Jermont Cox

I was sent to Jermont by a new and good friend Traci who has a web site called Surviving
the System. I have only known Jermont for a very short while but I feel the we will be
friends for a long time. The only problem is the Jermont is on Death Row for a crime he
did not commit.

The following is Jermont's story. I typed it from his letters using his words.

All of the following writings are subject to the international copyright laws. The material
is the property of the writer, Jermont Cox and can not be reproduced without the written
permission of Jermont Cox.

INTRODUCTION

Jermont Cox was born April 29, 1971 in Philadelphia, PA, at Philadelphia General
Hospital. Born to Genesis Ruth Cox and Ralph W. Smith. His sister Jerminda Cox was
born August 22, 1972.

They were raised under the strict umbrella of their mother's love. She installed in them to
respect , love and honesty. through the toughest times of her life, she always made sure
her children had, that way they would learn to live and be content with what they had in
life. Never feeling a need to want.

She raised them in the Church of the Lord Jesus Christ of the Apostolic Faith at 22nd and
Bainbridge Street. South Philly. That is the church she was raised in after coming to
South Philly from Greenville , N.C., with her mother Mable r. Cox, sister Stella Marie
Cox and two brothers William (June) Cox and Raymond Alton Cox.
Jermont Cox was baptized at age 10 and remained a part of the church for many years
afterwards.

Teenage years fast approached and as all teenagers, it was his time to seek out what life
was about. To stand up and face the big scary world.

Jermont has always been a very ambitious young man. He was always eager to learn
many different trades and since his mother was not in a position to send him to trade
school, all he learned was hands on. Never afraid to get his hands dirty. He used to work
with some of the guys from the church or from the neighborhood, plumbing, electrical,
painting, masonry, etc. all that he learned came in handy around the house, saved mom a
few dollars also.

In 1985 Jermont signed up for a summer job course at the Harambee Institute. It taught
him how to approach the job he wanted in life. To fill out a job application, money
management, about the W-2 form and so much more. It was to prepare him for the work
world. Later that summer he got a job at the YMCA located on 52nd St. and Chestnut St.
as a janitor, earning $25 a week.

As time went on things got a little trendier. Mom was not able to keep up with both
children. That would be his last year of school. (1986)

While sitting around trying to decide what he wanted to do with himself. His mother
came to him and said, "Okay! You do not want to go to school; you are not going to sit
around. Your father is not a lazy man and you are not going to be either." That was all
of the motivation this young man needed. Right away Jermont went an got a job as a
dishwasher in West Chester, PA.

Jermont Cox's work history as recorded by the IRS started in 1986 and ended in 1993
Things did not stay upbeat
with his family, the whole way through. Drugs came into the household and destroyed
the stability that was once there.

Mid 1988. he stopped working, started hanging out and ws caught up in drugs (dealing
and doing), it did not last long. By the end of the year, Jermont was in the Youth Study
Center. He spent the rest of 1988 there and brought in 1989 there. Mid 1989 this young
man was back at work and he remained in that element until January 14, 1993, the day of
his arrest.

What you are about to read is a collection of this man's deepest thoughts, all of which
deal with certain situations of his life past and present. His writing gives an intimate look
at who this man really is, not who they made him out to be.

DEAD SILENCE
Dead Silence where a man can hear the movement of his blood being pumped from his
heart to stay alive.

Dead Silence where a man's own voice frightens him.

Dead Silence that causes a man to cry uncontrollably inside because of the silent fear.

Dead Silence that causes a man to never want to sleep again.

Dead Silence where every crack , hum or step is the fear of Satin's Angel waiting for
your soul.

Dead Silence that will cause a good man to go from peace to a babbling fool.

Dead Silence a fear that makes a man pray: "GOD, IF IN DEATHS PEACE THERE IS
THIS SILENCE, PLEASE LET ME LIVE FOREVER!"

Dead Silence ... Please, somebody talk to me. I don't ever want to be alone again.

6FT UNDER AND STILL AWAKE

I can not escape death no matter how hard I try, it is around. I see it. I smell it. But
most of all I feel it.

I am talking about actual physical DEATH.

To feel death and not die I really can't explain the fear factor. I can't explain the desire to
want to dies. I can't explain any of it. That's why I write about it.

It used to be that DEATH came at a certain age and time. It was almost predictable. NO
MORE! It's no longer just the weak that death seeks, (weak in spirit) it's all.

Now DEATH can be seen in the eyes of the strong heart and mind... Hovering over our
babies. Running in and out of our souls preparing us for the true coming.

How does one prepare for DEATH!? Write wills, relinquish all belongings, pick grave
sites, buy tombstones and choose speakers to speak of their once state of being. Just try
to imagine preparing your own DEATH!

IS IT NOT HARD ENOUGH FACING DEATH ITSELF?!

Let me tell you. DEATH is not dark. DEATH is not some spirit in a black robe with a
pitch fork of some sort. NO, NO, NO.
DEATH is just as bright as the Eternal Light.
DEATH presents itself as beautiful as a sunset, a field of roses, all things beautiful.. But
you know it's DEATH. It's not until the end of DEATH's tour that the fear set's in. That's
when all things become tragic.

It's not tragic in a really bad accident way. It's tragic because you witness your end of
life . The DEATH drops you back off into reality, the present... You know you just went
through something, but what is the question and how do you get it out of your veins,
blood line?

IT MIGHT BE BETTER OFF TO DIE JUST THEN!

In order for me to write this I had to die because if I was alive at the time it would be
more questions than fact.

I'm no longer afraid to die. My only pain and distress are those I leave behind. They will
hurt more than I.

The goals that I never accomplished, the lovers that I missed out on and the children I did
not watch grow.

That is what makes DEATH painful...

Is Death evil? YOu will get a chance to answer that yourself one day.....

HAPPY LIVING

The reason I am sending you the info and death related poems is to give you a full picture
and hopefully you can relay it to the readers in the same fashion. Dig me. starts like this.

My day is spent 24 hours a day locked in a cave, living the nightmares a described in the
above writings.

On October 5. 1991 I watch life come into this world it was the life of my son Jermont
Nydreisse Cox. It was a beautiful sight to see. All we did was cry together.

On July 19, 1992 I put my hands on a gun and killed a man. I watched a life leave this
world. Trust me when I say it was not supposed to happen like that.

That same year August, 1992 and November, 1992 two more men were killed. I had
nothing to do with those murders. I sit convicted of all three murders, two life sentences
and a death sentence.
On January 14. 1993 I was arrested for one murder, the July, 1992. I admitted to pulling
the trigger. I told them it was an accident. My description of the accident was vague. I
was questioned about the August, 1992 murder. I told them I had an alibi and wasn't
there but at one time I did drive around with another looking for the guy. We never
found him. I was not charged.

I was then questioned about the November, 1992 murder. I gave a statement stating the
last time I was with the dude, they believed did the murders. That was that as far as I
thought. When I go downstairs for the July, 1992 arraignment and bail hearing I was
told I have two murders, July and November.

No bail... Sent off to await trial. I get a court appointed attorney for those two cases.
While waiting for trial at the prison , shit is heated. The papers (news) link me to a drug
organization. They also said I gave a statement involving others. There are attempted
stabbings and other stuff. I am all alone , first time in prison.

Four months later , April, 1993, I call this attorney. I was locked down, it's corny shit
still thick.

On April 29, 1993 the homicide detectives came to get me and tell me they got a call
from my attorney. I get down to the station they offer me a private visit with my
girlfriend and move me out of the prison for a statement saying I saw the August, 1992
murder. I did and they held up their end of the bargain. I was now charged with that
murder, That's three murders now.
With the August case, remember they were already aware that I had an alibi, so they
knew that it was false.

October 27, 1993 I am at the prison, it's 12 P.M. I am laying around the prison , they call
me and say I have to go to court. I get to court in prison clothes. I am told that I am
starting trial. Now usually when a man starts trial he is on the first bus out at 5 A.M. I
didn't notice but the sell out was in full effect . I told my attorney that I wasn't ready. He
said it did not matter if I was ready or not, he was ready.

I had no family or support in the court room. I was somewhat familiar with my judge,
so I decided not to have a jury trial , to go with the judge straight up. This is the July
1992 murder case. When I say familiar I mean her reputation as being a fair judge.

The D.A. attempted to go for the death penalty . The judge said no it was not a death
penalty case. Before the close of the day I was found guilty of first degree murder. My
defense was supposed to be self defense. It was never introduced at the trial, my
attorney totally destroyed it on some buck shot hunter theory . He advised me that there
was no need to testify and explain my statement of the accidental shooting because he
had secured a third degree or involuntary manslaughter verdict. So I didn't. On October
29, 1993 I was sentenced to life in prison.

After receiving the life sentence for the Davis case I was taken up state to begin serving
that time. This was on November 1, 1993.

On November 12, 1993 while being processed in to a state prison S.C.I , Campbell they
told me that I am going to court. My entire time upstate I had no contact with my
attorney. The same dude from the July case. So I was taken back to court in Philly
county on November 15, 1993. I walk into the courtroom, my attorney, the D.A. and the
racist Judge LaTrone. Again no family. They say I am going to trial for August and
November cases. I see the ambush the sellout. I need to pull a stunt. I ask for the deal. I
plead guilty to both cases for two life sentences.

I am taken back to S.C.I.. Campbell right away, I go to the law library. I made a motion
to remove the quilty pleas. On May 4, 1994 I was permitted to do so and I got a new
drunk attorney. On March 30, 1995 I began picking my jury for the August and
November murders.

The evidence they had against me in the November case a so-called very questionable
statement (confession). Nothing else. Why was it questionable? The facts they said I
gave them that caused me to be arrested, they did not match the time line and events of
the murder. The D.A. changed the facts of the statement to make it match. If the D.A. is
supposed to investigate all evidence before making the charge or the arrest, I was not
supposed to be charged.

The evidence for the August case. Two statements. One saying no I was not involved ,
the other saying I drove the car. With the first one they know of my alibi also. The
second statement was given by me under a duress situation. My life was in danger at the
prison awaiting trial. This was in 1993 before the July trial. When I first started out I
was only charged with the July and November murders.

It was the second statement on April 29, 1993 that got me charged with the August case.
Okay, I am having life threatening problems at the prison. I call the attorney. He puts
me in contact with the detectives. He's not interested. He's representing the Philly mob,
Big Money. Same attorney from the October trial. On April 29, 1993 the detectives
came to the prison and grab me up. In exchange for the false statement saying I saw
another person kill Watson but I was the driver and for a private visit with my girlfriend.
I was moved from one prison to the next. That statement got me charged with the
August case. Jury selection for the August and November cases ended April 5, 1995 and
the trial started.

When I first got arrested they tried to put July and December cases together for trial. The
courts said no way, no connection.

At trial before another racist judge Posering. The D.A. was able to get the July case in
with August and November cases together. The jury heard about the three murders and
wasn't told that I had already been found guilty of July in 1993. On top of that , one of
my jurors was friends with the judge, D.A.s office and detectives.
The D.A. was going for the death penalty on both the August and November cases. The
special circumstances they applied to these cases that made them death penalty worthy
are, first, the murders were contract murders, second, endangering the life of another
person other than the victim, third, I was already convicted for murder and serving a life
sentence .

On April 11, 1995 the jury found me guilty of two counts of first degree murder. On
April 12, 1995 for the August murder they found none of the special circumstances
applied. There was a female in the car with the November victim, she was not hit. I was
already serving a life sentence for the October murder and according to other
information both men were killed as a result of a contract being put on their life for
taking anther's car.

So I received death for the November murder. The man they said pulled the trigger is
home. The man they said paid to have it done is home. I am on death row for what they
did.

This is a little sidebar from Lee. I have spent a lot of time in the streets. Many crimes
have 2 stories. One is what you get from the news media and the injustice system and
what you hear on the streets. In many cases the truth is in between and in many other
cases the truth is the street version. In the near future I will have an essay on this site
that will give you a some examples that I know about. Jermont and others when they tell
you their stories their side is what is heard in the streets. They know who really
committed the crime that they have been convicted of but they do not have the money to
prove it and in many cases the police and prosecutors know who the real killer is too.

What the jury hears in the trial in many cases has nothing to do with the truth or it is the
twisted truth. Things are not said that would clear the accused even though in many
cases the prosecutor and the defense attorneys know that the accused is innocent.

My attorney (the drunk) had never handled a murder case before mine. On top of that a
double murder case, then bring in a third. This is the reason they brought the July case
into the August and November cases. The said the body bullets taken from the July case
matched the body bullets taken from the August case and since I was the shooter in the
July case I had access to this alleged gun for the August case. No gun has never been
recovered for either case. The theory was either a 38 or 357 were used.

By bringing in the July case the jury heard about a third murder. The prejudicial impact
was overwhelming. As stated above about the juror who knew the D.A., Judge and
detective, had any person said they knew me , they would have been dismissed in a
heartbeat.

If anyone has any questions about my situation or about me, please write me at the
address below. I will answer any and all questions.

In doing research for my case I came across the Nicki Scarfo Philly Mob case and did a
comparison.

The Philadelphia D.A.s office did not go for the death penalty at all. The special
circumstances that would permit the D.A. to go for the death penalty are:

1. Already serving time in Federal prison or state prison.

2. Endangering the life of another person that's not the victim. (2 little boys had gun
powder burns)

3. committing a crime while protecting an illegal organization.

There were more and the D.A. never even considered the death penalty.

All of the guys on trial in the Nicki Scarfo Mob case got a new trial because the D.A.
called them "a pack of wolves."

The D.A. called me "a monster that seemed like a ordinary human being.

The mafia associate that my first attorney was representing at the same time he was
representing me in October 1993 July murder trial. That guy went home... It's hard to
figure out.

man and I feel that he would be an excellent pen pal. His address is below.

State Correction Institution at Greene

Jermont Cox
CE8242
175 Progress Dr.
Waynesburg, PA 15370-8086
 Jermont Cox Page II
Dear Lee,

What's happening old dude. I just got your letters . Real good response time. Thanks for
sharing the info and keeping it real.

Things here are good, good as can be under the circumstances. I just got out ot the hole
after doing 30 days. These people here are crazy. I do a little artwork, so I sent it to my
sister to try and sell because she had just got out ot prison after 2 1/2 years. She decided
to run from the halfway house and skip parole. some nigga named Flako. So the
artwork came back. They read my mail and put me in the hole for running a business out
of my cell. Plus they kept my artwork

A man can't even help himself around these parts but the prison will sell it and earn a
percentage. Real corny shit. It's all good. I am still trying to make things happen. My
art project on the net just got back up so hopefully that will get me back in the swing of
things.

The nut-ass DA office just tried to pull a stunt with one of my appeals. They tried to
bring all this prejudicial evidence that was not used in the court to getting any justice. I
am in the middle of litigating that. Never no peace with these people, always the bullshit.
Mean this is one mutha they won't drive crazy, dig me.

Im glad you enjoyed the writings. I just write what's real, what's in my heart, what I
have seen and lived.

You know it's strange because they say people like me and others with crimes stemming
from the drug game, don't value or respect life. The thing is we do. We come form the
ghetto. We are taught to love and respect life. We had nothing. Had they not injected
the drug game into our lives, a lot of us would be somebody. Dig me.

A lot of us before we got a chance to find another way we got handed the drug game to
quick money. Shit only a dick head boy would turn down easy money , right or wrong.
That's the realness of the shit.

The game for the chicks out there is selling ass and things of that nature. That's what
they was handed before they realized they could be more. Now they are hooked up with
a nut-assed cats to keep them down. As you say, it's all about the love. give it and it
comes back 10 fold..

I met this chick named Evon, she was on the shit. Beautiful little thing, sweet, not all the
way fucked up. I used to sit an talk with her and hold her. I was a young boy in my
teens. I wouldn't let dudes trick her or sell her coke and I wouldn't let her give me oral
during the times we had sex. She had a little boy, The last time I saw Evon she had
gotten herself together. I dropped her off at her mom's house.

My mom and sista was out there for 12 years on that shit. I sold it, snorted it. My family
and I was homeless. I have been at the bottom. Dig me.

Now I am just praying for a wake up of some sort.

I just figured I'd drop some lines on you and take a break from work.
 Jermont Cox - Innocence Project
In the most recent years there has been a lot of talk and action about the Death Penalty.
Innocence Projects have jumped up all over the states, but those projects only involve
cases that deal with DNA evidence, and other cases are pushed aside, and to some degree
it is made to look as if those are the only innocent people on Death Row. (DNA cases) In
Pennsylvania there has been little to no talk about the INJUSTICE OF THE DEATH
PENALTY…The only time you here about a claim of Actual Innocence in PA. is when
Mumia Abul Jamals people speak, and it appears that he is the only man on Death Row
and the only man that is Innocent…..

I’m an innocent man on PA Death Row and have the evidence sitting right beside me, to
prove it. Due to continued bad representation I cannot get heard in the courts, when I
filed pro se (my own claims of innocents), the courts give me some attorney working
with the DA’s office or married to a top DA who has put a large number of men on Death
Row. My claims are never filed and never heard. Then when I go to the next stage they
say “you did not present these claims to the lower
court so we cannot hear them…

I am closing in on my last appeals, I have already had two Death Warrants, and the next
will be my last if I’m not heard.

If I was in Illinois I would be home taking care of my family and reuniting with my son.

In Jan. 1993, I was arrested under warrant for a separate matter, not the subject on this
Cry For Help. After being questioned for that matter, I was then questioned about two
murders that took place in Aug. 1992, and Nov. 1992. The reason I was questioned about
said crimes was b/c two suspects in the latter two murders, one man I grew up with…

When questioned about these crimes I gave statements to police denying my involvement
in the crimes, but gave information that I knew of said crimes. The Aug. 1992 case I
provided an alibi for the day of the crime. The Nov. 1992 case I did not, and gave info
about the last time myself and this ex-friend were together. It was Nov. ’92 sometime
before Thanksgiving, we were hanging out drinking beer and smoking weed, it was down
by the railroad tracks near the zoo. We were in a blue car.

When I was taken down stairs to be arraigned on the original matter I was informed that I
was being charged with the Nov. 1992 murder. It would not be until Feb. 1992 that I
learned why I was charged with that murder. My statement had now read that I was the
driver when that crime took place. The Phila. Daily News paper printed that I had been
arrested for said murder, and my original crime, and that I had given a statement against
the persons believed to have committed the crime. My life was put in danger, and I
began defending my life. I was being held at the Holmesburg Prison. A prison once
described as Hell itself! This was/is my first time in prison of any sort. I only knew one
man in the entire prison at that time.

My attorney at the time was representing a man in the Phila. Mafia family. I turned to
him for help, trying to get out of prison b/c after the last attempt on my life; prison
officials put me in protective custody. That didn’t help. I call my attorney for help he
puts me in contact with the police and said “I should think about helping them and taking
a deal.” On April 29, 1993 my 22nd birthday, two homicide detectives came to the
Holmesburg Prison and escorted me to the police headquarters. At which time explain
they knew of my situation and was willing to help me, but I had to give another statement
for the Aug. ’92 murder saying I saw it happen, and was part of it, in order to make it
stick against these other people. In return for the false statement which I gave, I was
given a private visit at police headquarters with my ex-girlfriend. Then I was later moved
to another prison. Before leaving police HQ. That day I was charged with the Aug. ’92
murder. So now I have two statements concerning the Aug. ’92 murder.

On Oct. 27, 1993 I went to trial for the original matter that lasted one day and I was
found guilty and sentenced to Life in prison. Still representing me is this attorney whose
focus is with the mafia client who is paying him major money. For the record after I was
convicted of the original matter, that mafia figure was the only man out of his associates
that went home…

Since I have the life sentence I was taken to a state prison, I had no contact with this
attorney at all. On Nov.14 or 15, ’93 I was returned to court and it was told by my
attorney, the DA and Judge that it was time to go to trial for the Aug. ’92 and Nov. ’92
murders, that we would start picking the jury that day. I need to point something out,
when I went to trial for the first case it was an ambush also b/c when I walked into the
courtroom I was told it was time for trial. I had no family there at all.

In Nov. ’92 I am before this Judge telling him I don’t want this attorney, he just got me a
life sentence that I have not fully recovered from and now I walk into this court with no
notice. The Judge, Latrone Davis, a Hang ‘em High Judge was not hearing me. Then the
DA said he had a deal, if I was to plead guilty to two life sentences and testify against
these other people, I would be spared the Death Penalty. I plead guilty, with no intention
of allowing them to stay or testifying. I needed to get rid of this attorney. As long as I
withdrew the guilty pleas within 10 days I could have them removed. I did so, and was
able to get rid of my attorney based on wrong advice.

In April ’95 I went to trial for the Aug. and Nov. ’92 murders. The new attorney is the
same in-action as the first one. She was an alcoholic. She was able to get a statement
from the alibi witnesses; it was never heard in court. Not to get too far ahead, The
motive for the crimes was a contract put out by a crime boss against two men who took
his car at gun point, and also robbed his drug house. I was the alleged driver, and another
was the shooter.

