Facts Matter

Why the Philadelphia District Attorney’s

Office Should Drop the Case Against Mumia
Abu-Jamal

– Michael Schiffmann –
© Michael Schiffmann 2021
 But what if a reasonable doubt or maybe a whole lot
more than a reasonable doubt shows up long after a
seemingly accurate conviction at trial, even if there
is no scientific certainty of innocence? What if, due
to new developments – new evidence, old evidence
that was hidden at the trial, new scientific methods
that were unavailable before, or new information
that undermines witnesses – the conviction cannot
stand because it now lacks integrity and always will?
The answer must be that the conviction is reversed
and the person who was convicted goes home.
Integrity and a just system require it.1

1
Larry Krasner, For the People, One World, New York 2021, 146-47.
 Table of Contents

Foreword i
Why I wrote this.

A Statement of Non-Facts 1

1. The Shooting Scenario 1

The shooting scenario as presented at Abu-Jamal’s trial doesn’t hold up.
Witness Cynthia White’s scenario of the shot into Officer Faulkner’s back is
impossible, the one by the only other trial witness, Michael Scanlan, very
unlikely. The scenario of the killing of Officer Faulkner described by
witnesses Robert Chobert, Cynthia White, and Michael Scanlan is
completely impossible. Their almost identical statements in this regard point
to a police frame-up.

2. The Alleged Eyewitnesses 10

Both Robert Chobert and Cynthia White must be called “alleged”
eyewitnesses as neither of them saw the shooting. Apart from White, there is
not a single witness who saw Chobert’s taxi, and there are even
photographs that show its absence.
Cynthia White was seen by literally no one, not even Chobert,
Given their criminal records, both had very strong reasons NOT to be where
they claimed to have been. For the same reason, they had both a strong
motive to say whatever they thought the police might want them to say.
The statement in the DAO’s brief that Michael Scanlan confirmed the
presence of Chobert and White at the scene is grossly in error; at the trial
Scanlan actually said the very opposite.

Intermediate Comment 24

3. The Hospital Confession 29

There was an early attempt by the ranking officer at the scene, Inspector
Giordano, to pin a confession on Abu-Jamal which was apparently dropped
for lack of credibility.
With one potential exception, the police officers and hospital guards who
claimed to have heard Abu-Jamal confess at the hospital did so only months
 after the shooting death of Officer Faulkner and after Abu-Jamal had filed
a police brutality complaint. There is no plausible explanation why the two
superiors of hospital guard Priscilla Durham, who claimed to have told
them about the confession immediately, would not have reported it to the
police. The fact that prosecutor McGill had an aide present a machine-typed
version of the alleged report of Durham to her superiors to the court means
that he deliberately faked a document and deceived the court.
Apart from the alleged earwitnesses, the small emergency area in which
Abu-Jamal is supposed to have SHOUTED the very offensive sentence “I
shot the motherfucker, and I hope the motherfucker dies” was filled with
dozens of people who could also not have failed to hear this – but none of
the many dozens of people interrogated did. Abu-Jamal’s confession never
happened.

Intermediate Comment 51

4. Abu-Jamal’s Gun 58
There is no evidence that the empty +P cartridges found in Abu-Jamal’s gun
showed any vicious desire to destroy and kill. Actually, Abu-Jamal had one
of the smallest and least powerful guns on the market which today are
praised by the fans of gun culture as “the perfect defensive weapon.”
The claim that Abu-Jamal’s gun was out of its holster and that he reached
for it when Officers Shoemaker and Forbes arrived at the scene must be
regarded with suspicion as the officers’ descriptions of the events when and
after they arrived at the scene are self-serving and make little sense.
Officer Forbes in particular certainly lied to the court when he claimed to
have handled Abu-Jamal’s and the deceased officer’s gun properly. This is
shown unequivocally by crime scene photos.
The final question here is how and why all he appropriate tests on Abu-
Jamal’s gun, hands, clothing were not done – or whether in fact they WERE
done, and the results were deep-sixed when the result was not the desired one.

Intermediate Comment 76

5. Conclusion 78
Cynthia White’s and Michael’s Scanlan’s scenario where the attacker comes
from the parking lot and shoots Officer Faulkner in the back is impossible
(White) or very unlikely (Scanlan).
White’s, Chobert’s, and Scanlan’s scenario that has the shooter stand over the
prone officer and fire several shots at him is completely impossible as there
are demonstrably no traces of these shots in the sidewalk where Faulkner
allegedly lay before he was killed. The whole killing scenario is a lie
concocted, first by the police and the by Philadelpia DAO of the time.
The so-called witnesses Cynthia White and Robert Chobert didn’t even see
the shooting because they were not where they claimed to have been. The
recent DAO’s filing contains a glaring mistake in this regard, which
actually would require a reversal of the conclusion it comes to.
Abu-Jamal’s alleged confession to the ranking officer at the scene, Inspector
Giordano, was belied by the testimony of other officers and was so
incredible that it had to be quietly dropped.
Abu-Jamal’s alleged hospital confession never happened. It was actually
concocted by lying officers of the law. This even included the then ADA
Joseph McGill, who misled the jury that was assigned the task to determine
Abu-Jamal’s guilt into believing that hospital guard Prisilla Durham had
heard Abu-Jamal confess while an objective analysis from multiple angles
shows that this is literally impossible.
There is no credible evidence that Abu-Jamal, as claimed at the trial by
then ADA, was “vicious” because his very small gun contained +P
cartridges.
Given the proven propensity of cops in his case to lie, there is no reason
to believe the contradictory and implausible testimony of the two officers
who arrested him and who are the only ones who claimed to have seen
him reaching for his gun already in the street. Abu-Jamal’s case would
not have been the first in which a gun was planted to make a suspect look
guilty.
Abu-Jamal’s gun was never matched to the bullet that killed Officer
Faulkner, which according to the prosecution’s firearms specialist could
have come from millions of other guns in circulation at the time.
The claim that routine test on Abu-Jamal’s hands, clothing, and gun were
not done reeks of dishonesty. If these tests were not done, this points to
extreme incompetence; if they were done and their results were deep-sixed,
it points to a criminal conspiracy on the part of the police.

Regardless of the number of other issues that are now being litigated in the
Abu-Jamal case, this decent, clean, and new DAO should not allow a
conviction that has so many faults to stand. The formal laws that are now
being disputed between the DAO and Abu-Jamal’s defense should not alone
determine the outcome of this litigation.
Facts also matter, if they are as crucial as the ones mentioned above,
 Coda 91
There is a new administration in office which has changed a lot already by
looking thoroughly into many cases of untenable convictions – and it should
devote the same very welcome attention to the Abu-Jamal case as it has to
others – no more (as he is a “celebrity”), but also no less.
Sources 93

Appendix 95

False Witnesses. A Three-Part Dossier on Cynthia White, Robert Chobert &

Michael Scanlan 97

Dossier on Cynthia White 99

Mostly, but not exclusively taken from Mumia Abu-Jamal’s trial transcript.

Dossier on Robert Chobert 115

Mostly, but not exclusively taken from Mumia Abu-Jamal’s trial transcript.

Dossier on Michael Mark Scanlan 129

Mostly, but not exclusively taken from Mumia Abu-Jamal’s trial transcript.

Appendix II 145

Commonwealth’s Brief for Appellee 147

This Brief has its own internal pagination

 Foreword

Like many others, when the current District Attorney of Philadelphia, Larry Krasner, was
elected, first in the Democratic primaries and then, in November 2017, into his actual office, I
regarded that as an extremely hopeful development.
The United States are a country characterized by a sort of mass incarceration rarely seen
anywhere in recent history. It is, with the exception of Japan, the only highly industrialized
nation in the world that practices the death penalty, most recently even with the intended use
of the poison the Nazis used to exterminate the Jews and other “undesirables,” Cyclone B. Its
police kill an enormous number of the country’s citizens in a way completely unrelated to the
threat by violent crime. All of this is made even more intolerable by the fact that those at the
receiving end are in vast disproportion poor or people of color or both.
“Progressive DAs” are now being elected in an ever increasing (but still much too small)
number of jurisdictions in the U.S. (Just think of the recent election of Chesa Boudin, the son
of a mother who spent twenty years in prison for a politically motivated crime and a father
who is still serving an apparently interminable sentence for different charges.) In 2017, I
regarded Larry Krasner’s election as yet another sign that even in the apparently immutable
U.S. criminal justice system, the times, they are apparently a changing.
And there was a lot of evidence for this in Krasner’s first term. Much of it is brilliantly shown in
the Tedd Passon’s, Yoni Brook’s, and Nicola Salazar’s impressive eight-part documentary series
Philly D.A. Prisoners whose cases I knew and who I had been afraid would be kept behind bars
forever, such as the so-called MOVE 9 (nine persons sentenced to “thirty to a hundred years” in
prison for the death of one police officer) were freed because the DAO dropped its opposition to
their release. The DAO no longer sought the death penalty in any case. A newly established
Crime Integrity Unit (CIU) actively helped in freeing a number of long-term or death row
prisoners who had been unjustly convicted and sentenced during previous administrations.
As a freedom-loving writer, as a teacher, and as a long-term human rights activist with a focus
on the United States, I could not but be delighted by these developments, particularly because
they took place in Philadelphia, a city I dearly love and have visited often.
But unfortunately, for me things very soon turned out to be not all kumbaya. One of the
reasons for my intense interest in the U.S. criminal justice system had been the case of the
African American journalist Mumia Abu-Jamal who had been arrested in December 1981 and
tried and sentenced to death in June and July 1982 for the alleged murder of a Philadelphia
police officer, Daniel Faulkner.
I got involved in his case and conviction, which immediately struck me as unjust, in 1999
when Abu-Jamal got his second “execution order.” Since that time, I have extensively written
about this case and participated in a worldwide movement starting in the 1990s that has tried
to rectify what it regards as an almost never-ending series of wrongs against Abu-Jamal.
i
Given this background, I was quite distressed about the first signs that even the new DAO
appeared to be opposing Abu-Jamal’s attempts to get a new hearing in court. These attempts
were based on a new U.S. Supreme Court decision in 2016 about the conflict of interests that
may arise when an erstwhile prosecutor later on becomes one of the judges in the same case.
In the end the DAO rescinded its opposition to a new hearing and then also lived up to its
promise of transparency when six never-before-seen boxes on the Abu-Jamal case were found
in an attic in the DAO and turned out to contain material favorable to Abu-Jamal. They were
immediately given to the defense.
The DAO also did not object to this material being turned over to the trial court, which could
then overturn Abu-Jamal’s conviction if it found the new evidence sufficient.
As I have long – like Amnesty International in a 32-page report in 2000 – concluded that
Abu-Jamal’s murder conviction cannot be allowed to stand, this was good and very well. I
was also relieved to hear, in December 2020, that the efforts of the widow of the slain officer,
Maureen Faulkner, to have Larry Krasner withdrawn from the case because of an invented so-
called “pro-Mumia” bias were rejected by the Pennsylvania Supreme Court.
But my hopes that the new DAO under Larry Krasner would indeed take a new, fresh, and
unbiased look at the Abu-Jamal case were soon to be dashed. In a motion on February 3, 2021
to the Pennsylvania Superior Court, it opposed each and every of the six claims Abu-Jamal had
made in a September 2019 petition in which he asked the same court to overturn his conviction.
The DAO’s February 3, 2021 motion is prefaced by a “Statement of Fact” that lays out the
supposed basic facts of the case. The contents of the Statement of Facts are presupposed in
many of the legal arguments that follow. In my essay here, I do not deal with these legal
arguments directly; the target is the description of the “facts” given in the “Statement,” which
I think I can show is monumentally false.
I will try to deconstruct the falsehoods in this “Statement,” not to prove that Larry Krasner is “a
fraud,” “a phony,” “not really a progressive,” but simply to show that the false statements are
really that, demonstrably false, and that if the DAO is ready to seriously engage with the
arguments brought forth here, it must come to the conclusion to drop the case against Abu-Jamal.
I am well aware that as a long-time champion of Abu-Jamal’s release who has even written a
book on him that takes a clear stance, I can hardly count as an impartial observer. Polemics
will occasionally also shine through in what follows, but how could it be otherwise when a
life is at stake? All I can do is to assure the reader that despite my partisanship, in the
following analysis I have tried my best to really stick to what I found, without self-censorship.
Or to quote Hans Koning, from his work on the genocide of the Native Americans in the U.S.:
“I am dealing in facts; please give them a chance.”

Michael Schiffmann, Heidelberg, July 9, 2021

ii
 A Statement of Non-Facts

The content of court briefs, whether by the defense, the prosecution, or the courts themselves,
are generally prefaced by so-called “Statement of Facts” to tell the reader what the case is
substantively about. The recently filed brief of the Philadelphia DA’s Office (DAO) against
Mumia Abu-Jamal’s attempt to get relief with regard to six selected claims from his four
PCRA petitions between 1995 and 2009 is no exception.
In fact, in the Commonwealth’s Brief for Appellee (in the following: CBA) the “Statement of
Facts” is followed by a section “Defendant’s Trial and Direct Appeal” which I will include in my
analysis because it actually continues and elaborates the “Statement of Facts,” and after this the
brief repeatedly comes back to claims made in these two sections. In the two sections just men-
tioned at the beginning of the brief, CBA highlights four particularly pertinent points, namely

• A scenario of the killing of Officer Faulkner in which Abu-Jamal’s brother Billy Cook
attacked Faulkner during a traffic stop, Abu-Jamal then shot Faulkner in the back,
causing the officer to turn and shoot Abu-Jamal in the chest. In this scenario, the of-
ficer the fell down on his back on the sidewalk in front of the building 1234 Locust
Street and was killed by one of the several shoots Abu-Jamal fired down at him as he
lay prone and defenseless on the ground.

The main prosecution witnesses:

Cynthia White & Robert Chobert

• Two eyewitnesses, the prostitute Cynthia White and the cab driver Robert Chobert,
were able to identify Abu-Jamal as the one who fired the shot that killed Officer
Faulkner and a third eyewitness, the motorist Michael Scanlan, described the shooting
in a way consistent with the description given by White and Chobert, even though
Scanlan was unable to identify Abu-Jamal as the killer.

• Abu-Jamal supposedly confessed to the killing by loudly shouting “I shot the mother-
fucker, and I hope the motherfucker dies!” while he was in the lobby in front of the
emergency room of Philadelphia’s Jefferson Hospital. Allegedly, both a hospital secu-
rity guard and a police officer, both of whom testified at Abu-Jamal’s 1982 trial, over-
heard Abu-Jamal making this extremely incriminating statement.

1
 • Abu-Jamal was in the possession of a gun that was, in principle, able to fire bullets of
the kind of the one that was removed from the deceased officer’s brain.
In the following, I will discuss these four points in turn, trying to show how little validity they
actually have. I will then end with a summarizing conclusion.

1. The Shooting Scenario

CBA describes the December 9, 1981 shooting that led to the death of Police Officer Daniel
Faulkner in the following words:

The officer stood behind Mr. Cook and was apparently about to frisk him when Mr.
Cook turned and punched him in the face. As Officer Faulkner attempted to subdue and
handcuff Mr. Cook, defendant ran out of a parking lot on the opposite side of the street.
Defendant ran over to the officer, whose back was turned, and shot him in the upper
back with a five-shot revolver. The officer turned, grabbed for his own sidearm, and
managed to fire one shot that hit defendant in the upper chest. Officer Faulkner fell to
the ground and lay face-up. Defendant stood over him and repeatedly fired his revolver
at the officer. One of defendant’s high-velocity “plus P” bullets struck the officer be-
tween the eyes and entered his brain (N.T. 6/19/82, 106, 209-16, 276-77; 6/21/82, 4.79-
4.106; 6/22/82, 5.179; 6/23/82, 6.97; 6/25/82, 8.4-8.34, 8.181; 6/28/82, 28.65).1

The scene at 13th and Locust. The prosecution placed the shooting between Cook’s VW (ap-
proximate location marked blue in left picture) and Officer Faulkner’s police car. Uncontro-
versially, Abu-Jamal approached the scene from the parking lot vis-à-vis Locust 1234.

1
CBA, 3-4.

2
This is based on the testimony of the trial witnesses Reginald Thompson (N.T. 6/19/82, 106),
Robert Chobert (Ibid., 209-16, 276-77), Cynthia White (6/21/82, 4.79-4.106; 6/22/82, 5.179),
prosecution firearms specialist Anthony Paul (6/23/82, 6.97), Michael Scanlan (6/25/82, 8.4-
8.34), medical examiner Dr. Paul Hoyer (6/25/82, 8.181), and, presumably, the doctor who
treated both Officer Faulkner and Mumia Abu-Jamal, Dr. Anthony Coletta (6/28/82, 28.65).2
This narrative is then endlessly regurgitated in the rebuttals of the first four defense claims.
But as we will immediately see, this narrative contains many highly problematic aspects
which are either not addressed or summarily dismissed in the brief.
As mentioned above, Robert Chobert and Cynthia White were the only witnesses who testi-
fied that they saw Abu-Jamal kill Officer Faulkner by shooting him at point blank range, so it
makes sense to discuss their testimony first. Between them, I will discuss White’s testimony
first, because she was the only witness who BOTH claimed to have seen the whole shooting
AND identified Abu-Jamal as the one who did the killing.
I discuss the multiple contradictions between White’s various versions of the shooting else-
where and will therefore, as, in fact, CBA also does, mostly constrain myself to her trial testi-
mony. But there is one interesting detail in which White’s trial testimony is absolutely con-
sistent with both her statements to the police and with her testimony at the assault trial against
Abu-Jamal’s brother Billy Cook in March 1982: She always placed the alleged altercation
between Cook and the officer on the sidewalk, and she also always claimed that Officer
Faulkner was on the sidewalk in front of 1234 Locust when Abu-Jamal shot him in the back.

Cynthia White placed ALL of the shooting on the sidewalk. Where, then, did the bullet fired
into Officer Faulkner’s back go? Red: alleged position of White; green: No-parking sign pole.

2
The incoherent numbering of the trial transcript given here – sometimes with the day of the trial before the page
(e.g., 6.97 for p. 97 of the transcript for the 6th day of the trial), sometimes without – does not inspire much trust into
the care with which this document was written. Moreover, it is unclear what “28.65” is supposed to refer to, be-
cause June 28 was the 10th day of the trial, not the 28th (the trial lasted only 17 days). I take this to mean 10.65,
which would mean that the citation refers to Dr. Anthony Coletta’s testimony on that day. It would then refer to the
“one shot that hit defendant in the upper chest” as this is the topic that Coletta discusses on p. 65. The testimony of
Reginald Thompson is irrelevant for what follows as he merely states that Officer Faulkner made a traffic stop.

3
At the trial, White also insisted that Faulkner stood with his back towards Abu-Jamal, who
was approaching him from the street. She also said that Abu-Jamal had also almost reached
the sidewalk between Faulkner’s police car and Billy Cook’s VW:

I looked across the street in the parking lot and I noticed he was running out of the park-
ing lot and he was practically on the curb when he shot two times at the police officer. It
was the back. (TT June 21, 1982, 94)
Q. Would you show the jury where the defendant was when those shots, first and sec-
ond shots, were fired? […] A. He came between the cars […] and he shot like this. Q.
All right. Indicating approximately two, three feet. (TT June 21, 1982, 99-100)

I will put White’s claim that Abu-Jamal fired two shots instead of one at Faulkner’s back to
one side – in a benevolent interpretation one could assume that she mistook the shot that
Faulkner fired into Abu-Jamal’s chest for a shot fired by Abu-Jamal.
There is one important observation, however, that destroys the credibility of her whole de-
scription. The shot that hit Faulkner in the back went right through his tissue without splinter-
ing and exited in one piece just above his breastbone and right beneath his throat. Had Faulk-
ner been hit in the position described by White at the trial, a complete bullet should have been
found at considerable height in or inside the building 1234 Locust.

1234 Locust, entrance. Holes from a full bullet (green) and a fragment that flew to the right (blue).

But that was simply not the case.

In fact, there was a complete bullet in the left side of the door frame of 1234 Locust, but it
was just about one yard above the ground, much too low to be the one that hit Faulkner in the

4
back according to White’s testimony and then traveled, as we know from the medical record,
upwards and exited at the front of his neck.
Inside the vestibule of 1234 Locust, a fragment of a bullet was found that must have entered the
building through a hole in the upper glass panel of the door, but these fragments can hardly have
originated from the bullet that hit Faulkner in the back in the way White described it, because the
bullet would have had to have hit the glass at an almost right angle with the fragment found in the
vestibule nevertheless veering sharply to the right3 and the rest of the bullet disappearing somehow.
Which is, to put it moderately, extremely unlikely.
In other words, this part of White’s trial testimony is simply not compatible with the evidence
found at the scene.

The first photo may leave doubts, but the second clearly shows no bullet traces on the sidewalk.

But what is crucial is the second part of White’s testimony, because that is when Officer
Faulkner was killed. In this regard, what can be seen on the police photos above is decisive.
Here is what she said after describing the beginning of the shooting:

The police officer turned around and staggered and seemed like he was grabbing for
something. Then he fell. Then he came over and he came on top of the police officer
and shot some more times. (TT June 21, 1982, 94-95)4 [And further:]
A. He came over and he stood on top of him and shot some more times. Q. Now, would
you demonstrate, without coming down here, please stand up and demonstrate with your
hand and arm exactly what the defendant was doing? A. Came over and was doing like
this here with the gun. Q. All right. Indicating for the record this time using her right
arm she was pointing and going up and down with her right arm three times towards the
3
It is not included in the left diagram on the previous page because the picture already is geometrically distorted.
4
Emphasis mine.

5
 floor; the elbow was bent at the time that she was moving her arms up and down and her
finger was pointed at that time. (TT June 21, 1982, 103)

Police Officer Faulkner was killed by a shot almost squarely between the eyes pretty much at
point blank range, and his police jacket showed an entrance and an exit hole above his right
shoulder coming from a bullet that didn’t touch his body. If he was shot and killed while he
was lying prone on the ground and if the shooter stood, as described by White, right on top of
him and fired three times, one bullet must be the one that went through his jacket and another
one must have missed him altogether.
And therein lies the rub.
Both official police photographs of the crime scene and photos by press photographer Pedro
P. Polakoff III, which have the additional advantage that the negatives were made available to
independent researchers show a complete absence of either the two bullets themselves or of
divots in the sidewalk they would have had to have left in the highly unlikely event that they
ricocheted from the ground and flew in a direction where the arriving Mobile Crime Detection
Unit (MCDU) of the Philadelphia police could not find them.

All the photos by press photographer Pedro P. Polakoff III show clean cement without bullets,
bullet traces, or bullet divots in the sidewalk in front of 1234 Locust.
Even if one wants to give the first part of Cynthia White’s description of the shooting the ben-
efit of the doubt or ascribe it to honest error, this becomes more difficult for the second part.
Of all the witnesses, from her alleged vantage point at the southeastern corner of 13th and Lo-
cust Cynthia White was by far in the best position to observe the events. In particular, no one
was better placed to observe what she claimed happened when the shooter leaned over Officer
Faulkner and literally executed him.
It is thus highly likely that her account is both false AND that it was deliberately concocted.
As we will see, additional evidence turns this likelihood into virtual certainty. This is exactly
the point where the testimony by cab driver Robert Chobert should be examined, because
Chobert, who said he didn’t see the beginning of the shooting, described the part of it in
which Officer Faulkner was killed in essentially the same terms as White.

