Com. v. Mumin, K.

C
J-S56019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KHALEEF MUMIN                              :
                                               :
                       Appellant               :   No. 3130 EDA 2019

           Appeal from the PCRA Order Entered September 24, 2019,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0012875-2009.


BEFORE:       BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED: MARCH 26, 2021

        Khaleef Mumin appeals from the order denying his petition filed

pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

        The PCRA court summarized the pertinent facts and procedural history

as follows:

              On February 11, 2011, a jury found [Mumin] guilty of
           attempted murder, aggravated assault, criminal conspiracy,
           and related offenses. The evidence adduced at trial showed
           that [Mumin] and his co-defendant Tyrik Perez (“Perez”)
           were members of the Master Street Crew (“MS Crew”) gang.
           This gang had a long-running feud with members of the
           Lansdowne Avenue gang (“LA Gang”), with regular
           shootouts between the two rival gangs.

              On October 23, 2017, Cornell Drummond (“Drummond”),
           a member of the LA gang, was talking to friend on the street
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S56019-20


         when he saw two men suspiciously ducking behind cars as
         they approached him. Drummond quickly went to a nearby
         alley where he normally kept a handgun stashed, but upon
         his arrival he remembered that he had recently loaned the
         gun to a fellow gang member, “Little Dave.” Drummond
         went to Little Dave’s house near the intersection of 60th and
         Media Streets to retrieve the gun. As he approached the
         intersection, [Mumin] and Perez jumped out from behind a
         parked vehicle. Drummond recognized both of them as
         members of the MS Crew. [Mumin] and Perez began
         shooting at Drummond, striking him in the back.
         Drummond had fallen to the ground, unable to walk, when
         Perez walked over to him and tried to shoot him three more
         times at close range but the gun jammed.

            Police arrived on the scene shortly thereafter;
         Drummond did not identify his shooters and told police that
         the men were wearing ski masks and that “they finally got
         me.” When interviewed by detectives at the hospital[,]
         Drummond only said, “They got me,” and indicated that the
         shooters were from the MS crew. Beyond that, Drummond
         refused to cooperate with police.       The next day, an
         anonymous caller provided police with information about the
         shooting. Based upon this phone call, as well as additional
         investigation, police created a photo array which included
         photos of [Mumin] and Perez. Drummond was shown these
         photo arrays and he declined to identify anyone.

            Drummond remained hospitalized for over a month and
         then entered a rehabilitation center. As a result of the
         shooting, he was paralyzed permanently from the waist
         down and is now confined to a wheelchair.

PCRA Court Opinion, 4/21/20, at 2-3 (paragraph breaks added).

      Thereafter, Drummond was arrested by federal agents and was charged

with various drug trafficking and weapons charges. Although he was originally

granted bail on these charges, bail was later revoked and Drummond was held

in federal prison.




                                     -2-
J-S56019-20



       In March 2009, while awaiting trial on his federal charges, Drummond

participated in a “proffer session.” In exchange for consideration of a reduced

sentence on his federal charges, Drummond agreed to provide information

regarding criminal activity in the area of 60th and Lansdowne Streets, which

had been the ongoing subject of an extensive investigation by federal agents.

Toward the end of this session, Drummond volunteered that he knew who

shot him and identified Mumin and Perez. The federal authorities conveyed

this information to the Philadelphia Police Department, which ultimately led to

the arrest of both men.

       A joint trial began on February 16, 2011. On February 22, 2011, the

jury found both men guilty of attempted murder and related charges. On July

25, 2011, the trial court sentenced Mumin to an aggregate term of 15 to 30

years of imprisonment.1 Initially, Mumin did not filed a direct appeal. His

appellate rights were reinstated nunc pro tunc, however, via a PCRA petition.

In an unpublished memorandum filed on November 21, 2016, this Court

affirmed Mumin’s judgment of sentence. Commonwealth v. Mumin, 

159

A.3d 594

(Pa. Super. 2016). On May 16, 2017, our Supreme Court denied his

petition for allowance of appeal. Commonwealth v. Mumin, 

169 A.3d 526

(Pa. 2017).


____________________________________________


1 The trial court sentenced Perez to an aggregate term of 17½ to 35 years of
imprisonment. Perez also appealed the order denying him post-conviction
relief at No. 3131 EDA 2019, which we also decide today.