THERE HAS NEVER BEEN ANYONE ELSE ARRESTED FOR THESE CRIMES, I
AM THE ONLY PERSON IN PRISON FOR THESE TWO CRIMES! The trials were
put together b/c they said both men were killed for the same reason, and part of the
overall conspiracy. At trial the only evidence against me was the alleged statements that
were deemed incriminating enough to take me to trial.

At the beginning of trial, the DA told the jury, “Mr. Cox is not the shooter, in these
crimes, this we know.” When the witness took the stand and gave his testimony against
two men that were not there, and asked if he knew me he stated “NO”!!! All the
testimony was against two men that were not on trial!!!

My statements were read into the record as the evidence that demonstrated my guilt.
That was it!!

I need to point something else out that is going to show my injustice trial. A couple years
before my trial, a young man was killed. The woman, whose son it was sat on my jury.
No big deal. The very same Judge that was now presiding over my trial was the same
Judge the helped convict the man who killed her son, the same DA’s office and the same
detectives. We asked for her to be removed, that request was denied! THE POOR
MAN’S DEFENSE!!

The law states that “It is not up to the Defendant to prove his innocence, but the DA must
prove his guilt. Which means the Defendant does no have to put on any evidence. 100%
of the men here never put on a defense because of this Law that all attorneys take full
advantage of, they don’t have to do anything but cross-examine the DA’s witnesses to
prove innocence.

My attorney had in her possession all the evidence she needed to demonstrate I was not
involved with these crimes.

For the Aug. ’92 case she had, first the alibi statement, she filed a notice of alibi defense
but called no one. She also had the first statement which stated I was not involved. She
had the protective custody order from the prison, the police had already testified that they
came to get me and was aware of some problems, but could not recall the visit from my
girlfriend, (sign in records could prove the visit took place, the attorney never requested
them) but was aware I was moved to another prison after the 2nd statement. All this
screams DURESS and FAVORABLE treatment which means, A PERSON UNDER
DURESS WILL MORE THAN LIKELY MAKE CHOICES HE/SHE NORMALLY
WOULD NOT UNDER NORMAL CONDITIONS. THE FACT I WAS ALLOWED TO
HAVE A PRIVATE VISIT WITH MY GIRLFRIEND, SEXUAL FAVORS IN
EXCHANGE FOR INCRIMINATING EVIDENCE AGAINST ANOTHER OR ONES
SELF IS ILLEGAL. THE PROBLEMS AT THE PRISON DEMONSTRATE
DURESS…FOR THE NOV.’92 CASE MY ATTORNEY HAD IN HER POSSESSION
THREE STATEMENTS FROM THREE WITNESSES THAT DEMONSTRATE THAT
MY STATEMENT, THE ONLY EVIDENCE AGAINST ME IS FALSE. Before getting
into that I would just like to point out, had the police not created the statement and was
real about seeking the truth, had they investigated the statement they would have seen it
was false and could not arrest me on it. The statement said: that sometime before
Thanksgiving ’92 myself and another male sat at the corner of 34th and Brandywine in
Phila. We observed the deceased and a young lady come out of the house, at which time
the other male informed me that the deceased was one of the guys who took the other
males car, and we were there to hit him. He then pulled a gun from under the car seat.
We then followed the car to 34th and Powelton Ave., at which time the murder took
place, killing the male. As stated early on the statement also said we were in a blue car.
After the murder the statement said I r/c $500.00 for my participation in the murder. The
evidence not presented…

Two women friends of the deceased gave statements; one of the women was the one in
the car at the time the crime took place. They stated “On the night of their murder the
deceased was at 38th and Reno St. from 7pm up until the time of death and nowhere near
34th and Brandywine b/c he was with them. That when he left the house it was the house
on 38th and Reno, not Brandywine.” The other key piece of evidence an eye witness to
the crime, a male that stated, him and another were coming down the street and observed
two WHITE CARS that appeared to be racing, coming down the street right at him. One
white car, the Chevy Nova opened fire on the other car, and it crashed right in front of
him. NOT A BLUE CAR.

These witnesses were never called.

I have had no success in getting any of this missing evidence into court; I have my pro se
filings where I have tried. I am not being heard.

I feel if I can get the proper assistance in bringing my plea public then maybe I can be
heard by the courts and finally freed from this nightmare.

I have nothing to hide so if you can be of any assistance, please feel free to contact me
ASAP, time is running out.

Jermont Cox CE-8242

175 Progress Dr.
Waynesburg, PA 15370-8090

I AM AN INNOCENT MAN ON DEATH ROW!

Note: any error that I can demonstrate by the Judge or Prosecutors overturns two
convictions and that is why they are not allowing me to be heard. There are more errors
that show the unfair trial I received, but I did not want to confuse any of the above,
because when you hear the rest the question will be-HOW DID THE JURY KNOW
WHAT THEY WERE HEARING OR IF THEY LISTENED OR CONVICTED BASED
ON THE ASSUMPTION OF PRIOR GUILT, OR BECAUSE THE JURY WAS
TAMPERED WITH!
Jermont Cox Case:

(pages are numbered according to the order in which they were

submitted- editing still needed 06/13/02)TL

Issue I

The Trial erred in abusing its discretion during Voire Dire in

refusing to excuse for cause a prospective juror whose son was a
murder victim, and where the mother of a victim shared a
relationship with the Commonwealth and its agents, because this
same trial court presided over the person(s) accused of murdering
juror’s son, and now presides over defendant accused of two
murders. Commonwealth v. Johnson, Pa. Super. 445 A.2d 509
(1982)

DISCUSSION
The trial court abused its discretion and denied the defendant the
right to a trial by a fair impartial jury when it failed to remove
prospective juror #4O Jean Custer on a challenge for cause by the
defendant during Jury Voire Dire Day Four; See NT. April 4, 1995
pages 137-138 at 8-25 ending at 1-13.

Ms. Cooperman: Your Honor. I knew that she answered all the
question certain way. I would say that I saw tears welling in this
woman’s eyes. In light of the fact that she was in this court as a
mother of a victim of a murder. I would ask that she be removed for
cause, or perhaps the district attorney would agree

Mr. Blessington: Your Honor. I wouldn’t agree because the woman

quite frankly said, “Yes I can be fair; yes I can decide on this case
alone,”

The Court: I have no way to judge to the contrary to tell you the
truth. I have to accept her answers for what they are worth. Motion
for cause denied. Is there an agreement here?

Mr. Blessington: Pardon me, your Honor?

The Court: No agreement.

Mr. Blessington. No, I wouldn’t agree.

(7)

Ms. Cooperman: Note my objection~ your Honor.

The Court: Your objection, but there are no more peremptory

challenges.

Ms. Cooperman: I understand that.

The Court: So the Commonwealth.

Mr. Blessington; Acceptable to the Commonwealth, your Honor.

Although the defendant had previously used its last peremptory

challenge on another prospective juror, that does not mean the
defendant could not make a challenge for the cause when a
prospective juror appeared to be emotionally attached, or had a
close past relationship with the Commonwealth and its agencies
such as prospective juror #40 Jean Custer. NT. April 4, 1995 pages
130-131 at 22-3.

By Ms. Cooperman: Ms Custer. I am not sure that I heard you

correctly, so forgive me. Did you state state that his Honor Judge
Poserina presided over the trial of the person who was accused…

A. Yes
Q … of killing your sons
A. Yes
By Ms. Cooperman: N T April 4, 1995 page 132 at 1-12.
Q. I take it that you were present during the trial, obviously?
A. Yes
Q. And during the course of… well before the trial and during the
trial assume that you had occasion to be in contact with police
offices and detectives: is that not correct?
A. Yes

(8)
Q. And, in fact they were... I mean, they were helping you, they
were trying to be as helpful as possible?
A. Yes

And when asked by the defendant of prospective juror #40 Jean

Custer:
Q. It wouldn’t overly upset you to be sitting in this courtroom
listening to another homicide case?
A. I don’t think so. N.T. April 4, 1995 page 131 at 15-18.

The defendant clearly saw that during the course of questioning

prospective juror Jean Custer had begun to get upset, and tears
formed within her eyes at the question of her ability to be impartial
due to the fact that her son was a victim of homicide. N.T. April 4,
1995 at page 137 at 8-15.

Commonwealth v. Johnson, Pa. Super, 445 A.2d 509 states herein:

[3] A prospective juror should be excused for caused in two

situation: The first is where the prospective juror indicates by his
answers that he will not be an impartial juror. . the second is
where, irrespective of the answer given on Voire Dire, the court
should presume the likelihood of prejudice on the part of the
prospective juror, because the potential juror has such a close
relationship, be it family, financial or situation, with any of the
parties, counsel victims, or witnesses. (citations omitted]

[4] The standard of review differs, depending on which of these

two situations is presented. In the first situation, “Much depends
upon the answers and demeanor of the potential juror as observed
by the trial judge and therefore reversal is appropriate only in the
case of palpable error.” Commonwealth V. Colon. 223 Pa. Superior
Court 202, 207, 299 A 2d 326, 328 (1972)

(9)

(footnote omitted) In the second situation, “The determination is

practically one of law and as such is subject to ordinary review.”
Id. {509-514}.

The defendant made a legitimate challenge for cause based on this

prospective juror’s demeanor while answering questions during
Voire Dire as a mother whose son was a victim of homicide.
Challenge for cause is also based on her close relationship with
the Commonwealth and its agencies during the course of
investigation and the trial of the man accused of committing the
murder of her son, and that this same trial court presided over the
jury trial.
The defendant also asserts that this prospective juror has a certain
closeness with the families of the deceased that this defendant is
accused and convicted of committing murder against which would
impair her ability to be impartial in deciding the defendant’s
innocence or guilt.

The trial abuse of discretion in failing to remove prospective Juror

#40 Jean Custer for a challenge for cause and denied the
defendant the right to a trial by an impartial jury as guaranteed
under the 14th amendment.

The defendant requests a new trial be granted. Appellant counsel

renders ineffective for failing to raise issue at the Defendant’s first
stage of appeal.

(10)

Issue II

Trial Counsel renders ineffective in failing to call for the defense

Eyewitness Michael
Blankenstein who gave a statement on November 9, 1992 to
Detective Art Mee concerning the murder of Terrance Stewart on
November 8, 1992 and his eyewitness account… Commonwealth v.
Nock. 606 A.2d 180 (Pa. Super 1992)
Discussion

On January 14, 1993 the defendant was arrested under warrant for
the murder of Lawrence Davis. “Unrelated to the case in chief”.

The defendant was later questioned concerning the murder of

Terrance Stewart (January 14, 1993) at which time the defendant
gave an inculcator statement against himself, and was later
charged for the murder of Terrance Stewart. “The defendant sat in
a joint trial before the Court of Common Pleas for the murders of
Roosevelt Watson and Terrance Stewart”, Terrance Stewart being
the case in-chief.

Michael Blankenstein gave a statement to Detective Art Mee on

November 9, 1992 concerning the shooting of Terrance Stewart at
34th and Powell Avenue that he witnessed on November 8, 1992.

Trial counsel was ineffective for failing to call Michael

Blankenstein during defendant’s first degree murder trial for the
following reasons:
During pre-trial suppression trial counsels argument was that the
Defendant’s January 14, 1993 statement to Detectives Snell and
Vivarina was a result of psychological coercion, that Detectives led
the defendant to believe that if he gave information concerning un-
indicted alleged co-defendant’s Larry Lee and Timothy Walker and
their involvement in the murder of Terrance Stewart, the defendant
would be helping himself out with regards to the Lawrence Davis
murder, which is not at issue. N.J. April 4, 1995 pages 164-165 at
15-10.

(11)

Trial counsel during opening statement before the jury addressed

the theory that the bulk of Commonwealth evidence was the
Defendant’s statement and requested the jury to consider if the
statement was voluntary or a result of a promise made by
detectives, so that they could get information against Lee and
Walker. N T. April 6, 1995 pages 25-30.

Trial counsel during closing argument again addressed the jury

with the argument the detective made promises to the defendant,
that if he gave information implicating alleged un-indicted co-
defendants Lee and Walker in the murders of Roosevelt Watson
and Terrance Stewart (Stewart being the case in-chief) that the
defendant would be helping himself out with regards to the Davis
case. NT. April 10, 1995 pages 97-99.

Trial counsel also argued that the Defendant’s statements were

entirely meaningless and the detective spoon-fed information to
implicate Lee and Walker. N.T. April 10, 1995, page 102.

The portion of Michael Blankenstein’s statement that the defendant

argues was needed to provide crucial contradictory testimony and
raise reasonable doubt as to the Commonwealth witness and case
against the defendant states herein: “On November 9. 1992
Michael Blankenship stated to Detective Art Mee that “I observed
two white cars appearing to be racing, then one car began to shoot
at the other, that’s when one white care crashed right in front of
me, the other white car, a Chevy Nova, sped away fast.” See
exhibit A: A Statement of Michael Blankenship.

Commonwealth witness Detective Snell testified that the defendant

stated in this January 14, 1993 statement: “All right, it was night
time, before Thanksgiving. I got paged by Larry and when I called
him back, he told me he was going to come and pick me up.

(12)

I was at Ruby and Market Street. I think Larry was at Timmy’s down
in Penrose Park. He picked me up in the blue Malibu, that was
Larry’s car. Larry slid over and he told me to drive. He was sitting
in the front passenger’s seat. He told me to drive down to the area
34th Street by the train track just below the zoo and he told me to
park/” N.T. April 10, 1995 Pages 13,14 at 25-9.

The defendant asserts although Michael Blankenstein eyewitness

account does not deal with seeing the alleged person(s) that
committed the crime (identification), Michael Blankenstein
testimony was still very important to impeach Commonwealth
witness Detective Snell as to the Defendant’s so called confession
(the Commonwealth’s only evidence against the defendant), and to
raise reasonable doubt in the minds of the jury.
In Commonwealth V. Brown Pa. Super. 448 A.2d 1097 (1982). the
Court acknowledged that the common law has recognized the right
of a party to impeach the credibility of an adverse witness by
introducing evidence that the witness has made one or more
statements inconsistent with his testimony at trial, so long as the
inconsistency is not collateral to the issue in the case such an
inconsistent statement need not be under oath, nor need it be in
writing. It is the substance of the statement, i.e. that it conflicts
with the testimony of the witness at trial, that determines its
admissibility

Trial counsel’s failure to call Michael Blankenstein during trial

clearly was not in the best interest of her client in furtherance of
her repeated statements to the jury that they should reject the
Commonwealth evidence (Defendant’s statement) based on false
impression, trickery, and psychological coercion, but failed to
present evidence to impeach the Commonwealth witness,
evidence counsel was aware that through discovery turned over by
DA Office, clearly demonstrates trial counsel ineffectiveness.

(13)

Commonwealth v. Jones, Pa. 437 A.2d 958 (1981) states herein:

In a case where virtually the only issue is the creditability of the

Commonwealth’s witness versus that of the defendant, failure to
explore all alternatives available to assure that the jury heard the
testimony of a known witness who might capable of casting a
shadow upon the Commonwealth’s witness’ truthfulness is
ineffective assistance.... (958-960)

Appellant counsel rendered Ineffective assistance for failing to

raise issue at the Defendant’s first stage of appeal.

For the above reason the defendant requests that a new trial be
granted.

(14)
Issue III

Trial Counsel renders ineffective assistance for failing to call two

known and available witnesses: Tia Seidle and Rhonda Simmons
at the Defendant’s first degree murder trial, to impeach
Commonwealth witness, and raise reasonable doubt as to the
Commonwealth case:

Commonwealth v. Nock, 606 A.2d 1380 (Pa. Super. 1992)

DISCUSSION

Tia Seidle gave a statement to Detective Mee #9199 on November

9, 1992 concerning the murder of Terrance Steward and on
January 7, 1993 Rhonda Simmons gave a statement to Detective
Lulay #743 concerning the murder of Terrance Stewart.

Both of these witnesses gave corroborating statements as to the

deceased Terrance Stewart’s whereabouts on November 8. 1992,
the day of the murder at 34th & Powelton Avenue. Tia Seidle and
Rhonda Simmons, both of these witnesses stated that the
deceased was at 3837 Reno Street from 7 p.m. until to 10 pm, the
time of the shooting at 343th & Powelton Avenue. See Exhibits B
and C Statements of Tia Seidle and Rhonda Simmons

Trial counsel renders ineffective for failing to interview or call Tia

Seidle and Rhonda Simmons for the defense during the
Defendant’s first degree murder trial to help the defendant prove
his innocence, by demonstrating the defendant did not act in a
conspiracy to murder the deceased with alleged un-indicted co-
defendant’s Larry Lee and Timothy Walker as stated in his January
14, 1993 statement to Detective Snell, which was the
Commonwealth’s only evidence against the defendant

See Commonwealth v. Abney. 350 A2d 407, also Commonwealth v.

Twiggs, Pa. 331 A.2d 440. Although the above cases Abney and
Twiggs, supra involved the failure to call known

(15)

eyewitnesses who could provide favorable demonstrative

evidence, documentary and expert testimony. See Commonwealth
v. Guerrissi, 297 Pa. Super 245, 250. 443 A.2d 818, 821 (1982). Thus
where credibility is a crucial issue, a contention that counsel failed
to employ evidence which would have been helpful… to impeach
the Commonwealth’s witness and was available to counsel at the
time of trial possesses arguable merit.

During pre-trial suppression, trial counsel’s argument was that the

Defendant’s January 14, 1993 statement to Detectives SneIl and
Vivarina was a result of psychological coercion; that the detectives
led the defendant to believe that if he gave information concerning
un-indicted alleged co-defendant’s Larry Lee and Timothy Walker
and their involvement in the murder of Terrance Stewart that the
defendant would be helping himself out with regards to the
Lawrence Davis murder, which is not at issue. NT. April 4, 1995
pages 164-165 at 15-10.

Trial counsel during opening arguments before the jury addressed

the theory that the bulk of the Commonwealth evidence was the
Defendant’s statement and requested the jury to consider if the
statement was voluntary or a result of promise made by Detectives
so that they would get information against un-indicted alleged co-
defendant’s Larry Lee and Timothy Walker. N.T. April 6, 1995 pages
25-30.

Trial counsel during closing arguments again addressed the jury

with the argument that Detectives made promises to the defendant
that if he gave information implication Lee and Walker in the
murders of Terrance Stewart and Roosevelt Watson (Stewart being
the case in-chief, that he, the defendant, would be helping himself
in connection with the Davis case. NT. April 10,1 995 pages 97-99.
Trial counsel further argued that the Defendant’s statement was
entirely meaningless and Detective spoon-fed information to
implicate Lee and Walker. NT. April 10. 1995 page 102.

(16)

In Commonwealth v. Brown. _______ Pa. Super. ______ 448 A.2d

1097 (1982). The court acknowledged that the common law has
long recognized the right of a party to impeach the credibility of an
adverse witness by introducing evidence that witness has made
one or more statements inconsistent with his testimony at that, so
long as the inconsistency is not collateral to the issue in the case.
Such an inconsistent statement need not be under oath, nor need
it be in writing. It is the substance of the statement, i.e., that
conflicts with the testimony of the witness at trial, that determines
its admissibility not its form.

The defendant in his January 14. 1993 statement to Detective Snell

stated the following:
Q. I want you to go on your own words and tell me what you know
about this incident.
A. All right. It was at night time before Thanksgiving. I got paged
by Larry and when I called him back, he told me that he was going
to come and pick me up. I was at Ruby and Market Street. I think
Larry was at Timmy’s down in Penrose Park He picked me up in
the blue Malibu, that’s Larry’s car. Larry slid over and he told me to
drive. He was sitting in the front Passenger’s seat. He told me to
drive down to the area, 34”’ Street by the train track, just below the
zoo, and he told me to park. We was drinking a few beers, and then
Larry pulled the gun from under the seat. We sat there for about a
half an hour. Larry started to tell me that “T” was one of the guys
that took Tim’s car, his red convertible Saab. When Larry told me
this, I knew what was happening. We were waiting to find the guy.
And when we did, Larry was going to hit him. Larry told me that
“T” would be driving a white Malibu. We saw the car parked on
Brandywine n h block between 34LI~ and 35th Street. We Sat at the
corner of 34w” and Brandywine Street and just waited for about
half an hour. “T” came out of a house on Brandywine Street

(17)

and got into the car with a black female and drove away down 34th
Street. N.T. April 10,1 995 pages 13-14 at 23-24.

Tia Seidle and Rhonda Simmons both gave contradicting

statements as to the events that took place on November 8, 1992,
the night this crime took place. i.e., that the deceased Terrance
Stewart was at 3837 Reno Street from 7 p.m. to 9:30 p.m., therefore
the defendant and alleged un-indicted co-defendant could not have
observed the deceased and Tia Seidlt get in the car on 34th or 35th
and Brandywine Street.