6
Here is what he said:

A: […] I heard a shot. I looked up, I saw the cop fall to the ground, and then I saw
Jamal standing over him and firing some more shots into him. Q. […] I'll ask you this:
How many times did you see that individual shooting the Police Officer when he was on
the ground after he had fallen down? […] A. I saw him shoot him again several more
times. Q. Several more times? A. Yes. (TT June 19, 1982, 210-11)
Q. Now, when the Defendant was standing over the officer, could you show me exactly
what motion he was making or what you saw? A. I saw him point down and fire some
more shots into him. Q. Now you're indicating, for the Record, a movement of his right
arm with his finger pointed toward the direction of the ground and moving his wrist and
hand up and down approximately three, four times; is that right? A. Yes. Q. You may sit
down. (TT, June 19, 1982, 215-16)

This is almost the exact same description that White gave later in the trial, and it is just as
false, and for the same reasons.
Isn’t it strange that the two main prosecution witnesses in a murder trial, the only ones who
both claim to have seen the actual killing AND to be able to identify the defendant in the trial
as the perpetrator tell the IDENTICAL false story?
But it gets worse.
The only other witness at the trial who claimed to have seen the shooting, even though he
couldn’t say who the shooter was, was the motorist Michael Scanlan.5 He said he observed the
events while he was driving east on Locust Street and stopped before the crosswalk at the
intersection of 13th and locust because the light turned red. In court, Scanlan described what
he claimed to have observed in the words found overleaf:

The view from the middle lane of Locust. The yellow arrow points to the spot where Officer
Faulkner died; the red arrow shows the path of a man coming from the parking lot.

5
Or, in fact, who the shooters – plural – were. For this particular point, see below.

7
 A. […] [d]uring that time another man came running out from a parking lot across the
street towards the officer and the gentleman in front of the police car. Q. And what hap-
pened? A. I saw a hand come up, like this, and I heard a gunshot. There was another
gunshot when the man got to the policeman, and the gentleman he had been talking to.
And then the officer fell down on the sidewalk and the man walked over and was stand-
ing at his feet and shot him twice. I saw two flashes. (TT June 25, 1982, 6-7)

Like White’s testimony, what Scanlan said

also changed quite substantially between
his various versions. When first inter-
viewed by the police and later on at Billy
Cook’s assault trial in March 1982, Scan-
lan placed both the quarrel between Billy
Cook and Officer Faulkner and the alleged
shot in the Officer’s back coming from
Abu-Jamal’s gun “in front of the Volks-
wagen” of Billy Cook (TT BC, March 29,
1982, 107), and at Cook’s trial, he explicitly stated that this meant that “the policeman was facing
me” (Ibid, 108). In the course of his first police interview, he even drew a sketch to this effect.6
But as we just saw, at the trial he all of a sudden placed both events “in front of the police car.”
At the same time, Scanlan in all his versions placed the altercation and the beginning of the
shooting in the street, and the new version at the trial which placed, similar to White, between
the VW and Faulkner’s squad car, opened at least the theoretical possibility that a shooter
coming from the street had shot Faulkner in the back.
Not, to be sure, if Faulkner was indeed “fac-
ing” Scanlan as he claimed at the Cook trial
and depicted in the drawing to the left, but
that claim was not repeated explicitly at the
Abu-Jamal trial.
The officer would then have stood with his
back towards the street, the bullet would
have gone through his body and a part of it
might have ricocheted from the no-parking
pole to end up in the vestibule of 1234 Lo-
cust, with the main part of the bullet rico-
cheting elsewhere and going missing – very
unlikely, but perhaps not impossible.
And indeed, at the Abu-Jamal trial, Scanlan, contradicting his own previous statement, stated
that the officer somehow had “his back towards” his attacker. (TT MAJ, June 25, 1982, 11)

6
See the previous page. This sketch will be of further interest later on.

8
This got rid of the problem that there was, after all, very little space for anyone to get behind
the police officer’s back between Billy Cook’s VW and Officer Faulkner’s squad car 610 and
to shoot the officer in the back from that position.
Michael Scanlan’s trial testimony about the beginning of the shooting that led to the ensuing
tragedy had thus some very serious problems.
But his account of the death of the officer is fatally flawed, for the very reason that it is prac-
tically the same as the one given by White and Chobert.
As we saw above, Scanlan, too, claimed that Faulkner was killed execution-style by an assail-
ant who stood over the defenseless officer. One interesting aspect of this is that the number of
shots Scanlan claims were fired this way varies from “three or more” in his first police inter-
view to “two” (see above) and then “two or three.” (TT MAJ, June 25, 1982, 38)

From the evidence, it seems clear Michael Scanlan was indeed at the scene. Police radio has
him report the shooting to Officers Wakshul and Trombetta at Juniper and Walnut.7

But the essential point mentioned above about the testimony of Chobert, White, and Scanlan
does not change:

• This simply did not happen.

In retrospect, it does not take a rocket scientist to realize that Scanlan’s, Chobert’s, and
White’s accounts of the killing of Officer Faulkner all required the presence of either bullets,
bullet fragments, or clearly visible bullet divots on the sidewalk on which Officer Faulkner
had allegedly died lying in a prone and defenseless position.
And these bullets, bullet fragments, or bullet divots were glaringly absent at the scene.
If this was so, how, then, did this testimony even come about? The only logical explanation is
that these witnesses who, after all, testified to the SAME impossible event, were coached by
the police who, allegedly, took their statements only briefly after the events. They did not
have to make everything up because Abu-Jamal did indeed run from the parking lot to the

7
See Schiffmann (2007), “What Happened on December 9, 1981 – a Timeline,” 1.

9
scene and Officer Faulkner did indeed fall to the ground, but where the rest of the description,
of the deadly shots in particular, comes from is anyone’s guess.
The most likely candidate for this is Scanlan, for whom a comparison of the data from the
police radio transcript (PRT) of December 9, 1981 and his statements and later testimony tend
to show that he was actually at the scene, even though what he really observed or was able to
observe is very much open to dispute. The photo on p. 7 above makes it highly questionable
whether he was able to “see the entire body of the officer when he was on the ground” and
saw how the officer’s “whole body jerked” after being hit in the head as he claimed at the
Abu-Jamal trial (TT June 25, 1982, 69, 9).
In the case of Scanlan, one might still subscribe to the idea that his description of the deadly
shot(s) in his first statement to the police represented an honest effort to describe what hap-
pened based on the attempt of an impartial witness to make sense of something that had un-
folded in front of his eyes but that left him only with a confused and confusing impression.
The statements and later testimony of Robert Chobert and Cynthia White, however, do not have
such an innocent explanation. As we will now see, there is no convincing evidence that they
even observed the shooting, and if they didn’t, there is only one potential source for their de-
scription of Officer Faulkner’s death which was clearly false but matched the one by the witness
who was at least there, Michael Scanlan: The police told Chobert and White what to say.

2. The Alleged Eyewitnesses

The Commonwealth’s Brief for Appellee (CBA) makes much of the purported fact that

Each of the above four witnesses testified that the only people present at the shooting scene
were Officer Faulkner; defendant’s brother, who moved toward the wall of a building and
did nothing; and defendant. No one else was at the spot where the shooting occurred […]

and then goes on to claim that

Mr. Scanlan confirmed the presence of the other eyewitnesses in the general area (N.T.
6/19/82, 212, 227-28, 233-34; N.T. 6/21/82, 4.106; 6/22/82, 5.134-5.135; 6/25/82, 8.20-
8.21, 8.29-8.30).

One must wonder who wrote the last passage in particular, referring to Michael Scanlan’s trial
testimony on June 25, 1982, 20-21 and 29-30, because this is not at all what these four pages
of the trial transcript report.
On p. 20, Abu-Jamal’s trial Attorney Anthony Jackson cross-examines Michael Scanlan, and
the conversation goes like this:

10
 Q. So, on Locust Street was there any cars behind the police car? A. I don’t believe so, no.
Q. No cars behind the police car? A. No. Q. And was the police car right at the corner, was
it some distance from the corner? A. Some distance from the corner. Q. How much, as best
you can estimate? How many car lengths from the corner was the police car parked? A.
One, at the most.

Far from confirming “the presence of the other eyewitnesses in the general area,” Michael Scan-
lan explicitly DENIES the presence of Robert Chobert’s cab behind the police car, and when
asked again, he gives a response that excludes the presence of a cab behind Faulkner’s car.
With regard to the decisive “other eyewitness” Robert Chobert, the quote in CBA thus demon-
strates the opposite of what it claims to be proving.
After this, the following strange exchange (p. 20-21) follows:

Q. One at the most. Any other individuals on the street, excluding for the moment the
shooter? Anyone else -- did you see anyone else on the street at that time? A. All I fo-
cused on was the policeman and the gentleman in front of the car. Q. You may have fo-
cused on the policeman and the other man, did you see anyone else on the street? MR.
MCGILL: Objection. He answered it. MR. JACKSON: He said he didn't focus on it.
THE COURT: He said he couldn't see anybody, could he? Objection is sustained. A. I
didn't see anyone else. Q. So there was no one else on the street, then, sir? MR.
MCGILL: Objection, he didn't say that. THE COURT: Objection sustained.

I will not go into a detailed interpretation of this passage here, but even though Scanlan says he
“focused on […] the policeman and the gentleman in front of the car [that is, Billy Cook],” he
follows up by saying he “didn’t see anyone else.” If one accepted the prosecution’s account, this
was quite strange because if Scanlan saw the altercation between Billy Cook and Officer Faulkner
in front of the latter’s police car, it would have been almost impossible to overlook Cynthia White
if she was indeed, as she claimed, at the southeastern corner of 13th and Locust.
Did “Mr. Scanlan” thus confirm “the presence of the other eyewitnesses in the general area” on
the quoted trial transcript pages 20 and 21?
No, not really. To a less prejudiced eye, it would rather seem that he DENIES the presence of the
most crucial eyewitnesses, Robert Chobert and Cynthia White.
What about pages 29-30? Here are the crucial quotes:

Q. And in that diagram, can you tell the jury, first of all, where in fact you've indicated that
there were other people around. A. All I noticed were the three -- the three gentlemen. […]
Q. Yes. Can you describe to the jury where you placed those other people? A. Two people
were to the left of my car. […] Was there another person there someplace? A. This corner.
Q. That would be the southwest corner. And anyone else? A. No.

11
Michael Mark Scanlan, again. This is his draft of the crime scene just a couple of minutes after the
event on December 9, 1981. There is one person running along the dotted line and coming from
the parking lot in the upper left corner. Officer Faulkner is standing behind another person who
would be Billy Cook. To the left of Scanlan, there are two unidentified people, and to the right of
him, another person. They would be “the three gentlemen.” The person on the southwest corner
was clearly Albert Magilton. There is no other person present anywhere in Scanlan’s testimony,
and that includes anyone standing where Cynthia White claimed to have stood ( ).

The reference in CBA to Michael Scanlan’s alleged confirmation of “the presence of the other
eyewitnesses [in this connection, obviously meaning the crucial witnesses Chobert and White] in
the general area” shocked me deeply when I read it. In the passages quoted, Scanlan says the ex-
act opposite of what CBA says they are saying.
How it is possible that such a blatantly false and distorting reference makes it into a brief of a pro-
gressive administration dealing with such a well-known murder case is simply beyond me.
But as with the alleged eyewitness testimony of the shooting, here, too, matters get worse once
one inspects more. Even though CDA sees no problem with any of the claims made by the alleged
eyewitnesses Chobert and White, there is overwhelming evidence that not only did they not see
the shooting of Police Officer Faulkner, but they were not where they claimed to have been at all.

12
As for Robert Chobert, Michael Scanlan was not the only witness who denied that Chobert’s cab
had been parked behind Officer Faulkner’s car during the shooting. On June 25, 1982, the pedes-
trian Albert Magilton was the next witness after Michael Scanlan. Here is what he said during
cross examination:

Q. And you went to the corner of 13th and Locust. Did you cross 13th Street? A. Well, I
stood there and watched for a while as the officer pulled the car over. Q. Okay. Now, at that
point, when the officer pulled him over, you were at the corner. Did you see if there were
any other cars on the street then? A. There was a couple cars in front of the Volkswagen.
[…]
Q. All right. But you never saw anyone right here on the southeast corner? A. Not to my
knowledge. Q. How about a taxicab? A. There was cabs moving all around. Q. But did you
see one parked? A. There was one up here parked. Q. And did you see any other cab that
was parked? A. No. (TT June 25, 1982, 84, 86)

Like Scanlan, Albert Magilton denied the presence of a cab behind Officer Faulkner; the presence
of Chobert’s cab would have put the officer out of the line of sight of Scanlan.

From Scanlan’s description, it is crystal clear that there was no taxi behind Officer Faulkner,
but only “one up here parked.” Any cab at the southeast corner of 13th and Locust would have
had to have been there before, in which case it would have been impossible for Cook and
Faulkner to get into the space in front of 1234 Locust, or it would have pulled to the corner
behind Faulkner, in which case Magilton would have mentioned this.
The corroboration by Magilton of Scanlan’s testimony with regard to Chobert gains additional
importance from another angle. An inspection of the scene shows that the presence of Cho-
bert’s cab would have blocked Michael Scanlan from observing the shooting of Officer
Faulkner with the latter lying on the pavement between Billy Cook’s VW and the Ford parked
in front of the VW. What was already quite questionable – namely, the Scanlan’s ability to
observe what he described – even in the absence of Chobert’s cab (see pp. 7, 10) becomes
completely impossible with that taxicab’s presence.

13
Whoever choses to believe that Scanlan did indeed see how Officer Faulkner was killed on
the sidewalk in front of 1234 Locust is also forced to conclude that Chobert was NOT parked
at the southeastern corner of 13th and Locust. The trial testimonies of Chobert and Scanlan
cannot both be true.
But the evidence for Chobert’s absence is not exhausted by this.
Chobert was driving his cab without a license as he had lost the latter because of DUI. More-
over, he was on probation for firebombing a school. He was thus a highly unlikely candidate
for pulling up behind a police car with its dome lights on whose officer was engaged in a traf-
fic stop.
Even more damaging for Chobert’s claim are the testimony of a press photographer who ar-
rived at the scene early on and the photographs he took. In interviews with the author and
others, Pedro P. Polakoff has said that he was at the scene within “ten to twelve minutes after
the shooting.” He insists that no cab was at the scene, and indeed, none of his four photos that
include the southeast corner of 13th and Locust show a taxi or any other car.
This is true in particular for three photos (no. 8, 12, and 14 in his 31 photos series) he says he
took before he took five photos (no. 18 – 22) of police van 601, the one which contained
Mumia Abu-Jamal (photos that he says he gave to the Philadelphia Daily Mail but never got
back and which are therefore missing in his series). According to PRT, that car should have
left the scene at roughly 4:08 AM on that morning on December 9.

Polakoff’s photos 8 and 12, showing the absence of any car behind Officer Faulkner’s police car.

At this time, Chobert’s cab would still have been in its supposed original location because this
is right before one of the occupants of police car 905, Officers Sliwinski, is, as the context
makes clear, talking about Chobert when he announces that “we have a witness going over co
Homicide.” In his IIS a little bit than an hour later, Sliwinski says that “I got into the cab with
the driver and he drove the cab over to here [Homicide].”
Polakoff’s photos show the space where Chobert’s cab should have been to be glaringly empty.
All of this throws a curious light on the crime scene investigation by the police as the police
itself destroys the integrity of the scene by removing a crucial piece – Chobert’s cab – from it,

14
but the decisive point is that Chobert’s cab was not where it was supposed to be even before it
was removed.
And there is yet another very interesting wrinkle to this. In his IIS, Officer Sliwinski has the
following to say about what Chobert told him:

He said that he had dropped off a fare off at 13th and Locust behind the police car. He
said he saw the officer talking to a negro male with a black hat, and that another male
was there. He didn’t know where the other male, a negro male, came from. The negro
male without the hat reached into his belt and he heard shots fired. He saw the officer
and the negro male without the hat fall down. That’s it. [Emphases mine.]

Part of Officer Sliwinski’s IIR. Chobert’s account has a remarkable dearth of detail for some-
one who has just observed an execution-style murder.

Here, Chobert already claims to have been parked behind Officer Faulkner’s police vehicle,
but talks only about hearing shots fired, and Sliwinski adds: “That’s it.”
And that indeed seems to have been it, because according to an investigator for the defense,
George Michael Newman, Chobert admitted to him in 1995 that he did not see the shooting,
but only heard it, and in addition, he admitted that he was parked not on Locust behind the
police officer, but on 13th Street north of the intersection 13th and Locust. In an affidavit on
September 25, 2001, Newman said:

that on December 9, 1981, he had actually been parked, in his taxi, on 13th Street, north
of Locust. […] Chobert said that what actually happened was that he was sitting in his
taxi when he heard gunfire. He exited the taxi and saw a Black male standing next to a
police car that was parked on Locust, east of 13th Street. The Black male slumped

15
 down. Chobert walked toward that area and when he got closer saw a police officer
sprawled on his back on the sidewalk and a Black male sitting nearby.

A narrative which has Chobert on 13th Street instead of Locust does not only comport with the
trial testimony by Scanlan and Magilton, the testimony of Pedro Polakoff and the Polakoff
photos, but could also help explain a striking evolution of Chobert’s official testimony itself
during the first days of the shooting.
According to the ranking police officer at the scene, Alfonzo Giordano, testifying at the June
1982 Suppression Hearing before the trial, Chobert told him at the scene “that the man who
shot the policeman ran away.” (SH, June 1, 1982, 70) Going by Giordano’s testimony, it was
only after this statement that Chobert was asked to identify Abu-Jamal in the back of a police
van and did do. (Ibid., 71)

He then had to reconcile these two contradictory claims somehow and in his IIR at the police
department a half hour after the shooting, he said he saw the shooter “start running towards
12th Street. He didn’t get far, maybe thirty or thirty-five steps and then he fell.” Three days
later in another IIR, the distance the shooter ran had shrunk to “about a car length only,” and
this is essentially also what he testified at trial: “Then I saw him walking back about ten feet
and he just fell by the curb” (TT, June 19, 1982, 211).
On the south side of Locust, thirty to thirty-five steps from the crime scene would be just as
far as Chobert would have been able to see if he was indeed parked on 13th Street. Since Abu-
Jamal was found right next to Officer Faulkner, sitting on the curb of the sidewalk between
Billy Cook’s VW and the Ford in front of it, he could NOT have run “thirty to thirty-five
steps” before falling – and Chobert’s testimony changed accordingly.
In the absence of a new official interrogation, we cannot know whether Chobert indeed saw a
man he deemed to be the shooter run “away” or “thirty to thirty-five steps,” but this episode

16
tends to show both that he was parked on 13th (a much better vantage point for giving esti-
mates such as “thirty to thirty-five steps” than Locust, where he would have seen the fleeing
shooter essentially only from behind) and the extreme malleability of this witness’s testimony,
which gravitated from “the shooter ran away” to what the police clearly preferred to hear, that
is, the shooter simply falling by the curb.
As for his claim of having observed Faulkner’s execution-style shooting by Abu-Jamal from a
position in a cab just behind the officer’s car, there isn’t a single witness who ever said that
cab was really there – except Cynthia White.
Her trial testimony to that effect is worth quoting at length. It is Abu-Jamal’s defense lawyer
Anthony Jackson who is asking about Chobert’s cab in the context of Billy Cook’s alleged
violent resistance against Officer Faulkner:

Q. […] When you saw this you saw the cab at the corner? A. Excuse me? Q. Did you
see the cab pull up at the corner? A. Yes. Q. At what point during the struggle did you
see the cab pull up? A. I don't remember. Q. No idea at all? A. (No response.) Q. Do
you have any idea? A. No. Q. Was it after the struggle? A. I don't remember. Q. Was it
after the shooting? A. I don't remember. (TT, June 22, 1982, 106)
Q. At what point did you see the cab there? A. When the police were there that's when I
noticed. Q. You hadn't seen it before then, had you? A. I wasn't looking at the cab,
looking for a cab. Q. I understand you weren't looking for a cab. My question is: You
didn't see the cab before that time, did you? A. No. (Ibid., 107-108, my emphasis)

So for one thing, here even White does not confirm the presence of Chobert at the southeast-
ern corner of 13th and Locust at the time of the shooting. The number of confirmations of his
presence is thus down to zero.8

A strange pair: witnesses Chobert and White. White, with a history of 36 arrests and several
pending charges, allegedly decided to watch a traffic stop deteriorating into a violent altercation
and then a shooting from very close by, while Chobert, who was on probation but drove his cab
without a license, claimed to have pulled up right behind a police car with its dome lights on.

8
At least at the trial, that is. In White’s IIR on December 17, 1981, she sad that there was a guy in a cab behind
the Police car” during the incident who might have seen it, and during his redirect examination on June 22, 1982,
prosecutor McGill did not fail to remind her of this statement, which she confirmed she made. (TT, June 22,
1982, 178-79, 181). But the fact remains that when questioned by Jackson, she said otherwise.