                                           -3-
J-S56019-20



     On July 23, 2018, counsel filed a PCRA petition on Mumin’s behalf and

a supplemental petition on February 9, 2019.       In these petitions, Mumin

claimed to have “after-discovered” evidence based upon an affidavit from

Drummond, in which he allegedly recanted his trial testimony, and evidence

that detectives involved in the investigation of his case were guilty of

misconduct. According to Mumin, this new evidence established the following:

        1. Drummond admitted that he fabricated false evidence
           against [Mumin] and had a pattern and practice of
           fabricating false evidence and giving perjured testimony
           in multiple state and federal criminal cases including this
           one.

        2. [Detective James] Pitts and [Detective Omar] Jenkins
           and state and federal [a]gents and prosecutors
           knowingly and intentionally facilitated the fabrication of
           evidence and subornation of perjury in [Mumin’s] case
           and multiple others that Drummond testified in.

PCRA Petition, 7/23/18, at 12-13.

     On April 9, 2019, the Commonwealth filed a motion to dismiss Mumin’s

petition. On August 26, 2019, the PCRA court issued Pa.R.Crim.P. 907 notice

of its intent to dismiss the petition without a hearing. Mumin did not file a

response.   By order entered September 24, 2019, the PCRA court denied

Mumin’s PCRA petition. This timely appeal followed. The PCRA court did not

require Pa.R.A.P. 1925 compliance.

     Mumin now raises the following issue on appeal:

        Did the PCRA court err in failing to find merit to [Mumin’s]
        claim of [after] discovered evidence?




                                     -4-
J-S56019-20



Mumin’s Brief at 3.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 

74 A.3d 185

, 191-92

(Pa. Super. 2013) (citations omitted).

         The PCRA court has discretion to dismiss a petition without
         a hearing when the court is satisfied that there are no
         genuine issues concerning any material fact, the defendant
         is not entitled to post-conviction collateral relief, and no
         legitimate purpose would be served by further proceedings.
         To obtain a reversal of a PCRA court’s decision to dismiss a
         petition without a hearing, an appellant must show that he
         raised a genuine issue of material fact which, if resolved in
         his favor, would have entitled him to relief, or that the court
         otherwise abused its discretion in denying a hearing.

Commonwealth v. Blakeney, 

108 A.3d 739

, 750 (Pa. 2014) (citations

omitted).

      In his only issue on appeal, Mumin contends that the PCRA court erred

in finding no merit to his claim that he was eligible for relief based on “the

unavailability at the time of trial of exculpatory evidence that has subsequently

become available and would have changed the outcome of the trial if it had

been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). To address this claim, we

first note the test applied to after-discovered evidence under the PCRA. When

discussing the test in the context of a PCRA appeal, our Supreme Court

summarized:

                                      -5-
J-S56019-20


             [W]e have viewed this analysis in criminal cases as
         comprising four distinct requirements, each of which, if
         unproven by the petitioner, is fatal to the request for a new
         trial. As stated, the four-part test requires the petitioner to
         demonstrate the new evidence: (1) could not have been
         obtained prior to the conclusion of trial by the exercise of
         reasonable diligence; (2) is not merely corroborative or
         cumulative; (3) will not be used solely to impeach the
         credibility of a witness; and (4) would likely result in a
         different verdict if a new trial were granted. The test applies
         with full force to claims arising under Section 9543(a)(2)(vi)
         of the PCRA. In addition, we have held the proposed new
         evidence must be producible and admissible.

Commonwealth v. Small, 

189 A.3d 961

, 972 (Pa. 2018) (citations omitted).

      Credibility determinations are an integral part of determining whether a

PCRA petitioner has presented after-discovered evidence that would entitle

him to a new trial. See, e.g., 

Small, 189 A.3d at 978-79

(remanding for the

PCRA court to make relevant credibility determinations).       We have stated,

prior to granting a new trial based on after-discovered evidence, “a court must

assess whether the alleged after-discovered evidence is of such a nature and

character that it would likely compel a different verdict if a new trial is

granted.”   Commonwealth v. Padillas, 

997 A.2d 356

, 365 (Pa. Super.

2010). “In making this determination, a court should consider the integrity of

the alleged after-discovered evidence, the motive of those offering the

evidence, and the overall strength of the evidence supporting the conviction.”

Id.

As noted above,

Mumin claims he is entitled to relief based upon two

interrelated sources of after discovered evidence—Drummond’s alleged



                                      -6-
J-S56019-20



recantation of his trial testimony and evidence of police misconduct. We first

consider Mumin’s claim regarding Drummond.