Trial counsel was ineffective for failing to call for the Defense Tia
Seidle and Rhonda Simmons to impeach and/or contradict
Commonwealth witness Detective Snell as to the Defendant’s
January 14, 1993 inculpatory statement, which was the heart of the
Commonwealth’s case, after counsel repeatedly argued that the
Defendant’s statement was the result of Psychological coercion
and promises by detectives.

Trial counsel discussion not to call these two important witnesses

was not in the best interest of her client, and therefore denied the
defendant a fair trial.

For all the reasons stated above a new trial should be granted.
Appellant counsel renders ineffective for failing to raise issue at
Defendant’s first stage of appeal.

Defendant has raised a similar issue within this Pro Se

Presentation dealing with trial counsel’s failure to call eyewitness
Michael Blankenstein which clearly demonstrates trial counsel
ineffective for failing to call for the defense witness that could have
raised reasonable doubt in the minds of the jury. and therefore
denied the Defendant tire right to a fair trial.

(18)

Blessington stepped completely away from his official duty of

dispensing equal and impartial justice, thus depriving the
defendant of his fundamental right to a fair trial.

(Begin Issue V)

Prosecutors are expressly directed not to use arguments

calculated to inflame the passion or prejudice of the jury. Com. v.
Bricker, 506 PA 571, 586, 487 A.2d 346, 353 (1985) (quoting A P A
Standards 5.8 (b), (c), (d)). Corn. V. Harvey, 498 A.2d 378 (PA
Super. 19-85) Corn. V. Hubbard PA 372 A.2d 687 (1977). By the
prosecuting attorney in the defendant’s trial injecting his highly
prejudicial opinion concerning the defendant’s failure to present
evidence to “contradict the evidence, and uncontraverted
confession,” the Commonwealth case against him, and stating that
“counsel agree” and referring to the defendant as a “killer” was his
way of advising the jury to give more weight to the Commonwealth
evidence, and the prosecutor opinion of why the evidence went
“uncontradicted, uncontraverted” because he believed the
defendant’s guilt. The prosecuting attorney clearly and improperly
intruded upon the jury’s exclusive function of evaluating the
credibility of evidence.

In Corn v. Potter, 445 PA 285 A.2d 492. [The prosecutor] injected

his highly prejudicial personal opinion of appellant’s credibility
into evidence, thereby clearly and improperly intruding upon the
jury’s exclusive function of evaluating the credibility of witness”

For the above reason, the defendant requested this Honorable

Court to grant a new trial.

Issue IV

Trial counsel renders ineffective for failing to motion the court for
severance of the defendant consolidated offenses, and/or the Trial
Court erred in failing to order a severance of this defendant’s
offenses where the Commonwealth was allowed to introduce an
unrelated murder to show guilt of one crime that the defendant sat
on trial for, but not the other, and had the

(51)

defendant been tried alone for the Terrance Stewart murder the
defendant unrelated murder would not have been admissible.

Discussion

On January 14, 1993 the defendant was arrested under warrant for
the murder of Lawrence Davis (unrelated to case in chief however
sufficient to argument herein):

The defendant was later questioned concerning the murder of

Terrance Stewart, at which time the defendant gave an inculpatory
statement and was charged with that murder.

On February I 0. 1993 the defendant had a preliminary hearing for

the murder of Lawrence Davis and Terrance Stewart. The
defendant was then ordered to stand trial for the Davis and Stewart
murders. (On March 31, 1993. David M. McGlaughin, Esq. was
appointed as counsel.)

March 4, 1993, the Commonwealth filed a motion for joint trial for
the Davis and Stewart cases. On April 26. 1993, the defendant filed
a motion for severance of offense.
On January 14, 1993, the defendant was also questioned
concerning the murder of Roosevelt Watson The defendant gave a
statement to that matter, but was not charged with that case. While
awaiting trial for the Stewart arid Davis murders the defendant on
April 28, 1993 called the homicide division seeking help for matters
within the Holmesburg Prison. On April 29, 1993, the defendant
was taken from the Holrnesburg Prison to the Homicide Division at
which time the defendant gave an inculpatory statement with
regards to the Roosevelt Watson murder,. The defendant was then
charged with that matter.

Concerning the Stewart and Davis cases On Oct. 4, 1993, the

defendant motion for severance of offense was granted. and on the
same day the Commonwealth consolidated the Roosevelt Watson
and Terrance Stewart murders for trial.

(52)

The defendant on October 27. 1993, sat in a bench trial for the
murder of Lawrence Davis, presided over by the Honorable Carol
E. Temin, J, and on Oct. 28, 1993 the defendant was found guilty of
First Degree Murder On October 29, 1993, the defendant was
sentenced to life imprisonment. (Bench Trial.)

Marlene S. Cooperman. Esq. was appointed on May 24, 1994, to

represent the defendant at trial for Watson and Stewart murders.

On April 6, 1995, the defendant Sat in a jury trial, presided over by

the Honorable John J. Poserina, Jr., for the murders of Roosevelt
Watson and Terrance Stewart. On April 11, 1995, the jury returned
a verdict of guilty, two counts of First Degree murder. On April 12,
1995, the jury sentenced the defendant to life for the Watson case
and death for the Stewart murder.

Trial counsel renders ineffective for failing to put forth an adequate

argument and/or a motion for severance of offense based on: 1)
had the defendant been tried for the Terrance Stewart case alone,
the defendant unrelated inadmissible murder ease of Lawrence
Davis would not have been admissible. 2) the defendant was
severely prejudiced by the introduction of the other inadmissible
crime, where the Commonwealth evidence pointed more towards
the defendants guilt of his joint case of Roosevelt Watson the case
in which the other crime was allowed into evidence for 3) where
the Commonwealth evidence along with inadmissible other crime
may have proved the defendant’s guilt for the Watson murder, the
jury automatically found the defendant guilty of the Terrance
Stewart murder based on prior guilt. 4) Where the Commonwealth
evidence was so complex that the jury was not able to separate
and apply the evidence to each case as it pertained to each case.

During pre-trial motions the Commonwealth sought to introduce

the defendant’s unrelated murder case of Lawrence Davis to show
access to the weapon and identity of the shooter in the

(53)

Roosevelt Watson case. It was the Commonwealth theory that

bullet slugs taken from the body of Davis match bullet slugs taken
from the body of Watson The trial court ruled during pre-trial
motion concerning the admissibility of the defendant’s other
unrelated murder case and its limited purpose for which the
Commonwealth could admit it into evidence.

By the court.

All right. The motive of the killing of Lawrence Davis is not

admissible. The fact that he was found guilty of that trial is not
admissible, simply the issue of possession of the weapon and its
use on prior occasion, to show that there is a relationship between
the weapon and the cases that are on trial here. NT. 4-7-95 pages
22-23 at 24-7. The court then reiterated its ruling on the second day
of trial. NT. 4-7-95 page 4 at 7-19.

The Commonwealth never retrieved a weapon for either the

Roosevelt Watson case or the Lawrence Davis case so as to
introduce the Davis murder into evidence, the Commonwealth first
called Kimberly Little, who was the Commonwealth eyewitness
during the Davis trial. Kimberly Little testified that on July 19, 1992,
at about 1:55 am, at the location of 246 N. Queen Lane she
observed (Speedy) the defendant shoot Lawrence Davis three
times. N.T. 4-7-95 pages 9-11 cross at 11-19.
The Commonwealth then called Police Officer James O’Hara of the
Firearms Identification Unit, who testified that after examining the
bullet slugs taken from the body of

* Throughout Officer O’Hara’s testimony he repeatedly referred to

the ballistics evidence as the bullet fragments taken from the body
of Lawrence Davis. Roosevelt Watson, taken from the body of
Terrance Stewart—Because the defendant sat on trial for two
murders, when officer O’Hara repeatedly used the phrase “taken
from the body of” it was clear to the jury that Davis was deceased.

(54)

Roosevelt Watson, he then did a comparison of the bullet slugs

*taken from the body of Lawrence David at the request of the
Commonwealth, and was able to come to the determination that
the bullet slugs taken from ‘the body of Roosevelt Watson and
Lawrence Davis were both fired from the same weapon. N.T. 4-7-95
page &5 at 2-14. Officer O’Hara also during his direct examination
informed the jury that the evidence (bullet slugs) that was
submitted to him concerning the Davis murder was submitted to
him from the Homicide Unit.

By Mr Blessitigt on:
Q. Detective, could you tell the members of the jury what C.55 is?
A. “C-55’s are two envelopes submitted to the Firearms
Identification Unit from the office of the medical examiner by Det.
Harris. Badge number 9271 of the Homicide Unit.” N.T. 4-7-95 page
83 10-16.

Police Officer O’Hara also during cross-examination informed the

jury that the unrelated murder case of Davis was indeed a
homicide case.

By Ms. Cooperman:

Q. Now, in preparing these reports, I take it, after you have some
written reports; is that right?

A. That’s correct.
Q. And you preserve those written reports?
A. Absolutely.

(55)

Q. And do you have them with you now?

A. No.

Q. All right. Do you keep them or do you retain them in anyplace

among your records?

A. “Wel, since all three of those reports are involved in a homicide

case, those reports will be kept either at the firearms Identification
Unit or on the 9th floor of City Hall for the next 50 years.”

The testimony of Kimberly Little prejudicial impact outweighed its

probative value, absent the deceased testimony (Lawrence Davis)
that the defendant shot him three times. It was clear that the
defendant not only shot Davis, but killed him.

And where the Commonwealth introduced the unrelated other

crime to show guilt for the joint case of Roosevelt Watson, the
transfer of guilt spilled over to the Terrance Stewart matter,
therefore placing in the jury’s minds, if guilty of one, guilty of all.
Had the defendant been tried for the Terrance Stewart murder
alone, the unrelated murder case of Davis would not have been
admissible during trial. Commonwealth v. Kasko, 322 PA. Superior
Ct. 62, (1983).

In furtherance of the prejudicial effect of the defendant

consolidated trial of offense. not only did officer O’Hara label the
defendant as a prior “Murderer” by informing the jury that the
defendant’s other unrelated case was indeed a homicide case”.
The prosecuting attorney during opening and closing told the jury
that the defendant shot and killed Lawrence Davis”, therefore
labeling the defendant as a person capable to commit murder, and
the crimes for which defendant sat on trial for: Commonwealth v.
Spruill, Pa. 391 A,2d 1048 (1978). Held that where witness. who
allegedly buried body of victim, testified that he had buried “a
couple of bodies for defendant,” timely objection was made, no
instruction was given by the trial court and no

(56)

correction was attempted, jury was permitted to consider evidence

of possible murders other then the one for which defendant ~ tried
and introduction of such evidence unjustifiably blackened
character of defendant in the minds of the jury and improperly
showing propensity to commit crime charged, thus warranting a
new trial. (The prosecutors informing the jury that the defendant
killed Lawrence Davis): N.T. 4-b-95 pages 18-19 at 22-Il, N.T. 4-10-
95 page 112 at 12-20.)

The other evidence the Commonwealth presented in support of its

case against the defendant concerning the Roosevelt Watson
murder was the defendant’s January 14, 1993, statement and his
April 29, 1993, inculpatory statement. The defendant asserts in
favor of the Commonwealth as the verdict winner, the
Commonwealth may have presented enough evidence in the
Watson case to prove guilt, absent of the trial court violation by
the prosecutor and its agent.

The only evidence the Commonwealth presented toward the

defendant’s guilt in the
Terrance Stewart case was the defendant’s 3anuary 14, 1993,
inculpatory statement. It can be concluded that that alone may not
have been enough to find guilt, and it can be easily established
that the jury finds the defendant guilty because of the evidence
presented to show guilt for the Watson murder. United States v.
Foutz, 540 F.2d 733 (1q76) states therein:

[11] We have no doubt that the government proved enough of a

case against Foutz with respect to the March 13, 1975, robbery
based principally on the positive identification of hi~ automobile as
the getaway car, to permit, but not require, the jury to find him
guilty, in contrast the only evidence of Foutz’ involvement in the
December 30, 1974, robbery, aside from its putative similarity to
the later crime, was the testimony of two witnesses that Foutz’
appearance was “similar to that of the robber”, and opposed to
this testimony was an unusually strong alibi. We think it highly
probably that a jury
(57)

ignorant of the second crime and Foutz’ alleged participation

therein would have acquitted him of the earlier robbery. There is
thus a strong likelihood that the jury found Foutz guilty of the
second robbery, and then concluded that since he had once
robbed the bank, it was plausible that he had done so before.
Since we cannot say that the government’s case with respect to
the March 13. 1975, robbery was indefensible, it is possible that the
jury found him guilty of that crime under the rationale that with so
much smoke there must be fire. Had the two offenses not been
joined for trial, these “spillovers” could not have occurred and
Foutz might well have been acquitted of the first crime, possibly
both. We thus conclude that Fcutz’ convictions of both offenses
must be reversed and he must be afforded now separate trial. [73
3-739].

For the above reasons, the defendant requests a new trial be

granted.

(58)

Issue V

Trial Counsel renders ineffective assistance in failing to object to

the trial prosecutor’s inflammatory remarks to the jury that the
defendant was a “Monster, but seemed like an ordinary human
being” during closing argument which clearly was improper and
prejudiced the defendant in the eyes of the jury Commonwealth v
Scarfo, 611 A2d 242 (PA Super 1992).

DISCUSSION

The defendant sat in a joint trial for the murders of Roosevelt

Watson and Terrance Stewart (Stewart being the case in chief.
During trial the Commonwealth called Robert David and Kimberly
Little to testify against the defendant. The Commonwealth first
called Robert David to testify that back in 1989 himself. Roosevelt
Watson, Terrance Stewart, and alleged un-indicted co-defendant’s
Larry Lee and Tim Walker were all involved in an on going Drug
Organization headed by a Larry Brown.

In 1990 or 1991 Larry Brown when to jail at which time Tim Walker
became head of the Drug Organization with all the same
employees as named above. At no time did Robert David during
testimony involve or identify the defendant as being a part of Larry
Brown’s Drug Organization, or the later Tim Walker Drug
Organization. NT. April 6, 1,95 pages 90-91 ending at 1-12.

The Commonwealth then called Kimberly Little to give testimony

concerning the Defendant’s unrelated murder case of Lawrence
Davis, sufficient to the Defendant’s joint case of Roosevelt
Watson, but not subject of this appeal. Merely for demonstration
that the same gun used in the Davis case matched bullets in the
Watson murder and the Defendant’s access to the weapon. NT
April 7,1995 page 3-4 ending at 1-17.

(30)

Kimberley Little went on to testify that on July 19, 1992 she

witnessed the defendant shoot Lawrence Davis at 246 West Queen
Lane. At no time during Kimberly Little’s testimony did she
describe the defendant as being a drug dealer or involved in any
Drug Organizations

During the trial prosecutor’s closing argument, the Prosecutor

bolstered the testimony of Kimberly Little while referring back to
her testimony and the testimony of Robert David and then at the
later played to the passion and prejudice of the jury by stating to
the jury that the defendant was a “monster which seemed like an
ordinary human being.” Which the defendant asserts that such
unprofessional remarks only went to put him in bad character in
the minds of the jury.

The trial prosecutor closing ~vent as follows:

“Robert David. He served two purposes. One, he showed you what

it was all about, Drugs. He showed the organization. No, he did not
know him, that is what Kimberly Little did. Kim Little put him in the
organization. She knew him. She was literally living in the house in
which the drugs were being sold. Kim Little said “That is the guy.”
Couldn’t be shaken from that. That is the guy who fired those
bullets into Lawrence Davis.”

As noted herein above Kimberly Little never testified that the

defendant sold drugs, or was involved in any drug organization.

The prosecutor’s closing went on as follows:

Robert David showed you something else. He showed you

basically a choice that was taken away from Terrance Stewart and
Roosevelt Watson. He showed you the other road, the other road
for the drug dealer, That road is jail. He showed you what a drug
deal is. Maybe,

*The Prosecutor, instead of bolstering the testimony of Kemberly

Little, in fact bolstered his own testimony, because it was the
Prosecutor that informed the Jury that the defendant was involved
in drugs at the same tune he violated the trial courts ruling during
opening summation N.T. 4—6-95 page l9 at 1-9. The Prosecutor
bolsters his own testimony to place the defendant in bad character
with the jury, now where throughout the trial did any witness state
the defendant being involved with drugs but the Prosecutor
himself.

(31)

hopefully, some of you live in a neighborhood where you don’t see

drug dealers. Monster. Seemed like a regular ordinary human
beings N.T. April 10. 1995 pages 107-108 ending at 1-4

The trial prosecutor inflammatory remarks clearly was a play to the

passion of the jury, and an attempt to have the jury form a
prejudicial fixed opinion as to the defendant’s guilt. In addressing
Prosecutorial misconduct in the case of Commonwealth v. Scarfo,
A.2d 242 (Pa. Super 1992) The Superior Court stated the following:

These comments “exceeded the bounds of propriety and

constituted an appeal to the passion and prejudices of the Jury.”
Commonwealth v. Lipscombe 455 Pa. 525, 528, 317 A.2d 205, 205
(1974). In Lipscombe, our Supreme Court reversed a judgment of
sentence and ordered a new trial where in summation the
prosecutor called defendant’s “hoodlums” and “animals”. The
court stated:

In referring to Lipscombe and his associates by the epithets of

“hoodlums” and “animals”, the assistant district attorney
interjected his personal belief in the guilt of the accused. Such
expressions of personal belief… have no legitimate place in a
district attorneys argument. Id. (quoting Commonwealth v. Capalla,
322 Pa. 200, 206, 185, A 203, 206 (1936))

Later. in Commonwealth v. Brown 274 Pa. Super, 609, 418 A2d 5’7L
(1980), this court addressed a case in which the prosecutor
referred to a defendant as part of a pack of wolves”. Id. At 612. 418.
A.2d at 575. Brown arose in the context of a claim of ineffective
assistance of counsel. The court found that Brown’s counsel was
not ineffective for failing to object to the epithet because he had
already lodged several objections and did not want to offend the
jury with more. Id. However, the court also remarked that “surly it
was improper for the prosecutor to label the assailants as a ‘pack
of wolves’,” Id. Indeed, we too find that it was improper for the
assistant district attorney to resort to such animal imagery to carry
favor with the jury.

(32)

The Superior Court further stated:

“Justice forbids us from treating these defendant’s differently from

any other person who stands accused for a crime. Indeed, if any
citizen stood accused of a clear-cut violation of the retail theft and
were degraded and dehumanized as these defendant’s were, no
judge would feel a pang of regret in reversing such a conviction.
Where the defendant’s are as notorious as these, however, we
became troubled by such a decision. Nonetheless, this sense of
concern does not warrant shirking our duty to do justice. These
ideals, the foundation of our criminal justice system, are
meaningless if not applied even-handedly.

It is onus that every Court in this Commonwealth does justice—

what is legally correct— no matter how painful that may be. That,
in essence, is the nature of what a court does. Justice in this case
requires a reversal for a new trial because the defendants were not
properly treated with fundamentally fairness. This fundamental
fairness as stated in Rispo, infra, is the heart of the notion of due
process.

Moreover, we are compelled to note that it is the prosecutor who is

the servant of the court, the public, and indeed, justice itself It is
automatic to say that a prosecutor’s job is not merely to gain
convictions. Most importantly, the prosecutor must serve justice.
He or she wields the power of the state in order to do for the public
and those victimized by evil that which fair and right. At the same
time, a prosecutor must weigh what is fair and right for the person
who stands accused. We understand that a Commonwealth
attorney embroiled in the heat of a trial of’ notorious defense feel
especially compelled to attain conviction. Still a prosecutor may
not, at the same time he or she is so dutifully represents the public
interest fracture the right to a fair trial for the accused.

(33)

Such infractions, unintentional though they may be and prompted

by the stress of a high profile case, are prejudicial nonetheless.
[242-284)

The trial prosecutor bolster of Kimberly Little’s testimony and

inflammatory remarks to support his bolstering is clear
Prosecutorial misconduct.

Trial counsel renders ineffective for failing to object to such

prejudicial remarks and/or request a cautionary instruction to cure
the harm done by the prosecutors remarks denied the defendant
the right to a fair trial

Appellant counsel renders ineffective for failing to raise issue at

the Defendant’s first stage of appeal. The defendant respectfully
requests that a new trial be granted.

(34)
methods not available at the time of trial.

Here, Petitioner has raised legitimate questions about the

effectiveness of defense counsel and her failure to investigate the
ballistics evidence that was so critical in this case. This Court
should grant discovery and allow Petitioner’s expert the
opportunity to conduct an independent analysis of the ballistics
evidence in this case.

PETITIONEWS CONSTITUTIONAL RIGHTS TO COUNSEL WERE

VIOLATED WHEN HE WAS INTERROGATED BY THE POLICE
WITHOUT COUNSEL AFTER HIS RIGHT TO
COUNSEL HAD ATTACHED AND ALL COUNSEL WERE
INEFFECTIVE FOR FAILING TO RAISE AND LITIGATE THIS ISSUE.