17
For another, since I think the claim that Chobert was there at all must now be regarded as
thoroughly discredited, White’s statement that she saw him there, does not rescue that claim
but rather serves as yet another nail in the coffin of her own credibility, of which there are
very many, as we saw above.
Moreover, as with Chobert one must ask how likely it is that she was where she claimed she
was during the incident. On December 9, 1981 White had a long history of 36 arrests and
pending cases because of prostitution (and at the time of Abu-Jamal’s trial she was impris-
oned for that “crime” in Massachusetts). It defies belief that, even had she been there at the
beginning when Officer Faulkner pulled Billy Cook over, which is very doubtful, she would
not have tried to get out of the line of sight of the officer as quickly as possible.
And indeed, not even Robert Chobert saw her at the southeastern corner of 13th and Locust,
even though he claimed to have exited his cab right after the shooting. Here is what he said at
the trial when cross-examined by Anthony Jackson:

Q. And when you heard the gunshots you got out of your cab and you went on the side-
walk; is that right? A. Yes. Q. And you started walking towards the Police Officer to help
him; is that right? A. Yes. Q. Now, the only people who were on that sidewalk was the
Police officer and Mr. Jamal; is that right? A. No. Q. Who else? A. His brother, William
Cook. Q. William Cook. Anyone else? A. No. Q. You’re certain of that? A. Yes, I'm cer-
tain. Q. You didn't see any woman on the sidewalk? A. No. (TT, June 19, 1982, 233-34)

This is all the more interesting when compared to Cynthia White’s trial testimony, this time
under direct examination by prosecutor McGill:

Q. When you waited for the police as the police arrived what did you then do? A. I
walked up to where he was sitting at. Q. Indicating the defendant. A. Yes. (TT, June 21,
1982, 106-107)

The part of this conversation that immediately follows in the trial transcript makes clear that
this is before the police arrived at the scene; in other words, White just saw Abu-Jamal exe-
cute Officer Faulkner and then walked up to Abu-Jamal to get a closer look, exactly what eve-
ryone would do, right? Except that Robert Chobert, who himself claimed he was heroically
endangering his life by trying to help officer Faulkner, once more denied that White was do-
ing what she said she did after the shooting:

Q. By the time that the Police arrived and told you to move back to your car, was there
any other civilians on the sidewalk other than the man you said who ran ten feet and Mr.
Jamal who you said ran ten feet? Where there any other civilians, I mean non-police
people, on that sidewalk? A. I didn't see none. Q. And you had a good view of the side-
walk, right? A. Yes. Q. When Mr. Jamal was taken to the wagon were there any other

18
 non-police there on the sidewalk? A. I don't think so, no. Q. Pardon me? A. No. (TT,
June 19, 1982, 265-66)

So just as with Michael Scanlan, if you want to believe Scanlan, you can’t believe Chobert,
only that here, if you want to believe Chobert, you can’t believe White. Chobert (TT, June 19,
1982, 227-28) also said he didn’t see White before the incident (even though in IIR, Decem-
ber 17, 1982, 2, she claimed to have been at the corner of the intersection for half an hour)
when he said he let out a fare, but I won’t quote that here to avoid overkill.
And Chobert was not the only one who denied White’s presence. With regard to Chobert, one
could perhaps play the devil’s advocate and (1) say that maybe he overlooked White’s pres-
ence when he let his fare out, and (2) dismiss his denial of her presence after the shooting as
irrelevant – all of this, of course, presupposing that Chobert himself was parked at that corner.
The same is not possible with another witness we have already encountered; this witness is
none other than Michael Scanlan who CBA claims “confirmed the presence of the other eye-
witnesses in the general area” while in fact he not only denied the presence of Chobert’s cab,
but also the presence of “anyone else on the street at that time,” apart from, as he mentions
later on, two people to his left on the northwestern corner and one person to his right on the
southwestern corner of the intersection (see p. 11 above). To repeat the crucial parts:

Q. […] Any other individuals on the street, excluding for the moment the shooter? Any-
one else -- did you see anyone else on the street at that time? […] A. I didn’t see anyone
else. (TT, June 25, 1982, 20-21)
A. Two people were to the left of my car. […] Was there another person there some-
place? A. This corner. Q. That would be the southwest corner. And anyone else? A. No.
(Ibid., 29-30)

What about Albert Magilton, whose presence at the scene is denied by no one and who was
excellently placed to see Cynthia White if she was there? Here is what he said right before he
told Abu-Jamal’s defense lawyer Jackson that no cab was behind Officer Faulkner’s car:

Q. Right. What about the southeast corner? A. Well, there was people moving around
there. Q. Did you see anyone standing at the southeast corner? A. No. I noticed a gen-
tleman come from through here, and he started moving across the street, and that was
Mr. Jamal. Q. All right. But you never say anyone right here on the south-east corner?
A. Not to my knowledge. (TT, June 25, 1982, 86)

So he, too, explicitly denied White’s presence at the scene. Another witness who I will men-
tion only in passing because he has serious credibility problems himself is William Singletary.
Crucial parts of the account of the shooting he gave at Abu-Jamal’s 1995 PCRA hearing are

19
physically impossible, which raises questions about other parts of his testimony there as well,
but at that hearing, prosecutor Arlene Fisk quoted lengthily from a 1981 statement that Sin-
gletary said at the PCRA he was basically dictated by the interrogating police officer and
which he signed only because he wanted to leave.
And inter alia, Fisk confronted Singletary, whose presence at the scene at least immediately
after the shooting doesn’t seem to be in question, with the following: “Q. Next question: Did
you see anyone else on the street besides the policeman and the other guy with the dray [sic]
locks. Did you say that to the -- I’m sorry -- your answer was it was just the two of them.” As
with the rest of Fisk’s quotes, Singletary denies that he said this but agrees that he signed it.
Forced or not, apparently, he, too denied White’s presence at the scene.
As for the lone defense witnesses who testified at the 1982 trial, both Veronica Jones, about
whom more in a moment, and Dessie Hightower,9 who from his vantage point on the northern
side of Locust Street west of the intersection 13th and Locust was excellently placed to see
Cynthia White if she was there, fail to mention her presence during their testimony.
In his two IIR on December 9 and 12, 1981, Hightower’s friend Robert Pigford, with whom
Hightower had just left a club at the northwestern corner of the intersection when Officer
Faulkner pulled Billy Cook over and with whom he had just entered the parking lot on the
western side of the building when the shots rang out, upon which the two said they peeked
around the corner and slowly walked towards the scene, also fails to mention Cynthia White.

Hightower (above, ) and Pig-

ford ( ) may well have been
the persons Scanlan says he saw to his left at the beginning of the traffic stop. If Hightower
saw someone run away on Locust Street, how could he have missed Cynthia White ( )?

Different from Dessie Hightower, Robert Pigford, and other witnesses mentioned above, Veroni-
ca Jones didn’t have a good view of the southwest corner of 13th and Locust from what she said
was her vantage point one block away on the northwestern corner of 12th and Locust, but she, too,
did not talk about White but instead claimed a male was there. (PCRA, Oct. 2, 1996, 263)

9
He was called by the defense because he saw a person run away from the scene, possibly the actual killer of
Officer Faulkner. His friend Robert Pigford mentioned in the next paragraph didn’t testify at the trial.

20
I will ignore this here but instead discuss another very important aspect of what she said at the
trial. Jones was called as a defense witness because she had said that after the shooting, she
saw two people run away from the scene in the direction of 12th Street. Here is what she said
in her statement to the police on December 15, 1981 as per TT, June 29, 1982, 106:

I walked back around the corner to Locust Street. As I was walking away from the High
Speedline entrance I heard firing. I heard three shots. I looked down Locust Street to-
wards Johnny Dee's and I saw a policeman fall down. After I saw the policeman fall I
saw two black guys walk across Locust Street and then they started sort of jogging.
The next thing I saw was a wagon coming. There was one other black guy standing by
the entrance of the Speedline by Johnny Dee’s.

Abu-Jamal’s defense attorney Jackson had not spoken to her before the trial, and was there-
fore very surprised when Jones now denied having seen any of this and claimed she had been
too “high” at the time of the whole incident to say anything useful about it, a claim that she
later recanted. Both the claim and the (reasons for the) recantation were later the subject of a
long PCRA hearing from October 1 to October 3, 1996.
Yet really important for our topic here, Cynthia White, is not what Jones didn’t say at the tri-
al, but what she did say. Provided that her remarks reflect the truth, which provided all that
has been said by now I think they very likely do, the following passages from the trial tran-
script make for a sickening read:

Q. Now, other than this one day that the Police came to your home in Jersey to inter-
view you, had you talked to any other police at any other time? A. I had got locked up I
think it was in January. […] They were getting on me telling me I was in the area and I
seen Mumia, you know, do it, you know, intentionally. They were trying to get me to
say something that the other girl said. I couldn't do that. (TT, June 29, 1982, 129)

Prosecutor Joseph McGill (mid) and Judge Albert F. Sabo did their best to prevent Veronica Jones
from testifying to what she alleged were the police’s blackmailing tactics against prostitutes.

MR. MCGILL: Objection, Your Honor. BY MR. JACKSON: Q. Did you give them an
interview? A. No. They had locked me up. No. Q. Do you know Cynthia White? A. Yes, I
do. Q. Did you see her that night? A. No, I didn't. Q. Now, you got a chance to look up

21
 Locust Street didn't you, on the 9th? A. Just to be looking? Q. Yes. After the shots you
looked up Locust Street? A. Yes. Q. Did you see Cynthia? A. No. (Ibid., 129-30)

So for one thing, Jones here also explicitly denies having seen White. But once more, it gets
worse. Who does Jones refer to with “the other girl”? None other than Cynthia White, it turns
out. After the previous passage, Jones continues to describe how she was “pissed off” for be-
ing arrested “for nothing” (Ibid., 133), and the following conversation ensues:

Q. You were questioned by the police? A. I wouldn't say questioned. Conversating.

They had a couple of us. We had brought up --- I call him [sic, must be “her,” as
“Lucky” is the nickname Jones used for Cynthia White] Lucky. We had brought up ---
how come Lucky is not here? MR. MCGILL: Objection. Ask to strike. THE COURT:
Strike out that last thing. (TT, June 29, 1982, 134)

From then on, each time Jackson tries to develop the issue of the police trying to get Jones –
and maybe the other arrested prostitutes – to say something “the other girl” said, Prosecutor
Joseph McGill objects and Judge Albert D. Sabo sustains.
Judge Sabo then asks Jackson to talk to his witness during a break, which he does, and after
this conversation, Jackson reports the following:

MR. JACKSON: Just a summary of what she said is that she was picked up and she be-
lieved it was in the first week of January. She was picked up by uniformed officers who
took her, as well as some other people, aside and said, “Look, we will let you work the
street and we will do you just like we have done Lucky.” Lucky is Cynthia White's
name. “We want to ask you some questions about where you were, because we know
Lucky said you were out there that night and you saw what happened,” and all of that.
They told her that if she would give a statement that backed up Cynthia White they
would let her work the street just like they were letting her work. […]
That is what she said. I simply wanted to ask her what questions they asked her. I want
to ask her what questions they asked and what answers she gave.
I suppose in all fairness some of what I just told you she will respond to I am not so sure
that isn’t relevant. (TT, June 29, 1982, 139-40)

But ADA McGill and Judge Sabo would have none of it; McGill forcefully intervenes – “I
object to this whole area” (Ibid., 140) – and Sabo concludes:

THE COURT: She is your witness. What she saw on Locust Street that night you can go
into as thoroughly as you want to. All this other stuff is not relevant. (Ibid., 140-41)

22
Thus, a witness who has just literally left the defense camp hanging out on a limb nevertheless
claims the police attempted to push her to falsely implicate Abu-Jamal as a precondition for
allowing her to “work the street just like they were letting” Cynthia White work – but on the
prosecutor’s instigation, the court disallows any further questions in this realm.
The browbeaten defense lawyer then indeed accepts to ignore “all this other stuff,” and ironi-
cally, his very next witness is Cynthia White, who he proceeds to ask questions that have ab-
solutely nothing to do with being permitted to “work the street” if one saw “Mumia […] do it,
you know, intentionally.”10
A coda on White is that apparently, she was able to “work the street” relatively unmolested
for the first time in her known career as a prostitute after she had synchronized her testimony
to a sufficient degree with the one of Michael Scanlan and other witnesses with a credible
claim to have heard or seen at least something.
This involved, for example, the question of whether there had been any altercation between
Billy Cook and Officer Faulkner at all, something which White in her first statement to the
police, contra Scanlan, squarely denied, another indication of her absence at least from the
point on when things escalated. Immediately after the shooting, she had this to say:

Q. Cynthia, where were you standing during this incident? A. At 13th and Locust on the
sidewalk by the bar. Q. Did you see anything unusual happen when the Officer first
stopped the car? A. No. Q. Did you see any struggle between the Officer and any of the
two men? A. No. (IIR Cynthia White, December 9, 1981, 3)

On Dec. 17, 1981, Cynthia White was arrested for the 38th time sin-
ce May 3, 1980. This was the first time she claimed Abu-Jamal’s
brother Billy Cook (mid) hit Officer Faulkner. At Cook’s trial, his
layer Daniel Alva (right) tore aggressively into White’s credibility.

It is only in her third IIR on December 17 that she starts to claim Billy Cook hit the officer.
Before December 9, 1981, she had been arrested 36 times for prostitution since her first arrest
on May 3, 1980, and since December 9, she had been arrested another two times – in fact, on

10
See above, p. 21.

23
December 17, she was again under arrest. But from then on until Billy Cook’s trial on March
29, 1982, she worked the street without being arrested for more than three months. This had
never happened since her first arrest in Massachusetts.
That fact was insistently pointed out at Billy Cook’s trial by his lawyer Daniel Alva, who be-
haved markedly different from Abu-Jamal’s lawyer Jackson and relentlessly hammered away at
the curious coincidence that White accused his client of a crime only after she had been arrested
two more times within eight days but all of a sudden was able to continue to work unmolested
after she had done so.
This evolution in her testimony regarding Billy between December 9 and December 17, 1981
was accompanied by a similar evolution of her testimony with regard to Abu-Jamal which
brought it more in line with the one of other witnesses that had a more credible claim than her to
have at least been at the scene, but as I discuss this elsewhere, I will not go into this here.11
The crucial point about this whole episode is that it strongly corroborates Veronica Jones’s trial
claim that the prosecution seemed to have struck a deal with Cynthia White. Apart from this, it
is interesting to note that apart from Michael Scanlan – who at that time still placed the alterca-
tion between Billy Cook and Officer Faulkner in front of Cook’s VW and not, as he did at the
trial, in front of Faulkner’s squad car – White was the only witness against Cook at his trial. The
countless contradictions in her testimony at Billy Cook’s even caused Judge Meyer Rose – who
still convicted Cook – to comment that “as a matter of fact, at one point […] I had some doubt
about the entire testimony of Miss White.” (BC TT, March 29, 1982, 146)
In a nutshell, what one can say about Cynthia White is that (1) in her first statement to the po-
lice, she denied that the event that directly led to the shooting, namely the altercation between
Billy Cook and Officer Faulkner, even happened, that (2) her description of the first part of the
shooting is not credible, and that (3) her description of the second, deadly part of the shootout is
impossible. And of course (4) – the only person who ever confirmed Cynthia White’s presence
at the incident is Cynthia White, while the two other prosecution witnesses best-placed to see
her explicitly denied she was there and Robert Cobert never mentioned her at all.

Intermediate Comment
On the background of all this, most of which is either in the trial record or in the public domain,
it is also hard to understand the glowing terms in which CBA describes witnesses Robert Cho-
bert and Cynthia White in the substantive parts of this brief which deals with the six immediate
claims put forward by Abu-Jamal’s defense.
As for Chobert, in its summary of the reasons why the six defense claims must be rejected, CBA
under point II discusses the defense claim that prosecutor McGill’s failure to disclose “‘that he
had agreed to look into reinstating Mr. Chobert’s suspended driver’s license’ (Brief for Appel-

11
Schiffmann (2007): “The Forgotten Trial: Spurious Witnesses, Impossible Events. What the ‘Eyewitness’
Testimony from Billy Cook’s March 29, 1982 Trial for Aggravated Assault Reveals.”

24
lant, 32)” constituted a violation of the law (namely, Brady v. Maryland) and dismisses it as
meritless, referring inter alia to the “evidence presented at the [1995] PCRA hearing.” (CBA,
22) It then goes on to say that the prosecutor merely responded to Chobert’s request by indicat-
ing “that he would ‘look into it’ but never did anything about it.” (Ibid., 23)
Here, I will not go into the claim at issue itself, but merely want to mention the interesting fact
that Chobert’s parole was not revoked for driving without a license, that he continued to drive
without a license at least until his interrogation at Abu-Jamal’s PCRA hearing, and that appar-
ently the worst trouble he got into for that was having to pay a fine. (PCRA, August 15, 1995,
19-24). Rather, what interests me here is the following characterization of Chobert as a witness:

In any event, this information [about Chobert’s attempt to get his license back] was not ma-
terial to defendant’s guilt or innocence. This is especially so because Mr. Chobert consist-
ently identified defendant as the gunman going all the way back to the time of the shooting,
well before trial and before he had even met the prosecutor. Additionally, there was over-
whelming evidence that corroborated Mr. Chobert’s testimony. Because the information
was not material, no Brady violation could have occurred. (CBA, 23)

Putting aside the fact that Inspector Alfonzo Giordano claimed Chobert told him after the shoot-
ing that the shooter ran away, if what I have written above is correct, Mr. Chobert consistently
mis-identified someone who he hadn’t even seen doing the shooting because he hadn’t seen the
shooting itself as “the gunman” from the time on when he was asked to identify Abu-Jamal as
the perpetrator as he lay, upside down in Chobert’s line of sight, in the back of police car 601.

Gunshot tests performed by journalists Linn Washington (left) and Dave Lindorff in 2010 conclu-
sively showing that the Chobert/Scanlan/White scenario of the shots that killed Officer Faulkner
is untenable. If this is so, how did these three witnesses wind up with a nearly identical descrip-
tion? At the time, Lindorff and Washington told the Philadelphia DAO about their test but met
with no interest. In 2021, another DAO seems to cling to the same already discredited scenario.

As I have tried to show above, the evidence at the crime scene (and I will come to the other evi-
dence later) “that corroborated Mr. Chobert’s testimony” was in fact not “overwhelming,” but
absolutely underwhelming.

25
There is not one significant aspect of Michael Scanlan’s and Cynthia White’s testimony that can
be taken at face value, even assuming that both were present and not just Scanlan. The testimonies
of Scanlan and White contradict each other in quite significant respects, but what they share not
just with each other but also with Chobert’s testimony is the scenario of the crucial phase with the
shooter firing away at point blank range at Faulkner as the Officer lies prone on the sidewalk.
And the evidence that this scenario is false is not just overwhelming, but conclusive.
Later on, in its rejection of defense claim no. 1 that Abu-Jamal’s trial counsel Anthony Jackson
did not do enough to put it to the jury that witness Robert Chobert was on probation when he
testified against Abu-Jamal and had thus a motive to lie to curry favor with the prosecution.
Once again, I am not interested here in the claim in CBA that at the time of the trial, legally “Mr.
Chobert could not have been cross-examined regarding his probationary status” (Ibid., 25), but
rather, with the statement that “even if such cross-examination was permissible, it would not
have made a difference in the trial’s outcome” (Ibid.), a statement that essentially implies that
Chobert was and continues to be so credible a witness that any well-informed jury should be-
lieve him. Further down in the argument (CBA, 38), this is framed in the following terms:

On the contrary [i.e., different from another legal case], Mr. Chobert immediately identified
defendant as the shooter at the scene of the crime. At that time, of course, the police investi-
gation was just beginning, and it would have been extremely foolish (especially because he
was on probation) for Mr. Chobert to have knowingly misdirected that investigation by
providing the officers with false information. Thus, there is no reason to believe that Mr.
Chobert’s probation status would have provided him with a motive to falsely identify de-
fendant (if anything, it would have encouraged him to be truthful in what he reported).

On the background of the fact that if what I’ve written above is true it was not Chobert who told
the police how the killing of Officer Faulkner happened, but the police who told Chobert, this
argument collapses. It presupposes that the investigation carried out by the police was impartial
and not biased against Abu-Jamal. But who else but the police could have manipulated both
White and Chobert into making nearly identical claims about having seen Abu-Jamal doing
something he could not, and cannot, have done?
The presupposition is false, and indeed, the shoe is on the other foot. It very much seems that
the police wanted to pin the blame for the death of Officer Faulkner on Abu-Jamal.
Actually, I have second-hand evidence for this because the first (and only) press photographer
to arrive at the scene, Pedro P. Polakoff, many years later recounted to me that he clearly re-
membered how the police officers at the scene told him that a fellow officer had been killed and
that “they had the motherfucker who did it.”
Barely fifteen minutes later, witnesses Robert Chobert and Cynthia White were at the police HQ
and recounted how Abu-Jamal (who White was not even asked to identify until a court hearing
a month later, on Jan. 8, 1982) had shot the officer in a way that clearly never happened.

26
In general terms, the quote from CBA just given evokes an image of the Philadelphia Police
Department in 1981/82 that is both breathtakingly naïve and demonstrably false. It claims “it
would have been extremely foolish (especially because he was on probation) for Mr. Chobert to
have knowingly misdirected that investigation by providing the officers with false information”
without ever raising the question what might have happened if “the officers” wanted to be pro-
vided with false information.
This naivete and ignorance is all the more depressing as the renowned rights organization Hu-
man Rights Watch observed already back in 1998:

Philadelphia's police are grappling with the latest of the corruption and brutality scandals
that have earned them one of the worst reputations of big city police departments in the
United States. The persistence and regularity of the cycles indicate that between the front-
page news stories the city and its police force are failing to act to hold police accountable
[resulting in a situation where] each new generation of police officers is taught through
example that their leadership accepts corruption and excessive force. (Human Rights
Watch, Shielded from Justice, Section on Philadelphia)

These words where written 19 years after the FBI had launched a federal probe into the practic-
es of the PPD because they were suspected to be often both corrupt and brutal. There is no time
here to go into this probe, but the corruption mentioned in the 1998 HRW report involved,
among other things, conscious and systematic frame-ups of suspects the police simply wanted
to be convicted, among whom were quite a few who later on turned out to be innocent.

Neil Ferber (convicted for a murder in the same year as Officer Faulkner’s, 1981) was framed
by police officers but freed from death row 3 ½ years later. Raymond Carter was sentenced to
life in 1988 and freed by Common Pleas Court Judge Carolyn Temin on December 27, 1996
after the Philadelphia DAO withdrew the charges against him because Police Officer Thomas
Ryan was found to have concocted them.

So, even without going too deeply into the history of the PPD, the claim in CBA “that it would
have been extremely foolish […] for Mr. Chobert to have knowingly misdirected that investiga-
tion by providing the officers with false information” seems to testify to a remarkable kind of
historical amnesia.

27
But Robert Chobert is not the only core witness whose credibility is presented as being beyond
a reasonable doubt in CBA. According to defense claim no. III, a person by the name of Yvette
Williams met Cynthia White in prison in 1981 and White told her that she intended to falsely
claim that she saw Abu-Jamal murder Officer Faulkner because the police both gave her favors
and blackmailed her.
I am not interested here in the question whether this represents inadmissible hearsay as CBA
claims, concluding that no further look into Williams’ testimony is necessary. Rather, I’d like to
look into the statement that immediately follows this claim:

But even if it were proper to look at the other evidence introduced at trial, his argument
would fail. This is because a review of that evidence demonstrates the reliability of Ms.
White’s testimony that she saw defendant shoot the officer. Ms. White gave a detailed
description of the shooting within twenty minutes of its occurrence (N.T. 6/21/82,
4.164-4.165). (CBA, 56)

Four to five shots in a sequence.

On 12/12/81, White still says:
“Q. When he began to shoot,
did he fire all at once or were
the shots staggered? A. It sound
like all at once, it sounded like
firecrackers.”

Partial “review of the evidence”: “Twenty minutes” after the shooting, White denied any struggle
between Billy Cook and Faulkner though the police photos themselves (Billy Cook, left) show it
took place. The shooting is described thusly: “He fired the gun at the Police Officer four or five
times. Then the Police Officer fell to the ground. I started screaming.” It is only on December 17,
1981 that White has Abu-Jamal shoot Faulkner first in the back and then three times from the front.

The italics for “reliability” in the block quote above are not mine, but in the original. And it is
indeed true that White gave “a detailed description of the shooting within twenty minutes of its
occurrence,” but it is also true that this description was radically different from the description
she gave at Abu-Jamal’s trial, including such trifling details such as whether there had been a
fight between Officer Faulkner and Billy Cook or not, that is, whether there had even been any
serious reason for Abu-Jamal to violently attack the officer.
CBA then goes on to state that

28
 [H]er account was corroborated by the three other eyewitnesses who testified at trial. (Ibid.)

This is false for a number of reasons, and the most important ones of them are these: (a) Albert
Magilton never claimed to have seen the shooting, so there was nothing for him to “corrobo-
rate”; (b) Robert Chobert never claimed to have seen the beginning of the shooting, and there-
fore, there was nothing for him to corroborate in this regard; (c) Michael Scanlan placed Faulk-
ner in the street at the beginning of the shooting, while White placed him on the sidewalk, and
in his police statements and at Billy Cook’s trial, he said Faulkner was shot in the back between
the VW and the Ford parked before it. Only at the Abu-Jamal trial, he all of a sudden confirmed
White’s claim that this happened between the police car and the VW.
The corroboration of White’s account by “the three other witnesses” is thus not very impressive,
but even more importantly, the only REAL corroboration of her “testimony” by, not three, but
two “other eyewitnesses” concerns a part where her account is definitely FALSE: the part
where she claims that Abu-Jamal killed Officer Faulkner execution-style on the sidewalk.
With regard to Cynthia White and Robert Chobert, the only thing that there seems to be “over-
whelming evidence” for is that they both lied and were told by the police what to say. It is pain-
ful to think that a conviction substantially based on their testimony might be allowed to stand.

3. The Hospital Confession

Apart from the accounts of the alleged eyewitnesses, the second pillar of Abu-Jamal’s convic-
tion was the prosecution’s claim that he had confessed to the shooting of Officer Faulkner in the
most vulgar terms even when he was himself on the verge of dying because of the severe blood
loss he had suffered from the bullet Officer Faulkner had shot into his chest. This is supposed to
have happened as he was brought to the emergency room of Philadelphia’s Jefferson Hospital,
which is just two blocks away from where the shooting happened. Omitting embellishing detail,
here is CBA’s account of this episode:

The officers carrying defendant – he refused to walk – temporarily placed him on the
floor of the lobby next to the entrance to the emergency room. While lying there, defend-
ant boasted, “I shot the mother fucker and I hope the mother fucker dies.” A few moments
later, as the officers were about to carry him into the emergency room, defendant repeat-
ed, “Yeah, I shot the mother fucker and I hope the mother fucker dies.” Shortly thereafter,
Officer Faulkner was pronounced dead (N.T. 6/19/82, 176-200, 263-64; 6/21/82, 4.109;
6/24/82, 27-30, 33-34, 56-61, 112-16, 133-36).

