IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
No. ____ EM 2016
COMMONWEALTH OF PENNSYLVANIA,
Respondent
v.
DONTE ROLLINS,
Petitioner
UNOPPOSED PETITION REQUESTING RELIEF THROUGH THE
EXERCISE OF KING’S BENCH POWERS OR EXTRAORDINARY
JURISDICTION
The Pa. Innocence Project
Marissa Boyers Bluestine, Esq.
Pa. Attorney No. 75973
Nilam A. Sanghvi, Esq.
Pa. Attorney No. 209989
1515 Market Street, Suite 300
Philadelphia, PA 19102
215-204-4255
Schnader Harrison Segal & Lewis LLP
Bruce P. Merenstein, Esq.
Pa. Attorney No. 82609
1600 Market Street, Suite 3600
Philadelphia, PA 19103
215-751-2000
Michael Wiseman, Esq.
Pa. Attorney No. 75342
P.O. Box 120
Swarthmore, PA 19081
215-450-0903
Counsel for Petitioner Donte Rollins
TABLE OF CONTENTS
I.
INTRODUCTION ........................................................................................... 1
II. JURISDICTION .............................................................................................. 5
III. PROCEDURAL HISTORY AND PCRA COURT’S DELAY ........................ 7
IV. CONCLUSION ..............................................................................................11
-i-
TABLE OF AUTHORITIES
Constitutional Provisions
Pa. Const. Art. V, §§ 1, 2 ....................................................................................... 5
Cases
Commonwealth v. Onda, 103 A.2d 90 (Pa. 1954) .................................................. 5
Commonwealth v. Roundtree, 364 A.2d 1359 (Pa. 1976) ...................................... 7
Commonwealth v. Williams, 129 A.3d 1199 (Pa. 2015) ......................................... 6
Statutes
42 Pa. C.S. § 502 .................................................................................................. 5
42 Pa. C.S. § 726 .................................................................................................. 5
Rules
Pa. R.A.P. 3309 ..................................................................................................... 5
Other Authorities
“The Price of Prisons: What Incarceration Costs Taxpayers,” Vera Institute of
Justice 10 (2012), available at http://archive.vera.org/sites/default/files/
resources/downloads/price-of-prisons-updated-version-021914.pdf .................. 2
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INDEX OF EXHIBITS
Exhibit 1:
Commonwealth Answer to Renewed Application for Leave to File
Emergency Petition, 164 EM 2016 (filed October 20, 2016)
Exhibit 2:
Commonwealth Letter in Lieu of Answer to Petitioner’s Application
for Summary Relief, 3499 EDA 2016 (filed November 21, 2016)
Exhibit 3:
Petitioner’s Post-Hearing Memorandum of Law, CP-51-CR-5113321006 (filed October 25, 2016)
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Petitioner, Donte Rollins, through his undersigned counsel, Michael
Wiseman, the Pennsylvania Innocence Project, and Schnader Harrison Segal &
Lewis LLP, hereby files this Unopposed Petition Requesting Relief through the
Exercise of King’s Bench Powers or Extraordinary Jurisdiction.
I.
INTRODUCTION
Mr. Rollins petitions for extraordinary relief because of the vitally important
matters at stake; every day that passes means the Commonwealth of Pennsylvania
continues to imprison a man who the parties—the defense and the prosecution—
agree should have his conviction vacated and should be immediately released from
prison.
Despite the express acknowledgement by the Commonwealth of
Pennsylvania that Mr. Rollins’ trial counsel failed to meet the constitutional
standards for effective assistance of counsel, entitling Mr. Rollins to vacatur of his
conviction and remand to his pre-trial status of house arrest, Mr. Rollins remains
incarcerated at SCI Graterford. This is so only because, after the Commonwealth
had conceded that Mr. Rollins was entitled to such relief, the PCRA court
continued the matter for six months to hear from additional witnesses called by the
court itself, despite their testimony’s lack of relevance to the issues before the
court, and then denied the agreed-upon relief without explanation.1
Beyond the important constitutional issues involved, according to available
data, Mr. Rollins’ unnecessary incarceration has cost the taxpayers of Pennsylvania
$23,316 and each day adds an additional $116 to the total. 2 Moreover, the PCRA
court’s unreasonable and erroneous refusal to grant the relief agreed to by the
parties adds the additional expenditure of court resources to adjudicate an
unopposed appeal of the PCRA court’s order. The parties agree this situation is
best remedied through this Court’s exercise of its powers of extraordinary
jurisdiction.
Mr. Rollins was convicted in Philadelphia in 2007 of participating in a
shooting that paralyzed a child. Despite having abundant evidence that Mr. Rollins
was shopping with friends miles from the scene of the shooting when it occurred,
Mr. Rollins’ trial counsel presented only a sliver of the available alibi evidence at
trial. Almost ten years later, the full panoply of that evidence was presented to the
1
This Court is already familiar with the unique procedural quagmire of
this case; pending before this Court is Mr. Rollins’ Application for Writs of
Mandamus and Prohibition to the Philadelphia County Court of Common Pleas.
See Rollins v. Philadelphia Cnty. Ct. of Common Pleas, 164 EM 2016.
2
Based on an annual calculation of $42,339 per Pennsylvania inmate.
See “The Price of Prisons: What Incarceration Costs Taxpayers,” Vera Institute of
Justice 10 (2012), available at http://archive.vera.org/sites/default/files/resources/
downloads/price-of-prisons-updated-version-021914.pdf (last checked Nov. 16,
2016).
-2-
lower court, including testimony from five witnesses (another witness passed away
a year after Mr. Rollins’ conviction), videotapes, still photographs, receipts from
stores, and cell phone records.
After hearing from the witnesses, reviewing all the evidence, and conducting
its own investigation of the alibi evidence, the Philadelphia District Attorney’s
Office agreed that Mr. Rollins was entitled, at a minimum, to a new trial, and,
further, to be restored to his pre-trial bail status of house arrest: “The
Commonwealth agrees that the PCRA court should grant a new trial.” 3 That
agreement was presented to the PCRA court on April 29, 2016. Rather than honor
it, the court continued the matter to hear from witnesses identified by the court and
eventually denied the agreed-upon relief without explanation.
With Mr. Rollins’ earlier filings in this Court still pending, counsel filed an
Application for Summary Relief in the Superior Court of Pennsylvania on
November 20, 2016, in an attempt to resolve this matter expeditiously and ensure
Mr. Rollins’ appellate rights were fully protected. That motion asked the court to
reverse the PCRA court’s ruling, vacate Mr. Rollins’ convictions, and remand the
case to the Court of Common Pleas with an order to release Mr. Rollins from
Commw. Ans. to Renewed App. for Leave to File Emerg. Pet’n at 2
(attached as Exhibit 1).
3
-3-
custody to house arrest. In the alternative, counsel requested expedition of the
unopposed appeal.4 The Commonwealth filed a Letter in Lieu of Answer to
Petition/Motion the next day stating succinctly, “the Commonwealth agrees to the
relief requested.”5
Because the Superior Court has not acted on the uncontested application, the
parties are concerned Mr. Rollins’ unopposed appeal may have to proceed through
the normal Superior Court appellate process (often several months, if not years,
long), despite the Commonwealth’s agreement on the ultimate relief Mr. Rollins
seeks. Even were the Superior Court to expedite the appeal, Mr. Rollins will
remain wrongly incarcerated for the foreseeable future, and Pennsylvania
taxpayers will needlessly pay the costs. Mr. Rollins seeks this Court’s intervention
to expedite Mr. Rollins’ release—an outcome desired by both parties here.6
4
See Commonwealth v. Rollins, No. 3499 EDA 2016 (Pa. Super.).
5
See Commw. Ltr. in Lieu of Answer at 1 (Nov. 21, 2016) (emphasis
in original) (attached as Exhibit 2).
6
The Court is not being asked to establish a briefing schedule or hear
argument. Both parties agree this Court can (and should) summarily reverse the
PCRA court’s denial of Mr. Rollins’ PCRA petition, vacate his convictions and
sentence, and remand the case to the Court of Common Pleas with an order to
release Mr. Rollins to house arrest.
-4-
II.