Petitioner was arrested on January 14, 1993 for the murder of

Lawrence. At that time, he was interrogated about the killings of
Terrence Stewart and Roosevelt Watson. Petitioner gave an
inculpatory statement as to Stewart, but denied any participation in
the Watson killing. Petitioner was arraigned for the murders of
Davis and Stewart and counsel was subsequently appointed.

In April, 1993, Petitioner contacted homicide detectives because

threats made against him by other inmates in the jail put him in
fear of his life. Petitioner hoped that the detectives would assist
him in getting transferred to another facility. Without any
notification to counsel,

{55}* Toney v. Gammon, 79 F.3d 693, 700 (8th Cir 1996) (scientific
testing of trial exhibits); Warden v. Gall, 865 F.2d 786. 787-88 (6th
Cir. 1989) (examination and testing of physical evidence;
depositions)

{56}The importance of the ballistics evidence goes beyond its

substantive value. It was the ballistics evidence that tied the Davis
case to the Watson case. If an independent investigation would
have undermined that link, trial counsel might have been able to
avoid the prejudicial impact of the Davis case evidence in its
entirety.

(65)
homicide detectives took Petitioner to the homicide division and
interrogated him again about the Watson murder. During the
interrogation, Petitioner made inculpatory statements that were
used against him at trial. The police failure to notify counsel prior
to this interrogation rendered the admission of that statement
constitutionally infirm. Moreover, Petitioner’s statements were not
voluntary, as they were the product of his fear for his life while
incarcerated at Holmesburg Prison.

The April 1993 counseless interrogation violated Petitioner’s Fifth

and Sixth Amendment rights to counsel, and were involuntary and
coerced. Although trial counsel moved to suppress the
statements, and presented evidence of Petitioner’s fear, she failed
to raise these particular grounds for suppression. Appellate
counsel also failed to raise these claims. Both counsel were
ineffective.

A. Exhaustion

Petitioner raised these claims in his pro se PCRA petition. Without

petitioner’s consent, appointed counsel did not raise these issues
in his amended PCRA pleadings. The PCRA court did not address
Petitioner’s claims. On PCRA appeal, appointed counsel again
failed to pursue Petitioner’s pro se claims. On March 25, 1999,
Petitioner filed a motion in the Superior Court to preserve the
issues he had raised in his pro se PCRA petition, objecting to
counsel’s failure to litigate the claims, and claiming that both
PCRA counsel and appellate counsel were ineffective for failing to
investigate and litigate these claims. The Superior Court’s
disposition of that motion is described in Claim VII(A). supra. For
all of the reasons described in Claim Vll(A), petitioner’s claims are
exhausted, or, he may have state court remedies available to him.

B. The Interrogation Violated His State Constitutional Rights to

Counsel.

(66)

At the time of his admission to his involvement in the Watson

killing, Petitioner was already under arrest and represented by
counsel for charges relating to the Stewart and the Davis killings.
Under Pennsylvania law, he was entitled to be represented by
counsel.39 Trial and appellate counsel were ineffective for failing
to raise this claim.

The Pennsylvania Supreme Court has been sensitive to the vital

role that counsel plays in protecting a citizen’s rights and,
therefore, has held that a defendant’s state constitutional right to
counsel attaches at the time of his arrest (rather than at the time of
formal charging, where the Sixth Amendment right attaches),
Commonwealth v. Richman 458 Pa. 167, 320 A2d 351 (1974) (under
Pennsylvania Constitution, right to counsel attaches at time of
arrest, rather than at initiation of formal charges, when the federal
right attaches).40 When a defendant is interrogated without
counsel after the tight to counsel has attached, the right to counsel
is violated, and any statement taken in derogation of that right may
not be admitted at trail on those charges. Michigan v. Jackson. 475
U.S. 625 (1986): Maine v Moulton, 474 U-S. 159 (1985);
Commonwealth v. Karesh, 513 Pa. 6, 13, 518 A.2d 537, 574(1986).

Under Pennsylvania constitutional law, Petitioner was under arrest

when he was

_______________

39 Petitioner recognizes that his Sixth Amendment rights to

counsel did not attach until after he was charged with the Watson
killing, even though it had been found to be closely related to the
pending Stewart case. See Texas v, Cobb, 121 S.Ct. 1335 (2001)

40 The Pennsylvania Supreme Court has been sensitive to the vital

role that counsel plays in protecting a citizen’s rights and,
therefore, has not hesitated to extend the boundaries of its
protections beyond those noted by the United States Supreme
Court. See e.g. Commonwealth v. Hines, 532 Pa, 607, 617 A.2d 307
(1992) (Pennsylvania constitutional right to counsel at forfeiture
proceedings); Commonwealth v. Richman. See generally Leonard
Sosnov, Criminal Procedure Rights Under the Pennsylvania
Constitution: Examinine the Present and Exploring the Future,
WIDENER J. PUB. L. 217 (1993).
(67)

transported from the county prison to the police station. In.

Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), the
Court defined an arrest as follows:

Was Bosurgi under arrest at the time of the search of his person?
Officers are not required to make any formal declaration of arrest
or say the word ‘arrest’ (Commonwealth v. Holmes, 344 Masc. 524,
526, 183 N.E.2d 279, 280,281), nor to apply manual force or
exercise ‘such physical restraint as to be visible to the eye’ in
order to arrest a person- McAleer v. Good, 216 Pa. 473, 475, 65 A.
934. An arrest may be accomplished by ‘any act that indicates an
intention to take a person into custody and that subjects him to the
actual control and will of the person making the arrest, 5 Am. Jur.
2d, Arrest, Section 1, p. 695.

Bosuri, 411 Pa. at 68, 190 A.2d at 311. The Pennsylvania Supreme
Court has recognized further that the test is an objective one, “i.e.,
viewed in the light of the reasonable impression conveyed to the
person subjected to the seizure rather than the strictly subjective
view of the officers or the persons being seized.” commonwealth v
Duncan, 514 Pa. 395, 399, 525 A.2d 117, ] 178 (1987) (quoting
Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981);
citing Commonwealth v. Richards, 458 Pa. 455, 327 A.2d (1974).

Once Petitioner was under arrest, his Pennsylvania constitutional

right to counsel became effective. Commonwealth v. Richman,
supra. Once his right to counsel attached, the police were
forbidden from questioning him in the absence of counsel,
regardless of whether he was advised of his Miranda tights to
executed any waiver, and the police-initiated interrogation,
conducted without counsel, violated Mr. Cox’s right to counsel.
Michigan. v. Jackson, 475 U.S. 625(1986); Maine v. Moulton, 474
U.S. 159 (1985).

In Commonwealth v. Richman, 320 A.2d at 353, the Court had held

that a defendant was entitled to counsel for a post-arrest, pre-
arraignment identification confrontation. A police-

(68)
initiated interrogation is just as much a critical stage of the
prosecutorial process as an identification proceeding~
Commonwealth v. Karesh, 518 A.2d at 541 (a defendant is denied
the right to counsel where he is taken for interrogation, without
counsel, after the right to counsel has attached). Thus, the right to
counsel must be equally applicable to an interrogation as it is to an
identification procedure. Yet Mr. Cox was interrogated without
counsel. That interrogation was constitutionally impermissible
and, had the appropriate argument been made by counsel in state
court, the statement that resulted would have been suppressed.

C. Petitioner’s Statement Was involuntary As it Was Coerced By

Threats on
His Life Made By Other Inmates At The County Jail, And Officials
Failed To Take Appropriate Steps To Protect Him.

Testimony at the suppression hearing held prior to trail revealed

that Petitioner was in fear of hi~ life at the time of his exculpatory
statement regarding the Watson killing. After newspaper articles
publicly linked him to Tim Walker and Larry Lee, Petitioner
reported that his life was threatened by other inmates at the jail. NT
3/31/95 at 1 12 115; NT 4/44195 at 149-52. Although he signed
himself into protective custody, the threats continued. Prison
officials refused to transfer him to another facility or otherwise
protect him. In desperate fear, Petitioner contacted homicide
detectives, believing that his only chance of getting assistance to
protect his safety was to admit responsibility for that killing. Id.

Under these circumstances, Petitioner’s waiver of his Miranda

rights and his statement to the police were involuntary and should
have been suppressed. In order to pass constitutional muster, the
Commonwealth must show that the statement was not coerced or
involuntary and that the police procedures conformed with the
requirements of due process under the Fifth and Fourteenth
Amendments of the Federal Constitution and Article I, Section 9 of
the Pennsylvania

(69)

Constitution. Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80

L.Ed. 682 (1936); Commonwealth ex rel. Gaito v. Maronev. 422 Pa.
171, 220 A,2d 628 (1966); Commonwealth ex rel. Master v. Baldi,
166 Pa. Super. 413, 72 A. 2d. 150, certiorari denied, 340 U.S. 866, 71
S. Ct. 83, 95 L.Ed. 632 (1950).

It is well established that psychological coercion can yield an

involuntary confession. Miller v, Fenton, 796 F. 2d 798 (1986)
(citing Blackburn, Alabama, 361 U.S. 199,206(1960) (“A number of
cases have demonstrated, if demonstration were needed, that the
efficiency of the rack and the thumbscrew can be matched, given
the proper subject, by more sophisticated modes of ‘persuasion’.)
To determine the voluntariness of a confession, the court must
consider the effect that the totality of the circumstances had upon
the will of the defendant. Miller, 796 F.2d at 603. The conditions of
a person’s confinement can effect the voluntariness of a
statement. Hamilton v. Lyons, 74 F.3d 99, 102 (5’ Cir. 1996). Brooks
V. Florida, 389 U.S. 413 (1967); United States v Koch, 552 F. ld 1216
(7th Cir. 1977). In addition, a court should look at:

(1) the duration and means of the interrogation; (2) the physical
and psychological state of the accused: (3) the conditions
attendant to the detention; (4) the attitude of the interrogator; and
(5) any and all other factors that could drain a person’s ability to
withstand suggestion and coercion. Commonwealth v
Johnson,727 A. 2d 1089 (Pa. 1999). A statement is not voluntary if
a suspect’s will is overborne and his capacity for self-
determination is critically impaired. Commonwealth v. Schroth, 435
A.2d 148 (Pa. 1981). Once coercion infects the dynamic of the
investigative process, the process is tainted until the
circumstances have evolved in such manner to dissipate or
attenuate the taint of the coercion. Oregon v. Elstad, 470 U.S. 298
(1985); Westover v. United States, 384 U.S. 436 (1996).

(70)

D. Conclusion

Counsel was ineffective for failing to challenge the admissibility of

the statements on these grounds. Appellate counsel was likewise
ineffective for failing to raise these issues on appeal. Because
these claims were not addressed by the state courts, there are no
factual findings which hind this court. For the reasons previously
discussed, this Court should either grant relief or conduct an
evidentiary hearing on these claims.

Issue # 7

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE

PROCESS BY THE ADMISSION OF EVIDENCE OF HIS
INVOLVEMENT IN THE DAVIS HOMICIDE.

At his trial for the murder of Roosevelt Watson, the Commonwealth

presented extensive evidence and argument that Petitioner was
also responsible for the murder of Lawrence Davis. The prejudicial
effect of such evidence was so great, and its probative value so
small, that the admission of this evidence denied Petitioner his
right to a fair trial as guaranteed by the Fourteenth Amendment. 42

Evidence that a defendant had committed other criminal acts is

universally recognized as highly prejudicial and is therefore
admissible only in very limited circumstances. Old Chief v. United
States, 117 S. Ct. 644 (1997); United States V. Gray, 468 F.2d 257,
260-61 (3rd Cir. 1972); McKinney v. Rees. 993 F.2d 1378, 1380-82
(9th Cir. 1993) (tracing history of rule). Due process is violated
where the inflammatory nature of evidence exceeds its evidentiary
worth.

______________

41Tnal counsel had sought suppression on other grounds arid the

trial court had made findings relating to those grounds.

42These claims were raised in Petitioner’s pro se pleadings and

are exhausted for the reasons discussed in Claim VII(A), supra.

(71)

Lesko v. Owens, 881 F.2d 44, 52 (3d Cir. 1989). Because of the
inherently prejudicial and inflammatory nature of “other crimes”
evidence, the admission of such evidence must be given
particularly careful scrutiny. Where the disputed evidence merely
shows bad character and criminal propensity, its admission is
unconstitutionally prejudicial and fundamentally unfair. McKinney.
993 F.2d at 1384-1385 (evidence of defendant’s prior use of knives
denied him due process); United States v. McBride, 862 F.2d 1316
(8th Cir. 1988) (examination of defendant former girlfriend which
revealed claim that defendant had beaten her was highly
prejudicial and its admission was error); Croitts v. Sn4th, 73 F.3d
861 (9th Cit 1996).

Petitioner was already suffering the prejudice of the joining of the

Watson and Stewart homicides in a single trial. The addition of
evidence of yet another killing -- the shooting of Davis — turned
that prejudice into an avalanche. Although evidence of Petitioner’s
potential access to the murder weapon, a gun owned by the
alleged shooter, Larry Little, had some probative value, the
prejudicial effect was so great as to deny Petitioner due process.

The prejudicial effect of the admission of the Davis evidence was

overwhelming, for it painted Petitioner as a person of evil
character. Indeed, this prejudicial effect is evident in the
prosecutor’s closing argument, when he used the evidence of the
three shootings to attack Petitioner’s character and propensity for
violence, the very harm that courts are trusted to guard against.
See Claim I, supra. If the prosecutor viewed the evidence of other
crimes as an indictment of Petitioner’s character, it was inevitable
for the jury to have considered that evidence for the same
improper conclusion.

CLAIM X. TO THE EXTENT THAT STATE COURT COUNSEL FAILED

TO RAISE AND/OR PROPERLY LITIGATE THE ISSUES DISCUSSED
IN THIS PETITION, THEY WERE INEFFECTIVE, IN VIOLATION OF
THE

(72)

court itself raised the issue and worried that Petitioner was
prejudiced by his obviously identifiable jail clothing. On this basis
as well, the state court opinion should be rejected.

At a minimum, Petitioner is entitled to an evidentiary hearing, at

which he can provide further description of the prison clothing and
determine if counsel has an explanation for her failure to take any
steps to protect Petitioner against the prejudicial effects of his
clothing.47

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE

EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL WHERE
TRIAL COUNSEL FAILED TO CONDUCT AN INDEPENDENT
INVESTIGATION OF THE BALLISTICS EVIDENCE, AND WHERE
APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON DIRECT
APPEAL.

The only evidence allegedly tying Petitioner to the Watson killing,

other than his purported confession, was the Commonwealth’s v.
allegation that Watson had been shot with the same gun that
Petitioner had used in the shooting of Larry Davis. In order to
make this critical corroborating connection between these two
killings, the Commonwealth relied on ballistics evidence to
demonstrate that the gun used in the shooting of Lawrence Davis
was the same gun used in the shooting of Roosevelt Watson.
Thus, the ballistics evidence was of critical importance and it was
incumbent upon defense counsel to attempt to investigate and
attack the reliability and accuracy of the ballistic evidence. Yet
counsel failed to do so. Rather than conduct an independent
investigation of this evidence, and seek to have the ballistic
evidence examined by a defense expert, defense counsel simply
chose to accept the accuracy of the Commonwealth evidence.
Counsel’s failure to conduct an adequate investigation and seek
funds

47Petitioner had requested such a hearing in state court. See Brief

on PCRA Appeal at 7.9. As discussed in Claim VI, supra, AEDPA
does not bar a hearing under these circumstances.

(54)

for the hiring of a defense expert denied Petitioner his right to the
effective assistance of counsel In post-conviction proceedings,
Petitioner raised this issue in pro se pleadings and sought funds in
order to hire a ballistics expert. The trial court’s failure to provide
these funds denied Petitioner his tight to due process.

A. Exhaustion
Petitioner raised these claims in his pro se PCRA petition and in a
separately filed motion for funds to hire an independent ballistics
expert. Without petitioner’s consent, appointed counsel did not
raise these issues in his amended PCRA pleadings, and did not
pursue the motion for funds The PCRA court did not address
Petitioner’s claims.

On PCRA appeal, appointed counsel again failed to pursue

Petitioner’s pro se claims. On March 25, 1999, Petitioner filed a
motion iii the Superior Court to preserve the issues he had raised
in his pro se PCRA petition, objecting to counsel’s failure to
litigate the claims, and claiming that both PCRA counsel and
appellate counsel were ineffective for failing to investigate and
litigate these claims. On June 21, 1999, the Superior Court
forwarded that pro se petition to defense counsel, pursuant to its
ruling In Commonwealth V. Ellis, 8I A.2c1 595 (Pa. Super 1990) 626
A2d 1137 (Pa. 1993). In Ellis, the en banc Court set forth its policy
and practice when confronted with both counseled and pro se
pleadings:

we direct the prothonotary to send the pro se brief on to counsel

who is best able to determine in her professional judgment which
of the pro se s issues should be presented for our review. Counsel
may argue such pertinent issues in her brief to the court, or if the
appellate brief has been filed, she may tile a supplemental brief
addressing those same issues. If the pro se brief alleges
ineffectiveness of appellate counsel or an affirmative desire to be
heard pro se, we direct counsel to petition this court to remand the
case to the trial court so that it may conduct a full hearing in order
to determine appellant’s knowing and intelligent waiver of his right
to appellate counsel, and of his desire to proceed pro se, or in the
case of

(55)

ineffectiveness, an appointment of new appellate counsel. 581

A.2d at 600.

Although Ellis sets forth Superior Court practice, that practice was
not followed in this case. Without providing appellate counsel any
time to review Petitioner’s filings, determine if a supplemental brief
should be filed, or to petition for a remand, the Superior Court
issued an opinion and order affirming the denial of PCRA relief on
the very next day. Petitioner’s pro se filings were effectively
ignored.

Thus, Petitioner had taken extensive steps to pursue these claims

despite counsel’s failure to do so, and had presented these claims
to both the PCRA and appellate courts. This Court should find that
these claims have been exhausted.

However, should this Court find that Petitioner’s pro se efforts to

investigate and litigate his claims were not sufficient for
exhaustion purposes, he may have a state court remedy available
to him, although, Pennsylvania law on this point is not clear. While
in the usual case, a person in Petitioner’s position might face a
time bar in state court under 42 Pa. C.S. §9545 (the PCRA statute of
limitations), that time bar may not be applicable to Petitioner.
Petitioner has a timely filed PCRA petition pending, challenging his
conviction and death sentence in the Stewart matter. Petitioner’s
conviction in this case came from that same trial. A successful
attack on counsel’s ineffectiveness in the Stewart case would
necessarily require the conclusion that counsel was ineffective as
to the Watson case as well, and would require the state courts to
grant

48As Petitioner asserts that these claims have been exhausted, he

will not address any potential claims of procedural defense.
Should the Commonwealth raise such a defense, however,
Petitioner reserves the right to respond to any arguments which
might be raised.

(56)
relief in this matter. Petitioner intends to raise these claims of
counsel’s ineffectiveness in those PCRA proceedings and should
relief be granted as to Stewart, due process would require that
relief be granted on the Watson case as well.

Moreover it is not clear that the state courts properly had

jurisdiction to hear and decide Petitioners direct appeal and
PCRAB Petitioner’s life sentence for the killing of Watson arose
from the same trial as the death sentence in the Stewart case. The
two cases bad been joined together because of their commonality
of facts, witnesses and issues. Under Pa. R. App. P. 702(b). The
two convictions should not have been separated for appeal.
Jurisdiction lay with the Supreme Court, not with the Superior
Court. The Superior Court’s action was, therefore, a nullity, since it
had no jurisdiction to decide Petitioner’s appeal. See
Commonwialth v. Santone, 757 A.2d 963, 966 (Pa. Super. 2000)
(“Where there is no jurisdiction, there is no authority to pronounce
judgment”); Dubrev v. Izaguirre, 685 A2d 1391, 1393 (Pa.
Super.1996) (“[A]ction taken by a court without jurisdiction is a
nullity”).

Petitioner’s appeal should have been litigated in the Pennsylvania

Supreme Court, which had jurisdiction over this matter until May,
1999 when it affirmed the capital conviction in the Stewart
matter.49 As a result, the PCRA court lacked jurisdiction to decide
Petitioner’s PCRA petition. Commonwealth v. Leslie, 757 A.2d 984
(Pa. Super. 2000) (trial court lacked jurisdiction to proceed on
PCRA petition when direct appeal had not yet been decided). 50 As

491n fact, all of the issues raised on direct appeal in the Watson
appeal were also raised in the Stewart direct appeal.

50lndeed, a PCRA petition filed while the direct appeal is still

pending would be premature and should not even be heard. Leslie
757 A.2d at 985; Commonwealth v. Fralick, 425 Pa. Super 581, 625
A.2d 1249,1252, n.1 (1993); Commonwealth v. O’Neill, 393 Pa.
Super.