The quotations N.T. 6/19/82, 176-200, 263-64; 6/21/82, 4.109 are essentially irrelevant here as
they refer to testimony by Officer Soboloski, Robert Chobert, and Cynthia White to the effect that
Abu-Jamal resisted the police officers who arrested him and took him to the hospital. The other
quotations concern the really important testimony by hospital security guard Priscilla Durham (the

29
first three on 6/24/92) and the former squad car partner of Officer Faulkner, P.O. Gary Bell (the
last two on that date), who were the ones to testify at the trial that Abu-Jamal had indeed shouted
the deeply incriminating words cited in the quote as he was brought into the hospital.
There is, however, a prelude to this alleged hospital confession that is rarely mentioned even
though it was instrumental in putting the murder charge against Abu-Jamal together and keep-
ing him in jail after his preliminary hearing in front of Philadelphia Municipal Court Judge Ed-
ward Mekel on January 8, 1982.
At this hearing, the highest police officer at the Abu-Jamal/Faulkner crime scene, Inspector Al-
fonzo Giordano, who was already mentioned above (p. 16) in connection to Robert Chobert was
the only witness against Abu-Jamal apart from none other than Cynthia White.12 As he had al-
ready done in his IIR on December 9, 1981, Giordano testified that Abu-Jamal had said, “I
dropped it beside the car after I shot him” (my emphasis). Not surprisingly, this was frontline
news in Philadelphia the next day.

Inspector Alfonzo Giordano was the first to report a confession by Abu-Jamal only two hours
after the shooting. He stuck to his story at Abu-Jamal’s preliminary hearing, in the PPD’s Inter-
nal Affairs police brutality investigation and right through to Abu-Jamal’s suppression hearing,
but then mysteriously disappeared from the case.

However, this first alleged confession by Abu-Jamal had a curious fate. While Cynthia White,
next to Robert Chobert and as one of only two witnesses who claimed they saw Abu-Jamal
“do it”, was a crucial plank in the prosecution’s case at the trial, the prosecution’s former star
witness Alfonzo Giordano didn’t testify at all during those 15 days and was in fact mentioned
only twice and in passing by defense attorney Anthony Jackson. What had happened?
Giordano’s original IIR statement on December 9, 1981 about the issue is quoted in the fol-
lowing. After “a white male from the crowd stated that he saw the shooting” of which the
context makes unmistakably clear that it was Robert Chobert, Giordano

asked him to step over to the rear of EPW 601. The wagon crew opened the back door,
the suspect was laying on his back on [the] floor, the white male immediately stated “That
is the man that shot the policeman.” At this point he stated that he was a cab driver and I

12
Joyce Gemperlein and Robert J. Rosenthal, “Abu-Jamal Shot Officer in Back, Witness Says,” Philadelphia
Inquirer, January 9, 1982.

30
 ordered Lieutenant O’Neill to have him sent directly to homicide. Upon looking at the
suspect I noticed a white strap going from his shoulder to his armpit. I asked the wagon
crew if the suspect had been searched and they state” “No,” at this point the suspect had
his hands handcuffed behind his back. I climbed into the wagon by myself and pulled his
coat back and I found a holster, empty, strapped under his left armpit. I asked the suspect
where the gun was and he did not respond the first time, I again asked him “Where is the
gun that goes into that holster?” and he stated to me “I dropped the gun into the street af-
ter I shot him.” I said “Where on the street?” and he said “Beside the car.”

After this, Giordano claims he asked Abu-Jamal “if he was hurt, and he did not respond.”

Imagining Chobert’s crime scene identification: The above are photos from the hospital and
the pretrial period; Chobert saw Abu-Jamal upside down and in dim light after having heard
the police had a suspect. Did you immediately recognize the third person?

The most notable feature about this alleged conversation is its sheer unlikelihood. Here we
have a man who supposedly was angered enough by a police traffic stop involving non-lethal
force against his brother to not only shot the policeman in question, but then to go on and kill
him execution-style – and the next thing he does is talk to another police officer in order to a)
confess to him that he did it, and b) to help him recover the gun.
Unfortunately for Giordano, who gave his December 9 IIR at 6:15 AM, at that point in time
the two police officers tasked with watching Abu-Jamal and, later on, taking him to Jefferson
Hospital, Stephen Trombetta and Gary Wakshul, hat already given theirs (6:00 AM and 5:50
AM, respectively). As far as the crucial issue, the alleged confession, is concerned, their de-
scriptions of the events are starkly different. Here is what Trombetta said:

I entered the van and searched the male with Insp. Giordano. I discovered an empty
shoulder holster, he was wearing it. The only other thing we found was personal I.D. I
asked him what he did with the gun and he said it was out on the street. (My italics.)

There is nothing about doing anything with the gun, let alone shooting anyone with it. Trom-
betta’s partner Gary Wakshul had the following to say:

31
 With the assistance of other officers at the scene, we carried this negro male [Abu-
Jamal] to the back of our EPW where I noticed the negro male had some type of white-
colored strap running across his shoulder area. I brought this to the attention to an In-
spector at the scene who proceeded, with my partner, [to] pull the male’s coat away
from his left arm, revealing a shoulder holster under his left arm. I noted that the holster
was empty. A wallet was also recovered from the negro male with a Philadelphia City
Press card bearing a muslim-type name which I could not make out.

This would mean throughout all of this, the backdoor of Trombetta’s and Wakshul’s EPW 601
was open and that the search for the content of the holster and the retrieval of Abu-Jamal’s I.D.
took place in the presence of all three officers. It is also clear that as far as Wakshul was con-
cerned, if Abu-Jamal said anything at all it was not remarkable enough to mention it.
In his IIR on February 2, 1982, which was the result of a police brutality complaint by Abu-
Jamal against the officers who arrested and then guarded him, a complaint about which I
will talk more later, Trombetta changed his previous account that Abu-Jamal had said that
the gun “was out on the street” into him saying that “I threw it out in the street” (my italics
both times), but still failed to mention any confession. In the same context, Gary Wakshul
was also reinterviewed by a police colleague on February 11, 1982, and here is what he said
about the situation at the crime scene:

Q: While on the scene, 1200 block Locust St., did you say anything to Abu-Jamal or did
he say anything to you? A. No.

One would think that if Wakshul heard Abu-Jamal say, not to him, but to Inspector Giordano
that he threw the gun in the street after he shot Officer Faulkner, this would be the place to
mention it, but the two lines above exhaust Wakshul’s testimony on the matter.
On March 10, 1982, Inspector Giordano was also interviewed about the police brutality com-
plaint and was asked the same question as Wakshul, “While on the scene in the 1200 Block of
Locust St., did you say anything to Jamal or did he say anything in your presence?”
Now he remembered that a “policeman had entered the wagon with me,” but said he thought
“he left prior to the defendant making a statement.” It was the same version of events he had
already given at the preliminary hearing before Judge Mekel on January 8, 1982 and at the
hearing before pretrial Judge Paul Ribner on January 11, 1982 (quoted in SH, June 1, 1982,
85-87). Of course, this went completely against the explicit words of Trombetta’s and the
clear gist of Wakshul’s December 9, 1981 statements which they never retracted.
From June 1 to 4, 1982, so-called Suppression Hearings (SH) were held to determine whether
there were any parts of the prosecution’s evidence against Abu-Jamal that should not be ad-
mitted at the trial because they were obtained illegally, e.g., through the threat or use of force
or without instructing the suspect of his right to be silent.

32
Abu-Jamal claimed both was the case with Inspector Giordano’s confession claim, arguing that
Giordano had beaten him with his walkie-talkie and had failed to give him the Miranda warn-
ings even though he was a suspect. I will not discuss this claim – which was rejected by trial
Judge Albert F. Sabo – here but will rather take a brief look at Giordano’s performance at the
SH, which I think is best described as disastrous from the standpoint of the prosecution.
Once again, Giordano claimed that there was an officer who entered EPW 601 together with
him, but insisted once more that that officer left the wagon before Abu-Jamal made his incrimi-
nating statement. In order to do so, he had to invert the sequence of his questions, and now he
said he asked Abu-Jamal whether he was hurt first and where the gun was only afterwards.
That is, he contradicted his own December 9, 1981 version of events, but he also did so in
another respect. During Giordano’s direct examination by prosecutor McGill, the two had the
following dialogue concerning Robert Chobert, the only witness who identified Abu-Jamal as
the shooter right at the scene:

Q. OK. And did he identify this defendant? A. Yes, he did. Q. All right. And, what did
he say? A. As soon as the doors opened up and he saw this gentleman, he said, “That’s
the man. He shot the policeman.” Q. Now, that was before you went in? Is that correct?
A. Yes. Q. OK. And, then, after he had said that, you went in, and then you noticed this
-- A. I went in because of the strap, because I couldn’t see the holster, and I wanted to
make sure he still didn’t have the gun on him. (SH, June 1, 1982, 71)

But then, under cross examination by Abu-Jamal, he adamantly denied that he considered Abu-
Jamal a suspect until his alleged confession. The dispute over this between Giordano and Abu-
Jamal stretches over a number of pages in the SH transcript, presumably because Giordano was
afraid that IF Abu-Jamal was a suspect RIGHT AWAY, the officer would have had to immedi-
ately give Abu-Jamal the Miranda warnings. Beneath the box are three illustrating excerpts:

Excerpts from Giordano’s Dec. 9, 1981 IIR clearly show that he did regard Abu-Jamal as a suspect.

Q. So, when you opened that door, I was a suspect, wasn’t I? A. You were the same as
any other individuals. Q. I didn’t ask you that. I was a suspect, wasn’t I? A. Well, see, I
have to explain a little more. (SH, June 1, 1982, 91)
A. At first I saw your head and your hairdo; from there I saw your strap. Q. Right. But,
I’m saying you were looking for a suspect, weren’t you? A. You were as much a suspect
as the other fifty-five people standing around that happened to be black, if you want to
say that, Mr. Jamal. Mr. Jamal, at that point, you were not a suspect, per se, in my mind.
(Ibid., 93)

33
 Q. You arrive at the scene, Lieutenant O’Neil makes a statement to you about a suspect in
the rear of EPW 601. A white male states to you he saw a black MOVE member run away.
You ask, “What do you mean MOVE member?” He says, “His hair”? A. Yes, sir. Q. OK.
You open the wagon. And what is the first thing you saw? A. You, lying upside down. […]
All I could see was the back of your head, or the top of your head. Q. All you could see was
hair? […] And at that moment, wasn’t I a suspect? A. Not in my mind, no. (Ibid., 94-95)

Given Giordano’s own statement on December 9, 1981, excerpts of which can be found on the
previous page, let alone mere common sense, show there was actually never anything to discuss
as it was clear from the start that Abu-Jamal had been, at this point, not just “a,” but THE suspect.
This episode alone shed a quite unfavorable light on Giordano’s truthfulness – and Stephen
Trombetta and Gary Wakshul, the witnesses whose testimony could be used to destroy
Giordano’s central claim about the confession, had not even testified because they were not
called at the Suppression Hearing.
It has often been speculated that prosecutor Joe McGill didn’t call Alfonzo Giordano as a wit-
ness at Abu-Jamal’s criminal trial from June 17 to July 3, 1982 because Giordano was a cor-
rupt cop and this could reflect badly on the prosecution’s case.
But that doesn’t seem to be the real reason. There is no doubt that Giordano was corrupt and
he was convicted for tax evasion in connection with this in 1986. Moreover, the fact that he
resigned from the force immediately after Abu-Jamal’s trial certainly looks suspicious.
But apparently, the details of the FBI probe into corruption in the Philadelphia Police Depart-
ment, a probe in which Giordano was eventually also caught, were not known even to Philadel-
phia’s police commissioner until September 30, 1982, that is, well after Abu-Jamal’s trial.13
There is, however, an easily detectable alternative explanation: The ground on which Giorda-
no’s confession claim stood was extremely shaky, and McGill knew it. A competent defense,
which Abu-Jamal never had, would have spared no effort to have Trombetta and Wakshul testi-
fy, if not right away, then at the latest at the trial, which could have dealt a heavy blow to the
whole prosecution’s case by destroying Giordano’s confession claim.
The second reason is that by the time of the trial, McGill did not need Giordano anymore. By
then, the prosecution had already another array of witnesses at its disposal who testified to yet
another confession by Abu-Jamal, this time at Jefferson Hospital where he was about to be
treated for his gunshot wound. Now, Gary Wakshul was suddenly also among those who
said he had heard Abu-Jamal confess, even though in his December 9, 1981 IIR, his very
last two sentences had been “We stayed with the male at Jefferson until we were relieved.
During this time, the negro male made no comment.”
In terms of credibility, the second confession story is, if anything, even worse than the first.
With a high-powered defense team and a courtroom enabling due process, it would have been

See Mark Bowden, “Cops on the Take,” in Road Work. Among Tyrants, Heroes, Rogues, and Beasts, Atlantic
13

Monthly Press, New York 2004, 440-41.

34
a defense lawyer’s dream because it showed all the signs of a deliberate frame-up – and a re-
markably clumsy one. This was the claim referred to in CDA (see p. 29 above), namely, that
Abu-Jamal had boasted twice “I shot the motherfucker, and I hope that the motherfucker dies”
while being brought into the emergency room of Jefferson Hospital.
It all began with a police brutality complaint Abu-Jamal filed at the beginning of January.14
The Internal Affairs Bureau of the PPD took it up and apparently acted on it with glacial pace.
The investigation included the questioning of the police officers involved in Abu-Jamal’s ar-
rest as well as security guards and medical personnel at Jefferson Hospital, by the files I have
been able to see altogether more than fifty people (and actually many more; see below).
The first of these are from January 28,
1982, more than three weeks after the
filing of the complaint. There seems to
have been a simple two-page standard
questionnaire for the hospital personnel
and security guards, with questions illus-
trated in the picture to the right which
were expected to be answered with brief
information such as name or function and
“yes” or “no” to the crucial questions, and
additional space at the end (p. 3ff.) if there
was anything significant to add.
Not unexpectedly, the brutality complaint went nowhere as all police officers adamantly de-
nied to have done anything untoward to Abu-Jamal and as one hospital employee after the
other answered the standard question “During any period of time while you were on duty at
the hospital, did you observe any police personnel offensively touch or physically abuse Wes-
ley Cook [i.e., Abu Jamal]?” with “No.”
The first hospital employee who had anything relevant to add on what had happened from
when Abu-Jamal was brought into the emergency to when he was treated by the attending
physician, Dr. Anthony Coletta, was hospital security guard James LeGrand on February 2,
1982. To the question whether “there is anything you wish to add to this interview,” he re-
sponded:

I heard 2 or 3 officers who were in the emergency ward say to the prisoner things like
mother fucker, if he dies you die. A lot of things said by the officer were said in anger. I
heard them call the patient “bitch,” “mother fucker” a couple of times. These remarks
were said to him by the doors, the ones that led from the waiting room to the emergency
ward but inside the emergency room. (IIR LeGrand, Feb. 2, 1982, 3)

14
See Stephen Brown, “Jamal Denies Killing Cop; Alleges Brutality,” Philadelphia Daily News, January 5, 1982.

35
But the crucial passage comes at the end of the LeGrand interview:

Q. Did the patient say anything to the officers? A. Not directly, but as he was walking
back to the treatment areas Cook yelled out “I shot the mother fucker and I hope he
dies” he said. This was in the hallway leading to the treatment rooms. (Ibid., 5)

LeGrand’s account is remarkable for two things: First, at the entrance of the emergency room
it is not Abu-Jamal, but a number of police officers who resort to obscenities and utter death
wishes, and second, Abu-Jamal’s own alleged outburst does not occur “by the doors,” where
the later witnesses, the security guard Priscilla Durham, and Police Officers Gary Wakshul
and Gary Bell would place it, but “in the hallway.” (As for Durham, she reported a second
outburst which she variously placed in the hallway and at the entrance.)
A third remarkable thing is that according to LeGrand, “maybe 30 to 35 people” were in the
emergency room – “it was confusing” (Ibid., 4). Yet only three of these people confirmed that
Abu-Jamal’s alleged obscenity was uttered anywhere at all, even though “the hallway leading
to the treatment rooms” was the best place to make a statement audible to everyone present.
The fourth remarkable thing given the fact that LeGrand was a security officer was that he
had never reported the incident to the police or the hospital authorities.

Q. What were the extent of my injuries? A.

Your major injury was a gunshot wound
to the right chest just below the right nip-
ple. You had injuries that I noted to the
head and neck region including swelling
of the right side of your neck and the right
chin, a laceration of the forehead, swelling
over your left eye, and a laceration of your
left lower lip. (Direct examination Dr.
Anthony Coletta, SH, June 4, 1982, 25)

From that point on, the PPD’s internal investigation into whether its officers had brutalized
Abu-Jamal began to yield more and more results confirming that no one had any harm to him,
but that he, in turn, had confessed to having snuffed out the life of Police Officer Faulkner.
The tables were effectively being turned.
The next person to testify to that effect was LeGrand’s colleague at Jefferson Hospital, Secu-
rity Guard Priscilla Durham. Of all the claims according to which Abu-Jamal made a “confes-
sion” in the hospital, this was perhaps the strangest, as we will see.
Durham reported basically the same statement as LeGrand, and in its evolution, her testimony
has an interesting relation to his. On February 9, 1982, fully two months after the events at
13th and Locust, Durham was the first person to confirm LeGrand in testifying that Abu-Jamal

36
had shouted: “I shot the motherfucker and I hope the motherfucker dies.” (IIR Durham, Feb-
ruary 2, 1982, 3)
The fact that in her version of the quote, it repeats “the motherfucker” instead of using the
pronoun “his” as in LeGrand’s version is hardly worthy of note, but in her first statement to
the police, different from LeGrand she was unspecific both as to where the incriminating
statement was made and whether it was made once or twice:

Q. How many times did he say that? A. He may have said it twice. He said a lot of
things, but when he said that he was by my feet. Q. What did the officer say in return.
A. If he dies, you die. Q. Did he say anything else? A. No. […] Q. Were you present the
entire time Cook was in the emergency room? A. Yes. (Ibid., 3, 4)

Then Durham’s testimony showed the same tendency to evolve as the one of so many other
witnesses in this case. All of a sudden, Abu-Jamal HAD said it twice, and the second time, he
did NOT utter it when he was at Durham’s feet, but when she

opened the door directly across from where Mr. Jamal was and opened the door, and,
then, led them through that way. Q. And was he, in fact, led through that way? A. Yes,
he was. Q. And while he was led through that particular area, did you hear him – Mr.
Jamal – say something else? A. Yes. He said the same thing that I heard him say before:
“I shot the mother-fucker, and I hope the mother-fucker dies.” (SH, June 1, 103-04)

At the Abu-Jamal trial, she once again indicated that he was “led,” (see above) i.e., walked, when

I opened the door and told the police officers which way to bring them [and] they were
still, you know, trying to control him [and he] again shouted “I shot the mother fucker
and I hope the mother fucker dies. (TT, June 24, 1982, 30)

The only other person who claimed to have heard Abu-Jamal make his alleged statement while
he was upright (in fact, “walking to the treatment rooms”) was James LeGrand – who mysteri-
ously all but disappeared from the scene and testified neither at the suppression hearing nor at
the trial, even though he was present as a potential witness for the prosecution. Towards the end
of Durham’s testimony, she had the following dialogue with prosecutor Joseph McGill:

Q. Was there any other security officer in that general area there? A. Yes. Q. Who? A. Of-
ficer James Legrand. Q. He is also a security officer? A. Yes, he is. Q. Do you see this indi-
vidual? A. Yes. Q. Can you identify this individual? A. Officer James Legrand. Q. Officer
James Legrand? A. Jefferson security officer. Q. Thank you very much. (Ibid., 124-25)

37
Joseph McGill would later during the trial (TT, July 1, 1982, 52) and at Abu-Jamal’s sentencing
hearing in front of Judge Sabo (TT, May 25, 1983, 144-48, specifically 145) complain that it had
been Sabo who had prevented him from putting LeGrand on the stand and Sabo confirmed this
(TT, July 1, 1982, 50), but the exact circumstances remain unclear. Be that as it may, LeGrand
(sometimes misspelled as LaGrand or Legrand) is mentioned nowhere else in the whole transcript.
Given Sabo’s pro-prosecution bias, one explanation for why he wouldn’t allow LeGrand to be
called on the stand could be that even though since the suppression hearing, Durham’s claim
of a second outburst by Abu-Jamal kind of matched LeGrand’s description of the single out-
burst he claimed to have heard, putting him on the stand was risky for the prosecution because
LeGrand had never reported the alleged confession to anyone until February 2, 1982, and then
only in the context of Abu-Jamal’s police brutality complaint.
In addition, there was no way of knowing whether, if LeGrand testified, the defense would try
to argue to the jury that it was hard to believe it was an accident that Durham’s testimony at
first contradicted LeGrand’s and later on when it really mattered, namely, at the suppression
hearing and at the trial, all of a sudden matched it.

In the context of Abu-Jamal’s police brutality complaint, security guard Priscilla Durham (82-02-
09) and Police Officers Gary Wakshul (82-02-11) and Gary Bell (82-02-25) all reported that Abu-
Jamal shouted a confession – “I shot the motherfucker and I hope the motherfucker dies!” – as he
lay on his back at the entrance to the emergency room (ER) of Jefferson Hospital. Security guard
James LeGrand (82-02-02) reported a confession elsewhere in the ER and as Abu-Jamal walked,
and Durham confirmed this with her later (suppression hearing and trial) reports of a second con-
fession. Additional confessions with different wording and in yet different places were reported
by Police Officer Thomas Bray (82-03-01) and security guard James Weiner (82-03-03). The
picture on the left is an official police sketch, showing how small the reception area was, the one
on the right showing a much larger area was drawn from memory by a person who was present.