      As part of the litigation in an unrelated case involving Donte Hill, a/k/a

“Tae,” Drummond prepared a seven-page, handwritten affidavit on June 6,

2018. We reproduce this affidavit verbatim:

             I sent a text to Tae sister on April 25th after a mutual
         friend Shawnell gave me Tae sister phone number. I sent
         Tae sister a text that I wanted to right my wrong because I
         had lied on her brother. I am living a different life now. I
         want to help people that I did the wrong things to. I lied
         because I wanted to get my time knocked down. I thought
         Tae shot my grandma house up because my cousin killed
         Tae friend.

            Detective Pitts filled me in on what details I should talk
         about, like what kind of gun, the time of day, and the color
         car Tae was supposed to be driving. I knew from the streets
         that Keem from Alden Street had money on Raheem head
         so I decided to lie and say Tae shot Raheem because I was
         angry and trying to come home.

            AUSA Fisk and the Ada told me that they would relocate
         me and keep me off the internet but that was a lie. The
         only truth they told me was that I would get time off. I got
         7 years off my sentence. I got time off for testifying on
         Donte Hill, Qudir Taylor, Tyrek Perez and Kalif Mumin.

           One of the other reasons why I lied on Tae is because I
         never liked nobody from 56th Street. I also know that it
         wasn’t Tae that shot my grandmom house up, it was Kenny
         James.

            I never received any money from the federal authorities.
         No cash, no housing, no drugs, no nothing. The times I said
         that to people, I was trying to make them mad and make it
         seem like I did it for a good reason. Tae and I was never
         cool. We never had a conversation, he would never confess
         a murder to me.



                                     -7-
J-S56019-20


           AUSA Robert Crawford told me whatever I know about
        just speak on it. He said “If you start it, we will finish it.”

           Homicide detective Pitts, said he already had Tae
        charged, we just need more evidence, like wirds from him.
        Detective Pitts told me to say that Tae told me that he
        emptied the whole clip.

           Female ADA that prosecuted Tae case (I don’t remember
        her name) asked me was I related to Anthony Moss. I said
        yes. She said if Moss killed Muhamad then how are you and
        Tae still cool? I said we not, that is why I’m trying to fry
        him. I heard that Tae shot my grandmom house up. She
        said I am here to help you do that.

           In the case of Commonwealth v. Tyrik Perez, my
        testimony about us lying and blaming other people for
        murder is true. We did whatever needed to be done to be
        free again.

           Qudir Taylor v. Commonwealth I testified that I was there
        and saw the murder but I lied and I was not really there,
        that was just part of the deal to get 7 years knocked off my
        sentence.

           I was a witness on a kidnapping federal case and ATF
        Agent Gary Malone told me everything to say to the Grand
        jury. I had no idea what was going on in that case. I lied
        because they promised to let me out of custody the next
        day. I was released the next day. ATF Gary Malone was
        the agent that picked up off the street for my federal case
        for guns and drugs. I was caught with 2 guns, crack, and
        weed.

           If I am asked, I am willing to testify at any court
        proceeding or the PCRA proceeding for Donte Hill so we can
        make this right. I feel bad for what I did. I feel better now
        that I know I did the right thing.

PCRA Petition, 7/23/18, Attachment (paragraph breaks and emphasis added).

Mumin claims that this affidavit demonstrates Drummond’s recantation of his

testimony from Mumin’s trial.



                                     -8-
J-S56019-20



     The PCRA court explained that Mumin did not sustain his burden of proof

for a number of reasons. The court first explained:

            First, [Mumin] is unable to show that Drummond’s
        recantation would not be used solely for impeachment or
        would have compelled a different verdict at trial. In his
        affidavit, Drummond only briefly mentions [Mumin]. . . . At
        [Mumin’s] trial, Drummond identified [Mumin] and Perez as
        the two men who shot him. Thus, Drummond’s statements
        in his affidavit would only serve to challenge his credibility.
        Moreover, there is nothing to suggest that Drummond’s
        affidavit would have compelled a different result at trial. It
        is well settled that recantation testimony is “extremely
        unreliable,” and that “[w]hen the recantation involves an
        admission of perjury, it is the least reliable form of proof.
        Commonwealth v. Johnson, 

841 A.2d 136

(Pa. Super.
        2003) (quoting Commonwealth v. Henry, 

550 Pa. 346

,
        

706 A.2d 313

, 321 (1997).          At trial, the jury heard
        Drummond testify in person, saw him undergo thorough
        cross-examination by defense counsel, and listened to the
        other witnesses who corroborated portions of Drummond’s
        testimony. It is not likely that Drummond’s recantation in
        a separate case years later, where he only mentions
        [Mumin’s] case in passing, would compel the jurors to reach
        a different verdict.

PCRA Court Opinion, 4/21/20, at 6.