JURISDICTION
Pursuant to the Judicial Code, the Pennsylvania Constitution, and the
Pennsylvania Rules of Appellate Procedure, this Court should assume plenary
jurisdiction over Mr. Rollins’ pending appeal.7 Extraordinary jurisdiction affects
“any matter pending before any court or magistrate district judge of this
Commonwealth involving an issue of immediate public importance” and endows
this Court with “plenary jurisdiction of such matter at any stage thereof [to] enter a
final order or otherwise cause right and justice to be done.” 8 This power has
existed within this Court “from the very time of its creation.” 9
Moreover, the additional King’s Bench power “protects the liberty of the
subject, by speedy and summary interposition.”10 Indeed, King’s Bench power
exists precisely to right the type of wrong Mr. Rollins suffers as it enables this
Court “to minister justice to all persons, in all matters whatsoever.” 11 As this Court
recently emphasized, “King’s Bench authority is generally invoked to review an
issue of public importance that requires timely intervention by the court of last
7
42 Pa. C.S. §§ 502, 726; Pa. Const. Art. V, §§ 1, 2; Pa. R.A.P. 3309.
8
42 Pa. C.S. § 726.
9
Commonwealth v. Onda, 103 A.2d 90, 92 (Pa. 1954).
10
Id. (emphasis in original) (citing to Blackstone, Book 3, ch. 4 *42).
11
Id.
-5-
resort to avoid the deleterious effects arising from delays incident to the ordinary
process of law.”12
The prolonged, unnecessary incarceration of a man even the Commonwealth
agrees should be released warrants the exercise of this extraordinary power. While
Mr. Rollins almost certainly will obtain relief in the Superior Court, the
proceedings have only just begun and are dependent upon the PCRA court’s
prompt issuance of an opinion and ensuring the full record’s transfer for
consideration. Given the PCRA court’s past history of obstruction in bringing this
case to its just conclusion, counsel and the Commonwealth are greatly concerned
these processes will cause further delay. Meanwhile, Mr. Rollins’ wrongful
incarceration continues.
There are vital constitutional issues at play here: Mr. Rollins’ right to not be
deprived of his liberty without due process of law and a fair trial is being violated
every day the current situation is allowed to continue. In addition, the PCRA relief
to which Mr. Rollins is entitled is a new trial; thus, the current situation also
jeopardizes his right to a speedy trial. The speedy trial guarantee exists to “prevent
oppressive pre-trial incarceration; . . . minimize anxiety and concern of the
12
Commonwealth v. Williams, 129 A.3d 1199, 1206 (Pa. 2015).
-6-
accused; and . . . limit the possibility that the defense will be impaired.” 13 The
Commonwealth has an equal interest in ensuring this case proceeds to conclusion
quickly, to, among other things, allow the victim’s family closure to the matter.
Accordingly, this Court should exercise jurisdiction over this matter.
III. PROCEDURAL HISTORY AND PCRA COURT’S DELAY
On December 4, 2007, almost ten years ago, Mr. Rollins was convicted of
attempted murder with serious bodily injury and related charges following a jury
trial overseen by the Honorable Rayford A. Means. On April 17, 2008, the court
sentenced Mr. Rollins, who had no prior convictions, to a term of imprisonment of
62.5 to 125 years. His convictions and sentences were affirmed on direct appeal;
this Court denied leave to appeal.14
On February 15, 2013, Mr. Rollins filed a timely counseled petition for
PCRA relief primarily alleging trial counsel ineffectively failed to present Mr.
Rollins’ complete alibi case to the jury. That evidence included live witnesses,
surveillance footage of Mr. Rollins shopping with friends miles from the area of
the shooting, sales receipts for purchases made, and cell phone records showing
multiple calls on his cell phone during the time of the shooting. On March 4, 2015,
13
Commonwealth v. Roundtree, 364 A.2d 1359, 1365 (Pa. 1976).
14
Commonwealth v. Rollins, 1285 EDA 2008 (Pa. Super. Oct. 18,
2010); Commonwealth v. Rollins, 620 EAL 2010 (Pa. Dec. 5, 2011).
-7-
Mr. Rollins filed an amended PCRA petition adding a claim asserting Mr. Rollins’
actual innocence of the offense and additional unpresented alibi evidence
developed after further investigation.15
In the ensuing months Mr. Rollins’ counsel met and communicated with
members of the Philadelphia District Attorney’s Office, including Robin Godfrey,
Chief of the PCRA Unit, and Mark Gilson, a veteran homicide prosecutor and
Director of the Conviction Review Unit. The goal was to demonstrate to the
Commonwealth Mr. Rollins’ innocence, as well as the ineffectiveness of his trial
counsel.
At the same time, Judge Means conducted hearings during which Mr.
Rollins presented his full alibi—including the witness testimony, surveillance
video, documents, and cell phone records discussed above—as well as trial
counsel’s testimony. Trial counsel presented no legally acceptable explanation for
his failure to present the full alibi evidence at trial.
Following trial counsel’s testimony, the Commonwealth advised Mr.
Rollins’ current counsel that, while it had not arrived at a final position on Mr.
Rollins’ innocence, it agreed Mr. Rollins had met his burden of demonstrating trial
15
That additional evidence was news footage showing Mr. Rollins being
arrested wearing the same clothes he was wearing in the surveillance footage—
jeans and a light gray hooded sweatshirt. By contrast, the victim’s grandmother,
the only eyewitness to the shooting, told police the shooters wore all black.
-8-
counsel’s ineffectiveness with respect to the presentation of the alibi defense and
that Mr. Rollins was, therefore, entitled to PCRA relief—a new trial and return to
his pre-trial bail status.16
On April 29, 2016, counsel for the Commonwealth and Mr. Rollins reported
to the court there were no further live witnesses to be presented by either side and
that both parties stipulated to the testimony of one additional witness, trial
counsel’s investigator Karim Shabazz. Counsel also advised the court the
Commonwealth agreed: (1) Mr. Rollins received ineffective assistance of trial
counsel; and (2) the District Attorney’s Office believed, after many internal
discussions with the trial prosecutor and other senior staff members, a new trial
was required. In short, the Commonwealth agreed the PCRA court should grant
Mr. Rollins’ PCRA petition, vacate his convictions, restore him to his preconviction bail status, and relist the matter for trial.
Despite the Commonwealth’s position, Judge Means insisted on hearing
from additional witnesses: the trial prosecutor; the assigned detective; and Mr.
Shabazz, despite the stipulation.17 The PCRA court continued the matter for two
16
Mr. Rollins was on house arrest at the time of his trial and was
remanded to custody when the jury returned its verdict.
Judge Means also said he wanted to hear from the detective “who did
the photo array,” notwithstanding that the testimony at both the original trial and at
the PCRA hearings established that there was no photo array.
17
-9-
months just to determine the witnesses’ availability, and then another two months
beyond that to hear from the witnesses. On that date, August 29, 2016, the court
heard from Mr. Shabazz, who testified for approximately five minutes and in
conformity with the stipulation previously presented.
The court then continued the matter again to hear from the trial prosecutor
and detective, even though—as both sides explained—neither the trial prosecutor
nor the assigned detective had any information relevant to the resolution of the
legal issues presented in the PCRA petition. The hearing did not take place until
October 24, 2016, due solely to the PCRA court’s own continuances. Neither
witness had any relevant information regarding the pending ineffective-assistanceof-counsel claim, which their testimony confirmed. 18
At the close of the hearing, Judge Means indicated he would rule on the
petition on November 14, 2016. On the appointed day, Judge Means announced
from the bench that he was denying the petition. Counsel requested that Judge
Means put his reasoning on the record, in order to immediately prepare an appeal.
Judge Means cut counsel off in the middle of these requests, twice proclaimed,
Judge Means also allowed victim Jabbar Wright’s mother and
grandfather to give statements from the stand. While Mr. Rollins and his counsel
are sensitive to the feelings of the Wright family, allowing such victim impact
statements during a PCRA proceeding on an ineffective-assistance-of-counsel
claim is highly irregular.