Just as previously with LeGrand at the trial yet another thing suddenly fell into place. One fishy
aspect of Durham’s recollection of Abu-Jamal’s confession had been that she had reported it to the
police only on February 9, 1982, that is, a full two months after fact. 4 ½ months later, she took the

38
defense by surprise by claiming, for the first time, that she had spoken to her hospital superiors
already on the day after the shooting. This was at odds with everything that went on before.
In the police interview with Durham, apparently it didn’t even occur to the interviewing officer,
Sgt. Farkas, to ask why she hadn’t reported the alleged confession on her own. But while one
could argue that questions that aren’t asked also do not need to be answered, at the suppression
hearing on June 1, 1982, Abu-Jamal (who at that time was still representing himself) did try to
pursue the issue, and even though prosecutor McGill and Judge Sabo blocked him most of the
time, there arose at least two opportunities where one would expect a person who DID report
the incident in question to relevant authorities BEFORE the police interview to simply say so.
The first opportunity came right after Abu-Jamal began with his cross-examination:

By Mr. Jamal: Q. Did you tell anybody that you heard that? A. By “anybody,” are you
referring to the Police or co-workers? Q. I mean anybody. A. We talked about it, yes. Q.
Who are we? A. Me and several people in the hospital. Q. Who? Mr. McGill: Objec-
tion. That is a trial matter, going into that. […] The Court: The objection is well taken.
It’s sustained. (SH, June 1, 106, 107, emphases mine)

“Co-workers,” “we talked about it,” “me and several people in the hospital” – that doesn’t
sound very much like making a report to one’s superiors, does it? A little while later, after
Abu-Jamal had unsuccessfully tried to find out whether Durham had talked to other police or
conferred with McGill (followed by the usual “Objection” – “Sustained” from McGill and
Sabo), he came back to the general question of belatedness:

Q. According to this statement on the 9th of February at 11:13 a.m., you made a state-
ment to Sergeant Farkas. A. Yes. Q. Is that right? A. If that is the date that is on the pa-
per. I didn’t remember the date. Q. Q You waited two months before you talked to the
police about what you heard? A. I was out on medical relief. Q. Out on a medical re-
lief? A. Yes. Q. How long was your medical relief? A. Approximately maybe six weeks
or so. (Ibid., 114-15)

Once again, the most natural thing would have been to respond, “I talked to my hospital supe-
riors directly after the event and then I was out on medical relief.” It speaks volumes to the
credibility of Durham’s surprise claim at the trial that she did not do so.
On June 24, 1982, Anthony Jackson, who had been turned into Abu-Jamal’s trial lawyer both
against his own and his client’s will, once again tried to get Durham to explain why she had
not reported the alleged confession to the police for such a long time and asked her: “You
hadn’t initiated any effort to let them [the police] know that you heard that; I that right?” after
which it went like: “A. No. I had already given a statement. Q. To whom? A. Jefferson inves-
tigators. Q. When did you give that? A. The very next day.” (TT, June 24, 46-47)

39
This surprise revelation was followed by a sequence of events that looks like a grotesque cha-
rade. The thunderstruck Jackson immediately demanded to see a copy of the statement. One
man, however, had a readymade answer literally within seconds:

Mr. McGill: I would be – I’ve never seen one, Your Honor. It’s Jefferson Hospital ma-
terial. I would be very glad to have it brought over. (Ibid., 47, italics in original)

While Jackson continued to cross-examine Durham, Mc Gill sent “one of my detectives to go

over to Jefferson Hospital” (Ibid., 95), after an hour or so that detective returned with the
typed, but unsigned statement seen in the box below.

In an incredible blooper, Jackson almost immediately allowed this document to be made a

part of the trial record by asking Judge Sabo to mark it “as Defense Exhibit 14 now? Or 13?”
and thus took responsibility for its authenticity.
But it was exactly the authenticity of this piece of paper with which there was a very severe
prima facie problem: Durham denied having ever seen that document before:

Q. Earlier when I questioned you with regard to the statement that you perhaps gave to your
supervisor at Jefferson Hospital you indicated that you dictated a statement orally; is that cor-
rect? A. Yes. Q. Is that the statement? A. Yes. Q. As it was being dictated it was being typed
immediately onto a typewriter? A. No. Q. So that is not the statement then? A. No. Q. So
again we still don’t have the statement that you gave; is that correct? A. Not the handwritten
one. Q. And you signed the handwritten statement? A. No. I said I believe I may have signed
the statement. I didn’t say whether I had or not. I didn’t remember. (Ibid., 97-98)

40
In other words, the “statement” McGill had his detective bring to the court had no documen-
tary value at all because she hadn’t seen it before let alone signed it. To make matters even
worse, immediately after this she said about the “handwritten” statement:

Q. Did you review the statement after you gave it to see if it was accurate? A. No.15 Q.
So in other words, you don’t know what was written? A. No. Q. So anything that
would be brought in here you'd have no idea at all when it was written; is that correct?
A. I’d know if I said it. (Ibid., 98, my italics)

“I’d know if I said it” would then be the line Durham would pursue during her further cross-
examination by Anthony Jackson. But a second problem with the alleged December 10, 1982
document was that even that turned out to be untrue. Whereas the document said that when
Abu-Jamal was brought in Durham “noticed he was bleeding,” during her previous cross-
examination by Jackson she had said that she did NOT notice this (Ibid., 56), repeating what
she had already said at the suppression hearing (SH, June 1, 1982, 117).
The third problem with the document (as with the rest of Durham’s testimony in this regard)16
was that it claimed that Abu-Jamal had “shouted” his confession as he “was first brought in and
was lying on the floor,” but that only two other witnesses, Police officers Wakshul and Bell,
about which more in a moment, claimed to have heard it there, despite the fact that according to
Durham herself about “fifteen, twenty” police officers “trying to control their prisoner” were in
the immediate area when the statement was made (TT, June 24, 1982, 57). Even LeGrand said
that he heard the police officers shout obscenities “by the door,” not Abu-Jamal.
A fourth remarkable thing was that the first paragraph of Durham’s alleged report, which is
far longer than the second, seems completely superfluous in the context of a hospital guard
taking the extra trouble of going to her superiors and have them take down a report. Even the
second paragraph devoted only one sentence to the crucial event. Why would a guard tell her
superiors all these irrelevant things?
Except, one would think, if all this detail was to provide context for the crucial event, the al-
leged confession, because the whole report was meant to be turned over to the police as perti-
nent evidence in a potential criminal case. But this immediately leads to the fifth and biggest
problem with McGill’s alleged document.
With a great amount of good will, one could argue that Durham – even though she had been a
hospital guard for eight to nine years in June 1982 (TT, June 24, 1982, 35) and thus had a fair-
ly sophisticated understanding of the duties of her job – had simply passed the buck to Bar-
telle and Begley. But then the real question became:

15
Just about an hour before, Durham had said the opposite: “Q. […] Did you read the statement after giving it?
A. Yes.” (Ibid., 52)
16
During Durham’s direct examination, it was the second confession of which she said twice that it was “shout-
ed.” (TT, June 24, 1982, 30, 33)

41
 • Why did they, that is, not one, but two persons who were, moreover, unlike Durham in
managing positions, also fail to bring the “confession” to the attention of the police?
That they took Durham’s report and then decided to simply sit on it is even more difficult to
fathom than the scenario McGill asked people to believe before Durham had her last-minute
recollection that she had “already given a statement,” namely, that Durham hadn’t reported it
to the relevant authorities.
It is not too surprising that Abu-Jamal’s completely overwhelmed attorney Anthony Jackson
did not take the most natural step to solve this question, and with it, the whole confusion
about the handwritten and the typed versions of Durham’s report, which would have been to
call the two hospital investigators as new and unexpected witnesses to the stand.
Given the chaotic situation he was in, which already included the almost complete breakdown
of the relation with his client, it was understandable that he did not dare to do so because if
either Begley or Bartelle had confirmed the Durham account, that would have effectively
been the end of the trial then and there because then none of the jurors would have had reason
to doubt the confession story anymore.
But this entails an equally natural question, namely: Why did prosecutor McGill not proceed
to dissolve the confusion about Durham’s statements, put Bartelle and/or Begley on the stand,
have them confirm Durham’s account about the early report of the confession to her superiors
and thus drive a stake through the heart of Abu-Jamal’s defense once and for all?
The answer seems too obvious to spell out.


This was not yet the end of the series of post-Giordano Abu-Jamal confession stories. In the
course of the following three and a half weeks, three police officers, and yet another hospital
security guard would report confessions by Abu-Jamal, all in the context of the PPD Internal
Affairs Bureau’s investigation of Abu-Jamal’s police brutality complaint.
The first such report came from perhaps the most unlikely of all sources, namely, Gary
Wakshul, the officer who, together with his partner Stephen Trombetta, had been assigned to
watch Abu-Jamal and transport him to the hospital, who, like Trombetta, did not report hearing
Abu-Jamal’s “confession” to Giordano and who, in fact, had stated in his December 9, 1981 IIR
that during the time he was with Abu-Jamal, “the negro male made no comment.” (see p. 34)
On February 11, 1982, all of a sudden Wakshul remembered that Abu-Jamal HAD made a
comment: “I shot him. I hope the motherfucker dies.” This was allegedly “somewhat inside
the second set of electric doors which lead into the emergency room” (IIR Wakshul, February
11, 1982, 3), that is, where Durham situated Abu-Jamal’s first confession.
Of course, this invited the question about Wakshul’s first report where he had explicitly de-
nied that Abu-Jamal had said anything (and a second IIR from December 16, 1981, in which
he failed to mention any alleged statements by Abu-Jamal).

42
Coming from a trained police officer, the answer is very hard to take seriously: “At the time
[…] the statement disgusted me and I didn’t realize it had any importance until today.” (Ibid., 5)
Moreover, it shares a crucial problem with LeGrand’s and Durham’s depiction of the events.
Even though unlike them, Wakshul didn’t claim that Abu-Jamal shouted his statement, this is
offset by his very specific description of how Abu-Jamal was brought to the spot where he ut-
tered his death wish for Officer Faulkner:

[T]wo other officers who I do not recall came up from the area of the emergency entrance
and assisted us in carrying him aside. The other two officers as I recall lifted him by the
shoulders and my partner and I carried the legs. […] When we entered the hospital, we
placed him on the floor somewhat inside the second set of electric doors that lead into the
emergency room. […] After we placed him on the floor, I was standing back up. (Ibid., 2-3)

A team of four, Wakshul himself, two unnamed fellow officers, and Wakshul’s partner Trom-
betta, but though the very next sentence in his statement is

I did hear him say “I shot him. I hope the motherfucker dies,”

none of the other three men reported hearing anything! And Trombetta even specifically de-
nied hearing anything, and he did so twice, first in his IIR on December 9, 1981 and then in
his February 12, 1982 IIR in the context of the police brutality complaint. (See box below.)

From Trombetta’s IIR on December 9, 1981, 2.

From Trombetta’s IIR on February 12, 1982, 3

It is thus small wonder that Wakshul was not on prosecutor Joe McGill’s witness list. And in
the final stages of the trial, Judge Sabo demonstrated his blatant anti-defense bias when Abu-
Jamal tried to put Wakshul on the stand to demonstrate the disingenuousness of the prosecu-

43
tion’s confession claims. Given that he had been stripped of his right to defend himself, he
had to do it through Anthony Jackson, who duly asked the court to have Wakshul testify. The
following trialogue took place at the sidebar:

THE COURT: What is this officer that you want? What is he going to testify to? MR.
JACKSON: That he picked Mr. Jamal up at the scene. THE COURT: So? MR. JACK-
SON: During this time the negro male made no comment. He was with him the entire
time. MR. McGILL: He is not around. I am going to object to bringing this guy in. He is
not around. MR. JACKSON: That is what he says. MR. McGILL: I am not bringing
him in at the last minute. THE COURT: You knew about this before. I am not going to
hold up this trial. (TT, July 1, 1982, 33)

In the context, Sabo even resorted to outright fraud, twisting the actual statement Wakshul
had made in his December 9. 1982 statement. When Jackson said that “with regard to Officer
Wakshul we have a specific denial that he said anything,” the judge responded: “He didn't say
that. He said he didn’t hear it. What else could he have to testify to? He can't testify to what
somebody else may have heard.” (Ibid., 37-38) In this phase of the trial, prosecutor McGill
actually had not very much work to do.
This was only an hour or so before the guilt phase summations by the prosecution and the
defense which would be delivered after the noon break that very afternoon. Still before that
break, Abu-Jamal refused to testify, arguing

My answer is that I have been told from the duration of this trial, the beginning of the
trial, the inception of the trial, that I had a number of constitutional rights. Chiefly
among them the right to represent myself. The right to select a jury of my peers. The
right to face witnesses and examine them based on information they have given. Those
rights were taken from me. It seems the only right that this judge and the members of
the court want to confer is my right to take the stand, which is no right at all. I want all
of my rights, not some of them. (Ibid., 41)

Just minutes later, Jackson, who seemed already resigned to the fact that this case was unwin-
nable, stated: “The defense rests,” upon which an infuriated Abu-Jamal addressed the court:

THE DEFENDANT: The defense does not rest. There are two statements from Gary
Wakshul, police number 3763. I have informed this court appointed lawyer that you have
appointed to defend me of the existence of pertinent information. It was your decision that
he not be allowed to come in here and that he not be allowed to testify. (Ibid., 46)

This triggered the following bizarre dialogue between Judge Sabo and Abu-Jamal:

44
 THE COURT: That is not true. THE DEFENDANT: It is true. Whose decision was it,
Judge? THE COURT: The officer is on vacation. THE DEFENDANT: On here it says
no vacation. He was an officer who arrested me at the scene. It has pertinent infor-
mation that differs substantially from information that I was provided. (Ibid., 46-47)

At this point, the judge quite arbitrarily insisted that the witness was not available. Police Of-
ficer Wakshul ended up not testifying.

THE COURT: He is on vacation and will not return until July 8th or 9th. THE DEFEND-
ANT: Why would a policeman be on vacation if he is ordered not to be on vacation? THE
COURT: There is no order. THE DEFENDANT: It says no vacation. Judge. I am reading
this. THE COURT: It maybe there, but he is on vacation. THE DEFENDANT: This is an
investigative interview record from the Police Department. THE COURT: Your attorney
and you goofed. THE DEFENDANT: You goofed. (Ibid., 47-48)

Abu-Jamal’s 1995 PCRA hearings revealed that Police Officer Gary Wakshul was indeed
right there in Philadelphia when Abu-Jamal wanted him to testify on July 1, 1982.

Thirteen years later at Abu-Jamal’s first series of PCRA hearings, it turned out that in the es-
sence of the dispute about availability, Abu-Jamal had been right and Judge Sabo had been
wrong. There, Wakshul testified that he had indeed been on vacation from June 25 to July 8,
but that he had nevertheless been available as he had been ordered to stay in town for the du-
ration of the Abu-Jamal trial. (PCRA, August 1, 1995, 80-81)
It is rather unlikely that prosecutor McGill didn’t know this – if the order didn’t actually
come from his own office, that is – but he wisely chose to say nothing about the matter and let

45
the judge do the work for him.17 And while the same judge had no problem with allowing
McGill to send his detective to Jefferson Hospital to go fetch the alleged report of Abu-
Jamal’s confession to bring it in an hour later, he wouldn’t allow even a telephone call to
Gary Wakshul’s home address to see if he was there – as he would have been, as we now
know since 1995.
Wakshul’s testimony at Abu-Jamal’s 1995 PCRA hearings also gave some insight into how the
series of statements by police officers about Abu-Jamal’s “confessions” that on February 11,
1982, continued with Wakshul own claims about this may have come about.
On August 1, 1995, Wakshul had the following dialogue with defense attorney Dan Williams:

Q. Now let’s move along to your dealings with the prosecutor, if you did indeed have
any dealings with the prosecutor back in 1982, okay. Prior to trial, did you meet with
any persons from the District Attorney's Office? A. I believe either in January or Febru-
ary of '82, having a prep meeting with Mr. McGill in reference to this case. Q. What do
you mean by prep meeting? A. Umm, I believe he was the assigned prosecutor and he
was going over different facets of the case with a large group of parties. Police officers I
believe were the only ones, and detectives, who were present. (Ibid., 78)

The most interesting part comes almost directly after this:

Q. Did the subject of the confession come up in this meeting? A. I believe it did. Q.
This, again, was a discussion with all the police officers present in this round-table
meeting? A. Yes. I believe they were all there, whoever was at the meeting. Q. And was
there any inquiry directed at you personally about the troubling fact that you had not
mentioned the confession on December 9th or December 16th or thereafter until February
11th? A. No. Q. No? A. No, I believe what happened was Mr. McGill said did anybody
hear his statement. And I know I raised my hand but I don’t recall any further discus-
sion about it. (Ibid., 79)

Even though the record doesn’t allow to prove the idea, this account pretty much sounds as if
McGill had induced Gary Wakshul (and maybe the two additional officers who were to make
confession statements) to remember what McGill already called “his statement.”
But one does not have to rely on Wakshul’s often rather vague PCRA testimony to assess his
credibility with regard to the crucial point, the confession claim.

17
In fact, this is one of the few times at the trial where McGill mentioned James LeGrand: Faced with the possi-
bility that the judge might reverse himself and decide that Wakshul WAS available, he said: “We have Mr.
James LaGrand [sic] who is ready to come in and testify to what he heard, which was the exact same thing that
Priscilla Durham heard and Gary Bell. Your Honor ruled I am not permitted to bring him in,” upon which Abu-
Jamal retorted: “Bring him in and bring Gary Wakshul. You are trying to hide the truth.” (Ibid., 52) But the issue
was moot; Judge Sabo didn’t even respond to Abu-Jamal’s requests to bring in Gary Wakshul anymore. The trial
transcript has no information allowing to determine whether it was indeed Sabo who prevented LeGrand from
testifying, and if so, for what reason.

46
Wakshul’s belated explanation that he had stated that “the negro male made no comment” on
December 9, 1981 because he “didn’t realize it had any importance” until 64 days after the
fact is both incoherent (because either there was a comment, or there was none) and eminently
unbelievable – in fact, so unbelievable that prosecutor McGill, who should have welcomed
Wakshul’s newly found memory about the events at the hospital if it was genuine, did his
very best in trying to keep him off the stand.
The second police witness who rediscovered his memory about Abu-Jamal’s “motherfucker”
curse was Officer Daniel Faulkner’s former partner Gary Bell, who had “worked the wagon
with him for about a year up until a month and a half” before the December 9, 1981 incident.
(IIR Gary Bell, December 16, 1982, 2). In contrast to Gary Wakshul, McGill felt it was ap-
propriate to put him on the stand where he testified on June 14, 1982 immediately after
Priscilla Durham. Different from the police officers, Bell was not at the crime scene but went
immediately to Jefferson Hospital after hearing about the shooting on police radio because he
learnt that Officer Faulkner was already en route to Jefferson, and so he didn’t give a state-
ment on December 9.
The statement he did give and which is quoted in the previous paragraph says nothing at all
about what happened at the hospital.18 In the two and a half months between December 9,
1981, and February 25, 1982, there were apparently no other statement by Bell, but then, on
the latter date, he, too remembered Abu-Jamal having said the incriminating sentence:

When I looked at his face he looked around and then looked up and said “I shot the moth-
erfucker and I hope the mother fucker dies.” I’m almost positive those were his exact
words. Q. Did you say anything to Jamal after he said this? A. Yes, I said to him […] “he
shouldn’t die, you should be the one that dies.” (IIR Gary Bell, Feb. 25, 1982, 2)

As “officers you recall being at the hospital just after Jamal was brought in,” Bell identified
Lt. White, Trombetta, Wakshul, Kidwell, Burns, Tucker, and Hefter, adding that there were
more. The interviewing Officer, Sgt. Farkas, apparently didn’t think of asking Bell why he
had failed to provide the information about the confession before.
What Trombetta had to say, we have already seen above, and as for Officer John Hefter, on
February 18, 1982 he said in his IIR concerning Abu-Jamal’s police brutality complaint:

Q. Did you see Jamal brought into the hospital? A. Yes, I did. I was standing in the side
room watching them work on Pol. Faulkner and I just happened to look back and I saw
Officer Trombetta and Wakshul holding a negro male by the arms. I then turned back
and watched them working on Officer Faulkner again. […] Q. Did he say anything to

18
Rather, this 2 ½ page IIR involved an incident where, according to Bell, Faulkner had chased a suspected drug
dealer who Bell thought might have been involved in the December 9, 1981 event. Apparently, this lead never
went anywhere.

47
 you or did you hear him say anything to any other police officer either at the scene or
at the hospital? A. No. (IIR John Hefter, Feb. 18, 1982, 2, 3, my italics)

At the trial, asked about the Abu-Jamal confession by prosecutor McGill Bell repeated almost
verbatim what he had said in his Feb. 25, 1982 IIR (TT, June 24, 1982, 135-36). And he was
also asked why he waited for 80 days to report the alleged confession to his own department –
asked kind of.

Prosecution witness Gary Bell in 1996, Judge Albert F. Sabo in the 1980s. At the 1982 trial,
Sabo constantly blocked defense attorney Jackson’s attempts to cast doubt on Gary Bell’s
belated recollection of Abu-Jamal’s alleged hospital confession.

Kind of, but not really, both because Abu-Jamal’s attorney Anthony Jackson did a painfully
inadequate cross examination of this crucial witness and because his examination was perma-
nently interrupted by the judge and the prosecutor, to an extent where a mere word count would
show that these interruptions account for a very substantial fraction of the whole cross examina-
tion. At one point, Sabo knocked an attempt by Jackson back with the words “I don’t care. I
don’t care. I don’t care. I don’t care why the Internal Affair did it”19 (Ibid., 150), and briefly
before that, if the transcript is to be believed he didn’t even care to call Jackson “Mister”:

THE COURT: I know, Jackson, I know what you're trying to do and I've made my rul-
ing. That is not proper. (Ibid., 148)

In the midst of this degrading spectacle, Jackson did manage to bring out Bell’s rationale for
not reporting Abu-Jamal’s confession earlier: He was emotionally distraught. Or in his own
words:

At that time, it was a very, very emotional time for me – […] I watched my best friend
die in front of my own eyes. […] And the last thing I thought about was talking to any-
body. I wasn't even thinking clearly at the time. (Ibid., 156)

19
That is, interview Gary Bell at all; at this point, Jackson tried to show that had it not been for the police bru-
tality complaint and the following Internal Affairs investigation, Bell would still have said nothing about the
confession.

48
 I did not think it [the confession] was important enough [to report]. I wasn't thinking
clearly. I put it in the back of my mind at the time. (Ibid., 157, my italics)

Another reason Bell gave was that he had to take care of Officer Faulkner’s family, but at the
same time he denied knowing who the detective assigned to the Faulkner murder case was,
i.e., the obvious person to report the confession to, which in the eyes of a police officer would
probably one of the best means to help the family of the slain officer:

Q. And you obviously had an interest in Officer Faulkner and his family? A. Absolute-
ly. Q. And you knew who the assigned detective was? A. At that time no, I did not. Q.
Did you know before February 25, 1982 who the assigned detective was? A. No, I don’t
believe I did. Q. Did you ever make any efforts to find out? A. There was no reason for
me to find out who the assigned detective was. (Ibid., 155-56)

It all sounds very incoherent, as does his claim that he never talked about the confession with
“your brother officers, your wife, your girlfriend, uncle, brother, somebody, anybody.” (Ibid.,
169) Even so, that was the story Bell has stuck to ever since, which he repeated at Abu-
Jamal’s 1995 PCRA hearings and which he also defended in a number of public statements,
e.g., in John Edginton’s film A Case for Reasonable Doubt (1996).
Gary Bell’s February 25, 1982 recollection of an Abu-Jamal hospital confession was the
fourth belated report of this kind after LeGrand’s (57 days after the shooting), Durham’s (64
days), and Wakshul’s (66 days) – or the third, if one chooses to believe Durham. But this was
still not the end of it; two more “confessions” were trickling in even after that, though they
were different in the alleged content, time, and place from the preceding ones.
On March 1, 1982, 84 days after the shooting, Police Officer Thomas Bray made a statement
to the same Officer who had already taken down the statement by Police Officers Gary
Wakshul and Gary Bell, Sgt. Farkas (SH, June 1, 1982, 132).20 At the suppression hearing,
Bray testified immediately after Priscilla Durham. He was put on the stand by prosecutor
McGill:

Q. Now, did you have occasion to see this defendant, Mr. Jamal, in the hospital at some
time after he was brought in. A. Yes, sir, I did. Q. Where was it that you saw him in the
hospital? A. In a hospital treatment gurney or bed. (Ibid., 125-26)
Q. […] Officer, did you have occasion to hear any communication of this particular de-
fendant, anything said by this defendant? A. Yes, sir, I did. […] Q. […] What, if any-
thing did the defendant say to you, or say? A. He made a statement, “I’m glad. If you let
me go, I will kill all of you cops.” (Ibid., 126-27)

20
I don’t have Officer Bray’s IIR and am thus quoting from the transcript of the June 1 to 4, 1982 suppression
hearing.

49
From the context, it seems that this is meant to have taken place at the point when Abu-Jamal
was brought into the waiting room – also called “family room” – where people waiting for
treatment and/or their family were accommodated.21 Under cross-examination by Abu-Jamal,
Bray had the following to say:

Q. Can you repeat the quote you said I said? A. I said that you said, “I’m glad. If you let
me go, 1’ll kill all you cops.” […] A. You were – it was an outburst. You were saying it
out loud. Q. It was an outburst, but I wasn’t speaking to you? A. I didn’t take it [to be]
to me directly. I took it to anyone who was present. Q. And, who was present? A. Dif-
ferent people were milling about. (Ibid., 128-129, emphases mine)

Though Bray could not identify these people, he supposed they were “other policemen.” The
exchange between Abu-Jamal and Bray then acquired almost comical dimensions:

Q. Did you hand-cuff me? A. Yes, I did. Q. Were you the only policeman who hand-
cuffed me? A. I was the only policeman who hand-cuffed your right arm. Q. My right
arm? A. Yes, sir. Q. Was my left arm hand-cuffed as well? A. I believe so. I don’t re-
member. (Ibid., 129)

Over McGill’s objection, Abu-Jamal was also able to get the witness to admit that he didn’t
“tell any other policemen that night” about this additional confession. (Ibid., 130-31) Before
and after that (Ibid., 130-32, 138-39), McGill continuously objected to prevent Bray from
having to say just when exactly he remembered Abu-Jamal’s confession for the first time,
arguing that in the context of a suppression hearing Abu-Jamal was limited to trying to find
out whether the alleged confession had been extracted by illegal means, but it became clear
that at the actual trial where no such limits would apply to cross-examination, this witness
would be disastrous:
No one else had heard the confession in question, even though it was obvious that when it was
allegedly made another officer – the one who hand-cuffed Abu-Jamal’s left arm – was in ex-
actly the same position to hear Abu-Jamal’s “outburst,” and even though Bray himself admit-
ted that multiple other police officers “were milling about.” Add to this the fact that would
inevitably come out at the trial that Bray had taken a full 84 days to mention the confession
for the first time, you had a witness who would be easy to destroy even by Abu-Jamal’s un-
derpowered defense.
It is thus hardly surprising that his poor performance at the suppression hearing was the last
that was seen of Officer Thomas Bray as far as the Faulkner murder case was concerned.
Prosecutor McGill did not call him as a witness at the June/July 1982 Abu-Jamal trial.