     Our review of the record supports the PCRA court’s conclusion that

Mumin has not established one or more of the factors regarding the after

discovered evidence test. 

Small, supra

.

     Mumin’s claims to the contrary are unavailing. Initially, we believe he

mischaracterizes Drummond’s affidavit as it relates to his case. Referring to

the affidavit, Mumin asserts that “while primarily discussing his perjury in




                                     -9-
J-S56019-20



relation to Donte Hill’s case, Drummond critically also admits to lying in [his]

case.” Mumin’s Brief at 14. We disagree.

       A plain reading of the document readily establishes that Drummond did

not admit in the affidavit that he “fabricated false evidence” against Mumin.

See PCRA 

Petition, supra

. The only mention of Mumin in the affidavit is the

fact that Drummond “got time off” his sentence in return for testifying for the

Commonwealth in several cases, including Mumin’s. Our review of the trial

transcript demonstrates that Drummond testified he would receive a reduced

sentence if he testified truthfully. See N.T., 2/16/11, at 59, 110-11. As he

did receive a reduced sentence, we cannot interpret Drummond’s affidavit as

an admission that he lied in Mumin’s case. The only clear admission of lying

was made in the unrelated case.2 Mumin’s claim that Drummond engaged in

a “pattern and practice” of fabricating evidence is not sufficient to establish

that he actually perjured himself when testifying in Mumin’s case.




____________________________________________


2 Reviewing the affidavit as a whole, it is clear that any claim of “false
fabrication” applied to Drummond’s testimony against “Tae,” a/k/a Donte Hill.
The only other cases Drummond admitted to lying in his testimony was against
Quadir Taylor, as well as in a federal kidnapping case. Although the affidavit
refers to Mumin’s co-defendant, Perez, Drummond’s assertion that his “lying
and blaming other people for murder is true” does not appear in our review of
Drummond’s testimony at the joint trial transcript in this case. See N.T.,
2/16/11, at 24-142, N.T., 2/17/11, at 58-68.




                                          - 10 -
J-S56019-20



       In addition, Drummond’s affidavit does not indicate he would be willing

to testify at Mumin’s PCRA proceeding.3              See 

Small, 189 A.3d at 972

(explaining that after discovered evidence must be producible). While Mumin

asserts that he exercised due diligence, he does not develop his claim that the

alleged recantation by Drummond, by itself, would have been used for a

purpose other than impeachment and that the recantation testimony would

have resulted in a different verdict at trial.

       Rather, Mumin asserts that he “believes and avers that the false

testimony Drummond gave in the instant case inculpating [Mumin] was the

result of a recently identified unconstitutional interrogation pattern and

practice within the [Philadelphia’s] Homicide [Division].” Mumin’s Brief at 16.

       This claim affords Mumin no relief, and leads to our consideration of

Mumin’s second argument of after-discovered evidence of police misconduct.

In support of this claim, Mumin cites to Commonwealth v. Thorpe, CP-51-

CR-0011433-2008 (C.P. Phila., Nov. 3, 2017), in which a different judge

sitting on the Philadelphia County Court of Common Pleas, in an unrelated

case, found      that   Detective     Pitts    and Detective   Jenkins   “utilized an

unconstitutional ‘pattern and practice’ of, among other things, fabricating

statements from suspects and witnesses in order to falsely inculpate a pre-

ordained suspect.” Mumin’s Brief at 16-17. Mumin further contends that “[a]t
____________________________________________


3  Thus, Mumin’s claim that the PCRA court inappropriately assessed
Drummond’s credibility without first holding a hearing fails. See Mumin’s Brief
at 23-24.


                                          - 11 -
J-S56019-20



all times material,” Detective Pitts and Detective Jenkins “were partners,” and

that the two detectives “jointly participat[ed]” in many of the cases cited in

Thorpe.

Id. at 17.

      From his discussion of Thorpe, Mumin extrapolates that:

            Drummond’s after discovered admission that Dets. Pitts
         and Jenkins fabricated the evidence he testified to would not
         have been used at trial merely to impeach Drummond’s
         testimony.     Drummond’s testimony would have been
         independent, substantive evidence of police misconduct in
         this case. The unconstitutional conduct of detectives in
         Philadelphia’s Homicide Division would undermine critical
         testimony of the detectives who took the witnesses[’]
         statements in this case. It would not be used merely as
         impeachment evidence at a new trial.

Mumin’s Brief at 18. Finally, as further proof, Mumin relies on an affidavit

from “Little Dave” Kennedy in which he asserted, consistent with Drummond’s

initial statement to police, that the shooting suspects were wearing ski-masks.