18
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“That concludes this matter,” and abruptly left the courtroom. 19
Mr. Rollins filed his Notice of Appeal the next day and his Rule 1925(b)
statement a day later, on the same date the court issued its Rule 1925(b) order. On
November 20, Mr. Rollins filed the Application for Summary Relief in the Superior
Court. To date, there has been no action on that application. And, as of the date of
this filing, Mr. Rollins has been wrongly incarcerated for 220 days since the
Commonwealth agreed he should receive relief and be released to house arrest. 20
IV. CONCLUSION
This Court should exercise its authority under King’s Bench to summarily
reverse the PCRA court’s ruling, vacate Mr. Rollins’ convictions and sentence, and
immediately remand this case to the Court of Common Pleas with an order to
release Mr. Rollins to house arrest and schedule the matter for trial.
Respectfully Submitted,
/s/ Michael Wiseman
Michael Wiseman, Esq.
Attorney No. 75342
19
N.T. 11/14/16, 5-6.
This King’s Bench Petition is being filed because of the extraordinary
history of this case (set forth here and in further detail in Mr. Rollins’ prior
emergency filings with this Court). Accordingly, this petition focuses on the
procedural history and not the underlying record of ineffectiveness. A full
accounting of the evidence amassed and presented to the PCRA court in support of
Mr. Rollins’ PCRA petition can be found in Mr. Rollins’ post-hearing submission
filed with the PCRA court, which is attached hereto as Exhibit 3.
20
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P. O. Box 120
Swarthmore, PA 19081
215-450-0903
/s/ Marissa Boyers Bluestine
Marissa Boyers Bluestine, Esq.
Attorney I.D. No. 75973
Nilam A. Sanghvi, Esq.
Attorney I.D. No. 209989
The Pennsylvania Innocence Project
1515 Market Street, Suite 300
Philadelphia, PA 19102
215-204-4255
/s/ Bruce P. Merenstein
Bruce P. Merenstein, Esq.
Attorney I.D. No. 82609
Schnader Harrison Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103
215-751-2249
Counsel for Petitioner Donte Rollins
Dated: December 5, 2016
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CERTIFICATE OF SERVICE
I, Marissa Boyers Bluestine, Esquire, being duly sworn according to law
does hereby state and aver I caused a true and correct copy of the foregoing
document titled Unopposed Petition Requesting Relief Through the Exercise of
King’s Bench Powers or Extraordinary Jurisdiction to the following:
Via PACFile and U.S. Mail, postage pre-paid
Hugh Burns, Esq.
Chief, Appeals Unit
Office of the District Attorney, City of Philadelphia
Three South Penn Square
Philadelphia, PA 19107-3499
[email protected]
Via U.S. Mail, postage pre-paid
Benjamin Kohler, Esq.,
Deputy Prothonotary
The Superior Court of Pennsylvania
530 Walnut St., Suite 315
Philadelphia, PA 19106
/s/ Marissa Boyers Bluestine
Marissa Boyers Bluestine, Esq.
Attorney I.D. No. 75973
The Pennsylvania Innocence Project
1515 Market Street, Suite 300
Philadelphia, PA 19102
215-204-4255
December 5, 2016
EXHIBIT 1
Received 10/20/2016 3:42:56 PM Supreme Court Eastern District
Filed 10/20/2016 3:42:00 PM Supreme Court Eastern District
164 EM 2016
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
164 EM 2016
DONTE ROLLINS
Petitioner
V.
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
Respondent
COMMONWEALTH OF PENNSYLVANIA
Participant
RESPONSE OF: COMMONWEALTH OF PENNSYLVANIA
COMMONWEALTH’S ANSWER TO RENEWED APPLICATION FOR
LEAVE TO FILE EMERGENCY PETITION [etc.], AND ANSWER TO
RENEWED EMERGENCY PETITION FOR EXTRAORDINARY RELIEF
OF WRITS OF MANDAMUS AND PROHIBITION TO THE
PHILADELPHIA COURT OF COMMON PLEAS
TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME
COURT:
R. SETH WILLIAMS, District Attorney of Philadelphia County, by his
Assistants, RONALD EISENBERG, Deputy, Law Division, and HUGH J. BURNS,
JR., Chief, Appeals Unit, respectfully complies with this Court’s order of October 14,
2016, to respond to the above applications, and thus states:
Introduction
Defendant has petitioned this Court to prohibit further continuances in his
PCRA matter in the Common Pleas Court, and to direct the PCRA court to issue a
final ruling. A hearing is scheduled in the Court of Common Pleas a few days from
1
now, on Monday, October 24, 2016. While the Commonwealth takes no position on
the question of mandamus, it agrees that the PCRA court should grant a new trial due
to trial counsel ineffectiveness, and that the PCRA matter is ripe for decision.
Facts and procedural history
Defendant was convicted of attempted murder in 2007. On direct appeal the
Superior Court affirmed the judgments of sentence at 1285 EDA 2008. This Court
denied allocatur on December 5, 2011 at 620 EAL 2010. Defendant initiated the
instant PCRA proceeding on February 15, 2013. In light of evidence that defendant’s
trial counsel was ineffective for not presenting alibi witnesses or corroborating
evidence, including video evidence, the Commonwealth agreed that a new trial
should be granted. It so advised the PCRA court on or about April 29, 2016. The
PCRA court, however, concluded that it should hear the testimony of additional
witnesses and continued the matter to June 27, 2016. As set forth in defendant’s
petition, there were a number of additional court delays thereafter.
On July 5, 2016, defendant petitioned this Court for the same relief now
sought; on July 12, 2016, the Administrative Office of Pennsylvania Courts (AOPC)
filed a letter indicating that the PCRA court intended to obtain “appropriate evidence
prior to decision.” The PCRA court then heard additional testimony on August 29,
2016 and concluded that it should hear still further testimony, from the trial
prosecutor and the assigned police detective, continuing the case to September 26,
2016, for that purpose. On September 1, 2016, this Court denied defendant’s
application for emergency relief without prejudice to seeking similar relief at a later
2
date. On September 29, 2016, following an additional continuance due to the PCRA
judge having not yet returned from vacation, defendant filed the instant renewed
application.
The docket indicates that on October 7, 2016, the PCRA court was permitted
to file a “no answer letter” in response to defendant’s renewed application. This Court
directed the Commonwealth to file a substantive response.
Discussion
The Commonwealth agrees that the PCRA court should grant a new trial. It is
not aware of anything that would properly prevent a prompt ruling and so submits
that this Court may want to take into consideration the results of the proceeding
scheduled for Monday. The Commonwealth did not request the court continuances
discussed in the instant application, and information on the court’s reasons or
intentions in that regard would have to be ascertained from the court.
Respectfully submitted,
/s/
HUGH J. BURNS, JR.
Chief, Appeals Unit
3
EXHIBIT 2
Received 11/21/2016 9:51:10 AM Superior Court Eastern District
DISTRICT ATTORNEY'S OFFICE
THREE SOUTH PENN SQUARE
PHILADELPHIA, PENNSYLVANIA 19107-3499
215-686-8000
November 28, 2016
Benjamin Kohler, Esquire
Prothonotary, Superior Court of Pennsylvania
530 Walnut Street, Suite 315
Philadelphia, Pennsylvania 19106
Re: Commonwealth v. Donte Rollins, Appellant
No. 3499 EDA 2016
Dear Mr. Kohler:
Please advise the Court that the Commonwealth agrees to the relief requested in the
defendant’s petition (“APPELLANT DONTE ROLLINS’ APPLICATION FOR SUMMARY
RELIEF OR, IN THE ALTERNATIVE, TO EXPEDITE HIS APPEAL”) filed on this date.
Respectfully submitted,
Hugh J. Burns, Jr.
Chief, Appeals Unit
cc: Counsel
EXHIBIT 3
THE PENNSYLVANIA INNOCENCE PROJECT
BY:
Marissa Boyers Bluestine, Legal Director
Attorney No. 75973
Nilam A. Sanghvi, Staff Attorney
Attorney No. 209989
Temple University Beasley School of Law
1515 Market Street, Suite 300
Philadelphia, PA 19102
Michael Wiseman
Attorney No. 75342
P.O. Box 120
Swarthmore, PA 19081
COMMONWEALTH OF PENNSYLVANIA, :
Respondent
:
:
:
v.