21
Waiting/family room: TT, June 24, 1982, 67 (cross-examination Durham); took place there: SH, June 1, 1982,
128 (direct examination Bray): “Did the doctor later arrive? A Yes, he did.”

50
This brings us to the last voice at the time that claimed to have heard a confession from Abu-
Jamal, namely, hospital security guard Leonard Weiner.
From the standpoint of the prosecution, his testimony was even worse than Bray’s, the wit-
ness who had disappeared without a trace after the suppression hearing. He was one of the
first persons to be interviewed in connection with Abu-Jamal’s brutality complaint, namely,
on January 29, 1982, and on p. 3 of his IIR, the page that interviewer and interviewee could
use if the latter felt they had something to add, he had told Ltd. Farkas:

I saw the police take him out of the wagon, there was no more than 2 officers with him,
one on each arm. There was no noise or nothing. I had to leave the area. I was gone for
more than an hour. (IIR Leonard Weiner, January 29, 1982, 3)

Both this statement and what he added about what happened after his return were completely
unremarkable, and it is not even clear why this was taken down, but a good month later, on
March 3, Weiner was interviewed by someone else, namely, Police Officer Koscinski, and now
his report differed dramatically from his previous one. Now the officers bringing Abu-Jamal

[w]alked him past me towards the emergency room – Jamal had his head down and as
they passed me I heard Jamal say something like “I got me a cop.” – The officers walked
him into the emergency room. That was the last I seen him until 15 or 20 minutes later
[…]. Q. How close were you when you heard him remark, “I got me a cop”? A. About 4
feet. […] Q. Where were you at when this remark was said? A. Out in the courtyard next
to the doors to the emergency room. (IIR Leonard Weiner, March 3, 1982, 1-2)

He added that the only ones who could have also overheard the remark were the officers who
were carrying Abu-Jamal, i.e., Officers Wakshul and Trombetta.
But first of all, neither Trombetta nor Wakshul reported any such thing. Second, in his Febru-
ary 11, 1982 IIR, Wakshul had said that at this point, Abu-Jamal was already carried by four
people, not two, and these additional two officers also didn’t report any such remark. Third, in
his first IIR Weiner himself had said, “there was no noise or nothing.” Fourth, Weiner’s tes-
timony shared a crucial deficiency with all the other hospital confession reports: It was made
long after the event it alleged to have happened, in his case, a record 86 days.
So it is small wonder that different from the other ones it never even surfaced in public, but all
the same, it is significant, just as Bray’s is. Both Bray’s and Weiner’s claims are obvious lies.
The best explanation for these lies is that both felt this was a good means of currying favor
with the authorities. The fact that they, one a police officer and the other a hospital guard,
thought that it was not just possible, but potentially beneficial for them to tell transparent lies
in such a serious matter strongly points to a culture of lying in the PPD, a culture that project-
ed itself even into the realm of hospital security.

51
 Intermediate Comment
We can now return from the Jefferson Hospital waiting room and courtyard to the emergency
room itself and subject the “I shot the motherfucker, and I hope he/the motherfucker dies”
claim made by LeGrand, Durham, Wakshul, and Bell to a summarizing review. This is best
done in the form of a chart, which I believe will reveal the utter absurdity of the whole con-
fession story.

James LeGrand placed himself

Beginning of
treatment area I shot the mother-
fucker and I hope
he dies (2nd time)
„at the admission’s desk” dur-
ing MAJ confession No 2
This is probably the door
Durham said she opened

Direction of the Security guard Priscilla Durham first

waiting room said Abu-Jamal (MAJ) confessed
MAJ2 while at her feet, possibly twice.
At the suppression hearing (SH), she
said he DID confess twice, the sec-
PD2 ond time while he was upright and
led to the waiting room. This con-
firmed LeGrand’s version
JLG
At the trial, she also insisted on a
second confession, but again located
it at the entrance to the emergency
room. This contradicted LeGrand.

I shot the mother- It took P.O. Gary Bell 80 days

fucker and I hope to remember that the pre-
he dies (1st time) sumed murderer of his best
GB PD1 friend had confessed right
before him.

GW
ST

Two police officers helped carry

the prisoner but reported nothing
MAJ1

P.O. Gary Wakshul first

reports “no comment,” P.O. Stephen Trombetta testified
then a confession. P.O. P.O. twice to not hearing any confession

For the placement of the various actors and additional details, see footnote 22 of the text.

52
For the sake of convenience, we can divide the discussion of chart on p. 52 in two parts: con-
fession 1, and confession 2. As we will see immediately, even a brief look at confession 1 will
make an extended discussion of confession 2 superfluous.22
Confession 1 (within the dashed line) is already discredited by the presence of three police
officers who were closest to the scene and a) didn’t report any confession (the two anonymous
officers who aided Trombetta and Wakshul in carrying Abu-Jamal or explicitly denied both
on Dec. 9. 1981 and during the 1982 police brutality investigation that Abu-Jamal said any-
thing relevant (Trombetta).
Then there was the fourth officer, Wakshul, who had said on December 9, 1981, that “the
negro male made no comment.” The fifth officer, Gary Bell, presumably Officer Faulkner’s
best friend, for 80 days failed to remember and report that the person everyone thought was
the killer had confessed to the deed.
Security guard Priscilla Durham had, allegedly,
reported Abu-Jamal’s purported confession to
her superiors already on December 10, but then
allegedly forgot to mention this during her
cross-examination by Abu-Jamal at the sup-
pression hearing, in which the question when
and who she had reported the confession to was
a central topic.
In short, even if one restricts one’s focus to the
narrow area of the oval of the dashed line at the
bottom of p. 52, the hospital confession story
simply falls apart. But actually, the situation is
even worse.
The amount of detail in the chart on p. 52
should not be allowed to obscure an absolutely
central aspect of the whole story, namely, how small the whole area in which the one or two
confessions allegedly took place actually was. This is why I am reproducing the chart here
again, but in an unannotated form. The numbers on the chart represent feet, showing that

• the area in question was not much larger than an average living room
To this, we must add a second central fact, namely, that

• the area in question was also teeming with people when the man just being brought in-
to the area supposedly “yelled” (Durham” or “said [it] very loud[ly]” (Bell) “I shot the
motherfucker and I hope he dies.”

22
The chart is pieced together from the sources mentioned in the text; the information on the general ER area
beyond the part depicted on the police drawing comes from the drawing of a witness reproduced on p. 38 above.

53
Nurses and other personnel were all around in that small area. A fairly large number of police
officers was there.
Durham herself estimated the number of police officers at “fifteen, twenty” (TT, June 24,
1982, 57), which leaves at least ten even if one subtracts the five officers within the dashed
line in the chart on p. 52. When LeGrand was asked on February 2, 1982 “[h]ow many people
were in the emergence ward at that time?” his response was “[m]aybe 30 to 35 people, it was
confusion.”
All the employees of the hospital – nurses, doctors, security guards – who were in the emer-
gency room during the shift from midnight to 8 AM and all the police officers who were at or
in the emergency room that morning were questioned in the course of the police brutality in-
vestigation of the Internal Affairs Bureau of the PPD, resulting in about “one hundred fifty
interviews” (prosecutor McGill in ibid., 172) more than sixty of which I could inspect, and
apart from the people discussed at length above, not a single one heard Abu-Jamal shout or
yell or very loudly say the motherfucker sentence when he was brought into the emergency
room, a point where everyone’s attention would have been focused almost laser-like on him.
This alone clearly clinches the case against the first “motherfucker” confession. It never hap-
pened. If one adds the fact that three of the witnesses closest to Abu-Jamal at the time heard
nothing and that it took the three witnesses Durham, Wakshul, and Bell a combined 210 days,
that is, well over a half year, to remember the event, the claim that the confession did happen
becomes patently absurd.

In various interviews, Dr. Anthony Coletta has indicated that Abu-Jamal was not even in a
condition to yell or shout as his lungs were filled with blood from massive interior bleeding.

What about the second confession? In this case, there were even fewer people who claimed to
have heard it, namely, James LeGrand and Priscilla Durham. According to LeGrand, it would
have been made, or more specifically, “yelled,” right next to the reception desk as Abu-Jamal
was “in the hallway leading to the treatment rooms,” except that he was then not walked fur-
ther on to these rooms but to the left, to the waiting – or “family” – room.
Here, Abu-Jamal would have been right in the center of things and all those present in the part of
the emergency room showed on p. 52 and 53 would have essentially served as his gallery for such
an outburst; there was no better place for guaranteeing that one’s statement was heard by everyone.

54
It would have even been heard by Dr. Anthony Coletta who was occupied with the hopeless
task of resuscitating Officer Faulkner just a few yards away with the treatment rooms “sec-
tioned off by curtains” only (SH, testimony by Dr. Regina Cudemo examined by Abu-Jamal,
June 4, 1982, 15). And yet in the course of the years, Dr. Coletta has always been adamant
that he never heard Abu-Jamal make a confession or say anything similar, let alone shout it.
While it is not clear that he would have heard the first confession allegedly shouted at the en-
trance to the emergency room because the treatment room where he was is a sizable number
of yards away from the entrance, this is certainly not true of the second confession as de-
scribed by LeGrand.
In the films A Case for Reasonable Doubt (1996) and In Prison My Whole Life (2007), Dr.
Coletta also indicates that, because of the life-endangering loss of blood Abu-Jamal had suf-
fered by then, he would hardly have been able to shout or yell anything.
And of course, James LeGrand had also waited for 57 days to report the confession to the
police, a fact that he was apparently never asked to explain, and he did so only because he
was interviewed by the police in the context of the brutality investigation, not because he vol-
unteered to report his alleged observation.
The only witness who supported LeGrand’s confession claim was Priscilla Durham – kind of,
one must, however, say. As we saw above, at the suppression hearing her description had be-
come compatible with LeGrand’s; instead of placing the second confession at the entrance
“by my feet,” as she had done in her first statement (in which she wasn’t even sure whether
Abu-Jamal did make the confession twice), she now placed it in a situation in which Abu-
Jamal was being walked through the hall (see p. 37 above).
In Durham’s trial account, all of a sudden she appeared to revert to placing Abu-Jamal at the
entrance when the second statement was made – only that this time, he was not “by my feet”
because she had gone to open the door that led to the family/waiting room:

BY MR. JACKSON: Q. Now again, Miss Durham, you were across [at] that doorway
that you opened up, is that right? A. Yes. Q. Fine. And where was Mr. Jamal? A. He
was still at the double doors. Q Still on the floor? A. Yes. (TT, June 24, 1982, 66)

This would again turn LeGrand into the only witness who heard Abu-Jamal holler his obscen-
ity as he was led away to the waiting room23 – alone among “30 to 35 people,” all of whom
heard nothing.
In the end, it doesn’t matter just how and to what extent Durham’s version can be reconciled
with his, as we are talking about bogus statements either way.

23
The one thing one could say in favor of Durham’s new/old version is that it is at least not in contradiction to
Gary Wakshul’s and Gary Ball’s testimony. In their respective IIR’s in which they mention the confession for
the first time, both said that they left the room in distress immediately after they hear Abu-Jamal utter his curse.

55
Finally, it should also be noted that Abu-Jamal, who has so far, for reasons sketched in a
quote of his on p. 44 above, rarely said much about what happened during the shootout that
led to the death of Officer Faulkner and almost to his own death, has always very explicitly
insisted on two things, namely, that he was brutally beaten by the police both at the scene and
in the hospital, and second, that there was never ever a confession on his part.
Summarizing this lengthy discussion, six conclusions clearly emerge:

• Security guard James LeGrand’s confession claim, first made 57 days after the fact,
was a lie.

• Security guard Priscilla Durham also lied when she claimed, 64 days after the event,
that Abu-Jamal had confessed. Her belated claim on the seventh day of the trial, June
24, 1982, that she had already reported the confession(s) to her hospital superiors was
another transparent lie.

• Police Officer Gary Wakshul obviously lied when he, 66 days after Officer Faulkner’s
death, claimed he heard Abu-Jamal confess. He told the truth in his first IIR after the
shooting when he said that “the negro male made no comment.”

• Police Officer Gary Bell’s claim, made for the first time 80 days after the death of his
friend, Officer Faulkner, to have overheard a confession by Abu-Jamal was yet anoth-
er lie, a lie he continued to tell at the suppression hearing and the trial.

• Police Officer Thomas Bray also told a lie when he, 86 days after the December 9,
1981 events claimed that Abu-Jamal had said “I’m glad. If you let me go, I will kill all
of you cops,” – a lie that he repeated at the suppression hearing.

• And finally, security guard Leonard Weiner lied in a way quite similar to Gary
Wakshul when he replaced his original statement that he heard nothing with his claim,
88 days after the shooting that Abu-Jamal had said “I got me a cop.”
There is no need to explain why these six people waited on average 73,5 days to report a
shocking event that should have jolted each of them into immediate action.
Rather, the shoe is on the other foot. There was never any confession to a crime; rather, six peo-
ple each committed the crime, some of them multiply so, of fabricating a confession that was
likely to send the man in question to his death. What is thus in need of explanation is what in-
duced three security guards and the police officers lie in the most brazen and absurd fashion.
For the most part, I can only speculate here, but the first fact to note is that all of these accu-
sations came about in the context of the brutality complaint Abu-Jamal’s lawyer Anthony
Jackson filed against the PPD in January 1982. This investigation was carried out by the
PPD’s Internal Affairs Bureau under the over all supervision of the DAO, in this case, the
assistant district attorney (ADA) responsible for the Faulkner case, Joseph McGill.
The results were revealing: Six false confession claims, not a single one came from nurses,
doctors, or any other hospital employees apart from three security guards – but only sparse

56
evidence for any mistreatment of Abu-Jamal. Should we then conclude that no such abuse
took place and that ADA McGill’s complaint at the trial that “one hundred fifty interviews”
had to be carried out with “no substantiated claims” just for the purpose of “getting some
sympathy for the defendant” (TT, June 24, 1982, 171, 172) was justified?
Trying to solve this question is not part of this essay, but the answer has to be: Not necessari-
ly. If the brutality happened (which I firmly believe and which I will treat separately else-
where), the terror this brutality was designed to induce would also induce fear of the police in
all bystanders. It is my thesis that this fear was sufficient to prevent most interviewed hospital
employees from testifying against the police; on the other hand, with the exception of the
three security guards, as with most human beings their ethical compass was too strong to al-
low them to invent a confession when there was none.
They would thus also not testify for the police in the desired manner.
Be that as it may, the fact that, starting on day 57 after the shooting and on day 6 after the
beginning of the Internal Affairs brutality investigation, three hospital guards and three police
officers testified to a confession and that two guards and two officers reported the same, i.e.,
the “motherfucker”-confession strongly suggests some coordination, maybe, inter alia, at the
“prep meeting” mentioned by Officer Gary Wakshul in his 1995 PCRA testimony already
quoted on p. 46.24
More importantly, ADA McGill must have known that the hospital confession story was
just preposterous.
Until after the June 1982 suppression hearing, that is, before Durham had her epiphany
about her December 10, 1981 report to Bartelle and Begley, he had six witnesses, three po-
lice officers, but ALL security personnel, who hadn’t reported the confessions they claimed
to have heard. The statistical odds against this scenario were, and are, simply astronomical.
It was thus small wonder that for the purpose of the trial itself, McGill kicked three of the
six (Wakshul, Bray and Weiner) out, kept one (LeGrand) at his immediate disposal at the
trial and put only two (Durham and Bell) on the stand. Even so, these two witnesses had
between them 144 days in which they neglected to report the confession, a scenario against
the odds were perhaps not astronomical, but still very large.
This is where the sudden recollection on the part of Durham about her early report comes in. On
closer inspection, the credibility of this story collapses immediately. It is just unthinkable that
McGill did not also have additional prep meetings with Durham and Bell before putting them
on the stand. Therefore, it is equally unthinkable that he would not have known before the trial
that she had reported the confession already in December – if indeed she had made that report.
He would not have had to come up with an unsigned slip of paper instead of a handwritten
report, and even more crucially, he would have produced Bartelle and Begley as witnesses.
24
Though Wakshul said he believed only police officers and detectives – i.e., no security guards – were present
at that meeting, this could well be due to memory loss as he prefixed many of his remarks in this passage with “I
believe.”

57
This was a publicity stunt Durham had no possibility at all of pulling off by herself, and it is
thus clear where the responsibility for it lies.
What happened in this case is a combination of irresponsible herd mentality on the part of
police officers and security personnel on the one and an unscrupulous practice of pulling all
the stops when it comes to achieving a conviction on the part of the prosecution on the other
hand. For the larger phenomenon – police and security officers lying on the stand (and the
prosecution condoning, or even organizing, the lies) –, there is by now a name that has made
its way into the papers and the urban dictionary.
It is called “testilying.”25
Former defense attorney Larry Krasner and former judge Carolyn Engel Temin should know a
thing or two about the fabricated testimony of police officers and the ways in which unscrupu-
lous prosecutors have used and continue to use it. It is disheartening to see how they and the
other three officers of the law who submitted CDA seem to have forgotten all about it when it
comes to the Abu-Jamal “confession” to the murder of Officer Faulkner.

4. Abu-Jamal’s Gun
The final point to be discussed here is the presence of Abu-Jamal’s gun at the scene, which the
prosecution has always taken to be further proof of his guilt. CDA, too claims that Abu-Jamal
first shot Officer Faulkner, using up all the bullets he had in his revolver, and that he later on,
when Officer Faulkner’s fellow officers arrived at the scene, reached for his gun which made it
necessary for one of the officers to kick him. (CDA, 4-5) Later on, it says:

Officer James Forbes testified that he was one of the two officers who first arrived at the
shooting scene and that he recovered two handguns: the gun that defendant had been
reaching for, a five-shot Charter Arms .38 caliber revolver with a two-inch barrel; and,
from the street, a standard police-issue six-shot Smith and Wesson .38 caliber Police
Special revolver with a six-inch barrel. […] The Charter Arms gun contained five car-
tridges, all of which had been fired (N.T. 6/19/82, 152-54, 162-63, 175-76; 6/23/82,
6.18-6.23, 6.90-6.100).

These quotes refer to the trial testimony of Officer Forbes (TT, June 19, 1982), the testimony of
Officer Zenak who verified the identity of Officer Faulkner’s gun (TT, June 23, 1982, 18-23)
and the ballistic expert of the prosecution, Anthony Paul (Ibid., 90-100).
The document then goes on to say:

25
https://www.urbandictionary.com/define.php?term=testilying: “testilying: The act of fabricating evidence and
testifying falsely in court, esp. when performed by an officer of the law. Coined by the Mollen Commission
(1994).” For an account of testilying in Philadelphia, see Emily Lounsberry and Michaelle Bond, “Testilying.
Swearing to Tell a Lie,” Philadelphia Inquirer, April 2, 2017.

58
 The trial evidence established that defendant had purchased the Charter Arms gun on June
27, 1979, and that it was registered to him. All of defendant’s ammunition was of the
“plus P” high-velocity type: four Federal .38 caliber “+P” and one Smith and Wesson .38
caliber “+P.” The manager of the sporting goods store where defendant bought the gun
explained that the “+P” is known in the gun trade as a “devastating bullet” because
“[w]hen it hits the target, it just almost explodes” (N.T. 6/21/82, 4.32-4.59).

Before we go on, two observations are in order.

In 1980, the percentage of households owning one or more firearms was 45%26 and “50.3% of
men […] reported personal firearm ownership.”27 When Abu-Jamal bought his own gun, he was
thus one of these 50 percent of all adult males in the U.S. possessing a firearm. A substantial
fraction of them carried their guns with them either at all times or under the one or the other
circumstance. In December 1981, Abu-Jamal was working as a cab driver in a dangerous area.
The fact that he, too, had his gun with him would thus prima facie seem quite unremarkable.
The second observation is even more important. The prosecution has always portrayed the pres-
ence of cartridges of “plus P” high velocity type ammunition in Abu-Jamal’s gun as proof of
particularly vicious intentions on his part when he loaded that ammunition. It has also rarely
failed to point to the fact that Officer Faulkner and the officers of the PPD did not have plus P
ammunition at their disposal in 1981.
But the conclusion that Abu-Jamal displayed particularly violent inclinations by buying this kind
of ammunition is hardly warranted. For one thing, in its generality the claim skillfully elicited by
prosecutor Joseph McGill from the trader who sold Abu-Jamal the Charter Arms revolver in
1979, a certain Joseph Kohn, that plus P ammunition was known in the trade as “devastating”
because when “it hits a target, it almost explodes” (TT, June 21, 1982, 56) simply makes no sense.

Left: McGill in the court-

room

Right: No trace of the

three bullets that missed

McGill in the 1996 film A Case for Reasonable Doubt: “Jamal took both hands and held the
weapon […] and fired four times.” No one ever testified Abu-Jamal used both hands, and it is
doubtful whether McGill ever had any interest in what might have become of the bullets.

26
https://www.statista.com/statistics/249740/percentage-of-households-in-the-united-states-owning-a-firearm/.
27
Tom W. Smith and Jaesok Son, Trends in Gun Ownership in the United States, 1972-2014, March 2015,
https://www.norc.org/PDFs/GSS%20Reports/GSS_Trends%20in%20Gun%20Ownership_US_1972-2014.pdf.