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Petitioner has tiled a pro se PCRA, petition which is pending in the

Court of Common Pleas, it is only now that the Court has
jurisdiction to properly determine Petitioner’s claims. Thus,
Petitioner may have state court remedies available to him and
Petitioner intends to raise these claims in state court in his
amended PCRA petition which will be filed in the Stewart case.51
B. Counsel Was Ineffective For Failing To Investigate the Ballistics
Evidence

Counsel in a capital case has a duty to investigate and prepare for

both the guilt and the penalty phase of the trial. Commonwealth v
Perry, 537 Pa. 385, 392, 644 A.2d 705 (1994) (“It is not possible to
provide a reasonable justification for appearing in front of a death
penalty jury without thorough preparation.”); Williamson v. Ward,
110 F.3d 1508, 1514(10th Cir. 1997) (“in a capital case, counsel’s
duty to investigate all reasonable lines of defense is strictly
observed”) (citing Coleman v. Brown, 802 F.2d 1227, 1233-34(10th
Cir. 1986)). Such a duty necessarily Involves an independent
investigation of the physical evidence and the employment of
necessary expert witnesses, Driscoll v. Delo 71F 3d 701-08 (8th Cir.
1996) (defense counsel has the duty to study and understand lab
results and scientific aspects of case); Demarest v. Price 995 F.
Supp. 1432, 1449 (D. Col. 1995) (counsel has duty to investigate
scientific aspects of state’s case and consult with appropriate
experts to counter state’s blood spatter experts). Counsel cannot

___

111, 573 A.2d 1112, 1116 (1990); Pa. R. Crim P. 1501, Comment
(PCRA claims can be raised only ‘after conviction and exhaustion
of the appellate process either by affirmance or by the failure to
take a timely appeal”).

51 “The subject matter jurisdiction of a court may cannot be

conferred by the agreement or action of the parties. A challenge to
a court’s jurisdiction may be raised at Sny time. Commonwealth v
Stadtfeld , 665 A.2d 485, 491 n3 (Pa. Super. 1995); Decoatesworth
v. Jones. 639 A.2d 792, 795 (Pa. ) (“The right to challenge a Court’s
jurisdiction over subject matter is permitted at any time”).

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simply rely upon the Commonwealth’s investigation.

Commonwealth v. Mabie, 359 A.2d 369. 374 (Pa. 1976) (re1iati~x on
“the prosecution’s file is not a substitute for an indcpcndont
investigation by defense counsel”); Thomas v. Lockhart, 738 F.2d
304, 308 (8th Cir.1984) (investigation consisting of reviewing
prosecutor’s file “fell short of what a reasonably competent
attorney would have done”); Perry, 644 A.2d at 709 (“Counsel’s
failure to interview witnesses was ineffective, arguably per se.”);
United States v. Gray, 878 F.2d 702, 711-12 (3d Cir. 1989) (counsel
must contact known witnesses and attempt to obtain available
evidence which diminishes the Commonwealth’s case and/or
supports the defense); Berryman v. Morton, 100 F.3d 1089, 100-01
(3d Cir. 1996) (counsel ineffective for failing to investigate witness
whose testimony would have tended to discredit the complainant’s
identification).

Federal constitutional law demands that counsel consult with

necessary experts and that funds be provided for those experts. In
Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980), the Court held that
when cause of death was a critical issue at trial, habeas relief was
due to an accused who had been denied funds for an independent
forensic pathologist for preparation and presentation of the
defense. The Court held:
There can be no doubt that an effective defense sometimes
requires the assistance of an expert witness.... Moreover, provision
of experts reasonably necessary to assist indigents is now
considered essential to a just judicial system The American Bar
Association standards on providing defense services state:

The plan (for providing competent counsel to indigents) should

provide for investigatory, expert and other services necessary to
an adequate defense. These should include not only those
services and facilities needed for an adequate defense at trial, but
also those required for effective defense participation at every
phase of the process....

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618 F.2d at 1025. The court recognized the tremendous handicap

imposed on counsel who is deprived of the expert assistance
necessary to competently present her case. Whenever there is a
substantial question concerning an area in which expert
assistance is necessary, the Constitution dictates that it be
provided. Id. at 1026 (“[The trial judge’s refusal to provide an
expert deprived Williams of the effective assistance of counsel and
due process of law in violation of the Sixth and Fourteenth
Amendments.”).

Trial counsel’s failure to investigate the ballistics evidence and her

failure to make use of any expert to assist her in that regard
constituted ineffective assistance of counsel. United States V.
Baynes, 687 F.2d 659 (3d C1r 1982) (counsel was ineffective for
failing to investigate tape-recorded conversations which purported
to contain the defendant’s voice); Jones v. Wood 114 F.3d 1002,
1011-12 (9th Cir.1997) (petitioner entitled to evidentiary hearing on
claim that counsel was ineffective for failing to investigate
potentially exculpatory blood evidence); Sims v. Livesav, 970 F.2d
1575 (6th Cir. 1992) (counsel ineffective for failing to investigate
gunshot residue); American Bar Association Standards, The
Defense Function § 4.1 (1972) (defense counsel has a duty to
promptly and completely investigate all evidence in a criminal
case, including seeking evidence from the prosecution and police).

B. The Denial of Funds For An Expert Denied Petitioner Due

Process.

In addition, the PCRA Court’s failure to grant Petitioner’s pro se.

request for funds, so that he may fully and fairly litigate this claim,
was itself a denial of due process. Petitioner had a right to due
process — including funds for experts needed to prove hi~
innocence -- in the PCRA proceedings. Having established a
system of post-conviction review, the Commonwealth must

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ensure that the post-conviction review proceedings comport with

due process. Evitts v, Lucey, 469 U.S. 387, 393. 401 (1985).
Moreover, by granting Petitioner the right to pursue a collateral
attack upon a conviction and sentence, Pennsylvania has given
him a liberty interest in full, fair and meaningful post-conviction
review See ~ Hicks v. Oklahoma, 447 U.s. 343, 346-47 (1980); Wolff
v. McDonald, 418 U.S. 539, 557 (1974); Fetterly v. Paskett, 997 F.2d
1295, 1300 (9th Cir. 1993) (“There is, of course, nothing in the
Constitution of the United States that requires Idaho’s legislature
to [establish a certain procedure]... However, the failure of a state
to abide by its own statutory commands may implicate a liberty
interest protected by the Fourteenth Amendment against arbitrary
deprivation by a state.”); Foster v. Delo, 39 F.3d 873, 882 (8th Cir.
1994) (~Where a state creates a right, such as a defendant’s right
to a review of his sentence, the Fourteenth Amendment of course
entitles him to procedures to ensure that the right is not arbitrarily
denied.”).

These principles apply fully to PCRA proceedings in Pennsylvania.

Indeed, the Third Circuit has recognized that PCRA proceedings in
Pennsylvania must comply with due process. Heisner v. Ryan, 951
F.2d 559 (3d Cir. 1991); Carter v. Vaughn, 62 F.3d 591 (3d Cir. 1995).
Once a liberty interest (such as full and fair PCRA review) is
established, it may not be rendered illusory for a particular litigant.
Here, the right to full, fair and meaningful PCRA review was
rendered illusory, in violation of Petitioner’s right to due process.

In order to effectuate these due process rights, the Commonwealth

was required to provide Petitioner the funds for experts needed to
give Kim a fair opportunity to prove his innocence. Williams v.
Martin, supra; Judicial proceedings cannot be deemed
fundamentally fair if an indigent defendant is not afforded access
to the raw materials integral to building a defense.

(61)

Ake v. Oklahoma, 470 U.S 68, 70 (1985) (when a capital defendant’s

mental health is at issue, “the Constitution requires that an
indigent defendant have access to the psychiatric examination and
assistance necessary to prepare an effective defense.”). See also
Terry v. Rees, 985 F.2d 283 (6th Cir 1993) (defendant was denied
the opportunity to present a defense when he was denied an
independent pathologist to determine the cause of death); Mason
v. Arizona, 504 F.2d 1345, 1351-52 (9th Cir. 1974) (due process
required appointment of an investigator or provision of funds for
an investigation); Starr v. Lockhart. 23 F.3d 1280, 1287 (8th Cir.
1994) (due process denied by denial of request for funds for
experts).

C. Prejudice

Although the above authority demonstrates that counsel’s

performance was deficient and that due process was violated,
Petitioner recognizes that he is not, at this point, able to prove that
he was prejudiced as a result. In order to surmount the prejudice
prong of his request for relief, Petitioner needs access to the
physical evidence so that his retained ballistics expert can
conduct an independent examination of the evidence. For these
reasons, as developed below, Petitioner respectfully requests that
this Court grant him discovery, and conduct an evidentiary hearing
on the issue.

D. This Court Should Grant Petitioner Discovery and Allow Him To

Conduct An Independent Investigation of the Ballistics Evidence.

Rule 6(a) of the Rules Governing Section 2254 Cases entitles

habeas petitioners to invoke the processes of discovery available
under the Federal Rules of Civil Procedure if, and to the extent
that, the judge in the exercise of his discretion and for good cause
shown grants leave to do so.” Leave to conduct discovery in
habeas cases is permitted when “there is a sound basis

(62)

for concluding that the requested discovery might allow the

[petitioner] to demonstrate” he is entitled to relief. Johnston v.
Love. 165 F.R.D. 444, 445 (E.D. Pa. 1996); Gaitan-Commpanioni v.
Thornburgh, 777 F. Supp. 1355, 1356 (E.D. 1ex 1991).

A habeas petitioner has shown “good cause” for a discovery

request when “specific allegations before the court show reason to
believe that the petitioner may, if the facts are fully developed, be
able to demonstrate that he is . . entitled to relief.” Bracy v.
Gramlev, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394
U.S. 286, 299 (1969)).52 Under such circumstances, discovery must
be allowed -- “it is the duty of the courts to provide the necessary
facilities and procedures for an adequate inquiry.” ID53 “The very
nature of [habeas proceedings] demands that [they] be
administered with the initiative and flexibility essential to insure
that miscarriages of justice within its reach are surfaced and
corrected.” 394 U.S. at 291.

Here, Petitioner has shown “good cause” for discovery. Petitioner

has provided specific

_____

52 Harris v. Nelson led to the adoption of the Rules Governing

Section 2254 Cases. In particular, the discovery provisions of Rule
6 are intended to be “consistent with Harris.” Advisory
Committee’s Note on Habeas Corpus Rule 6; Bracy v. Gramley, 520
U.S. at 909.

53 Accord McDaniel v. United States District Court, 127 F.3d 886,

888 (9th Cir. 1997) (where Petitioner “presented specific
allegations...[he] is entitled to discovery”); Johnston v. Love 165
F.R.D. 444, 445 (ED. Pa. 1996) (Rule 6’s ‘history makes clear that its
purpose is to ensure that the facts underlying a habeas corpus
claim are adequately developed, and that it is a court’s obligation
to allow discovery in cases in which a petitioner has provided a
sufficient basis for believing that discovery may be necessary to
adequately explore a petitioner’s claim for relief.” Accordingly, “a
court may not deny a habeas corpus petitioner’s motion for leave
to conduct discovery if there is a sound basis for concluding that
the requested discovery might allow him to demonstrate that he
has been confined illegally.”); Gaitau-Campanioni v. Thornburgh,
777 F. Supp. 1355. 1356 (E.D. Tex. 1991) (“Although discovery is
permitted only by leave of the court, the court should not hesitate
to allow discovery, where it will help illuminate the issues
underlying the applicant’s claim.”).

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allegations” -- as described above -- “show[ing] reason to believe

that fhe] may, if the facts are fully developed, be able to
demonstrate that he is ... entitled to relief” Bracy, 520 U.S. at 908-
09.

Thus, discovery should be allowed, indeed discovery has routinely

been granted in cases, such as this one, where it would help
“illuminate the issues” before the court,54 Gaitan-Camparnoni, 777
F.Supp. at 1356, Tonev v. Gammon, 79 F.3d 693, 700 (8th Cir. 1996).
In [~n~x. the Court of Appeals, reversing the decision of the
magistrate, ordered that the petitioner, who claimed that DNA
testing would help prove his innocence, be granted access to and
testing of the physical evidence and trial exhibits, using updated
methods of DNA testing. The court held that “[in order to prove the
prejudice prong of [petitioner’s] ineffective assistance claim, [he]
is entitled to have access to evidence through discovery. The
district court abused its discretion in denying his discovery
request.”

Discovery has also been granted for the testing of evidence. Jones
v. Wood, 114 .3d 1002, 1009 (9th Cir. 1997) (petitioner showed good
cause supporting discovery request to have FBI laboratory
conduct identification testing of blood stains found on the clothes
he was wearing on the night of the killing). Discovery may also be
utilized to allow scientific testing by

_______

“ E.g.. Jones v. Love, No. 94-CV-4257, 1996 WL 296525, ~1, *4, 9

(E.D. Pa. June 3, 1996) (allowing discovery, including depositions
of court reporter, to determine status of missing portions of the
state court record); Carpenter v. Vaughn, 888 F. Supp. 635, 640
(M.D. Pa. 1994) (noting that discovery, in the form of depositions,
had been granted); Toney v. Gammon 79 F.3d 693, 700 (8th Cir.
1996) (scientific testing of trial exhibits); Warden v. GaIl, 865 F.2d
786, 787-88 (6th C11. 1989) (examination and testing of physical
evidence; depositions); Rice v. Clarke, 923 F.2d 117, 11811.3 (8th
Cir. 1991) (FBI records); Ross v. Kemp, 785 F.2d 1467, 1469, 1478-
79 )11th Cir. 1986) (depositions; production doccuments); Coleman
V. Zant, 708 F.2d 541, 547 (11th Cir. 1983) (same).

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guilt’)’ Williams v. Taylor, 529 U.S. at 396 (prejudice determination

requires an assessment of the tonality of the omitted evidence, not
on the effect of any single piece of evidence). Here, the state
courts did not engage in the cumulative prejudice analysis
required under Strickland but limited its determination to the
potentially prejudicial effect of each individual issue. Such limited
analysis of prejudice is contrary to Strickland.

Issue # 9
PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE
EFFECTIVE ASSISTANCE OF (COUNSEL WHERE TRIAL COUNSEL
FAILED TO PRESENT KNOWN ALIBI EVIDENCE AND WHERE
APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON DIRECT
APPEAL.

Prior to trial, Petitioner advised trial counsel that be did not

commit the killing of Watson and that he was somewhere else at
the time of the shooting. Petitioner provided counsel with the
name of a witness, Kevin Tadlock, who could attest to this fact.
Counsel had an investigator interview Tadlock, who confirmed that
Petitioner was with him at the time of the killing. The investigator
took a signed statement from Mr. Tadlock, and provided that
information to counsel.32

Counsel filed a notice of alibi, and advised Mr. Cox that she would
call Mr. Tadlock at trial. However, despite Tadlock’s availability,
counsel never called him to testify and the jury never heard this
critical evidence. Counsel’s failure to produce this alibi witness
rendered her representation constitutiona1ly ineffective. In
addition, appedlate counsel had access to trial

________

32Mr. Tadlock was identified as “Kevin,” but signed the statement

as “Lawrence.” Lawrence and Kevin are the same person.

33A claim of ineffective assistance of appellate counsel is also

judged by the Strickland standard. Mason v. Hanks. 97 F.3d 887,
892 (7th Cir. 1996); Mayo v, Henderson, 13 F.3d 528, 533 (2d Cir.
1994); Matire v. Wainwright. 811 F.2d 1430, 1435 (1 lt.h Cir. 1987). A
defendant

(43)

counsel’s file and was therefore aware that trial counsel had failed
to produce this evidence. Appellate counsel however, failed to
raise this issue. Appellate counsel was also ineffective.

A. Exhaustion and Default

These claims were fairly presented to the Pennsylvania courts. The
claim was raised in Petitioner’s pro se and amended PCRA
petitions, on appeal from the denial of PCRA relief to the
Pennsylvania Superior Court, and in a Petition for Allowance of
Appeal to the Pennsylvania Supreme Court. Thus the claim is
exhausted.34

The state appellate courts, however, did not address this claim on
the merits. The
Superior Court ruled that the statement from Kevin Tadlock, which
had been attached to the PCRA petition, did not meet the
requirements Pa. C.S. 9545 (d) because it did not include the
signed certification required by the statute and because it was not
in the form of an affidavit. See Pa. R. Crim. P. 1502(d). The
Pennsylvania Supreme Court simply denied allocator.

Although the Superior Court did not address the merits, its ruling
does not satisfy the requirements for procedural default. Contrary
to the Superior Court’s ruling, the record shows that Petitioner
satisfied Pennsylvania’s rules. Attached to the PCRA petition was
a signed

_______

establishes that he was prejudiced by appellate counsel’s

ineffectiveness where he shows that, but for counsel’s error, there
was a reasonable probability that the outcome of the appeal would
have been different . 97 F.3d at 893; Mayo, 13 F.3d at 534; Matire,
811 F.2d at 1439. Thus. where1 a~ here, appellate counsel fails to
raise a substantial, meritorious claim on appeal counsel is
constitutionally ineffective. ID. See Greer v. Mitchell 2001 WL
1001080 (6th Cir. 9/4101) (“in a capital case appellate attorneys
must err on the side of inclusion particularly where, as here, there
appear to exist a significant number of facts to support the claim).

34Moreover, this claim was also raised in petitioner’s pro se PCRA

petition relating to the Stewart case, which is currently pending in
the Court of Common Pleas. Counsel plans to include this claim in
the amended petition in that case, which is due to be filed on
March 15, 2001
(44)

statement from Kevin Tadlock. This statement included his name,

address, date of birth and social security number and contained a
detailed summary of his proposed testimony in which he explains
that Petitioner was with him at the time of the Watson shooting.
This statement met the requirements of Pa.C.S. §9545(d)35 and
Pa.R.Crim.P. 1502(d).

In fact, the Superior Court’s ruling that Rule 1502(d) requires any
statement to be in the form of an affidavit is simply wrong. The
language of the Rule itself contains no requirement of an affidavit.
Moreover, a recent published opinion of the Superior Court
rejected the view that only statements in the form of an affidavit
would be required. In Commonwealth v. Brown, 767 A.2d 576, 582
(Pa. Super. 2001), the Court held, “there is no requirement in the
statutory language that this certification be in the form of an
affidavit.” Thus, in this case, the Superior Court applied a rule
which simply did not exist.

Under these circumstances. there is no procedural default. A state

finding of default will only bar federal review where the state
court’s action was based on a rule that was “adequate and
independent.” For a rule to be “adequate,” it must be “firmly
established and regularly followed” at the time that the petitioner
purportedly violated the rule. Ford v. Georgia, 498 U.S. 411, 423-24
(1991); Jermyn V. Horn. 266 F.3d 257 (3d Cir. 2001). Whether a state
court procedural bar

35The statute states:

(1) Where a petitioner requests an evidentiary hearing, the petition
shall include a signed certification as to each intended witness
stating the Witnesses’ name, address, date of birth and substance
of testimony and shall include any documents material to that
witness’s testimony. Failure to substantially comply with the
requirements of this paragraph shall render the proposed
witnesses’ testimony inadmissible.

(45)
may preclude federal court review is a federal question Johnson v.
Mississippi, 486 U.S. 578, 588 (1988). In order for a state court
procedural bar rule to be deemed “adequate” to preclude federal
court merits review, the state court rule must have been “clear,”
unmistakable,” and firmly established at the time that the
petitioner purportedly violated the rule. Ford v. Georgia 498 U.S.
411, 423-24 (1991) (state rule must be “firmly established and
regularly followed” at the time that the purported waiver occurs.)
Johnson V. Mississippi, 486 U.S. at 588 (“{A} state procedural
ground is not ‘adequate’ unless the procedural rule is ‘strict1y or
regularly followed.”’ Quoting and citing, Barr v. City of Columbia,
378 U.S. 146, 149 (1964); Hathorn v Lovorn, 457 U.S. 255, 262-263
(1982); James v. Kentucky, 466 U.S. 341, 346, 348 (1984) (state rule
must be “clear,” “firmly established and regularly followed”);
Ulster County Ct. v. Allen. 442 U.S. 140, 150-5] & nn.8-9 (1979)
(state rule must be “clear”). The Commonwealth bears the burden
of proving that a state procedural bar is adequate and
independent.36

Where the record does not support the state court’s finding of
waiver, the claim is not defaulted. It is axiomatic that a claim
cannot be deemed procedurally barred unless the petitioner has
actually violated the state court rule. See Kubat v. Tthieret, 867
F.2d 351, 366 n.11 (8th Cir. 1989) (although state Supreme Court
found that petitioner had waived issue by failing to raise it in direct
appeal, federal court refused to apply procedural default where
record showed that the claim had, in fact, been raised); Forgy
v.Norris, 64 F.3d 399, 401-02 (8th Cir. 1995) (rejects claim of
procedural default despite state Supreme Court finding that
petitioner had failed to file a

36Trest v. Cain, 522 U.S. 87, 89 (1997) (procedural default is an

affirmative defense that the state must establish); Hooks v. Ward,
184 F.3d 1206,1216-17 (10th Cir. 1999)

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motion in the trial court where record showed that the defendant
had complied with local filing practice); Williams v. Coyle, 260 F.3d
684, 693 (6th Cir. 2001) (in determining the applicability of
procedural default, a federal court must determine “whether there
is a state procedural rule that is applicable to petitioner’s claim
and whether the petitioner failed to comply with that rule”);
Reynolds v. Berry. 146 F.3d 345, 347 (6th Cir. 1998) (before
applying procedural default, federal court must determine whether
petitioner complied with applicable state rule); see also James S.
Liebman & Randy Hertz, FEDERAL HABEAS CORPUS PRACTICE
AND PROCEDURE at 1043 (3d ed.1998) (The doctrine of procedural
default only applies where the state makes the default cognizable
by showing, inter alia, that “the state actually has an applicable
procedural rule that the defendant actually violated”); id. at 1054-
59.