:
:
DONTE ROLLINS,
:
Petitioner
:
PHILADELPHIA COUNTY COURT OF
COMMON PLEAS
CRIMINAL TRIAL DIVISION
CP-51-CR-511332-2006
POST-HEARING MEMORANDUM OF LAW
TO THE HONORABLE RAYFORD A. MEANS, PRESIDING IN THE COURT OF COMMON
PLEAS CRIMINAL TRIAL DIVISION FOR THE COUNTY OF PHILADELPHIA:
Petitioner, Donte Rollins, through his attorneys, Michael Wiseman, Marissa Boyers
Bluestine, and Nilam A. Sanghvi, files this Post-Hearing Memorandum of Law. Mr. Rollins
seeks vacation of his conviction, a new trial, or such relief as is just and proper, and in support
thereof represents:
INTRODUCTION
This Court heard testimony over several days from multiple witnesses, all of whom
support one conclusion: the guilty verdict against Donte Rollins cannot stand as no reliable
adjudication of his guilt or innocence could have taken place due to the constitutionally
ineffective performance of his trial counsel. Counsel’s deficiencies, as outlined in Mr. Rollins’
Post-Conviction Relief Act Petition and his Amended Post-Conviction Relief Act Petition,
include:
 Failing to investigate known alibi witnesses;
 Failing to properly investigate and authenticate records establishing the impossibility of
Mr. Rollins’ participation in this horrific shooting;
 Failing to make use of materials in his possession in cross-examination of a key police
witness;
 Failing to present available evidence that would have substantiated, bolstered, and
secured Mr. Rollins’ alibi.
Donte Rollins has always maintained he was shopping with three friends – Howard
Porter, Shelton Fortune, and Paris Grant – at the Gallery and then in transit to and shopping on
South Street at the time of the shooting; the young men had been together from mid-afternoon
until just after 8:30 PM, when Mr. Rollins was stopped by police and later identified by
LaRhonda Wright as one of the shooters. Evidence to prove Mr. Rollins’ actual whereabouts at
the time of the shooting was readily available to trial counsel, due entirely to the efforts of Mr.
Rollins’ mother, Ava Rollins. Mrs. Rollins collected store surveillance video from two locations
showing Mr. Rollins either making a purchase or entering and leaving the store. She had several
store receipts from purchases made by Mr. Rollins and his friend Paris Grant. She printed out a
copy of the records from the cell phone Mr. Rollins used that night, showing virtually continuous
calls before, during, and after the shooting. And Mrs. Rollins had the names and contact
2
information for the three men shopping with Mr. Rollins. Mrs. Rollins provided all of this
information to trial counsel, who failed to investigate or develop this evidence and used virtually
none of this information at trial.
Despite counsel having been presented with an all but airtight alibi, he presented to the
jury only a small and unconvincing portion of the actual alibi that existed. Counsel’s failure to
present the full, convincing and compelling alibi evidence constituted deficient performance. Mr.
Rollins was not afforded effective assistance of counsel to which he was entitled pursuant to the
Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 9 of the
Pennsylvania Constitution and there can be no confidence in his conviction.
Moreover, in an effort to attack the alibi that was presented, the Commonwealth
presented Officer Jericho who testified – wrongly – he saw Mr. Rollins at 8:15, when in fact
contemporaneous police communications show he first saw him at 8:35 PM. This testimony was
false, thus violating Mr. Rollins’ right to due process of law.
The Court repeatedly referred to the Commonwealth’s “failure” to call witnesses during
the evidentiary hearing, implying the Commonwealth failed to perform its expected role in our
adversarial system. However, the prosecutor’s foremost duty is to do justice. When, as here, the
issues are so clear as to be uncontestable, the Commonwealth should be credited, not criticized,
for recognizing the injustice and moving toward a proper and swift resolution of this case.
FACTS ESTABLISHED AT THE EVIDENTIARY HEARINGS
The testimony and evidence presented to the Court demonstrate almost certainly that
counsel was ineffective. At a minimum, the testimony and evidence demonstrates a reasonable
probability of a different result had counsel preformed to the level required by the Pennsylvania
and United States constitutions.
3
Shelton Fortune, Howard Porter, and Howard Porter Were With Mr. Rollins All Afternoon
Howard Porter and Shelton Fortune told the Court they were with Mr. Rollins and
another friend, Paris Grant 1 all afternoon and evening the day of the shooting. N.T. 1/8/16, 16-43
(Porter); N.T. 12/18/15, 100-24 (Fortune). The four men left their neighborhood together around
3 PM on a spontaneous shopping trip. N.T. 1/8/16, 34 (Porter’s testimony that trip just happened
like a “domino effect”); N.T. 12/18/15, 115 (Fortune saying he just wanted to go along). The
men drove in Grant’s car and parked at the Gallery first. N.T. 12/18/15, 100; N.T. 1/8/16, 19;
N.T. 1/22/16, 14. For the most part, the men stayed together at the mall, shopping in a few
different stores. N.T. 1/8/16, 41; N.T. 1/22/16, 14; N.T. 12/18/15, 123.
At the Gallery, Mr. Rollins bought a blue shirt at The Net; the purchase was caught on
store surveillance. Fortune, Porter, and Mr. Rollins all recognized Howard Porter and Mr. Rollins
in still shots from the Gallery captured from store surveillance. Mr. Rollins is wearing a grey
hooded sweatshirt, jeans, and has a lanyard around his neck. PCRA Hrg. Exh. D-12 (still images
from The Net at the Gallery). In addition, Porter testified he was with Mr. Rollins when he
bought the shirt. N.T. 1/8/16, 41. The young men left the Gallery around 6 PM, got their car from
the garage, and drove to South Street. N.T.12/18/15, 101; N.T.1/8/16, 42; N.T. 1/22/16, 14. At
South Street, they went in an out of several stores including The Net, City Blue, Olympia Sports,
and jewelry stores. N.T. 1/22/16, 15; 12/18/15, 102; N.T.1/8/16, 20. As one of the group was on
house arrest and had to be home by 9 PM, they left for home “around 8 something.” N.T.
12/18/15, 103. Grant and Fortune went to get the car from its parking space on the street while
Porter and Mr. Rollins did a bit more shopping. The two men went into another The Net store,
this time at 5th and South Streets. N.T. 1/22/16, 15; N.T. 1/8/16, 22.
1
Grant died three years after the trial. N.T. 12/18/15, 95.
4
Both Porter and Mr. Rollins are in photographs and video surveillance from The Net,
and can be seen entering the store at 8:00 PM and leaving at 8:01 PM. N.T. 12/18/15, 105; N.T.
1/8/16, 22; N.T. 1/22/16, 45; PCRA Hrg. Exh. D-11 (still images from The Net on South Street);
PCRA Hrg. Exh. D-10 (video from The Net on South Street).
Very soon after entering The Net, Grant called Mr. Rollins to say they were ready to
leave. N.T. 1/22/16, 77. That call was substantiated on Mr. Rollins’ cell phone records. N.T.
1/22/16, 7; PCRA Hrg. Exh. D-5 (cell phone records). Moreover, in the video showing Mr.
Rollins leaving the store, time-stamped 8:01 PM, he can be seen holding his cell phone to his ear.
PCRA Hrg. Exh. D-10. Just like in the video from the Gallery earlier that evening, Mr. Rollins is
wearing a light grey hooded sweatshirt, jeans, and has a lanyard around his neck. PCRA Hrg.
Exh. D-10; PCRA Hrg. Exh. D-11.
The four young men headed home, aware that Fortune had to return by a certain time or
violate the conditions of his house arrest. N.T. 12/18/15, 102-03; N.T. 1/8/16, 20; N.T. 1/22/16,
15; PCRA Hrg. Exh. D-19 (Shelton Fortune Electronic Monitoring-House Arrest Work
Schedule). After dropping Fortune off at his house, they went to take Mr. Rollins to his home.
N.T. 1/8/16, 21. Unable to go down his street due to the presence of police officers, Mr. Rollins
had to walk down the block to get to his front door. N.T. 1/8/16, 16.
Mr. Rollins was stopped by police and held to see whether the victim’s grandmother
could identify him. N.T. 1/22/16, 20-21. After the identification, police put Mr. Rollins in the
back of a squad car before transporting him to the police district. N.T. 1/22/16, 21. While he was
sitting in the squad car in front of his house, a news crew from 6ABC filmed him from outside of
the car. In the video, Mr. Rollins can be seen in the back of a police car wearing a light grey
hooded sweatshirt and something around his neck. PCRA Hrg. Exh. D-9 (WVPI arrest video).