Id. at 19.

      The PCRA court found no merit to Mumin’s claim that police misconduct

occurred in his case. The court explained:

             [Mumin’s] claims regarding police misconduct are wholly
         without merit as he provided no evidence of misconduct in
         his own case. His allegations against Detective Pitts, based
         upon the claims in Drummond’s affidavit as well as his
         interpretation of Commonwealth v. 

Thorpe, supra

, are
         irrelevant to his own case as Detective Pitts was not even a
         witness at [Mumin’s] trial. Moreover, [Mumin] does not
         provide any evidence of any police misconduct in his own
         case beyond a statement from David Kennedy, who testified
         at Perez’[s] PCRA evidentiary hearing. However, at that
         hearing, [the PCRA court, who also presided over the joint
         trial of Mumin and Perez] denied Perez’[s] claims for relief,


                                    - 12 -
J-S56019-20


          finding that Kennedy had “serious credibility issues,” and
          emphasized that Kennedy did not even witness the
          shooting. As [Mumin] has nothing to support his argument
          beyond speculation, conjecture, and a statement from an
          individual already found to be not credible, his claims of
          police misconduct cannot form the basis of relief based upon
          after-discovered evidence.

PCRA Court Opinion, 4/21/20, at 6-7. Our review of the record supports this

conclusion.

       Once again, Mumin mischaracterizes the information provided by

Drummond in his affidavit. In short, Drummond’s affidavit does not include a

statement that police misconduct occurred in Mumin’s case. It is now well-

settled that evidence of police misconduct in an unrelated case would only be

used to impeach. See Commonwealth v. Brown, 

134 A.3d 1097

, 1109 (Pa.

Super. 2016) (affirming denial of new trial when witnesses’ testimony about

Detective Pitts misconduct in other cases “would solely be used to impeach

Detective Pitts’ credibility”). See also Commonwealth v. Foreman, 

55 A.3d

532

, 537 (Pa. Super. 2012) (holding that criminal charges against a detective

in an unrelated matter does not meet the after-discovered evidence test since

such evidence would be used solely to impeach the detective’s testimony). 4
____________________________________________


4 Mumin cites Commonwealth v. Williams, 

215 A.3d 1019

(Pa. Super.
2019) for the proposition that evidence of police misconduct in other cases
would not be used merely to impeach the officers’ credibility, but rather, could
have been used to bolster a petitioner’s innocence. See Mumin’s Brief at 12-
13. Williams is distinguishable. That case involved a situation in which the
Commonwealth conceded that a new trial was warranted because the police
officer, who was the sole witness testifying at Williams’ trial, was later accused
of “serious allegations of misconduct.” Williams, at 1022. Because the



                                          - 13 -
J-S56019-20



       Further, we agree with the PCRA court that Mumin’s claim amounts to

no more than speculation. In his case, there is no evidence that Detective

Pitts was involved in the investigation in any respect. When Detective Jenkins

interviewed Drummond at the hospital, Drummond was uncooperative and

told the detective that his assailants were wearing ski masks.     See infra.

Although Detective Jenkins later developed photo arrays and showed them to

Drummond, Drummond did not identify either man at that time. This was the

limit of Detective Jenkins involvement in this case. See N.T., 2/17/11, at 214-

16.    Mumin speculates that because Detectives Pitts and Jenkins were

partners, who often worked in tandem, police misconduct must have occurred

in his case—“Detective Jenkins decided [after receiving the anonymous phone

call] that [Mumin] and [Perez] were the two suspects.” Mumin’s Brief at 20.

       Mumin’s speculation and theories to support his claim that police

misconduct occurred5 cannot substitute for actual evidence of police

improprieties in his case. This is especially true where Drummond was not

only a Commonwealth witness at trial, but also was the victim of the crime

which left him permanently paralyzed.

____________________________________________


Commonwealth would “never again” call the former police officer (who was
neither Detective Pitts nor Detective Jenkins), the after discovered evidence
“would not, indeed could not, be used as impeachment evidence at a new
trial.”

Id. at 1027.

5Mumin

also notes that the Commonwealth acknowledged that the ballistic
evidence from the shooting was “lost.” See N.T., 2/17/11, at 201-02.



                                          - 14 -
J-S56019-20



      In sum, because the PCRA court did not err in concluding that Mumin

failed to establish his claim of after-discovered evidence. We therefore affirm

the PCRA court’s denial of post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/21




                                     - 15 -

Add comment

By

Recent Posts

Recent Comments