 U.S. 835, 113 S.Ct. 107, 121 L.Ed.2d 65 (1992), quoting United States v. Bagley, supra, 473 U.S. at 676 n. 7, 105 S.Ct. at 3380 n. 7, 87 L.Ed.2d at 489 n. 7. In determining the materiality of evidence withheld by the prosecution under Brady v. Maryland, supra, an appellate court must “view the suppressed evidence’s significance in relation to the record as a whole.” th United States v. Thornbrugh, 962 F.2d 1438, 1444 (10 Cir.1992), cert. denied, 506 U.S. 877, 113 S.Ct. 220, 121 L.Ed.2d 758 (1992), vacated on other grounds, 508 U.S. 935, 113 S.Ct. 2405, 124 L.Ed.2d 630 (1993). See th also: Brown v. Borg, 951 F.2d 1011, 1016-1017 (9 Cir. 1991); United States ex rel. Marzeno v. Gengler, 574 F.2d 730, 736 (3d Cir.1978). Thus, we must avoid concentrating on the suppressed evidence in isolation. Rather, we must place it in the context of the entire record. Evidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory. Implicit in the standard of materiality is the notion that the significance of any particular bit of evidence can only be determined by comparison to the rest. Trujillo v. th Sullivan, 815 F.2d 597, 613 (10 Cir.1987), cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 256 (1987). Id. at 1069-70. As to the threshold question, we are satisfied that the fact that there was more blood on the 6 steering wheel was not a fact “suppressed” by the prosecution. In fact, during the trial of the case, the prosecution’s lab technician, Donald Blosser, was specifically asked by defense counsel about discoloration on the steering wheel which appeared to be additional blood. Thus, we are satisfied that the defendant fails to meet even the first prong of the Brady test. Even assuming, however, that this evidence was somehow suppressed, it is neither exculpatory nor material to the outcome of the trial. The evidence was that the co-defendant, Scott Anderson, cut his hand during the robbery while struggling with Dale Rishel, the owner of the coin shop. All of the witnesses identified Anderson, not Salaam, as the driver of the get-away vehicle. At the same time, multiple eyewitnesses identified the defendant as the man who murdered Officer Cole. Confirmation that it was Anderson’s blood and not Salaam’s on the steering wheel simply bolsters the Commonwealth’s theory of the case. The subsequent DNA testing confirms, unequivocally, that Scott Anderson was driving the Suzuki at the time it was being pursued by the police. It should be observed, again, that when arrested by the police, defendant Salaam indicated his intention to blame the murder on Anderson underscoring the fact that, at the time of his arrest, Salaam was aware of the identity of his alleged co-defendant. The defendant posits that evidence of Anderson’s blood on the steering wheel could have been used to negate the blood type evidence that the defendant’s blood was also on the steering wheel. It is also true that the Commonwealth, in its closing argument, put weight on certain blood type evidence implicating the defendant but, as noted by the Commonwealth, “[i]n advancing his claim, the defendant completely ignores the remaining evidence, numerous eyewitnesses, the defendant’s injury from just having been in a gunfight with the officer he murdered, the defendant’s bloody clothes found at the defendant’s house, the corresponding ammunition found in the defendant’s briefcase at his house, the ballistic match between the weapon found and the bullet recovered from Officer Cole’s body, the defendant’s fingerprints in the car, and the defendant’s attempt to blame the co-defendant, Scott Anderson…. Importantly, when the Supreme Court of Pennsylvania reviewed the defendant’s trial on 7 direct appeal for sufficiency of evidence, they did not even mention the blood in the car.” Brief of the Commonwealth, pp. 22-23. It simply strains credulity to suggest that any of the evidence which has come to light in the proceedings before Judge Jones would or could have had anything to do with the outcome of the trial of this case. ORDER st AND NOW, this 1 day of April, 2011, following evidentiary hearing, the “Protective Petition for Habeas Corpus” and related Motion for Discovery of the defendant are DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Jaime Keating, Esquire First Assistant District Attorney Michael Wiseman, Esquire For the Defendant :rlm 8 9 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 94-1499 CRIMINAL TERM : CHARGE: (A) CRIMINAL HOMICIDE : (1ST DEGREE) : (B) ROBBERY : (C) CRIMINAL CONSPIRACY : (HOMICIDE) : (D) CRIMINAL CONSPIRACY : (ROBBERY) SEIFULLAH ABDUL-SALAAM : AFFIANT: PTL. ROBERT SMEE IN RE: THIRD PROTECTIVE PETITION FOR HABEAS CORPUS AND CONSOLIDATED MOTION FOR DISCOVERY BEFORE HESS, J. ORDER st AND NOW, this 1 day of April, 2011, following evidentiary hearing, the “Protective Petition for Habeas Corpus” and related Motion for Discovery of the defendant are DENIED. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Jaime Keating, Esquire First Assistant District Attorney Michael Wiseman, Esquire For the Defendant :rlm