5
None of the three men who were with Mr. Rollins from early afternoon until 8:30 PM
testified at his trial. Fortune and Porter both said they had never been contacted by anyone –
lawyer, investigator, or otherwise – from Mr. Rollins’ trial counsel’s office. They had never been
asked to talk about that evening or what they remembered. The first time either Fortune or Porter
spoke with anyone about that night was when they were contacted by current counsel’s
investigator. N.T. 12/18/15, 108; N.T. 1/8/16, 28. Both men were available to testify at the time
of Mr. Rollins’ trial, and would have gladly testified had they been asked. N.T. 12/18/15, 110;
N.T. 1/8/16, 28. Paris Grant met with trial counsel a few months after the shooting for about 20
minutes. N.T. 12/18/15, 39. Yet, like Porter and Fortune, trial counsel did not subpoena Grant for
Mr. Rollins’ trial and he did not testify.
Zahir Johnson Calls Mr. Rollins to Warn Him He’ll Be Arrested
While Mr. Rollins was walking to his home and being stopped by police, he got a call on
his cell phone. The time of the call, according to his cell phone records, was 8:35 PM. See PCRA
Hrg. Exh. D-5. The call occurred almost 20 minutes after Officer Jericho testified Mr. Rollins
had been arrested, calling into serious question the timeline of events the Commonwealth
presented at trial. N.T. 11/29/07, 148-49. That call came from a friend, Zahir Johnson. N.T.
1/8/16, 70. Johnson called Mr. Rollins to warn him that police were looking for him in
connection with the shooting of a child earlier that evening. N.T. 1/8/16, 69. Mr. Rollins said he
wasn’t worried because he didn’t shoot anyone. N.T. 1/8/16, 69. According to the cell phone
records, the call lasted three minutes.
Trial counsel never spoke to Mr. Johnson. N.T. 1/8/16, 91. Johnson attended the trial
every day expecting to testify as a character witness for another defendant. N.T. 1/8/16, 96, 102.
At some point, an attorney pulled Johnson into a side room and explained his testimony was not
needed. N.T. 1/8/16, 97. That attorney was Mr. Giampetro, who represented Mr. Rollins’ co6
defendant. Mr. Rollins’ trial counsel said nothing with regard to Mr. Johnson, or whether he
intended to call him as a witness for Mr. Rollins. N.T. 11/28/07, 113. Johnson would have
testified about his phone call with Mr. Rollins had he been asked to do so. N.T. 1/8/16, 91.
Thomas Myricks Sees Mr. Rollins Get Arrested
Thomas Myricks, a neighbor, saw Mr. Rollins coming down the street, walking normally
toward a group of police officers standing around Mr. Rollins’ front door. N.T. 1/15/16, 16.
When Mr. Rollins identified himself to police, Myricks said the police “jumped on him like
flies.” N.T. 1/15/16, 16. Myricks saw the police move Mr. Rollins across the street and stay with
him. N.T. 1/15/16, 16.
Like Porter and Fortune, Myricks never heard from an attorney or investigator before Mr.
Rollins’ trial. N.T. 1/15/16, 21. Myricks still lives in the same house as in 2006, and he would
have testified had he been subpoenaed. N.T. 1/15/16, 21.
Ava Rollins Gets Documentary and Video Evidence
Following her son’s arrest, Ava Rollins set out to gather the evidence that could prove he
was not involved in the shooting. She found a shopping bag on her front step from The Net,
containing a blue shirt but no receipt. N.T. 12/18/15, 12-13. Two days later, she and Grant went
back to the stores the men had visited. N.T. 12/18/15, 14.
They started at The Net in the Gallery; Mrs. Rollins presented the shirt to a salesperson.
N.T. 12/18/15, 16. Because the shirt still had the store tag, the individual was able to determine
Mr. Rollins bought the shirt at 18:18 (6:18 PM) on January 28. He printed out a receipt for Mrs.
Rollins. N.T. 12/18/15, 18; PCRA Hrg. Exh. D-6 (store receipts). From there, Mrs. Rollins
reviewed store surveillance tapes from that time to see whether Mr. Rollins could be seen inside
the store. Mrs. Rollins saw both Mr. Rollins and Porter on the tape at 6:18 PM. N.T. 12/18/15,
20. She asked for a copy of the tape, and was told to go to the South Street store to retrieve it.
7
Mrs. Rollins and Grant then left the Gallery and headed to South Street. When Grant said
Mr. Rollins had been in that store, as well, Mrs. Rollins reviewed yet more surveillance tape until
she found video of her son entering the store at 8:00 PM with Porter. N.T. 12/18/15, 27. She got
the tapes from both stores at the same time. N.T. 12/18/15, 27. In addition, Grant and Mrs.
Rollins visited several other stores but they were not able to get any additional tapes. N.T.
12/18/15, 27. Aside from the receipt from The Net, Grant had two additional receipts from that
night – from City Blue and from Aloha. N.T. 12/18/15, 30; PCRA Hrg. Exh. D-6.
Mrs. Rollins hired trial counsel to represent her son within days of his arrest. N.T.
12/18/15, 31. She gave counsel all of the records she was able to secure and also gave him a
copy of Mr. Rollins’ cell phone records from that night. N.T. 12/18/15, 37. Mrs. Rollins called
trial counsel’s office many times – in her words, “morning, noon, and night” – but was never
able to meet with him again before trial. N.T. 12/18/15, 43. Other than asking Mrs. Rollins to
secure character witnesses to testify for her son, trial counsel did not ask her to assist in any other
way. N.T. 12/18/15, 46. She trusted counsel’s experience, and being unfamiliar with the criminal
justice system, felt she could not question what he was doing. N.T. 12/18/15, 62.
Trial counsel did not use either the sales receipts or the cell phone records at trial. Mrs.
Rollins never received a bill for the use of an investigator. N.T. 12/18/15, 45. Although Mrs.
Rollins was called to testify at trial, she was not asked about her efforts to secure evidence; she
was not even asked to identify a picture of him during her testimony. N.T. 11/28/07, 38-40.
Trial Counsel Offers No Reasonable Strategy For Failing to Investigate or Present the
Complete and Available Alibi2
Trial counsel testified and explained his reason for not even meeting with the available
alibi witnesses as wanting to avoid having “young men” testify. N.T. 2/19/16, 64, 66. Instead, at
The court file does not contain any notice of alibi defense filed on Mr. Rollins’ behalf. See PCRA
Hrg. Exh. D-22 (Docket); N.T. 2/19/16, 21.
2
8
trial he presented witnesses who were not with Mr. Rollins during the critical time frame, but
whose only purpose was to identify him in the video from the South Street store recorded near
8:00 PM. N.T. 2/19/16, 79. One of the two women asked to identify Mr. Rollins failed to do so,
and, as noted above, Mrs. Rollins was never asked to identify her son. N.T. 2/19/16, 19. Indeed,
the jury never heard where Mr. Rollins was, for how long he was there, or with whom he was
during that time.
As to Howard Porter, who was with Mr. Rollins during the entire shopping trip and
visible on both videotapes Mrs. Rollins procured, trial counsel said he “[didn’t] know that he was
part of the alibi” and that Porter “did not in any way eliminate the time period when the incident
occurred.” N.T. 2/19/16, 78. Trial counsel also raised the specter of Porter having a criminal
record that would have affected his presentation as a witness. N.T. 2/9/16, 76 (“I’m not even
certain whether or not Howard Porter had a criminal record at that point. He may have.”). In fact,
Porter had no convictions which would have been admissible in evidence to challenge his
credibility or truthfulness. See PCRA Hrg. Exh. D-21 (Porter criminal history). As to the
videotape, in which Porter appears with Mr. Rollins, trial counsel did not even discuss the tape
with Mr. Rollins to find out who was with him that night. N.T. 2/19/16, 63.
Similarly, trial counsel admitted he never met with Shelton Fortune, for the stated reason
that, like Porter, Fortune was a “young man” and his presence would “give a different flavor to
what [counsel was] doing through the course of the trial.” N.T. 2/19/16, 44. Like Porter, Fortune
had no admissible criminal record at the time of trial.