59
The reason for this is that whether plus P ammunition is “devastating” and “almost explodes” in
a target substantially depends on the weapon in which it is used. In a case such as this, where
the shots that hit Officer Faulkner and Abu-Jamal were both fired from a very short distance,
the crucial variable is the “muzzle velocity” (MV), that is, the velocity with which the bullet
leaves the barrel. And mv in turn very much depends on two other variables: first, the one al-
ready mentioned, the explosive power generated either by normal munition or the greater power
generated by plus P, and second, the length of the barrel because the latter determines the
amount of time the explosive power of the cartridge can be exerted on the bullet to accelerate it.
To determine this, prosecutor McGill put the Supervisor of the Firearms Identification Unit of
the PPD, Anthony Paul, on the stand two days after Kohn. When asked to talk about the plus P
ammunition, Paul at first makes a crucial observation which McGill then does his very best to
eradicate in the minds of the jurors with his further questions:

[…] So that when this ammunition was discharged in the firearm it would create approx-
imately 21,000 pounds of pressure in the chamber driving the projectile forward with
greater force. And the City issued ammunition would discharge at approximately 16,000
pounds of pressure driving that projectile forward through the barrel with less force. Now
all of that is offset because the Plus P ammunition was placed in a revolver with a shorter
barrel, which means that all of that gun powder that was in that cartridge did not have that
much time to burn. So some of the gun powder was wasted. (TT, June 23, 1982, 97-98)

The crucial passage is the one I highlighted, “all of this is offset.” It was certainly not an acci-
dent that it was exactly at this point that McGill said: “Now Mr. Paul, if I could interrupt you
there,” only in order to steer the expert to a discussion of Abu-Jamal’s gun alone:

Q. -- what would the effect be in terms of velocity and impact? A. Okay. Instead of going
700 feet a second from the muzzle of the 2-inch barrel with standard velocity and ammu-
nition, if you use Plus P ammunition you would gain about 200 to 300 feet a second so
that it would move approximately 900 feet a second because it does have that greater
power. (Ibid., 99-100)

All he then asked about Faulkner’s gun was this:

Q. All right. By the way, there was no Plus Ps in the police officer’s weapon, were there?
A. No. It was all City issued ammunition. (Ibid., 100)

Later on in his summation, McGill then proceeded to use the “devastating” plus P ammunition
theme to truly devastating effect during the guilt phase of the trial:

60
 I ask you to consider in terms of intent to kill first, which is what we see without question
in a first-degree murder verdict. All you are concerned about is guilt at this time. You are
not concerned about any kind of penalty, just guilt.
The reason why we suggest to you that first degree murder is compelling is because of the
nature of the weapon. The bullets that are in that particular weapon were bullets to destroy.
Remember Mr. Kohn? “Devastating” was the word. Highly powered. Paul used the word
“devastating” [he did not, nor did Hoyer] and indeed they were. The medical examiner,
Doctor Hoyer. The same damage which is consistent with the Plus P bullet. You may not
often see that type of damage done to the head because of the fragments, the different type
of fractures. That is consistent with that type of high velocity. (TT, July 1, 1982, 168-69)

The fact that Abu-Jamal had a two-inch barrel revolver and Officer Faulkner had a four-inch
barrel revolver had completely disappeared; all that remained was the plus P factor. In fact, eve-
rything about Officer Faulkner’s gun had disappeared, especially the velocity of the bullets it
fired. In addition, the prosecution’s firearms specialist Anthony Paul brought in some highly
questionable data.
The difference between the pressure “simple” 38 Cal. Special ammunition and plus P is general-
ly given as 17,500 pounds and 20,000 pounds, respectively, not 16,000 and 21,000 – a differ-
ence of about 15 percent, not 31,25.28

Left: Abu-Jamal’s .38 cal. 1382 Charter Arms snub revolver

and right: Daniel Faulkner’s .38 cal. Smith & Wesson Model 10; top mid: the flattened bullet that
hit Officer Faulkner in the head; bottom mid: the mushroomed bullet that wounded Abu-Jamal.

But even more importantly, simple physics (kinetic energy = ½ mass * velocity to the power
of two) tells us that this additional pressure percentage cannot just be added to the original
velocity, that is, MV1 (700 feet/second) * 1,3125 = MV2 (918,75 ft/s). (One might also note
that in Paul’s calculation, plus P has the magic power to increase MV2 to a higher degree than
the increase of the pressure itself; 1,000 ft/s (700 + 300, see above) are almost 43% more than
the original velocity, all due to plus P!)
If one accepts Paul’s claim about the 5,000 pound difference in pressure between Abu-Jamal’s
ammunition and Faulkner’s, ignoring all complicating factors impossible to discuss here the 700
ft/s velocity of Abu-Jamal’s non-plus-P loaded Charter Arms (which per my correspondence with
Charter Arms 16 years ago seems to be correct) would have to be multiplied, not by 1,3125, but
by its square root, yielding something like 1,146, with a result of, not about 920 ft/s, but 800 ft/s.
28
Wikipedia, “.38 Special,” https://en.wikipedia.org/wiki/.38_Special, last edited on 25 April 2021, at 21:20
(UTC).

61
And here comes the crunch: Most data for the muzzle velocity of Officer Faulkner’s Smith &
Wesson Model 10 revolver firing the relevant bullet (158 grain) from a .38 Cal Special cartridge
give a considerably higher speed than that; in fact, the most conservative estimate I could find
was 850 ft/s (see Military Review, Vol 48, December 1968, 39).
“That type of high velocity,” indeed. All else equal, the devastation “high velocity bullets” are
supposed to produce is generally attributed to the mushrooming effect the speed with which
they enter the target produces in them, causing them to destroy the tissue around them. As the
bullet that hit Faulkner in the head was flattened because it entered through the bone beneath his
left eye, it could not mushroom, and the bullet that hit him in the head and exited through the
front of his neck evidently did not mushroom enough to get stuck. The only mushroomed bullet
that was found on December 9, 1981 was the one near Abu-Jamal’s spine, from Officer Faulk-
ner’s Smith & Wessen service revolver. (Anthony Paul, TT, June 23, 1982, 101)
Regardless of whether Abu-Jamal shot and killed Daniel Faulkner, it seems that the Officer had
definitely more firepower than he.
But did Abu-Jamal do it? In the previous sections, I have tried to show how the most important
evidence for this – the eyewitness and earwitness testimony – completely collapses on inspec-
tion. Without it, the mere presence of Abu-Jamal’s gun at the scene (and the empty cartridges in
it) is not very telling, and the prosecution’s attempts at the trial to link the deadly bullet in Of-
ficer Faulkner’s head were also quite underwhelming, as we will see.
A more detailed discussion of how Abu-Jamal’s gun was recovered and evidence was collected
further undermines the prosecution’s scenario of the events.
One crucial detail in this latter scenario was that Abu-Jamal’s gun was allegedly not in its hol-
ster when Daniel Faulkner’s fellow officers arrived at the scene. So why would it be out if not
to use it to shoot? But this claim hinges on the claims of just two policemen, Officers Robert
Shoemaker and James Forbes, the first two officers who made it to 1234 Locust. Their account
of how Abu-Jamal’s gun was found and secured is confirmed by no one else.
At Abu-Jamal’s trial, Officer Shoemaker would claim that he approached Abu-Jamal by exiting
from the driver’s seat of stakeout wagon S 105 which he was operating with Forbes and which
he had stopped, driving in Western direction, alongside Billy Cook’s VW and the Ford parked
in front of it. Running towards the sidewalk where he already knew from his partner Forbes that
Faulkner lay, he then claimed to have noticed Abu-Jamal sitting on the curb with his feet in the
street and reaching for a gun to his left. For that reason, Shoemaker said he kicked Abu-Jamal in
the face to prevent him from getting the gun.

As the male fell backwards, he yelled twice, “I’m shot, I’m shot.” Still, with my revolver
trained on him, I stepped over on top of the male and I kicked the revolver with my right
foot away from him to the right. At this point I yelled to my partner to watch this male.
(TT, June 19, 1982, 116-17)

62
As for the gun, he said he just “gave it a little shove” – it “traveled maybe six inches, a foot,
just out of his immediate reach.” (Ibid., 145). After this, Shoemaker claimed to have attended
to the dying Officer Faulkner (Ibid., 146), and at the trial, he never said anything about what
happened to Abu-Jamal’s gun – nor, for that matter, Faulkner’s, because he said he didn’t see
any other gun. (Ibid., 145)

This is the space between the cars through which Officer Shoemaker would have approached
the scene, with Officer Forbes (whose face is at the top left of the picture) coming directly be-
hind him. The three little chalk marks on the sidewalk indicate the alleged positions of the guns.

In his IIR immediately after the shooting, however, he did remember the purported fact that Officer
Forbes had picked up Officer Faulkner’s gun together with Abu-Jamal’s. (IIR Shoemaker, Dec. 9. 1982,
2) With some minor discrepancies, this was also the story Officer Forbes told at the trial:

[W]e proceeded to 13th and Locust where we saw the Police car with the dome lights on.
When we stopped, I got out of the wagon and I was proceeding around the front of the
wagon, I got about halfway in the middle of the grill and I looked over and I saw Danny,
Officer Faulkner, laying on the sidewalk in a pool of blood, bleeding heavily from his
head. So I ran back inside the wagon and I notified radio that a Policeman had been shot.
Q. When you ran back, where was your partner when that was happening? A. He had got-
ten out of the driver’s side and he proceeded right over to Officer Faulkner. (Ibid., 151)

Thus, Forbes was the first to get out of the car; he ran around the rear of the VW and on to the
sidewalk, discovered the dying officer, ran back to radio this, and followed his partner.

63
But then, Forbes proceeded to describe a scene that was almost surreal. Here is the setting: As
he stepped past Abu-Jamal, who had just been kicked by Shoemaker, he saw Abu Jamal’s

brother William Cook standing against the wall right near Officer Faulkner’s feet, and he
had his hands in his pocket. So with my service revolver in my hand, I ordered him to
take his hands out of his pocket slowly. He did this, he brought his hands out in front of
him. I then went back to see what my partner was doing, Robert Shoemaker, and I looked
back and I saw a revolver lying next to the Defendant. (Ibid., 152-53)

At this point, claimed Forbes, he went over to pick the gun up and as he did so, he also noticed
Officer Faulkner’s service revolver, and, while there were two suspects (Cook and Abu-Jamal)
at the scene who hadn’t even been frisked yet and his partner, Officer Shoemaker, was trying to
help Officer Faulkner and the other officers hadn’t arrived yet, he

picked both guns up with my right hand by the wooden grips and placed them in my left
hand so as not to ruin any possible fingerprints (Ibid., 163),

just as one would expect of an officer for whom sticking to the proper procedure was every-
thing. Asked by defense attorney Anthony Jackson how he could achieve this with his weapon
in his hand, he responded that he had holstered it after Billy Cook had shown him his hands! It
was one of the few moments when Abu-Jamal’s lawyer, forced on him by Judge Albert F. Sabo,
came close to making a point when he asked Forbes:

Q. So that me and the jury can get this all together, Officer Shoemaker was kneeling be-
side Officer Faulkner, you were there with no [sic] gun drawn telling William Cook what
to do, Mr. Jamal was also on the ground, it was just you and Officer Shoemaker there
then; is that right, just the two of you, right? (Ibid., 166)

The whole scenario crudely sketched by Officer Shoemaker and detailed by Officer Forbes was
patently unlikely, but as Abu-Jamal did not testify at this for the reasons given above on p. 44
and his brother Billy Cook didn’t testify on the advice of his attorney Daniel Alva, there were
no witnesses to impeach the story.
Given the general propensity of the police officers who first arrived at the scene to lie, this story
should at least be furnished with a big question mark.
Just to illustrate this propensity, let us look briefly at Officers Daniel Soboloski, John McGurk,
and Carolyne Chinn who arrived at the scene briefly after Shoemaker and Forbes and who car-
ried Abu-Jamal, after he had finally been handcuffed by the first two of them, to Wagon 601
manned by Officers Wakshul and Trombetta.

64
All of them admitted at the trial that they, while carrying Abu-Jamal face down with his hands
cuffed on his back, had “accidentally” rammed him with his head into the no-parking sign pole
in front of 1234 Locust and that Abu-Jamal then fell down on his face. Their explanation was
that they had to carry their prisoner through the gap between Billy Cook’s VW and Officer
Faulkner’s squad car in order to reach Wagon 601 which in the meantime had pulled up along-
side Faulkner’s car and was waiting there with open rear doors to receive the prisoner.
Why they considered it impossible to do this by, if they could not pass through the narrower
path between the VW and the pole, then by just circumventing the latter, they never bothered to
explain. When one looks at the many photos showing the police car, the VW, and the pole, the
pole hardly looks like something one can run the head of a prisoner in a position like Abu-
Jamal’s with one officer grabbing each of his shoulders into but deliberately.

Inspector Giordano
EPW
“heard” a confession not
even trusted by McGill. 601
Billy Cook P.O. Trombetta first
quoted MAJ with “the gun
is in the street,” then with
“I threw it in the street.”
intox. male

six-pack

Abu-Jamal
JF
Officers Chinn, McGurk, Officer Wakshul said Abu-
RS S and Soboloski claimed Jamal said nothing, then
they “accidentally” ran claimed he heard the
105
P.O. Faulkner Abu-Jamal into the pole. hospital confession.

Left: The scene when Shoemaker and Forbes arrived. Green: Billy Cook; red: Abu-Jamal. Rob-
ert Shoemaker (RS) claimed to have kicked Abu-Jamal’s gun just six inches to the right, and
James Forbes (JF) claimed to have holstered his gun to put both of the weapons in the street in
his left hand while Shoemaker was attending to Officer Faulkner and Cook and Abu-Jamal were
essentially free to do what they wanted. What if Officer Forbes, quite rationally, never put his
gun away – and just snatched Abu-Jamal’s revolver from the latter’s shoulder holster?

None of the officers reported the event in their IIRs in December, and even more significantly,
they all also neglected to report it in their February 1982 IIRs following Abu-Jamal’s police
brutality complaint, not even to justify it as an accident.
Abu-Jamal was then handed over to Officers Wakshul and Trombetta, and later, Inspector
Giordano. Of these, Giordano concocted a confession no one else heard, Wakshul “remem-
bered” another confession, but only 66 days later, and Trombetta changed the innocuous state-
ment he originally attributed to Abu-Jamal – that the gun was out in the street – to “I threw it
out in the street” 57 days later (see p. 32 above).

65
But apart from the general unreliability of the testimony of many policemen on the scene, there
was also reason not to trust Officer Forbes in particular. In his first IIR on December 9, 1981,
one and a half hour after the shooting, Forbes gave a description of the way he secured the gun
that was completely different from what he said in both his second IIR on December 16, 1981
and at the trial:

[…] Other police officers were arriving at this time, I went the curb and recovered two re-
volvers. After I picked up the guns, I went to the second male [Billy Cook] and held him
by the arm. Other officers came over and transported him to Homicide.
I picked up the weapons because I saw an intoxicated white male walk down from the cor-
ner. He was in the middle of the scene. I was concerned about him going near the weapons.
Other police were just arriving. (IIR James Forbes, Dec. 9, 1981, 2, my emphasis)

Just five days later, Forbes had synchronized his version with the description by his partner
Robert Shoemaker right after the shooting, where Forbes picked the guns up after Abu-Jamal
had tried to reach for his and where no intoxicated male was mentioned. As this new description
was quite similar to the one Forbes gave at the trial, I will not repeat these parts of it here.
Asked after the intoxicated male, he said:

The male was on the same side of the street and walking towards me right into the crime
scene. The male dropped what appeared to be a six (6)-pack of beer in a bag, which I
picked up for him and instructed him to turn around and go the other way, which he did.
This male was in his middle or late fifties, tall, over 6’ wearing a full-length tan raincoat;
that’s it. (IIR James Forbes, Dec. 16, 1981, 7)

That was indeed it; no further questions were asked and the intoxicated male disappeared from
the scene until the trial, when Anthony Jackson brought him up again the second time Officer
Forbes was called to the stand. (TT, June 26, 1982, 103-09) Now the intoxicated male is again
in the center of events:

Q. At the time he was approaching as you indicated, what were you doing at that time? A.
That is when I had my eyes trained on William Cook. Q. You had your eyes trained on
William Cook? A. Yes. Q. Did you then have the two weapons in your hand? A. No. Q.
So, you were close to William Cook at that point as well? A. I was about at the curb line. I
was approaching William Cook. Q. So, that was before you even went over to him [Cook]
and came back [to the curb] and got the gun? Let me put it this way. It was almost imme-
diately upon your arrival at the scene? A. Yes. (Ibid., 105-06)

Putting all this together, Officer Forbes was quite busy upon his arrival – and put himself delib-
erately in harms’ way: His own drawn gun in his right hand, he didn’t just send the intoxicated

66
man away (or arrest him, for that matter), but found the time to pick up his bag with the six-
pack and to hand it to him. Turning his back to the man, he walked over to Billy Cook, ordering
him to show his hand, but not frisking him. He then turned his back to Billy Cook and walked to
the curb, holstering his gun in the process so that he could use his right hand to put both Abu-
Jamal’s gun and Officer Faulkner’s service revolver in his left hand, all the while Abu-Jamal,
who had also not been frisked yet, sat right next to him.
It all makes no sense, and the fact that on police radio, the recovery of Abu-Jamal’s gun was
reported only 13 ½ minutes after Shoemaker and Forbes arrived at the scene also doesn’t help
in clarifying what actually happened. In his Dec. 9. 1981 IIR, Officer McGurk did say that he
saw a stakeout officer, obviously Forbes, at the scene with the two guns, but the IIR doesn’t
make clear exactly when this was (it must have been no later than 11 minutes after the Shoe-
maker/Forbes arrival because McGurk and his partner Unterkoefler then left the scene to bring
Billy Cook to Homicide. (See Radio Tape Transmittal – Central Division – 12-9-81)
In addition to his bizarre account of the recovery of the guns, Officer Forbes later turned out to
have yet another credibility problem.
As we saw on p. 63, he claimed to have “picked both guns
up with my right hand by the wooden grips and placed
them in my left hand so as not to ruin any possible finger-
prints,” but as several of the Polakoff photos that emerged
almost 25 years after the shooting showed, the latter is ex-
actly what he did. His claim at the trial that he carried the
two guns in his left hand for roughly 1 ½ hours before
handing them over to the Ballistics Lab at the Police Head-
quarters (IIR Forbes, Dec. 16, 1982, 6; TT, June 19, 1982,
169) had always strained credulity, but a number of these
photos clearly proved that it had all been nonsense.
Whatever relevant fingerprints there might have been on the
two guns were completely destroyed by the officer holding
them NOT merely by the grips – and in his bare hands!
We saw above that Polakoff’s photos also show the absence of central witness Robert Chobert’s
cab behind Officer Faulkner’s car – a fact that all the officers at the scene must have known about
but which none of them reported; in addition to that and Officer Forbes’ corruption of the gun evi-
dence, one can see Officer Faulkner’s police hat in two different positions, first, on top of the pas-
senger side of Billy cook’s VW and then on the ground where the police photographer would later
take pictures of it. This is found in none of the police reports, even though Officer Shoemaker
found the fact that there was a hat (assuming it was Abu-Jamal’s) beside the no parking sign pole
in front of 1234 Locust important enough to make a special addition to his Dec. 16, 1981 IIR.
The original position of the hat is shown in the photo overleaf – but it also shows another sig-
nificant fact.

67
The moving hat: First on top of the passenger side of the VW (indicating that there was a pas-
senger?), then on the ground. In the background on the left photo: According to Pedro Polakoff,
wagon L 106 was the Mobile Crime Detection Unit. If Polakoff is correct, it arrived way before
Wagon 601 with Abu-Jamal in it left the scene.

According to correspondence I had early on in 2006 with Pedro Polakoff, police car L 106,
encircled in green on the photo above, was the so-called Mobile Crime Detection Unit
(MCDU), in other words, (one of) the mobile crime lab(s) of the PPD. Why Officer Forbes
chose to run around with the two weapons secured at the crime scene for 1 ½ hours instead of
simply handing them over to L 106 is one of the many questions that are unsolved to this day.
But this and other photos showing L 106 have additional significance. They were all taken
way before Polakoff’s photos #18 to 22 which are now lost and which showed Trombetta’s
and Wakshul’s Wagon 601, now no longer alongside Faulkner’s RPC 610 but, according to
Polakoff, at the southern corner of Locust Street and Camac Street, an alleyway between 13th
and 12th Street not far from the parking lot on the opposite side of 1234 Locust.
One of the claims made by the police and the prosecution at the trial was that the police did
not test Abu-Jamal’s hands to see whether they showed metal traces from handling a gun or
powder traces from firing one. Another test that was not mentioned at the 1982 trial but be-
came an issue at Abu-Jamal’s 1995 PCRA hearings was the so-called smell test on the gun to
check whether it has recently been fired.
Talking about the last test first, according to firearms specialist George K. Fassnacht, a former
employee of both the PPD and the CIA, there was “a particular smell to a recently-fired firearm
which lasts for several hours” which simply consisted of “simply sniffing” the gun (PCRA, Au-
gust 2, 58, 66) which could have and should have been done in December 1981 because the
“unmistakable odor lingers for several hours” (Ibid., 67) – but Fassnacht testified that he could
find no evidence that the test was done (Ibid., 68).
Three quite obvious tests which could have basically clinched the case of the prosecution and
thus have nailed the “motherfucker” (various officers as quoted by Polakoff) who the police
at the scene were apparently already sure had done the crime, and still, the police claimed
they did none of them – this naturally provokes the question whether indeed they did not do it,
or whether the tests were actually done and then deep-sixed when the results came out negative.

68
I will briefly come back to the smell test later.
As for the trace metal detection test (TMD) and the neutron activation test (NA, sometimes mis-
spelled as “nutron activation” in TT), Abu-Jamal’s lawyer Anthony Jackson argued at length with
prosecution expert Charles Steven Tumosa, Criminalist for the City of Philadelphia, about the
significance of these tests. Tumosa was adamant in denying that these tests had any practical val-
ue and dismissed their importance as merely theoretical because, according to him, they worked
only under laboratory conditions and not in actual life. (TT, June 26, 56-83 for TMD, 87-94 for
NA). Of the neutron activation test specifically, he said he would not perform it because

I do not think that there would be a reasonable chance to find any information. (Ibid., 94)

Jackson, who, for well-documented reasons that there is no space to discuss here,29 lacked ex-
perts of his own, had no real chance to establish the necessity of these tests, let alone that they
were standard operating procedure and that their alleged omission was therefore something to
be regarded with suspicion.

In 1995, firearms specialist George K. Fassnacht (who started to work for Abu-Jamal’s defense
in 1982 but had to stop because the defense could not pay him) stated that he would have ex-
pected a gunshot residue test to be performed in Abu-Jamal’s case. A 1981 standard textbook
on crime scene investigation30 recommends gunshot residue analysis (GSR) – it specifically
mentions NAA (neutron activation analysis) – and devotes seven pages to the subject.

Tumosa may have been right about TMD and even gave evidence for it (he said he used that
test only three or four times “several years ago” (Ibid., 58-59), but the same cannot be said
about NA. There is a wealth of evidence that this test WAS standard and that the alleged
omission of it in, of all cases, the one of Abu-Jamal (a wounded black man with dreadlocks
next to dead police officer) WAS suspicious.

29
Amnesty International, A Life in the Balance. The Case of Mumia Abu-Jamal, Seven Stories Press 2000, 20-
21, my Race Against Death. The Struggle for the Life and Freedom of Mumia Abu-Jamal, Heidelberg 2006, 127-
28, and many other sources.
30
Arne Svensson, Otto Wendel & Barry A.J. Fisher, Techniques of Crime Scene Investigation, Elsevier 1981.