Mr. Cox has not defaulted his claims. He made a reasonable, good
faith effort to comply with the statutory language and procedural
rules by supplying a signed statement from the witness complete
with address and date of birth. The Superior Court’s contrary
determination is simply wrong.

At the time of Petitioner’s filings, there were no published opinions

detailing the specific requirements of the certification rule. See Lee
v. Kemna — U.S. —, 2002 WL 75610 (January 22, 2002) (proper to
consider fact that no published state court opinion applied state
procedural rule in similar circumstances). By supplying a signed
statement from the witness and requesting an evidentiary hearing,
Petitioner made a reasonable effort to comply with the rule. Under
these circumstances, the application of a state bar appeal served
no legitimate state purpose, and cannot be the basis for a finding
of default. Lee v. Kemna, Supra Qsborne v. Ohio 495 U.S. 103 124
(1990).

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B. The Failure To Present Alibi Testimony

Defense counsel knew that there was a witness available who was
prepared to testify that Petitioner was not present at the time of the
Watson shooting. Counsel had her investigator seek out Kevin
Tadlock. who provided a signed statement indicating that he,
Jermont, and another man were all together at the time of the
shooting. The statement indicates that Tadlock was obviously
available and willing to cooperate. On that basis, trial counsel filed
a notice of alibi.

Inexplicably, however, counsel never called Mr. Tadlock to testify.

In light of the fact that the Commonwealth’s only evidence was
Petitioner’s contested confession, and counsel had no alternate
means of presenting this defense, counsel could have no
reasonable basis for failing to present this testimony. Counsel was
ineffective. See Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 869
(1976) (counsel ineffective for failing to interview eyewitnesses and
for failing to make a reasonable attempt to do so); Commonwealth
v. McCaskill, 321 P~i Super 266, 468 A.2d 472 (1983) (counsel
deemed ineffective for failing to interview alibi witness);
Commonwealth v. Thuy, 623 A2d 327 (Pa. Super. 1993) (counsel
has obligation to present exculpatory evid3ence; defendant
entitled to evidentiary hearing on claim that counsel failed to
present alibi testimony)28

_____

37 Indeed, even without his cooperation, counsel could have

subpoenaed Mr. Tadlock to testify.

38See also Jadley v. Groose, 97 F.3d 1131 (8th Cir. 1996) ( Counsel
ineffective in rape and burglary case where the state offered
evidence of an uncharged burglary at the same home four days
after these offenses. Defense counsel failed: (1) to develop and
present available alibi evidence on uncharged burglary and did not
even ask defendant his whereabouts during testimony); Bryant v.
Scott, 28 F.3d 1411(5th Cir. 1994) (counsel ineffective for failure to
interview alibi witnesses despite defendant’s uncooperativeness in
providing the names only three days before trial, failure to
interview eyewitnesses prior to trial despite vigorous cross-

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C. This Court Should Conduct An Evidentiary Hearing

In Section 2254 (e)(2) , Congress addressed a federal court’s ability

to hold an evidentiary hearing to decide the merits of a habeas
petition. The United States Supreme Court explained the
application of this portion of the statute in Williams v. Taylor, 529
U.S. 420 (2000) For the purposes of this case,, the question under
Williams is whether Petitioner “failed to develop the factual basis
of his claim in state court proceedings. 529 U.S. at 424. Here,
Petitioner did not fail to develop the factual basis of his claim in
state court. Thus, Section 2254(e)(2) is not applicable and
Petitioner is entitled to an evidentiary hearing.

In Williams, the Supreme Court found that the “failed to develop”

element of the statute is applicable only when a petitioner is ‘at
fault” for the lack of state court development. 529

_____

examination, and failure to interview co-defendant who maintained

that defendant was innocent); Foster v. Lockhart, 9 F.3d 722, 726
(8th Cir. 1993) (counsel ineffective for failing to investigate alibi
defense); Griffin v. Warden. 970 F.2d 1355 (4th Cir. 1992) (trial
counsel ineffective for failure to contact robbery defendant’s alibi
witnesses despite counsel’s belief that defendant would plead
guilty. Investigation would have revealed alibi witnesses to counter
the state’s eyewitness evidence which was uncorroborated by any
physical evidence); Martinez-Macias v. Collins. 979 F.2d 1067 (5th
Cir. 1992) (trial counsel was ineffective for failing to call a
disinterested alibi witness available at the time of trial); Grooms v.
Solom, 923 F.2d 88 (8th Cir. 1991) (counsel ineffective for not
investigating defendant’s potential alibi and for not attempting to
get alibi witnesses’ testimony on record); Tosh v. Lockhart, 879
F.2d 412 (8th Cir. 1989) (counsel ineffective for failing to use
reasonable efforts to procure three alibi witnesses in defendant’s
aggravated robbery and theft of property trial. Court noted that any
perceived reluctance by alibi witnesses was no excuse for not
contacting them); Montgomery v. Petersen, 846 F.2d 407 (7th Cir.
1988) (trial counsel ineffective for failing to investigate the only
available disinterested alibi witness in burglary case, a store clerk,
from whom Appellant allegedly purchased a bicycle on the day of
the robbery; uncalled witness could have impeached the state’s
chief witness and, more importantly, could have provided
Appellant with an unbiased alibi defense); Blackburn v. Foltz, 828
F.2d 1177(6th Cir. 1987). cert. denied, 485 U.S. 970 (1988) (trial
counsel ineffective in armed robbery prosecution failing to locate
and question potential alibi witness); Code v. Montgomery. 799
F.2d 1481 (11th Cir. 1986) (counsel ineffective for failing to
adequately investigate and present alibi defense where trial was a
mere swearing match between alleged victims and an accomplice
against the defendant).

(49)

U.S. at 433. The Court held that the “failed to develop” clause of
2254(e)(2) codified the language of Keeney v. Tamayo-Reyes.. 504
U.S. 1, 8 (1992), which inquired into “the state prisoner’s failure to
develop material facts in state court” Williams, 529 U.S. at 433.
Thus, the analysis of Section 2254(e)(2)’s “failed to develop”
requirement remains the same as the analysis under ~ In reaching
these conclusions, the Court recognized that, as in procedural
default analysis, this limitation on federal evidentiary hearings is
grounded in principles of comity, i.e., that state courts must be
given the first opportunity to develop the facts. Williams. 529 U.S.
at 436-37. Where a petition has properly sought to develop the
factual record, but has been denied that opportunity by the state
court, principles of comity are not offended by a federal
evidentiary hearing. Id.

Here. Petitioner properly sought an evidentiary hearing on his

claim in the PCRA Court and on appeal. Nevertheless, the state
court denied him the opportunity to develop the facts underlying
his claim. Since Petitioner did not “fail to develop” the factual
basis of his claim in state court, §2254(e)(2) does not apply. This
Court is then guided by pre-AEI2PA law in determining whether an
evidentiary hearing should be granted.40 An evidentiary hearing is
appropriate when the habeas petition alleges facts which, if
proved, would entitle the petitioner to

_____

39The statute did, however, narrow the class of exceptions to the

“failed to develop” requirement beyond what was allowed under
Keeney. To this extent, the statute is more restrictive than prior
law. See Williams 524 U.S. at 433-34. Those exceptions are not
relevant here.
40See United States ex ret Patosky v. Kozakiewicz. 960 F.Supp
905,, 923 n.6 (W.D. Pa. 1997) (~2254(e) does not alter the standard
for determining when a hearing is necessary in federal court,
namely, whether petitioner requires the opportunity to develop
facts in support of a claim which would entitle him to relief).

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relief, and there is a material dispute about those facts.41 In this

and his prior submissions, Petitioner has presented facts which, if
proved, would entitle him to relief. This Court should conduct an
evidentiary hearing on this claim.

CLAIM VI. PETITIONER WAS DENIED HIS CONSTITUTIONAL

RIGHTS TO THE
EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL WHERE
TRIAL COUNSEL FAILED TO OBJECT TO PETITIONER’S
APPEARANCE BEFORE SOME JURORS IN PRISON GARB, AND
WHERE APPELLATE COUNSEL FAILED TO RAISE THIS ISSUE ON
DIRECT
APPEAL.

During jury selection on March 30, 1995, Petitioner, who was

incarcerated prior to trial, appeared before the jury dressed in
prison garb. The trial court took note of Petitioner’s dress, but
counsel failed to object or make any effort to ensure that Petitioner
was dressed in civilian clothes. NT 3/30/95 at 35. Two jurors were
selected that day. Id. at 82, 92.

Petitioner was denied his constitutional right to due process when

he was forced to appear before members of the jury dressed in
prison garb. Trial counsel was ineffective for failing to object.
Appellate counsel was ineffective for failing to raise this issue on
direct appeal.42

“The presumption of innocence ... is a basic component of a fair

trial under our system of

______

41 Townsend v. Sain. 372 U.S. 293, 312-19 (1963); Smith v.

Freeman, 892 F.2d 331, 337 (3d Cir. 1989); Zilich v. Reid, 36 F.3d
317, 321-22 (3d Cir. 1994).

42These claims were fairly presented to the Pennsylvania courts.

The claim was raised in Petitioner’s pro se and amended PCRA,
petitions, on appeal from the denial of PCRA relief to the
Pennsylvania Superior Court, and in a Petition for Allowance of
Appeal to the Pennsylvania Supreme Court. Thus the claim is
exhausted. Moreover, this claim was also raised in Petitioner’s pro
se PCRA petition relating to the Stewart case, which is currently
pending in the Court of Common Pleas. Counsel plans to include
this claim in the amended petition in that case, which is due to be
filed on March 15, 2002.

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V. CLAIMS FOR RELIEF

I. PETITIONER WAS DENIEI) EFFECTIVE ASSISTANCE OF

COUNSEL
AT TRIAL, WHEN COUNSEL FAILED TO PROPERLY INVESTICATE
AND OBTAIN THE CRIMINAL RECORDS OF TWO
COMMONWEALTH WITNESSES AN)) FAILED TO IMPEACH THE
WITNESSES AT TRIAL, IN VIOLATION OF PETITIONER’S RIGHTS
UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.

Trial Counsel’s failure to properly investigate and obtain the

criminal records of two Commonwealth witnesses and impeach
their testimony violated Petitioner’s right to effective assistance of
counsel under the Sixth and Fourteenth Amendments to the United
States Constitution.

Kimberly Little and Mary Little testified on behalf of the

Commonwealth at trial. Both witnesses provided crucial intent,
motive and eyewitness evidence against Petitioner. At the time
they gave their initial statements to police, which was not until six
days after the shooting, both Kimberly and Mary Little faced
pending felony and misdemeanor charges of robbery, simple
assault, recklessly endangering another person, theft, receiving
stolen property and criminal conspiracy. (See Exhibits, attached).
These charges stemmed from an incident which occurred just one
month before the shooting they purported to witness. (See
Exhibits, attached) By the time they testified at trial, both Kimberly
and Mary Little had been convicted of simple assault, reckless
endangerment of another person, and conspiracy, and received
the relatively lenient sentence of two years probation. See exhibits
attached).

However, because trial counsel failed to properly investigate the

Little sisters’ criminal histories, the information concerning their
arrests and convictions was not presented to the trial court,
instead, the court was left without vital information concerning the
witnesses’ credibility,

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their bias in favor of the Commonwealth, and motive to fabricate

evidence and as such, trial counsel was ineffective.

To prevail on a claim of ineffectiveness, Petitioner must

demonstrate that counsel’s performance was deficient and that
Petitioner suffered prejudice as a result. Strickland v. Washington,
466 U.S. 668, 687 (1984).

A. Deficient Performance,

To establish deficient performance on the part of counsel,

Petitioner must show that his attorney’s performance fell below
“an objective standard of reasonableness.” Strickland. 466 U.S. at
688.

The right to the effective assistance of counsel includes the right

to have counsel investigate and produce evidence in support of
the defense. Id. 690-91. Counsel must make a reasonable effort to
contact known witnesses and attempt to obtain available evidence
which both diminishes the Commonwealth’s case and/or supports
the defense. Counsel’s duty is to make an independent
investigation of the facts and circumstances. Nealv v. Cabana, 764
F.2d 1173, 1177 (5tl~ Cu. 1 9~S). Where counsel fails to investigate
and interview potential witnesses, he has no reason to discount
their worth, and his inaction constitutes negligence, not strategy.
Workman v Tate, 957 F.2d 1339, 1345 (6th Cir. 1992); United States
v. Gray, 878 F.2d 702 (3d Cir. 1989) (counsel ineffective for failing
to investigate when such efforts would have yielded witnesses
favorable to defendant).9

9 Numerous cases have found counsel ineffective under Strickland

v. Washington, 466 U.S. 668 (1984) for failing to conduct the guilt
phase investigation that would have enabled counsel to impeach a
prosecution witness or theory. See e.g. Berryman V. Morton 100
F.3d 1089, 1098-99 (3d Cir. 1996) (counsel ineffective for, inter alia,
failing to impeach identification.

(9)
Indeed, counsel has a duty to investigate and obtain the criminal
records of witnesses to be used for impeachment. Hoots v.
Albrook, 785 F.2d 1214, 1221 (4th Cir. 1986), As the Hoots court
stated:

We agree that defense counsel ordinarily has a duty to investigate

possible methods for impeaching prosecution witnesses. That
obligation was breached by Weldon, who did not attempt to search
out Roark’ criminal record, which would have been easily
discoverable. In some cases such deficient performance might be
so prejudicial to a criminal defendant that the Strickland standard
for ineffective assistance of counsel would be satisfied.

Id. (Emphasis added).

In this case, Kimberly and Mary Little’s criminal records were

easily discoverable with a trip to [he Philadelphia criminal clerks’s
office. Despite that, counsel failed to conduct any investigation
into their criminal backgrounds and failed to obtain their records.

At Petitioner’s state post-conviction (PCRA) hearing, trial counsel

conceded that he made absolutely no effort to investigate Kimberly
and Mary Little’s criminal record and that he had no reasonable
basis for failing to do so. NT 2/4/98 at 8. As such, counsel’s
performance was

______
witness with prior inconsistent statements); Hadley v. Grose 97
F.3d 1131 (8thCir1996) (counsel ineffective for failing to investigate
alibi and failure to impeach critical prosecution witness); Harris ex
rel. Räm??? v. Wood, 64 F.3d 1432 (9th Cir. l995) (counsel
ineffective fo failing to interview prosecution witnesses); Griffin v.
Warden, 970 F.2d 1355 (4th Cir. 1992) (counsel ineffective for
failing to investigate alibi that would have served to impeach
prosecution’s case); Sims v. Livesay. 970 F.2d 1575 (6th Cir. 1992)
( counsel ineffective when he failed to conduct forensic
investigation the results of which would have cast doubt on
prosecution’s theory that the deceased was shot at close range);
Moffett v. Kolb 930 F.2d 1156
(7th Cii. 1991) (counsel ineffective for failing to impeach witness
with prior inconsistent statement that would have supported
counsels trial theory); Montgomerv~2etersen, 846 F.2d 407 (7th Cir.
1988) (counsel’s failure to investigate alibi which would have
impeached state’s case held ineffective); Williamson v. Reynolds,
904 F. Supp. 1529 (E.D. Okla. 1995), aff’d Williamson v. Ward, 110
F.3d 1508 (10th Cir. 1997) (counsel ineffective for failing to
impeach prosecution witnesses with plea agreement).

(10)

deficient and fell below “an objective standard of reasonableness,”

Strickland, 466 U.S. 688. also Washington v. Maronev, 428 F.2d 10,
14(3rd Cir’. 1970) (where counsel may not have been aware of
prosecution witnesses criminal record, failure to impeach was not
a tactical decision).

B. Prejudice.

To obtain relief, Petitioner must show that he was prejudiced s.c a

result of trial counsel’s failure to obtain Kimberly and Mary Little’s
criminal records.

Under Strickland, “prejudice,” is not an outcome-determinative

test. Strickland, 466 U.S. at 693-94. The question is not whether
representation by effective counsel would have actually changed
the outcome at either the guilt-innocence or sentencing phase, nor
even whether representation by effective counsel would “more
likely than not” have changed the outcome. Id. Instead, prejudice
is established when confidence in the outcome is undermined
because of counsel’s deficiencies. Id. at 694. “This standard is not
a stringent one. It is less demanding than the preponderance
standard.” Hull v. Kyler, 190 F.3d 88, 110 (3d Cir. 1999) (internal
quotation marks and citations omitted) (citing Nix v. Whiteside, 475
U.S. 157, 175 (1986); Baker v. Barbo. 177 F.3d 149, 154 (3d Cir.
1999)); accord United States v. Day, 969 F.2d 39, 45 n.8 (3d Cir.
1992) (Stzicjc1~nd “does not require certainty or even a
preponderance of the evidence that the outcome would have been
different with effective assistance of counsel; it requires only
‘reasonable probability’ that that is the case”).

Petitioner never denied shooting Lawrence Davis, but has always

contended that he did not have the intent to kill and is not guilty of
first degree murder. Indeed, in his statement to police given at the
time of his arrest, Petitioner admits shooting Lawrence Davis but
says it was

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an accident. (See Exhibit, attached). Kimberly Little, and to a lesser

extent Mary Little’s testimony was the only evidence directly
refuting Petitioner’s claim and as such, their credibility was vital to
the Commonwealth’s case.

At trial, Commonwealth witness Kimberly Little testified that she

knew Petitioner as a lookout for an illegal drug enterprise which
operated out of 243 West Queen Lane in Philadelphia. NT 10/28/93
at 3,14. She testified that on the night of the shooting, she
overheard an argument about drugs between the decedent,
Lawrence Davis and an associate of Petitioner’s by the name of
Larry Lee, which later escalated into a physical confrontation. Id. at
1619. She then saw Petitioner exit a bar with a six pack of beer,
retrieve a handgun from a nearby parked car, walk up to the
decedent, who posed no threat to Petitioner or Larry Lee, and fire
three bullets at his head with that gun. Id. at 20-22. According to
Kimberly Little’s testimony, Petitioner then cooly put down and
drank a beer before getting into the car where he originally
retrieved the gun and drove away with Larry Lee. Id. at 23-24.

Mary Little, Kimberly Little’s sister, testified that although she did
not witness the actual shooting, after hearing gunshots she
immediately ran to her window at 243 West Queen Lane and saw
Petitioner and Larry Lee, who she knew as neighborhood drug
dealers, run to a car, throw a shiny object into the back seat and
flee. Id. at 67-69.10

The Little sisters’ testimony was incredibly damaging to Petitioner.

Their testimony about Petitioner’s involvement in the illegal drug
business and Kimberly Little’s description of

______

10 Mary Little’s testimony is inconsistent with Kimberly’s. Mary

Little, who ran to her window after hearing shots, did not claim to
see Petitioner open and drink a can of beer after the shooting.

(12)

the argument about drugs which led to the shooting provided the
only evidence of a motive for the shooting. In addition, Kimberly
Little’s depiction of Petitioner calmly walking over to the car to
retrieve the gun, aiming the weapon at the supposedly harmless
decedent’s head, firing three times and then having the coldness
of heart to open and drink a can of beer was the only direct
evidence of Petitioner’s alleged intent to kill and the only evidence
directly contradicting his statement to police that Larry Lee gave
him the gun and that the shooting was accidental.

As evidenced in the prosecutor’s closing argument, Kimberly and

Mary Little’s testimony concerning motive and intent was
extremely important to the Commonwealth. Their testimony was
extensively and exclusively relied on by the prosecution to argue
and prove that Petitioner possessed the specific intent to kill.

In his closing, the prosecutor argued that Petitioner killed

Lawrence Davis after a drug deal gone bed, NT 10/28/93 at 126; that
Petitioner’s motive to kill was his desire to increase his status
within the drug organization and protect his boss, Id. at 125-126;
that Petitioner had already formed the intent to kill when be
retrieved the gun from the car, Id. at 126; that the decedent posed
no threat to Petitioner or Larry Lee when he was shot, Id.; and, that
Petitioner aimed the gun at the decedent’s head thus intending to
kill. Id. at 127. These facts all came from the Little sisters.