Trial counsel never reviewed the cell phone records Mrs. Rollins gave him. N.T. 2/19/16,
95, 101. Although counsel claimed the cell phone records “may not have been available for us to
utilize,” N.T. 2/19/16, 95, moments later he admitted the records were “in [his] possession, yes.”
N.T. 2/19/16, 96; see also, N.T. 1/18/16, 11 (trial counsel acknowledging the printout “has my
9
handwriting on it . . . And the handwriting says ‘please file.’ I’m sure it was in my file.”).
Counsel admitted he did not review the records or track down any of the people Mr. Rollins
spoke to that night. N.T. 2/19/16, 101. As a result, he was unaware Zahir Johnson called Mr.
Rollins at 8:35 PM and spoke to him – a time, as stated above, that was at least 20 minutes after
police testified Mr. Rollins had been arrested. N.T. 2/19/16, 96.
Nor did trial counsel make use of the radio transmission transcription which indicated
police first saw Mr. Rollins at 8:36 PM, rather than 8:15 PM as Officer Jericho testified. N.T.
2/19/16, 97. Nor did trial counsel establish that, contrary to Officer Jericho’s testimony, the
identification happened just before 8:52 PM. N.T. 2/19/16, 93.
Finally, trial counsel testified he may have retained Karim Shabazz to investigate Mr.
Rollins’ case before trial. N.T. 2/19/16, 60. He further testified, however, that he gave his entire
file to Mr. Rollins’ current counsel and that, if Shabazz had worked on the case, he would expect
there would be some record of that in the file. N.T. 2/19/16, 61. Shabazz testified he did not
recall investigating this case and, if he had, documents he generated would have been turned
over to trial counsel for the case file. N.T. 8/29/16, 20-22.
For all of these failures, trial counsel offered no reasonable or even plausible strategy.
LEGAL ARGUMENT
A. Mr. Rollins Meets All Preliminary Requirements for Relief
Mr. Rollins’ conviction became final after the time for seeking discretionary review in
the United States Supreme Court expired on March 3, 2012. He filed his PCRA Petition on
February 15, 2013. His petition is facially timely. 42 Pa. C.S. § 9545(b)(1). In addition, Mr.
Rollins is in the custody of the Pennsylvania Department of Corrections and is incarcerated at
SCI Graterford, prisoner number HM-9990, serving the sentence imposed by this Court for this
10
conviction. 42 Pa. C.S. § 9543(a)(1). The constitutional errors described herein, including the
violation of Mr. Rollins’ right to effective assistance of counsel, have been neither previously
litigated nor waived. See 42 Pa. C.S. § 9543(a)(2).
Mr. Rollins claims that his right to effective assistance of counsel at trial, secured by the
Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 6 and 9 of
the Pennsylvania Constitution, has been violated. See 42 Pa. C.S. § 9543(a)(2)(ii) (providing for
PCRA relief from a conviction or sentence resulting from “ineffective assistance of counsel
which, in the circumstances of the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place”). He further alleges
the Commonwealth violated due process in presenting the false testimony of Officer Jericho.3
As such, Mr. Rollins is eligible for relief under the PCRA because he has been convicted of a
crime under the laws of the Commonwealth of Pennsylvania, and he is serving a sentence of
imprisonment pursuant to the conviction.
B. Trial Counsel Ineffectively Failed To Investigate And Present Available Evidence
That Would Have Substantiated, Bolstered, And Secured Mr. Rollins’ Alibi.4
Mr. Rollins had a right to the effective assistance of counsel at trial. Strickland v.
Washington, 466 U.S. 688 (1984); Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa. 1987);
U.S. Const. Amend. VI; Pa. Const. Art. I, § 9. Claims of ineffective assistance of counsel are
evaluated under the two-prong Strickland test. To prevail, Mr. Rollins must show: (a) counsel’s
deficient performance, i.e., that his attorney’s performance fell below “an objective standard of
3
As the Court is well aware, the Commonwealth agrees Mr. Rollins is entitled to a new trial based
upon the constitutionally deficient performance of his trial counsel. They have not taken such a position
with regard to the presentation of false testimony.
Under the PCRA, Mr. Rollins’ burden is a simple “preponderance of the evidence” standard. See 42
Pa. C.S. § 9543(a); see also, e.g., Thompson v. Thompson, 963 A.2d 474, 477 (Pa. Super. 2008)
(describing the standard as presenting evidence sufficient “to tip a scale slightly” in the party’s favor).
4
11
reasonableness,” Strickland, 466 U.S. at 688; and (b) prejudice, i.e., that confidence in the result
of the original sentencing proceeding is undermined due to counsel’s deficiencies, id. at 694; see
also, e.g., Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (“To plead and prove
ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has
arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) actual
prejudice resulted from counsel’s act or failure to act.”).5 This test is met here, where trial
counsel failed to perform any independent investigation or present evidence that would have
secured Mr. Rollins’ alibi and rebutted the prosecution’s attempt to discredit it. See Stewart, 84
A.3d at 712 (“A claim that trial counsel did not conduct an investigation or interview known
witnesses presents an issue of arguable merit where the record demonstrates that counsel did not
perform an investigation.”).
1. Counsel Unreasonably Failed To Investigate And Present Mr. Rollins’ Alibi.
At trial, the jury saw videotape and still photographs with date and time stamps. They
heard from two women, Roslyn Jones and Sheila Watkins, called as character witnesses and to
identify Mr. Rollins from those photographs. Only Ms. Jones was able to do so; Ms. Watkins
was able to do so in only two of the photos shown her. N.T. 11/28/07, 29-36. In addition, counsel
presented Mrs. Rollins as a character witness, and to explain where she obtained the videotapes.
5
The Strickland standard is co-extensive to Pennsylvania’s three prong test:
Although the state supreme court referred to its own three-pronged ineffective assistance
test rather than the two-pronged Strickland test, the Pennsylvania Supreme Court has
explicitly held that the state standard is “the same” as Strickland’s and that Pennsylvania
law does not provide “any greater or lesser protection” than the Sixth Amendment.
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 976-77 (1987). As we put it in Werts
v. Vaughn, 228 F.3d 178, 203 (3d Cir.2000) . . . the Pennsylvania Supreme Court has
“opined that the Pennsylvania standard judging ineffectiveness claims [is] identical to the
ineffectiveness standard enunciated by the United States Supreme Court in Strickland.”
Rompilla v. Horn, 355 F.3d 233, 248 (3d Cir. 2004), rev’d on other grounds, sub nom., Rompilla v.
Beard, 545 U.S. 374 (2005).
12
She was not asked to identify her son in the photographs and videos. N.T. 11/28/07, 38-40. With
the presentation of those three witnesses, trial counsel rested the defense case for Mr. Rollins.
None of the witnesses were with Mr. Rollins at the relevant times; the jury never heard an
explanation of Mr. Rollins’ activities on the afternoon and evening of the shooting.
The flaws in the alibi trial counsel presented were obvious and fully exploited by the
prosecutor in her closing argument. First, she argued that the video of Mr. Rollins at The Net was
subject to challenge because it did not indisputably show that it was Mr. Rollins pictured in it.
N.T. 11/29/07, 148. Second, she built on the uncertain quality of the images from the video, by
arguing that it could not be Mr. Rollins pictured in the video at The Net, because he would not
have been able to get from The Net (where he was seen on video at 8:00 PM), to his home on
Opal Street at 8:15, which is when Officer Jericho claimed to have first seen him. N.T. 11/29/07,
148-49. Additionally, the prosecutor argued that had Mr. Rollins been able to get from The Net
at 8:00 to Opal Street at 8:15, then he could also have gotten from the scene of the shooting at
about 7:42 to The Net by 8:00, in order to be seen on the video at The Net. N.T. 11/28/07, 149.
These flaws could have easily been remedied through the investigation and presentation
of readily available evidence:

Counsel could have called Howard Porter as a witness. Porter could have
substantiated, as he did during the PCRA hearing, that it was he and Mr. Rollins featured in the
video from The Net at 8:00, and he could have testified that Mr. Rollins was with him from late
afternoon through the time that he was dropped off after completing shopping on South Street. In
addition, the jury would have seen for themselves that Porter was the second man in the video,
cementing his testimony.