In determining that Petitioner possessed the intent to kill, Kimberly

and Mary Little’s testimony was also heavily relied on by the trial
court as fact finder. The trial court found that the Commonwealth
proved at trial that:

Cox and Larry Lee (“Lee”) were members of a drug business that
operated at 246 West Queen Lane in Philadelphia. Cox served as a
“lookout” and would signal his colleagues if the police
approached. On July 19, 1992 at approximately

(13)

1:55 A.M. Lee and Lawrence Davis (‘~Davis”) were standing beside
Lee’s 1979 green Malibu which was parked in the Street outside
246 West Queen Lane. Lee and Davis began a verbal argument
relating to a small amount of drugs. A physical fight ensued an Lee
hit Davis several times knocking him to the ground.

Cox exited a local bar called the “Queen Lane Lounge” with a bag
containing a six-pack of beer. He approached Lee and Davis,
placed the beer on the hood of the car, and then, reached in to the
car and removed a .38 caliber handgun Cox shot Davis point blank,
after which he drank some beer and then fled with Lee in Lee’s
vehicle.

Davis sustained four gunshot wounds: a perforating gun shot

wound to the right side of the neck; a perforating gunshot wound
to the right shoulder with reentry into the right chest; a perforating
gunshot wound of the right hand; and, a perforating gunshot
wound to the left chest with re-entry into the left arm. Davis died as
a result of these injuries.

Opinion Sur Pa. R.A.P. 1925(a), 10/14/94 at 2-3. All of the facts
relied on by the court in finding Petitioner guilty of first degree
murder, except for the location of the wounds, were directly
supplied by the testimony of Mary Little and even more so
Kimberly Little.
The importance of Kimberly and Mary Little’s testimony is
unquestionable. Without their testimony, the Commonwealth had
nothing other than Petitioner’s post arrest statement to prove hi is
guilty of first degree murder and that statement indicates that the
shooting was an accident. Despite that fact however, as a result of
trial counsel’s failure to investigate and obtain their criminal
records, the Little sister’s testimony went virtually unchallenged
and the factfinder was left to render a decision on guilt or
innocence without weighing compelling impeachment evidence.
Instead, their testimony was presented to the court by the
Commonwealth as the unbiased observations of two witnesses
without a motive to fabricate evidence.

Neither Kimberly nor Mary Little reported to police what they

allegedly saw until days after the shooting and not until the police
tracked them down. NT 10/28/93 at 24-25, 36, 70-71.

However, as stated above, when they gave their statements.

Kimberly and Mary Little had pending charges robbery,
conspiracy, assault, theft, receiving stolen property and reckless
endangerment of another person from an incident that occurred
one month before the shooting they allegedly witnessed. . (See
Exhibit, attached). Had counsel fulfilled his constitutional duty and
investigated and obtained the Little sister’s criminal records he
could have impeached their credibility by arguing that the only
reason they gave a statement to police which inculpated Petitioner
was because they were seeking favorable treatment on their
pending cases.

In addition, armed with the information about their criminal

records, counsel could have impeached the Little sisters by
arguing that when they testified at trial, their testimony was biased
in favor of the commonwealth because they were serving an active
probationary sentence as a result of their convictions for reckless
endangerment, assault and criminal conspiracy.

Lastly, counsel could have reasonably argued that the reason the
Little sister received the relatively lenient sentence of two years
probation, was because they agreed to cooperate with the
prosecution and testify against Petitioner.
Counsel’s failure to challenge and impeach the credibility of the
Little sisters, and establish their bias and motive to fabricate
testimony was highly prejudicial and was ineffective. Cross
examination is the principal means of testing the credibility and
veracity of a witness. Berryman v. Morton 100 F.3d 1089, 1098-99
(3rd Cir. 1996). Failure to impeach the credibility of an adverse
witness cannot be justified as reasonable trial strategy. Berryman
v. Morton, 100 F.3d 1089, 1098-99 (3rd Cir. 1996). In Berryman,
defense counsel failed to impeach an identification witness with
her prior inconsistent statement. Id. The Third Circuit held that
failure to use this impeachment evidence “borders on the
inconceivable”, and that counsel was

(15)

ineffective for not using it. Id. In Driscoll v. Delo, 71 F3d 701 (8th
Cir. 1995), the Eighth Circuit held that counsel’s failure to impeach
a witness with his prior inconsistent statements to investigators
was constitutionally deficient. Id. at 710. Similarly, in Blackburn v.
Foltz. 828 F.2d 1177, 1184 (6th Cir. 1987), the Sixth Circuit held that
counsel was ineffective when he failed to obtain and use a
transcript of an eyewitness’ prior testimony to impeach
inconsistent testimony she save in a subsequent proceeding. See
also Davis v A1aska, 415 U.S. 308 (1974) (right to admit evidence of
juvenile offenses that reveal the witness motivation in testifying);
Commonwealth v. Evans. 512 A.2d 626,631-32 (Pa. 1986) (when a
prosecution witness may be biased in favor of the prosecution
because of outstanding criminal charges or because of any non-
final criminal disposition against him within the same jurisdiction,
that possible bias, in fairness, must be made know to the jury);
Commonwealth v. Mullins, 665 A.2d 1275. 1277 (Pa. 1995)( same),
Commonwealth v. Murphy, 591 A.2d 278, 280 (Pa. 1991) (counsel
ineffective for failing to cross-examine an eyewitness with
evidence, of her juvenile probationary status).”

For all the reasons stated above, counsel’s deficiencies

undermined Petitioner’s defense that he did not possess the
requisite intent to kill and undermined confidence in the outcome
of the verdict. S 1,~nd. 466 U.s. at 694. Counsel’s failure to
investigate, obtain, and make use of the exculpatory impeachment
evidence relating to the Little sisters, constituted deficient
performance which prejudiced Petitioner and violated his
constitutional right to effective assistance of counsel under the
Sixth and Fourteenth Amendments of the United States
Constitution.

________

11At Petitioner’s state post conviction (PCRA) hearing, trial

counsel conceded that had he possessed he information about
Kimberly and Mary Little’s arrests and convictions he would have
used to forward his theory of defense. NT 21419g at 7-15.

(16)

C. The State Court Opinions.

The PCRA court, citing Commonwealth v. Howard, 645 A.2d 1300,

1308 (1994), held that in order to establish prejudice, the defendant
must show that “counsel’s ineffectiveness was of such magnitude
that the verdict essentially would have been different absent
counsel’s alleged ineffectiveness.” Opinion Stir Pa. R.A.P., 8/28/98
at 3. The PCRA court held that Petitioner was not prejudiced by
counsel’s failure to investigate Kimberly and Mary Little’s criminal
records because regardless of their testimony, sufficient evidence
existed upon which to sustain a conviction of first degree murder.
Id. at 4-5.

Similarly, the Pennsylvania Superior Court in denying state post

conviction relief cited Commonwealth v. Appel, 689 A.2d 891 (1997)
and Commonwealth v. Fowler 703 A.2d 1027 (1997), and held that
in order to establish prejudice. Appellant must be able to show
that, “but for the act of omission [of alleged ineffectiveness the
outcome of the case would have been different.” Slip op Opinion
7/1 ~/99 at 5. Like the PCRA court the Superior Court went on to
hold that “[because there is additional evidence to sustain a
conviction for first degree murder without taking into account the
testimony of the witness in question, Cox has failed to show that
he was prejudiced by trial counsel’s failure to impeach that
witness.” (Slip op. at 6-7).
However, the standard applied by both the PCRA court and the
Pennsylvania Superior Court is contrary to the United States
Supreme Court’s decision in Strickland v. Washington, 466 U.S.
668 (1984). Under Strickland, 466 U.S. at 694:

(17)

The defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.

In the present case, the state court did not apply the “reasonable
probability (of a different result)” standard of Strickland, but
instead required that Petitioner prove with certainty that the result
would have been different.

In Williams v. Taylor, 529 U.s. 362, 405 (2000), the United States
Supreme Court made clear that:

If a state court were to reject a prisoner’s claim of ineffective

assistance of counsel on the grounds that the prisoner had not
established by a preponderance of the evidence that the result of
his criminal proceeding would have been different, that decision
would be “diametrically different,” “opposite in character or
nature” and “mutually opposed” to our clearly established
precedent...

The “but for,” “verdict would have been different,” purely outcome
determinative standard applied by the state court iii Petitioner’s
case is at a minimum an erroneous “preponderance of evidence”
standard if not much greater. In addition, the state court’s reliance
on the sufficiency of other evidence to conclude that Petitioner
was not prejudiced by trial counsel’s deficient performance applies
an altogether different standard which is “diametrically different
“opposite in character” and “mutually opposed” to the clearly
established standards enunciated in Strickland. Under Williams
this prejudice standard is contrary to Strickland and as a result,
Petitioner has met the standard for relief required by §2254(d)(i).12
As such, this Court owes no
_________

12 An examination of the proper analysis undertaken in

determining the existence of Brady violation illustrates why the
standard used by the state courts was erroneous and contrary to
Strickland. A prosecutor’s failure to disclose material requires a
new trial when the exculpatory evidence was material, to the trial.
Kyles v Whitley. 514 IJ.S 419, 432 (1995). quoting, Brady v.
Maryland, 373 U.S. 83, 87 (1963). The “touchstone of materiality
is… not

(18)

deference to the state court’s determination and must review this

claim de novo. Conducting such a review will demonstrate that
counsel’s failure to investigate, obtain, and make use of the
exculpatory impeachment evidence concerning Kimberly and Mary
Little, violated Petitioner’s right to the effective assistance of
counsel under the Sixth and Fourteenth Amendments of the United
States Constitution. Relief is warranted.

THE COMMONWEALTH WITHHELD MATERIAL AND

EXCULPATORY EVIDENCE BY FAILING TO PROVIDE THE
DEFENSE WITH THE CRIMINAL RECORDS OF TWO OF ITS
WITNESSES THEREBY DENYING PETITIONER HIS RIGHT TO DUE
PROCESS AND RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.

The Due Process Clause of the Fourteenth Amendment to the

United States Constitution

and the Pennsylvania Constitution require a prosecutor to disclose

favorable evidence to the accused. Brady v. Maryland, 373 U.S. 83,
87 (1963); Giglio v. United States, 405 U.S. 150, 153-56 (1972);
56(1972); United States v. Bagley. 473 U.S. 667, 676 (1985); Kyles v.
Whitley, 514 U.S. 419, 437 (1995). Commonwealth v. Smith, 532 Pa.
177, 615 A.2d 321 (1992). Favorable evidence
includes impeachment evidence as well as exculpatory evidence.
Bagley, 473 U.S. at 676.

__________
whether the defendant would more likely or not have received a
different verdict with the (suppressed] evidence, but whether in its
absence he received a fair trial... Kyles, 514 U.S. at 434. Thus, to
show materiality, Appellant need not demonstrate that the non-
suppressed evidence would have been inadequate to convict -- “
sufficiency of [the remaining] evidence (is not] the touchstone” of
materiality id at 435 n.8.

Brady’s materiality prong is identical to the “prejudice” standard

applied to Sixth Amendment claims of ineffective assistance of
counsel, Kvles v. Whitley 115 S.Ct. 1555, 1566 (1995); Strickland v.
Washington, 466 U.S. 668, 694 (1984). Therefore, because
sufficiency is not the “touchstone” of materiality, Kyles 514 U.S.
435 n.8, whether there was sufficient evidence to convict Petitioner
despite counsel’s deficient performance is also not “touchstone”
of whether counsel’s failure prejudiced Petitioner and violated his
right to effective assistance of counsel.

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Impeachment evidence includes evidence that can be used to

challenge the credibility of a prosecution witness or that can be
used to challenge the prosecution’s case. Id. at (176 (Brady’s
disclosure requirements apply to any materials that, whatever their
other characteristics, can be used to develop impeachment of a
prosecution witness).

Relief must he granted when there is Brady error whether or not

there has been a request for the evidence by the defense. Bagley v.
Kyles Indeed, defense counsel is entitled to rely on the
presumption that prosecutors will fairly “discharge[] their official
duties. United States v. Mezzanatto, 513 U.S. 196,210(1995), and
that the prosecutor shall act as the “representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation (is] to govern impartially.. . and whose interest,
therefore, in a criminal prosecution is not that it shall win a case,
but that justice shall be done.” Berger v. United States, 295 U.S. 78,
88 (1935).

Evidence is “material” under Brady and its progeny, mandating

relief as a matter of constitutional law, when “the favorable
evidence could reasonably be taken” to put the case “in such a
different light as to undermine confidence in the verdict.” Kvles,
514 U.S. at 435. The materiality inquiry is riot just a matter of
determining whether, after discounting items of evidence tainted
by non-disclosure, the remaining evidence is sufficient to support
a verdict of guilt. Id. at 434-35. “The question is not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of
confidence,” or of the characterization “fair.” Id. at 434. In other
words, if there is “any reasonable likelihood” that the non-
disclosure could have “affected the judgment of the jury,” relief
must be granted. Napue v- Illinois, 360 U.S. 264, 271 (1959); Giglio
v. United States. 405 U.S. 150, 154 (1972). This is especially so

(20)

where, as here, the factfinder is left with an inaccurate

understanding about a witness’ motivation for testifying or the
strength of the prosecution’s case because of the non-disclosure.
Napue, 360 U.S. at 269-70; Giglio 405 U.S. at 154-55; Pyle Kansas,
317 U.S. 213,216 (1942); Mooney v. Holohan, 294 U.S. 103,
112(1935).

In this case, the Commonwealth failed to provide the defense with

the criminal records of witnesses Kimberly Little and Mary Little.
As outlined in Petitioner’s Claim I, supra, this information would
have provided the defense with valuable impeachment material, a
motive for the witnesses fabrication of testimony and would have
greatly undermined the credibility of the witnesses’ observations
and the Commonwealth’s theory of why the shooting constituted
first degree murder.

The witnesses criminal records and the fact that they were on
probation at the time of trial were known to the Commonwealth.
For reasons outlined in Claim I, the information was relevant,
exculpatory and material, and as such, was required to be
provided to the defense. United States v. Perdomo, 929 F.2d 967,
970-971 (3rd Cir. 1991) (criminal record of key prosecution witness
was exculpatory and material. For purposes of requiring
disclosure under Brady); Crivens v. Roth, 172 F.3d 991, 996 (7th
Cir. 1999) (state failure to provide defendant with criminal records
of state’s witnesses was denial of due process in violation of
Brady); Carriger v.Stewart, 132 F.3d 463, 480 ( 9th Cir. 1997) ( when
state decides to rely on testimony of witness with criminal history,
it is state’s obligation under Brady to turn over all information
bearing on that witnesses credibility including witnesses criminal
record); Ouimette v. Moran, 942 F.2d 1, 9-13 (1st Cir. 1991)
(defendant’s due process rights were violated by state
prosecutor’s failure at trial to disclose extensive criminal record of
stales’ chief witness).

(21)

Trial counsel was ineffective for failing to raise and/or properly

litigate this issue at trial or in post-verdict motions. Appellate
counsel was ineffective for failing to raise and/or properly litigate
this issue on appeal. Strickland v. Washington. 466 U.S. 668 (1984),

The Commonwealth’s failure to provide the defense with the

records, and counsel’s ineffectiveness, violated Petitioner’s right
to Due Process arid his rights under the Sixth and Fourteenth
Amendments of the United States Constitution.

III. PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL WHEN TRIAL COUNSEL FAILED TO INTRODUCE
EVIDENCE THAT THE COMMONWEALTH’S TWO KEY WITNESSES
WERE RELATED TO THE VICTIM, IN VIOLATION OF PETITIONER’S
RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE UNITE!) THE UNITED STATES CONSTITUTION.

Commonwealth witnesses Kimberly Little and Mary Little, were

related to the person Petitioner was convicted of killing. Although
this information was in counsel’s possession at the time of trial, he
failed to present it to the court. Counsel’s failure to impeach the
Little sisters’ credibility with evidence of their relation to the
decedent violated Petitioner’s right to effective assistance of
counsel under the Sixth and Fourteenth Amendments to the United
States Constitution.

Trial counsel was provided in discovery with the statement of

Keith Harris, Mary Little’s husband. Mr. Harris indicated in his
statement that he was the victim’s cousin through marriage. (See
Exhibits, attached). Mr. Harris’ statement establishes that the
victim, and Mary and Kimberly Little, were cousins.

The Sixth Amendment guarantees the right of the accused in a

criminal prosecution to be confronted with the witnesses against
him Pointer v. Texas, 380 U.S. 400, (1965). Cross

(22)

examination is the principal means of testing the credibility and

veracity of a witness. Berryman v. Morton. 100 F.3d 1089, 1098-99
(3rd Cir. 1996). Failure to impeach the credibility of an adverse
witness cannot be justified as reasonable trial strategy. Berrvman
v. Morton, 100 F.3d 1089, 1098-99 (3rd Cir. 1996). In Berryman,
defense counsel failed to impeach an identification witness with
her prior inconsistent statement. Id. The Third Circuit held that
failure to use this impeachment evidence “borders on the
inconceivable”, and that counsel was ineffective for not using it. In
Driscoll v. Delo. 71 F.3d 701 (8th Cir. 1995), the Eighth Circuit held
that counsel’s failure to impeach a witness with his prior
inconsistent statements to investigators was constitutionally
deficient. Id. at 710. Similarly, in Blackburn v. Foltz, 828 F.2d 1177,
1184 (6th Cir. 1987), the Sixth Circuit held that counsel was
ineffective when he failed to obtain and use a transcript of an
eyewitness’ prior testimony to impeach inconsistent testimony she
gave in a subsequent proceeding.

Similarly, evidence in this case that the witnesses were related to

the victim and were not unbiased, disinterested third parties was
highly relevant. Clearly, their relationship would have provided
additional evidence of their bias and motive to fabricate testimony
against Petitioner.13

Despite the importance of the evidence and the fact that he was
aware of it, trial counsel failed to elicit this information at trial.
Counsel neither called Keith Harris to testify, nor questioned
Kimberly or Mary Little about their familial relation to the victim.
Counsel’s performance was deficient and prejudiced Petitioner.
Strickland v. Washington. 466 U.S. 668, 687 (1984).
__________

Evidence that Kimberly and Mary Little bad pending criminal

charges when they gave their statements to police and were
convicted and serving probationary sentences when they testified
at trial was also not presented to the court as a result of trial
counsel’s ineffectiveness. See Claim 1, supra.

(23)

Trial counsel’s error, and appellate counsel’s failure to raise and/or

properly litigate this issue on appeal, denied Petitioner his rights
under the Sixth and Fourteenth Amendments of the United States
Constitution. Id.

IV. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE

INVESTIGATION, FAILED TO IMPEACH KEY COMMONWEALTH
WITNESSES WITH PRIOR INCONSISTENT STATEMENTS, FAILED
TO INTERVIEW AND PRODUCE EXCULPATORY WITNESSES, AND
THEREBY DENIED PETITIONER EFFECTIVE ASSISTANCE OF
COUNSEL.

Trial counsel completely abdicated his duty to represent Petitioner,

and failed to provide a viable defense. Counsel failed to
investigate, develop, and present the abundant and available
evidence that Petitioner’s version of the events surrounding the
death of Lawrence Davis was, in fact, true and correct. As a result,
trial counsel was unable to pierce the web of lies told by the only
alleged “eyewitness” Kimberly Little.

A. The Substance of Kimberly Little’s testimony

Kimberly Little “testified” that at the tiitie of the offense she had
known the Petitioner for “about a week”(NT 10/28/93. at 3); that
Petitioner was employed “as a lookout for someone who was
selling drugs”(NT 10/28/93, at 3); that the drug operation was open
twenty-four hours a day (NT 10/28/93, at 35), “every day except
Sunday” and she had observed Petitioner acting as a lookout
“about twice (NT 10/28/93, at 1445); that Petitioner, whom she knew
only as “Speedy”, exited the Queen Lane Lounge, placed a bag
with a six pack inside of it on Larry Lee’s car, reached into the car,
and took a gun out (NT 10/28/93, at 21); that Petitioner lifted up the
gun, stretched out his arm, shot Lawrence Davis in the head from a
distance of four feet, then shot again two more times from the
same distance (NT 10/28193, at 22); and that Petitioner in an
display of callousness, retrieved a can of beer out of the
aforementioned bag, opened it and

(24)

drank some (NT I O/28/93, at 23)’ 14 Kimberly Little’s testimony,

which was allowed into evidence unimpeded by thorough cross-
examination, was devastating to Petitioner’s defense.

B. Use of Kimberly Little’s Testimony By The Commonwealth

The Commonwealth relied heavily upon Kimberly Little’s alleged

“observations”, and emphasized her testimony in their closing
remarks: by encouraging the Court to review the entirety of the
prosecution through the prism of a drug operation (NT 10/28/93, at
125); by arguing Petitioner’s motive for shooting Lawrence Davis
was to increase Petitioner’s status within a criminal enterprise (NT
10/28/93, at 125); and by practically quoting Kimberly Little’s
version of events during final argument to persuade the trial court
of Petitioner’s alleged intent: “he takes the gun out of the car,
approaches, raises the gun, pulls the trigger. Well, the first shot
didn’t work because Lawrence Davis still stood” (NT 10/28/93, at 1
27). This argument was even more egregious in light of the fact
that it was based Kimberly Little’s testimony alone.

C. Reliance on Kimberly Little’s Testimony By The Trial And PCRA

Courts

The trial court relied upon Kimberly Little’s testimony in convicting

Petitioner of the instant offense, and further relied upon the
conclusions drawn while sitting as the trial court to deny
Petitioner’s Motion for Post-Conviction Relief, his Amended Motion
for Post-Conviction relief, and his PCRA Petition15. In fact, the
PCRA court quoted extensively from Kimberly Little’s testimony in
reaching its conclusions: that Cox served as a “look-out”
(testimony of Kimberly Little, NT 10/28/93, at 3); would signal his
colleagues if police approached (testimony of Kimberly Little, NT
10/28/93. at 14); approached Lee and Davis, placed the beer on the
hood

__________

14All emphasis provided unless otherwise indicated.

15The citations within this section referencing the testimony of

Kimberly Little are directly quoted from the PCRA Court’s opinion
dated August 28. 1998. (OPINION SUR. PA. RAP. 1925(a), 10/28/98
at 2).

(25)

of the car, and then, reached into the car and removed a .38 caliber
handgun (testimony of Kimberly Little, NT 10/28/93, at 21); shot
Davis at point blank range (testimony of Kimberly Lrttle, NT
10/28/93, at 22), after which he drank some beer and then fled with
Lee in Lee’s vehicle (testimony of Kimberly Little, NT 10/28/93, at
23-24).

D. Ineffective Assistance of Counsel

As discussed in Claim I, supra, ineffective assistance of counsel

claims are evaluated on the basis of the two pronged test
previously set forth by the United States Supreme Court in
Strickland v. Washington. 466 U.S. 668 (1984), which requires that
a Petitioner show both deficient performance and prejudice. Here,
Petitioner readily meets both prongs.

Ms. Little was the single most important witness presented by the
Commonwealth, yet defense counsel failed to take the minimal
steps necessary to impeach her testimony. In addition to failing to
impeach Ms. Little with evidence of her bias and motive to lie, as
described in Claim I. supra, trial counsel also failed to impeach her
with her prior inconsistent statement to Keith Harris, who told the
police that Ms. Little had confessed to him that she did not actually
see the shooting, but arrived on the scene after it had occurred.
Counsel’s failure to use this readily available impeachment
evidence satisfies the deficient performance prong of Strickland.
Failure to impeach the credibility of an adverse witness cannot be
justified as reasonable trial strategy. 16 Berryman v. Morton, 100
F.3d 1089. 1098-99 (3rd Cir. 1996). In Berryman, defense counsel
failed to impeach an identification witness with her prior
inconsistent statement. Id. The Third Circuit held that failure to use
this impeachment evidence “borders on the

__________

16 Counsel likewise has a duty to investigate to discover evidence

which can be used to impeach the witness. See United States v.
Gray, 878 F.2d 702, 712 (3d Cir. 1989). Counsel’s duty to
investigate is discussed in more detail in Claim, supra. To the
extent counsel did not know of Keith Harris’ statement, and/or
failed to seek out and interview him, counsel’s performance was
constitutionally deficient.

(26)

inconceivable”, and that counsel was ineffective for not using it.
Id. See also Driscoll v. Delo, 71 F.3d 701, 710(8th Cir. 1995)
(counsel’s failure to impeach a witness with his prior inconsistent
statements to investigators was constitutionally deficient);
Blackburn v. Foltz, 828 F.2d 1177, 1184(6th Cir. 1987) (counsel was
ineffective when he failed to obtain and use a transcript of an
eyewitness’ prior testimony to impeach inconsistent testimony she
gave in a subsequent proceeding) Thus, the critical question in
this case turns to the issue of prejudice..

E. Proof of Prejudice to Petitioner

Petitioner has alleged, plead, and proven the following facts:

Commonwealth witness Kimberly Little claimed to be an
eyewitness to the murder of Lawrence Davis. She testified that she
saw Petitioner retrieve the murder weapon from a car, point and
shoot at the victim’s head several times, drink a beer, then flee the
scene. This testimony was heavily relied on by the prosecution
and the court to determine that Petitioner possessed the requisite
specific intent to kill necessary to convict him of first degree
murder.
Kimberly Little’s trial testimony was only one version of her
alleged observations on the night of Lawrence Davis’ death. In
fact, Kimberly Little had already disclosed to Keith Harris that she
was not in a position to observe the conflict that resulted in the
shooting, nor did she see the shooting itself:

Kim said that she was across the street and after she heard the
shots she went to the corner and seen them, Black and Speedy
pulling off)17.

Petitioner’s trial counsel either failed to obtain a copy of the crucial

statement of Keith Harris, or, assuming the statement was
available, failed to either call Keith Harris and/or use his statement
to impeach Kimberly Little. As a result, counsel lost the
opportunity to cast doubt on the veracity of Kimberly Little’s
account of the shooting Keith Harris was a potentially

__________

17 Written statement of Keith Harris, provided to police on July 25,

1992 at pg. 3.

(27)

powerful witness; he was related to the deceased, as well as being

the husband of Kimberly Little’s sister, Mary Little.18 As such,
Keith Harris was able to provide considerable impeachment
evidence about Kimberly Little’s value as a witness, additionally,
his status as relative of the deceased and two Commonwealth
witnesses rendered him immune from allegations of collusion with
Petitioner. Simply put, Keith Harris had no reason to give a
statement which imputed the testimony of his sister-in-law, other
than the fact that Kimberly Little’s testimony was false.

Counsel failed to call Keith Harris as a witness, despite the fact

that the Commonwealth’s evidence against Petitioner was far from
overwhelming: Keith Harris’ statement placed Mary Little in bed
with him at the time of the shooting when he heard something that
sounded like firecrackers. [t]hree of them and then I heard the
screeching of wheels and that’s when I got up and looked out the
window”19; Mary Little’s statement also placed her in bed with
Keith Harris, looking out the window facing Queen Lane at the
same time: [we] were laying in bed watching TV when we heard
three shots. [We] both jumped up and ran to the window.”20 Mary
Little’s statement also established that she, her husband Keith
Harris, and her sister Kimberly Little, all left the scene at the same
time: “I got into a cab with my sister Kimberly and my husband
Keith (Harris) and we took a cab to my mother’s house because we
were scared.”21. Kimberly little failed to mention either in her
statement or in her trial testimony that she left the scene of the
offense. As a result, not only was Keith Hams in an ideal situation
to

__________

18 Id. at pg. 1. See also, Written statement of Mary Little: provided

to police on July 25, 1992 at page 1.

19 Written statement of Keith Harris, provided to police on July 25,

1992 at pg. 1.

20 Written statement of Mary Little, provided to police on July 25,

1992 at page 1.

21Written Statement of Mary Little, provided to police on July 25,

1992 at page 2.

(28)

hear what Kimberly Little actually saw, as opposed to what she

testified to, he was also able to verify when she left the scene and
verify the location of another Commonwealth witness, Mary Little.
It is therefore clear that counsel’s failure to exploit the inherent
weaknesses in a key Commonwealth witness’ trial testimony with
an available disinterested witness, whose testimony was bolstered
by yet another Commonwealth witness, was inexcusable and far
from harmless. The prior inconsistent statements of Kimberly Little
were available and could have been used to impeach her
testimony. Counsel failed to impeach her, and that failure
prejudiced Petitioner. Counsel was ineffective
V. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE
INVESTIGATION, FAILED TO INTERVIEW AND PRODUCE
EXCULPATORY WITNESSES. FAILED TO PRESENT AVAILABLE
TESTIMONY TO REFUTE THE COMMONWEALTH’S ASSERTION
THAT PETITIONER WORKED AS A “DRUG LOOKOUT” AND
THEREBY DENIED PETITIONER EFFECTIVE ASSISTANCE OF
COUNSEL.

Trial counsel failed to provide Petitioner with a valid defense by

failing and refusing ía investigate, develop, and present substantial
available evidence that Kimberly Little’s testimony that Petitioner
was employed as a drug lookout was not only incorrect, but was in
fact, a lie. In addition, counsel failed to establish that at the time of
the incident in question, Petitioner was gainfully employed.

A. Failure to Refute The Commonwealth’s Assertion That

Petitioner Was Employed as a “Drug Lookout”

Kimberly Little testified that Petitioner was employed “as a lookout

for someone who was selling drugs”(NT 10/28/93, at 3); that the
drug operation was open twenty-our hours a day (NT 10/28/93, at
35),”every day except Sunday”; and, that she had observed
Petitioner acting as a lookout “about twice” (NT 10/28/93, at 14-15).

(29)

Counsel admitted at the time of trial that he was unaware that

Kimberly Little was being called by the Commonwealth as a
witness to Petitioner’s alleged acts of conspiring to deal drugs:

The Court: Mr. McGlaughuin, were you aware that the

Commonwealth was going to attempt to put this witness on to
describe something other than a murder?

Mr. McGlaughlin: It wasn’t really something I anticipated

happening. In fact. Mr. Blessington just addressed it with some
cases yesterday after we began.

The Court: you were not aware that Mr. Blessington was going to
present this witness to testify to some sort of drug transaction
testimony?

Mr. McGlaughlin: no, your honor.

N.T. 10/28/93, at 5.

Because counsel was unprepared for Kimberly Little’s and Mary

Littles testimony, he was unable to effectively unable impeach
their assertions that she had observed Petitioner working as a
“drug lookout” or “dealer” even though they stated that they had
only known the Petitioner for “about a week”(NT 10128/93, at 3,
69). Similarly, trial counsel was unaware of the substance of Kevin
Dixon’s testimony, and was totally unable to develop Kevin
Dixon’s testimony about Petitioner’s work history. The result of
counsel’s unprepared ness was that he was forced to withdraw Mr.
Dixon as a witness, due to a misunderstanding about the time the
two men worked together; as a result, the court never heard the
cornpe1liu~ evidence that Mr. Dixon had to offer. 10/28/93 at 109.

(30)

B. Effect on the Trial and PCRA Court

Counsel’s inaction in failing to prepare for Kimberly Little’s

testimony put the trial court in the untenable position of having to
decide the admissibility of the evidence in question, as well as the
weight to be accorded same. The trial court protested the duties
forced upon it by counsel’s deficient performance:

I’m just saying that for the finder of fact to decide on the
admissibility of this type of evidence that could be highly
prejudicial is, I think, out of line and this should have been raised
before somebody else.

N.T. 10/28/93 at 7.

The trial court undertaking a dual role became an extraordinarily

important factor in Petitioner’s non-jury capital trial. The court
continued to emphasize the impropriety of this procedure while
deliberating the proper method of resolving this controversy:
At does seem to me that maybe this Issue Is so prejudicial that it
should be decided by another judge.

N.T. 10/28/93 AT 8.

Despite the fact that there was no reasonable, logical nor

compelling reason for doing so, counsel elected to have the trial
court proceed to make a decision regarding the admissibility of
Kimberly Little’s “evidence”(N.T. 10/23/93, at 8), thereby depriving
Petitioner of an opportunity for a fair and impartial review of the
admissibility of the evidence, as well as depriving Petitioner of a
fair and impartial fact-finder.

C. Trial Counsel’s deficient performance

Despite the trial court’s clear warnings and concerns about the
prejudicial effect of the evidence it was about to hear, trial counsel
blindly moved forward, revealing his lack of

(31)

knowledge about the facts of the case:

[t]he way this case develops, it’s not a situation where It is a drug
related killing, where someone is killed because they owed money
or they didn’t pay for drugs they didn’t turn over,

N.T. l0/28/93, at 10.

Trial counsel was horribly wrong. In fact, as the Commonwealth

detailed outside the witness’ presence, the entire theoretical basis
of the Commonwealth’s prosecution was that the Petitioner killed
Lawrence Davis because Mr. Davis was involved in a dispute with
Larry Lee over the price of some “caps” of cocaine:

The witness, as recorded in her statement, and as I anticipate her

testifying, said that the deceased and Larry Lee were involved in
an argument over a sale that Larry Lee was making of cocaine,

N.T. 10/28/93, at 12.

Clearly, counsel was unaware of the substance of Kimberly Little’s
statement to the police. This was not a simple mistake which
developed from a well considered trial strategy which went awry,
but was instead a mistake born out of ignorance; the result of a
complete dearth of knowledge of the allegations contained in
Kimberly Little’s statement, the entirety of the facts of the case,
and how the Commonwealth intended to prove same.

Counsel also failed to prepare Kevin Dixon as a witness,

notwithstanding the fact that the Commonwealth’s evidence
demonstrating Petitioner was a drug dealer and the shooter of
Lawrence Davis was far from overpowering. Kevin Dixon’s
testimony would have informed the trial court that Petitioner could
not have been employed as a drug lookout because of his
continued lawful employment.

(32)

D. Petitioner Was Harmed By Counsel’s Ineffective Assistance

Petitioner’s trial consel either failed to obtain a copy of the crucial

statement of Kimberly Little, or, assuming the statement was
available, failed to use it to prepare for trial. In the alternative, if
counseldid not hare Kimberly Little’s statement, counsel was
ineffective for failing to obtain the statement, after the prosecutor
made it available to him. NT 10/27/93 at 3. As a result, counsel lost
the opportunity to obtain a full and fair review of the admissibility
of Kimberly Little’s extremely dubious account of Petitioner’s
motive for shooting Lawrence Davis. Additionally, counsel’s
mistakes put Petitioner in a situation he complains of today: that
despite near heroic efforts to do so, the PCRA court is inherently
unable to retroactively place itself in the position of a trial court
calculating the weight it afforded Kimberly Little’s account at the
time of trial, yet simultaneously on appeal re-weighing the same
evidence in light of the subsequent exposure of compelling
impeachment evidence.

Any presumption that counsel acted effectively has been rebutted.

There is undeniable merit to the idea that trial counsel should
review the statements of all witnesses that are made available to
him. Kimberly Little’s testimony was heavily relied on by the
prosecution and the court to determine that Petitioner possessed
the requisite specific intent to kill necessary to convict him of first
degree murder.

As previously discussed in Claim IV of this petition, Counsel’s

performance was constitutionally deficient and prejudicial. The
right to the effective assistance of counsel includes the right to
have counsel investigate and produce evidence in support of the
defense. Strickland v. Washingtori, 466 U.S. 668, 690-91 (1984).
Counsel must make a reasonable effort to contact known
witnesses and attempt to obtain available evidence which both
diminishes the Commonwealth’s case and/or supports the
defense. Counsel’s duty is to make an independent investigation
of the facts and circumstances. Nealy v. Cabana. 764 F.2d 1173,
1177 (5th Cir. 1985).

(33)

Where counsel fails to investigate and interview potential

witnesses, he has no reason to discount their worth, and his
inaction constitutes negligence, not strategy. Workman v. Tate,
957 F.2d 1339, 1345 (6th Cii. 1992).

Counsel’s statements to the trial court were a powerful admission

that he was unprepared for trial. At a minimum, competent counsel
would have talked to Kimberly Little to find out anything they could
about her and to determine whether the Philadelphia Police
department report of her interview was accurate. Had counsel
done so he would have discovered that Kimberly Little was
prepared to associate Petitioner with a drug ring. Armed with that
information, competent counsel would have investigated further,
discovered the pressure placed on Kimberly Little to testify against
Mr. Cox, and presented Kevin Dixon as an impeachment witness.
Counsel’s failure to do so was ineffective. See United States v.
Gray, 878 F.2d 702, 712 (3d Cir. 1989); Blackburn v. Foltz, 828 F2d
1177. 1183 (6th Cir. 1987). Although counsel was aware of the
existence of exculpatory witnesses, counsel failed to investigate,
interview or produce them at trial. Counsel’s inaction was a failure
to fulfill the duty entrusted to him. Petitioner is entitled to relief.

VI. TRIAL COUNSEL FAILED TO PRESENT AN ADEQUATE

DEFENSE TO FIRST DEGREE MURDER, FAILED TO PROPERLY
ADVISE PETITIONER OF HIS RIGHT TO TESTIFY, AND THEREBY
DENIED PETITIONER EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF PETITIONER’S RIGHTS UNDER THE SIXTH AND
FQURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.

A. Grounds For Claim

The crux of Petitioner’s defense was that the shooting of Lawrence

Davis was accidental. Although Petitioner never denied shooting
Lawrence Davis, he always steadfastly denied that the shooting
was intentional:

Q: Did you tell anyone about the murder?

(34)

A: Yes, family. I told my uncle, Ray Lot, he lives upstairs from my

Grand-mom, at 5532 Market and my Mom later on.

Q: What did you tell them, your uncle and your Mom?

A: That Larry had a scuffle and I shot someone accldentally.22

Petitioner was just as adamant that he only fired two shots from a
gun provided by Larry Lee:

When I got to where Larry was he just handed me the gun. He took
it from his waist and handed it to me, It was silver, a .357 or a .38, a
pretty big gun. I’m not really all that sure which. When I got the gun
it was already cocked. That’s when I fired two shots.23

Petitioner’s statement provided the foundation for his defense:

Larry Lee handed him a loaded and cocked gun, and Petitioner
fired two shots by accident. Based on counsel’s advice that the
statements were sufficient to support defense, Petitioner chose
not to testify. However, Petitioner’s decision not to testify was
undermined when counsel who failed to adequately investigate,
and present a viable defense, sabotaged the accident defense in
closing argument.
B. Deficient Performance By Counsel

The defense presented by trial counsel was no defense at all. Trial

counsel has an obligation to advocate on behalf of the client.
When, as in this case, counsel’s theory does not “defend,”
counsels performance is substandard.

Although counsel had available to him meaningful alternative

defenses, he failed to investigate and pursue them, and failed to
tell his client about them. Accident was a viable

__________

22 Statement of Jermont Cox, taken by Philadelphia Police on

1/14/93. pg. 7

21 Statement of Jermont Cox, taken by Philadelphia Police on

1/14/93, pg. 4.
(35)

defense, and trial counsel could have (and should have) had
Petitioner testify to enhance and support his accident defense, or
in the alternative, buttress Petitioner’s statement with expert
testimony on how and why firearms are accidentally discharged on
an almost daily basis. Instead, counsel directly attacked
Petitioner’s version of the incident:

I don’t know that we could say firing a gun three times like Mr.
Blessington (prosecutor) pointed out in his questions of the
officer, whether that would be consistent with an accident, but
believe me I was not trying to be flip with the court or anyone else
when I brought up the phenomenon known as buck fever.24

Counsel attacked Petitioner’s statement that Petitioner only

discharged his firearm twice, and effectively conceded that the
shooting was not an accident. Trial counsel’s actions released the
Commonwealth from its burden to prove Petitioner’s guilt beyond
a reasonable doubt, and created a conflict of interest by becoming
an advocate for the Commonwealth and thereby undermined the
adversarial process.
Petitioner was prejudiced by counsel’s ill-conceived defense
“theory” of “Buck Fever”. Counsel was obligated to conduct a
constitutionally appropriate investigation and present the best
possible defense. If Petitioner did in fact suffer from the
phenomenon known as buck fever, counsel should have retained
experts to verify that fact and attempt to negate the element of
intent. Trial counsel’s bare assertion in and of itself, was woefully
insufficient: when somebody is in a very emotional situation and
there’s firearms involved, it(’s] a well known, well-documented
situation where people do very, very strange things. 25

________________

24 N.T. 10/28/93 at 116.

25 N.T. 10/28/93 at 116

(36)

Counsel was duty bound to advise Petitioner of his doubts

regarding the strength of Petitioner’s theory of defense, and the
fact that he intended to make a final argument to the court that was
not only inconsistent with Petitioner’s statement but was
dismissive of it. When petitioner decided not to testify, he was not
informed nor was he aware at counsel’s intent to argue the
defense of buck fever. Counsel failed to investigate the facts of the
case, and properly advise Petitioner. As a result, Petitioner’s
decision not to testify was not free and voluntary.

C. Basis for Relief

Because “the right to testify is a basic right,” and the decision of

whether to exercise that right is personal to the accused, “it is the
duty of both [court and counsel] to assure that the exercise of this
basic right by the accused is a free and meaningful decision.”
United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 119, (3d Cir.
1977). Petitioner did not testify at his trial. His failure to testify was
not “a free and meaningful decision.” Johnson. 555 F2d at 118-19.
Instead, it resulted from inaccurate and ineffective advice from trial
counsel, and from the trial court’s failure to adequately inform
Petitioner of his rights. The errors of trial counsel and the court,
and the ineffective failure of appellate counsel to litigate these
issues, deprived Petitioner of his rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States
Constitution.