Counsel could have introduced the second video from The Net (he only
introduced the one showing Mr. Rollins entering The Net), showing Mr. Rollins leaving at
13
8:01:40 PM, again in Porter’s company and with his cell phone held to his ear. In combination
with the phone records counsel failed to utilize – showing Mr. Rollins receiving or making calls
at 8:01 and 8:02 PM on January 28, 2006 – counsel could have provided powerful support for his
position that Mr. Rollins was in The Net video.

Counsel could have called Paris Grant and Shelton Fortune to also testify that
they were with Mr. Rollins shopping at the time of the shooting, as Fortune did during the PCRA
hearing.

Counsel could have introduced the shopping receipts Grant provided to Mrs.
Rollins, which she gave to trial counsel, to support the alibi that Mr. Rollins was shopping
throughout the late afternoon through the early evening, as evidenced by Mr. Rollins’ receipt for
a purchase made at 6:18 PM. While this earlier purchase does not itself present an alibi, it
certainly supports the overall account of Mr. Rollins’ activities that day and his alibi for the later
time. This is particularly true given that Mr. Rollins is wearing the same light grey hooded
sweatshirt at the time of his 6:18 PM purchase at The Net at the Gallery, see PCRA Hrg. Exh. D12, during his 8:00-8:01 PM shopping trip at The Net on South Street, see PCRA Hrg. Exhs. D10, D-11, and in news footage of his arrest, see PCRA Hrg. Exh. D-10. None of these points
were presented to or argued to the jury.
Had that information been presented, counsel would have been able to point to the
absurdity of Mr. Rollins being able to have been the shooter or involved in the shooting: he
would have had to go to the Gallery with Mr. Fortune, Mr. Grant, and Mr. Porter dressed in a
grey sweatshirt, leave those friends, travel home to the 2900 block of Westmont Street from the
Gallery by some unknown means of transportation, change into “all black” clothing that
LaRhonda Wright said the shooter wore, N.T. 11/20/07, 84, get involved in the shooting with an
entirely different group of individuals (his eventual co-defendants), change back into his original
14
outfit, then travel again to South Street and go shopping, again with friends Fortune, Grant, and
Porter, then return to his own home as if nothing had happened in between.
But trial counsel’s flaws don’t end with failing to call the witnesses who would have
accounted for Mr. Rollins’ every minute. He also failed to use information within his file to
refute key aspects of the Commonwealth’s argument.

Counsel could have conclusively refuted the prosecution’s argument that Mr.
Rollins could not have been at The Net at 8:00 PM. and traveled in time to be seen by Officer
Jericho at 8:15 at Opal Street.6 All he had to do was use the police radio transmission transcript
showing Officer Jericho first encountered Mr. Rollins at 8:36:31—not 8:15. See PCRA Hrg.
Exh. D-1 at 012 (Transcript of Police Radio Transmissions). Counsel could have also called
Zahir Johnson to testify to his phone call with Mr. Rollins, and could have placed the time of that
call at 8:35, about two minutes before Officer Jericho’s radio call.

Counsel could have presented the testimony of Thomas Myricks who witnessed
the encounter between Mr. Rollins and the police on Opal Street, and who could have testified to
Mr. Rollins’ actions, which were consistent with innocence. Mr. Myricks could have also
testified that Mr. Rollins was only in view of the police for a short time, as he was walking down
Dauphin from the direction of 20th Street.

Counsel could have obtained and presented the news footage of Mr. Rollins’
arrest showing that, when arrested, he was wearing the same clothes as in the video of him at The
6
Counsel had full notice the Commonwealth would argue Mr. Rollins could not have been in the
video from South Street because of the time police stopped him based upon sidebar discussions
explaining her need to call Officer Jericho in rebuttal. See N.T. 11/28/07, 100 (saying Jericho “would say
he spotted Donte at 8:20 PM”); 104 (“Jericho makes it impossible that the person in the video would be
[Mr. Rollins]”); 105 (“Even if he left at 8:02, he still wouldn’t be able to be stopped at 8:20”). As Jericho
was not called as a witness until the next day, there is no reason why trial counsel could not have prepared
his cross-examination using the transmission transcription in his possession.
15
Net (as discussed above, a light grey hooded sweatshirt, and not the “all black” that Lahronda
had told police Mr. Rollins was wearing at the time of the shooting, N.T. 11/20/07, 71).
In sum, counsel had a wealth of evidence and testimony to present to the jury that would
have insured his acquittal.
The Sixth Amendment requires that trial counsel “investigate all apparently substantial
defenses available to the defendant.” United States v. Williams, 615 F.2d 585, 594 (3d Cir.
1980); United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997) (“at a minimum, counsel has
the duty to interview potential witnesses and to make an independent investigation of the facts
and circumstances of the case”); accord Rompilla v. Beard, 545 U.S. 374, 387 (2005) (“It is the
duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to
explore all avenues leading to facts relevant to the merits of the case.”); Rolan v. Vaughn, 445
F.3d 671, 682 (3d Cir. 2006) (counsel ineffective for failing to interview potential defense
witness); United States v. Grey, 878 F.2d 702, 711-12 (3d Cir. 1989) (counsel must investigate
and contact witnesses and attempt to obtain available evidence which diminishes the
prosecution’s case and supports that of the defense).
Counsel here failed to investigate many aspects of the alibi at all. In particular, by his
own admission, he never even met with (much less interviewed) Porter or Fortune. He certainly
never identified or spoke with Thomas Myricks, and never tried to obtain obvious corroboration,
such as news footage, of what Mr. Rollins was wearing when he was arrested and whether it
matched his clothing in the videos from The Net.
As to those elements of the defense, counsel presented no reasonable tactic or strategy for
not investigating or presenting them; nor could he have. Strickland, 466 U.S. at 691-92; United
States v. Grey, 878 F.3d 702, 710 (3d Cir. 1989) (“In the context of defense counsel’s duty to
investigate, ‘strategic choices made after thorough investigation of law and facts relevant to
16
plausible options are virtually unchallengeable; and strategic choices made after less than
complete investigations are reasonable precisely to the extent that reasonable professional
judgments support the limitations on the investigation.’” (quoting Strickland, id.)).
The Pennsylvania Superior Court recently made this clear, stating that “[i]t can be
unreasonable per se to conduct no investigation into known witnesses.” Stewart, 84 A.3d at 712
(citing Commonwealth v. Dennis, 950 A.2d 945, 960 (Pa. 2008)). In Stewart, “[t]rial counsel
failed to substantively interview” the defendant’s alibi witness in a case that “hinged on whether
the jury believed [the defendant] had an alibi or” believed the testimony of the eyewitness
implicating the defendant. Id. at 714. In these circumstances, “‘[f]ailure to prepare is not an
example of foregoing one possible avenue to pursue another approach; it is simply an abdication
of the minimum performance required of defense counsel.’” Id. at 712 (quoting Commonwealth
v. Perry, 644 A.2d 705, 709 (Pa. 1994) (alteration in Stewart)); see also, e.g., Commonwealth v.
McCaskill, 468 A.2d 472, 478 (Pa. Super. 1983) (“This case is not one in which counsel decided,
after investigation, not to call an alibi witness for some tactical reason, for example because in
counsel’s view the witness’s testimony would be more harmful than helpful to the client. Nor is
it a case in which the record fails to establish that the defendant told counsel of the existence of
the alibi witnesses.” (internal citations omitted)); Bryant v. Scott, 28 F.3d 1411, 1417 (5th Cir.
1994) (holding that counsel was ineffective when he was aware of three alibi witnesses before
trial and made no effort to contact or interview them).
Counsel offered no explanation, much less a reasonable tactic or strategy for failing to
present the available evidence in support of the alibi. He did not use the phone records to identify
Zahir Johnson who would have testified he called Mr. Rollins at 8:35 PM. Indeed, Mr. Johnson
was present outside the courtroom during trial. Trial counsel had in his possession but did not
17
present the receipts from the shopping trip of Mr. Rollins and his friends, or the critical video of
Mr. Rollins leaving The Net with Porter. He had but did not use the police radio transmissions.
Despite having sufficient evidence to show the jury Mr. Rollins’ whereabouts were fully
accounted for and corroborated by objective evidence, trial counsel inexplicably presented none
of it. Trial counsel’s testimony that he did not want to present “young men” only highlights the
lack of a reasonable strategy here, where neither Porter nor Fortune had admissible criminal
records at the time of trial and where the testimony of all of the un-called (and un-investigated)
witnesses was corroborated by independent video, photograph, and documentary evidence.7
Indeed, in a legion of cases, counsel have been found ineffective for failing to investigate
a valid alibi, or where they investigated and presented only a partial alibi, neglecting to present
the full and valid alibi. For instance, in Montgomery v. Petersen, 846 F.2d 407 (7th Cir. 1988),
counsel was held ineffective even though he presented twelve alibi witnesses because he failed
to investigate and present one disinterested alibi witness:
Unlike many of the “failure to investigate” cases that have come before this court
and many other circuits, this is not a case where counsel totally failed to present a
defense. However, the importance of the information that was not tracked down
and presented to the jury is, under the facts of this case, extraordinarily significant.
Here, the Sears clerk can hardly be characterized as a cumulative alibi witness.
Rather, he was the only disinterested witness in the case. All twelve of the other
defense witnesses were either close friends or relatives of the petitioner.
Id. at 413. In Mr. Rollins’ case, counsel presented only unexplained photos and some of the
videos in his possession. He failed to present additional, neutral, and unimpeachable evidence to
support the alibi – phone bills, police radio tape, receipts – or live witnesses like Howard Porter,
Shelton Fortune, or Paris Grant. The failure to present Porter is particularly egregious inasmuch
as he also could have been identified in The Net video and stills.
7
In any event, none of the witnesses’ prior convictions were for crimen falsi crimes, and therefore they would
not have been impeachable through their respective records.
18
Still other courts have also not hesitated to find counsel ineffective for failing to present
only partial alibi evidence. See Washington v. Smith, 219 F.3d 620, 633-34 (7th Cir. 2000)
(holding that additional alibi evidence was not cumulative where the alibi evidence that was
presented to the jury was inconclusive); Stewart v. Wolfenbarger, 468 F.3d 338, 359 (6th Cir.
2007) (finding additional alibi evidence was not cumulative where it “would have added a great
deal of substance and credibility” to the alibi that was presented); Henry v. Poole, 409 F.3d 48,
64 (2d Cir. 2005) (trial counsel held ineffective: “The defect in Henry’s trial attorney’s
representation was the elicitation of an alibi for the wrong date – an error that plainly went to the
heart of the alibi and undermined the defense”); Avery v. Prelesnik, 545 F.3d 434, 437-39 (6th
Cir. 2008) (counsel ineffective for failing to launch a “complete” investigation of colorable alibi
involving evidence “that the trial jury did not have before it”). The Court should make the same
finding here.
2. Counsel’s Failures Prejudiced Mr. Rollins.
There can be no question but that counsel’s failures resulted in prejudice to Mr. Rollins.
Initially, it should be noted that Strickland “undermines confidence” prejudice standard requires
only a “reasonable probability” of a different result and therefore it “is not a stringent one. It is
less demanding than the preponderance standard.” Hull v. Kyler, 190 F.3d 88, 110 (3d Cir. 1999)
(quotation marks and citations omitted), Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir.2001)
(standard is “less demanding than the preponderance standard.”); see also Branch v. Sweeney,
758 F.3d 226, 238 (3d Cir. 2014) (“We often have said that this standard is not stringent.’ See,
e.g., Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005)). See also Woodford v. Visciotti, 537
U.S. 19, 22, 123 S.Ct. 357, 359, 154 L.Ed.2d 279 (2002) (observing that Strickland “specifically
rejected the proposition that the defendant had to prove it more likely than not that the outcome
would have been altered”).
19
First, the Commonwealth’s case against Mr. Rollins was weak, resting solely on the
inconsistent testimony of LaRhonda Wright as to whether she saw Mr. Rollins at the time of
shooting. Ms. Wright, however, admitted on cross-examination that in her police statement she
did not say she saw Mr. Rollins with a gun. See N.T. 11/20/07, 69. In addition, her husband
testified Ms. Wright told him she did not know who was shooting at the car and only later said
she saw “Donte and Mook” on the corner. See N.T. 11/26/07, 23, 25.
Second, the jury was clearly considering those portions of Mr. Rollins’ alibi that were
presented, as shown by its request to see the video from The Net again. Had the jury had the
more probative second video from The Net showing Mr. Rollins leaving the store with Mr.
Porter, Mr. Porter’s testimony identifying himself and Mr. Rollins in that video, and all of the
other evidence outlined above trial counsel had or which would have been available had he
investigated at all, surely the jury would have reached a different outcome.8 Cf. Stewart, 84 A.3d
at 714-15 (holding that there was “a reasonable probability that the alibi witness’s testimony
could have altered the outcome of the proceeding” where the case rested on whether the jury
believed the defendant’s alibi or the only eyewitness implicating him).
When the post-conviction alibi evidence is considered cumulatively with the evidence
presented at trial – such cumulative consideration being required – Mr. Rollins has not just
demonstrated Strickland prejudice, he has shown that he is innocent. Failure to present such
compelling evidence demonstrating innocence is always prejudicial.
Accordingly, Mr. Rollins is entitled to a new trial and restoration of his pre-trial bail
status of house arrest.
Indeed, the jury acquitted Mr. Rollins’ co-defendant Kevin Norris based on the testimony of a
single alibi witness.
8
20
Although Mr. Rollins is entitled to relief solely on the constitutionally ineffective
performance of his trial counsel, he has sustained his burden of showing the trial prosecutor
violated due process when she failed to correct testimony she should have known was false. The
trial prosecutor admitted she was in possession of the police radio transmission transcript
showing Officer Jericho first requested that the victim’s grandmother be brought to him to
identify Mr. Rollins at 8:36 PM. Yet, despite having that objective information, the prosecutor
allowed Officer Jericho to testify falsely he stopped Mr. Rollins at 8:15 PM. This failure, and her
exploitation of that failure in her closing argument to the jury, was a violation of Mr. Rollins’
due process rights to a fair trial as protected by the Due Process Clause of the Fourteenth
Amendment and Article I Section 9 of the Pennsylvania Constitution. See Napue v. Illinois, 360
U.S. 264, 269-710 (1959), Commonwealth v. Strong, 761 A.2d 1167, 1171 (Pa. 2000).
CONCLUSION
For the reasons stated in Mr. Rollins’ amended PCRA petition and this memorandum of
law, and as developed through multiple days of testimony at the evidentiary hearing, Mr. Rollins
is entitled to a new trial. WHEREFORE, Petitioner prays that this Honorable Court will grant
relief in the form of an arrestment of judgment and/or a new trial.
Respectfully submitted,
/Michael Wiseman/
Michael Wiseman, Esq.
Attorney No. 75342
P. O. Box 120
Swarthmore, PA 19081
215-450-0903
_/Marissa Bluestine/______________
Marissa Boyers Bluestine, Esq.
Attorney I.D. No. 75973
Nilam A. Sanghvi, Esq.
21
Attorney I.D. No. 209989
The Pennsylvania Innocence Project
Temple University Beasley School of Law
1515 Market Street, Suite 300
Philadelphia, PA 19102
215-204-4255
Counsel for Donte Rollins
Dated: October 25, 2016
22
IN THE COURT OF COMMON PLEAS
PHILADELPHIA COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
Respondent
v.
DONTE ROLLINS
Petitioner
:
:
:
:
:
:
:
:
PHILADELPHIA COUNTY COURT OF
COMMON PLEAS
CRIMINAL TRIAL DIVISION
CP-51-CR-511332-2006
PROOF OF SERVICE
Michael Wiseman, Esquire, being duly sworn according to law does hereby state and
aver that he is counsel for the petitioner in the above-captioned matter and that he has served by
the Court’s electronic filing system and first class mail, postage pre-paid on:
Robin Godfrey, Esq.
Chief, PCRA Unit
Samuel Ritterman, Esq.
Assistant District Attorney
Mark Gilson, Esq.
Director, Conviction Review Unit
Office of the Philadelphia District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499
a copy of the Post-Hearing Memorandum of Law being filed on behalf of the petitioner in the
above-captioned matter.
_/Marissa Bluestine/______________
Marissa Boyers Bluestine, Esq.
The Pennsylvania Innocence Project at
Temple University Beasley School of Law
1515 Market Street, Suite 300
Philadelphia, PA 19102
October 25, 2016