69
The smell test was not the only issue to which the firearms specialist George Fassnacht men-
tioned above testified; he also clearly stated that in 1982, that is, at the time of the Abu-Jamal
trial, he would have expected the Philadelphia police to do the “neutron activation analysis test”
as “this was complicated to analyze but very simple to take.” (PCRA, August 2, 70) The 1981
3rd edition of the textbook Techniques of Crime Scene Investigation whose 2012 8th edition is
still in print contains very detailed descriptions of this and other GSR test and warns:

The particles are in the highest concentration immediately after the shooting and are even-
tually all lost over time, depending on what actions the shooter takes. (Techniques, 240)

This is indeed what City Criminalist Steven Tumosa argued against Anthony Jackson in 1982
and what the prosecution argued against George Fassnacht at the PCRA hearing in 1995 – if
one had swiped Abu-Jamal’s hands at the hospital to get the material for the neutron activa-
tion test, too much time would had elapsed and too many things would have happened for this
test to make any sense anymore.
Specifically, in 1995 prosecutor Hugh Grant argued against Fassnacht that Abu-Jamal had not
only violently resisted being handcuffed at the scene (PCRA, August 2, 114), but that

I assume you were also not aware that after Mr. Jamal was transported to Jefferson
Hospital to be treated for the gunshot wound he received from Officer Faulkner, that
upon being removed from the police wagon he then engaged in another struggle with
the police, refusing to be removed from the wagon, then refusing to walk on his own
and then refusing hospital treatment, all the time resisting police. (Ibid., 114-15)

In brief, the neutron activation test was allegedly useless despite Fassnacht’s protestations
because the relevant particles had already been lost due to the “actions the shooter” had al-
ready been allowed to take. They didn’t do it because, as criminalist Tumosa had said, they
did “not think that there would be a reasonable chance to find any information.”
The detective who directed the whole crime scene investigation because this was his assigned
task in a predetermined rotating schedule of the PPD, Officer William Thomas, also denied hav-
ing requested any NA test (“Q. Did you request that in this case? A. No, sir.” TT, June 29, 43-
44; then ibid., 50-51 for Abu-Jamal, Billy Cook, and Officer Faulkner specifically) at all,31 but
as far as Abu-Jamal was concerned, he also gave some humanitarian reasons not to test him

Q. Tell us what they usually do at Jefferson Hospital? A. I was at Jefferson Hospital. Q.

Can you tell us what they usually do? A. With his wounds and what have you, his life

31
Scurrilously, minutes later he claimed to have demanded it for Officer Faulkner but to have been turned down by
the Mobile Crime Detection Unit: “I had spoke[n] with one of the people from the Mobile Crime Detection Unit
who would be responsible for doing this and at that juncture they did not have any of the kits.” (Ibid., 51-52)

70
 was in jeopardy and there is no test in the world I am going to take on anybody that may
risk their life. […]
A. Normally in this particular case when I observed Mr. Jamal he was up in the ICU. I
don't know what floor it is, counselor. When I observed him and all he did have one arm
free and trying to hold onto his stomach and they were trying to get him to agree to
treatment. He had not agreed to treatment and all. I could not get in the way of these
doctors treating this man to do any type of test, it is just not feasible that I am going to
try to do a test and risk this man’s life. (Ibid., 44, 46-47)

All of these statements by sources testifying for the prosecution locate the moment when the
GSR could have been performed at the time when Abu-Jamal was already in the hospital, that
is, he was about to be treated, in the process of being treated, or had already been treated.
But the photos by Polakoff that show the MCDU wagon L 106, of which the one reproduced on
p. 68 is only one, clearly show this to be false. The crucial point of all the remarks above is this:

• L 106 arrived way before Wagon 601, containing Officers Trombetta, Wakshul, and
their prisoner Abu-Jamal, left the scene.
And that means that whatever test procedures the police at the scene deemed useful to deter-
mine who the perpetrator was (or even, who they wanted to nail as the “doer”) could, and
should, have been performed right then and there. The results would then have been handed
over to professional laboratories that would know how to analyze them.
Due to the now apparently documented early arrival of the mobile crime lab at the scene,32 we
can say that doing the neutron activation test for Abu-Jamal would have involved nothing more
but taking a few swabs from his hands once he was safely arrested in Wagon 601 and handing
these swabs over to whatever laboratory was competent to analyze it.
It would not NOT have made sense to have tested Abu-Jamal’s hands with whatever test was
available for GSR: Rather, it would have made a LOT of sense, especially because that test is
known for the fact that negatives don’t exonerate the suspects (who could have got rid of the par-
ticles in all sort of ways) whereas positives tend to be highly incriminating (if the suspect can’t
point to an alternative source of the residue, it must be the one connected to the crime in question).
All the assigned detective in the case, Officer William Thomas, had to do was to ask the officers
of L 106 to pull out the test kits, walk the 30 yards or so over to Wagon 601, and systematically
swipe Abu-Jamal’s hands. In the light of this observation, Thomas’s claim that he “could not
get into the way of these doctors” who were trying to save Abu-Jamal’s life is quite deceitful.
On another plane, it is simply cynical. But then, maybe the MCDU, too, didn’t have any kits.
Both Shoemaker and Forbes reported in their statements, that the first and only thing Abu-
Jamal said to them was that he was shot (TT, June 19, 1982, 116, 145 (Shoemaker); ibid., 152

32
At the Abu-Jamal trial, Roy Land of the MCDU said that his unit arrived only at 4:15 (TT, June 19, 1982, 48),
but I have found other no data that confirm the 4:15 arrival. If one follows the recollections of Polakoff as re-
counted to me, L 106’s arrival would have been closer to 4:05.

71
(Forbes)), even though they claimed not to have informed the other officers. When Inspector
Giordano and Officer Trombetta “searched the male and discovered an empty shoulder hol-
ster” (IIR Trombetta, Dec. 9. 1982, 2), it was all but impossible for them not to have noted
that Abu-Jamal was bleeding from a chest wound.
Blood was also found “on the right front fender of the Volkswagen five inches from the hood
and one foot, eleven inches from the front right door of the 1966 Volkswagen” (TT, June 26,
1982, 84, Charles Tumosa), that is, in a place where it could not have come from Abu-Jamal’s
head being “accidentally” run into a pole, and Abu-Jamal’s “red and blue quilt waist length
jacket with a zipper up the front” was “stained with human blood” (in addition to having “a
hole at the right chest area above the right pocket.” (Ibid., 32)

Blood on the fender: Billy Cook’s VW. Return of the disgraced: “When I leaned over him to
look at him, I noticed a hole in what looked like the upper left-hand part of his jacket. When I
pulled the jacket open, there was a bullet hole in the shirt, and it was blood coming out [my
emphasis, MS], but what really bothered me was that there was an empty shoulder holster.”
Alfonzo Giordano in the 2010 Tigre Hill film Barrel of a Gun.

There is thus no doubt that those in charge at the scene knew that Abu-Jamal was severely
wounded; yet neither Inspector Giordano nor Detective Thomas felt obliged to take any steps
to have him taken to Jefferson Hospital, which was just two blocks away down Locust.
In fact, 15 minutes after the shooting, Officers Trombetta and Wakshul were just about to
bring Abu-Jamal to Homicide when the directive was altered:

Radio: Okay, 01, you want to take him over to Jefferson Hospital, that’s from CI-1.
EPW 601: Yeah, if that’s what CI-1 wants, that’s what we’ll do. (PRT, Dec. 9, 1981)

Not knowing the police nomenklatura of the time, I can’t determine what “CI-1” means – in
the film Barrel of a Gun, Alfonzo Giordano (14:30) claims that he was the one who gave the
order.33

33
Giordano’s claim may be self-serving, however. In his IIR on December 9, 1981, Officer Wakshul said: “As
per orders from Inspector Giordano, we were to proceed, with the male, to the Homicide Unit, but en route, these
orders were amended via police radio and we were informed to go to Jefferson Hospital and to have the male
treated for any injuries.” This is one of the innumerable contradictory police statements in this case.

72
It doesn’t really matter; the fact that it took the same officers who rushed the mortally wound-
ed Officer Faulkner to the hospital within seconds more than fifteen minutes to entertain the
thought that maybe the potentially mortally wounded Abu-Jamal should also be taken there
makes the concerns about Abu-Jamal’s life articulated in Officer Thomas’s justification for
not testing his hands for gunshot residue at the hospital sound rather insipid.
There is even evidence that Officers Trombetta and Wakshul then continued to idle around
and that it took them another 10 to 15 minutes to arrive at the hospital, but for brevity, I will
not go into this here. Suffice it to say that if had they had indeed taken Abu-Jamal to Homi-
cide, there would be nothing to discuss anymore today because he might not have survived,
given what Dr. Coletta testified at the trial about his severe blood loss.


The final point that needs to be addressed with regard to Abu-Jamal’s gun is of course wheth-
er it was indeed used to shoot Officer Faulkner. From the presentation in CDA one would
think that there was convincing cumulative evidence that it was. The presentation begins with
the following remark (9):

Another bullet was removed from Officer Faulkner’s head. It was too deformed to be
ballistically matched to a particular gun, but was caliber .38/.357 (.38 and .357 calibers
are interchangeable), consistent with defendant’s .38 caliber handgun.

This is weird, because even though .38 and .357 cartridges do have
the same diameter (“caliber”), what is generally understood by .357 is
a certain type of ammunition and therefore, a certain type of gun. And
these types are NOT interchangeable; far from it. .357 cartridges are
much more powerful that 0.38 Special cartridges (either normal ones,
or plus P, or plus P plus) and are generally called 0.357 Magnum; they
are too large (see picture) to be loaded into a normal .38 revolver such
as Abu-Jamal’s 1382 Charter Arms revolver, whereas .38 Special car-
tridges can also be loaded into and shot by a .357 revolver.
While it is true that prosecution firearms specialist Anthony Paul also mentioned to the jury
that the bullet was classified that killed Faulkner as “.38/.357,” he did so for expository rea-
sons because it was mentioned as such in the Firearms Unit Report which first determined the
caliber of the bullet. Once one asks from which cartridge and, more crucially from which fire-
arm it was fired, there is no useful talk about .357 anymore except if one wants to associate
the bullet in Officer Faulkner’s head with a powerful .358 Magnum gun.
CDA then continues (ibid.):

73
 Moreover, it had a hollow base, a characteristic of ammunition manufactured by the Federal
firearms company; four of the five spent shells in defendant’s gun were of Federal manufacture.

The claim that a hollow base was characteristic for Federal ammunition or the implied claim that
it was somehow a unique feature of Federal ammunition is, as far as I know, complete nonsense.
In fact, today Federal takes pride in the fact that “at Federal®, we not only build the industry's
widest variety of ammunition, we offer the leading products for every facet of the shooting
sports.” There is no reason to assume that this was different in the early 1980s. As for the
uniqueness to Federal of hollow base bullets, at the trial Anthony Paul had the following to say:

Q. Hollow base, the bullet specimen was hollow base, what’s that mean? A. Hollow base
bullet specimen was designed configurations placed by Federal Manufacturer, that manu-
facturer of the bullet in the hopes to achieve a more perfect projectile for accuracy and for
power and so forth. It has no significance other than that. (TT, June 23, 1982, 110-11)

Adding nothing new with regard to the deadly bullet, CDA continues (ibid.):

A copper bullet jacket, two flattened and distorted bullet specimens, and a number of
fragments were also recovered from the shooting scene, all unusable for ballistics match-
ing. However, one of the flattened bullet specimens, like the bullet taken from Officer
Faulkner’s head, had a hollow base – as did defendant’s Federal brand ammunition.

It is only in the final passage treating the question of Abu-Jamal’s gun that a more substantial
claim is made, and this claim is also highly misleading:

The bullet taken from Officer Faulkner’s head had been fired from a gun barrel with
eight lands, eight grooves, and a right-hand twist. Defendant’s gun had eight lands,
eight grooves, and a right-hand twist. […] (N.T. 6/19/82, 152-55;34 6/23/82, 6.2-6.5,
6.100-6.114, 6.163-6.168; 6/26/82, 10-18, 32).

Here, 6/23/82 pp. 2-5 refers to the testimony by Policeman Francis Dixon about the recovery of
the bullet that was removed from Abu-Jamal’s back by Dr. Anthony Coletta and is thus of no
particular interest, pp. 100-114 to testimony by Anthony Paul on a range of issues whose rele-
vance is not always clear, pp. 163-68 to the lead evidence found at the scene and the crucial
question of the twist, the lands, and the grooves of the bullet, and 6/26/82, pp. 1018, 32 refers to
a discussion by criminalist Charles Tumosa of the proximity of the weapons from which Officer

34
It is quite unclear what this is supposed to refer to. The pages in question contain testimony by Officer Forbes
about the recovery of the weapons at the scene.

74
Faulkner was fired in the back and Abu-Jamal in the chest, a point I will ignore here because it
adds nothing to solving the question who did what to whom.
Turning to the June 23, 1982 testimony by Anthony Paul, we find a striking discrepancy be-
tween what he said during direct examination (pp. 100-114) and then during cross examination
(pp. 163-68). Asked by McGill to characterize the bullet taken from Officer Faulkner, he said:

nose area and circumference surface extremely mutilated and distorted, gouged, bearing
numerous foreign markings, destroying the major portion of the rifling markings: base
edge distorted and mutilated.
General rifling characteristics indeterminable with a right-hand direction of twist, which
means that there were insufficient markings remaining on the surface to be able to deter-
mine even the total general rifling characteristics.
There was only sufficient legible or readable markings to say that it had a right-hand di-
rection of twist. That’s all. (TT, June 26, 1982, 109; my emphasis)

But an insistent McGill pressed the point further:

Q. Now, the rifling characteristics, are they consistent with characteristics of either of
those – well, specifically of the Charter Arms revolver? A. Yes. […] Q. All right. At least
let me get one thing straight for myself: There is no way that you can make any compari-
son of that bullet because it was just too cut up? A. That's correct. Q. Mutilated. So that's
where we're starting so there’s no definite match up just like you made in the other bullet
in the other revolver [i.e., Faulkner’s]? A. Yes. Absolutely not. (Ibid., 110)

In the end, it all boiled down to the fact that it would have been a .38 gun with a right-hand di-
rection of twist – “that’s all,” to quote Paul himself, and we could call this version Paul1.
Later on, under cross examination, all of a sudden it was no longer “all,” and eight lands and
groves were added to the right-hand twist. Asked by Anthony Jackson why he believed the
deadly bullet could have come from Abu-Jamal’s Charter Arms revolver even if the bullet was
so badly mutilated, he explained (this version would be Paul2):

A. […] When you look at the bullet specimen itself you will find that the individual signif-
icance of the specimen, the individual striations that were engraved that would permit me
or permit the Firearms Examiner to say that a specific firearm discharged it, those individ-
ual characteristics are gone. Q. Right. A. The general characteristics being part of the eight
lands and grooves with a right-hand direction of twist, you have a part of that still exposed
with sufficient quantity to be able to say that a firearm rifled with eight lands and grooves
with a right-hand direction of twist discharged that projectile. But you can't say which fire-
arm with eight lands and grooves fired that projectile. Is that clear? (Ibid., 167-68)

75
It seems clear enough, but the question remains why Paul didn’t say this right from the begin-
ning. But even if we, on the principle of charity, simply accept Paul2, we should at least accept
it in full, and this is exactly what CDA doesn’t do. The dialogue between him and Anthony
Jackson deserves to be quoted in full:

Q. Yes, I understand, sir. A Charter Arms has eight lands and grooves; is that correct?
A. Yes. Q. How many Charter weapons are there? Do you think? A. Conservatively a
million. Q. A million. How many other weapons are manufactured that have eight
lands and eight grooves and I think you said a left – A. Right-hand. Q. Right-hand –
A. Would you be satisfied with three right off the bat? Arminius, Firearms Im-
port/Export and Charter Arms are all eight lands and grooves with a right-hand direc-
tion of twist.

This is the part that even Judge William Yohn Jr., who lifted Abu-Jamal’s death sentence but
denied him a new trial on December 18, 2001, felt compelled to concede: “Paul also testified
that the bullet specimen had eight lands and grooves with a right-hand direction of twist which
was consistent with a Charter Arms revolver and that, conservatively, there were a million
Charter Arms weapons in existence at the time. See id. at 6.168.” (Memorandum and Order,
December 18, 2001, 5)
Wouldn’t one hope of a new and fairer prosecution to also at least mention exonerating fac-
tors, all the more so if they are clearly in the trial record?
But that was not even all. For once, defense attorney Anthony Jackson managed to put the
actual evidence into a stark relief:

Q. Tell us how many, approximately, how many millions of guns have eight lands and
grooves and how many would provide this bullet? A. Multiples of millions. Q. Multiples
of millions? A. Yes. MR. JACKSON: I have no further questions. Thank you.

None of this is mention or alluded to in CDA.

Intermediate Comment
Once subjected to inspection, CDA’s claims about the linking of Abu-Jamal’s gun to the
shooting death of Officer Faulkner begin to crumble, just as the claims about the shooting
scenario (Part 1 above), the eyewitnesses (Part 2), and the earwitnesses of an alleged con-
fession did.
Summarizing (and exceptionally allowing for a pun) a few bullet points should be made here.

• The talk about Abu-Jamal having plus P ammunition in his gun and therefore being a
particularly heinous murderer is inflammatory and unfounded. There is no proof that the

76
 bullets in his gun, if fired, would have been more “murderous” that the ones fired from
service Smith & Wesson revolvers like Officer Faulkner’s.35 The evidence even points
in the opposite direction.

• The various descriptions by Officer James Forbes, only weakly supported by his fellow
officer at the scene, Robert Shoemaker (see below), of how he picked up Abu-Jamal’s
and Officer Faulkner’s guns flipped back and forth between a number of versions. All of
them lacked credibility once one looked at the crime scene scenario (see p. 65 above). In
that scenario, Forbes claimed to have handled (1) Abu-Jamal, (2) Billy Cook, (3) an in-
toxicated male who approached the scene, (4) the bag with the six-pack he gave back to
the man, and (5) both the guns of Officer Faulkner and Abu-Jamal, that is
o In this scenario with three unidentified males around him, two of them black
who, for him, were obvious suspects in the shooting, Forbes claimed to have
holstered his gun in order to be able to use his right hand to pick up Abu-Jamal’s
and Officer Faulkner’s gun by their grips in order not to destroy fingerprints and
to put these guns into his left hand, in which he applied the same care.

• Even though the point is not even mentioned in CDA, the claim by the officers charged
with the investigation of the Faulkner crime scene not to have tested Abu-Jamal’s gun
for recent firing nor to have tested his hands to see whether he fired a gun has now be-
come even more suspicious with the emergence of the Polakoff photos. The claim that
Abu-Jamal’s hands were not tested to prevent any danger to his life has become absurd.

• It very much appears that, instead of trying to safe Abu-Jamal’s life as the rules in force
in the PPD as per October 17, 1980 demanded,36 the officers at the scene, Inspector
Giordano and the assigned detective, Officer William Thomas, were ready to let him die
at the scene or en route/at Homicide.

• CDA’s description of the trial record with regard to the linking of Abu-Jamal’s gun to
the deadly bullet in Faulkner’s head is an outright distortion. No ordinary person would
accept the description quoted above from CDA (9-10) as a fair and objective rendition
of what was said at the trial by the prosecution’s own expert, Anthony Paul.
For a District Attorney’s Office, one of whose main promises it
was to look into convictions based on dubious and/or false evi-
dence, this whole approach is a major disappointment.
Why is the current DA’s Office so adamant about not having a
new trial in which the mystery about the indeterminable (Paul1)
versus eight lands and grooves characteristics of the bullet that

35
Ironically, today it is forces close to the police who champion the use of small guns like Abu-Jamal’s with + P
ammunition as ideal “defensive weapons.”
36
“II Procedure […] l. Render first aid to the injured. a. Where there is a possibility of life, no matter how slight,
have victim/defendant transported to a hospital. Outline body position before removal, if possible.” Philadelphia
Police Department, Directive 2, “Responsibilities at Crime Scenes,” October 17, 1980.

77
killed Faulkner (Paul2) could be solved and, moreover, a new attempt could be made to match
or un-match the bullet that killed Faulkner with Abu-Jamal’s Charter Arms 1382?
Abu-Jamal himself already asked the courts to do just that, with the more modern means then
available, in 2001.37 It could certainly be done even more efficiently and reliably now, in 2021.
And it is not just this bullet – as things stand, virtually none of the evidence presented at the
trial concerning Abu-Jamal’s gun, the circumstances of its recovery, and the question whether
he 1) drew it, 2) fired it, and 3) used it to kill Officer Faulkner stands up to scrutiny. It should
thus either be thrown out as unreliable or given a totally new look in the context of a new and
fair trial.

5. Conclusion
This essay doesn’t claim to be an exhaustive examination of all the factual claims “as told to the
jury” in CDA. I have concentrated on four areas, namely,

• The shooting scenario

• The eyewitnesses to the shooting

• The alleged confession by Abu-Jamal

• Abu-Jamal’s gun as the alleged murder weapon

Let me now give a briefer overview.
At the trial, prosecution witness Cynthia White claimed that all of the shooting took place on
the sidewalk in front of 1234 Locust, including the shot into Officer Faulkner’s back that alleg-
edly started the whole shooting.
This is not possible, as there would have
been no obstacle between him and 1234
Locust, and the bullet that went through
his back and exited, unharmed, below his
Adam’s apple would have struck the
building in one piece and would have
been found there. This was not the case;
the only whole bullet that was found in
the building was in the left part of the
door frame and was located approximate-
ly one yard above the ground: It could not have been the one that struck Faulkner in the back.
Even ignoring all the other inconsistencies in White’s description(s) of this part of the shooting,
it cannot have happened this way. This is yet another one of the many arguments to follow for
the conclusion that White didn’t see any of the events at all, let alone the shooting.

37
Affidavit of Criminalist Ronald L. Singer, September 2001, in the possession of the author.

78
At the Abu-Jamal trial, Michael Scanlan testified that Officer Faulkner was in the street some-
where between Faulkner’s RPC 610 and Billy Cook’s VW. If the bullet that went through Faulk-
ner hit the no-parking sign pole and split there, this could at least theoretically account for the 39-
grain splinter of a bullet that entered the upper part of the door and ended up in the wall of the
vestibule of 1234 Locust. But then the question becomes: What happened to the rest of the bullet?

Michael Scanlan’s trial testimony about the shot in Faulkner’s back has the merit over White’s
to be at least theoretically possible. With Faulkner standing in the street and Abu-Jamal shoot-
ing him in the back, one splinter of the bullet (approximately ¼ of a 158 grains bullet) would
have ended up in the vestibule of 1234 Locust with the rest (¾) of the bullet bouncing else-
where, never to be found by anyone. Unlikely, but it could have happened.
We need to add to this that Scanlan, who admitted at the trial to having had “a few cocktails,” was
highly unreliable in other regards; the relevant aspect here is that in all his accounts before the
Abu-Jamal trial, including his testimony in the March 29, 1982 Billy Cook trial (see Fn. 11
above), he placed the beginning of the shooting, not between Faulkner’s RPC 610 and Billy
Cook’s VW (yellow circle), but between the latter and the Ford parked in front of it (blue circle).
Such an account – contra the account at the Abu-Jamal trial – of where Abu-Jamal, coming
from the street, shot Faulkner in the back, would suffer from the same fatal flaw as White’s ac-
count – the bullet that would have had to have hit 1234 Locust – or 1232 Locust – was simply
never found.
But by far the most damning piece of evidence against the shooting scenario presented by the
prosecution at the trial (and repeated in CDA) is in fact evidence of absence:

• The bullets marks in the sidewalk that would have had to have been there had
“[d]efendant stood over him [Faulkner] and repeatedly fired his revolver at the officer”
are simply not there.
With this observation, the central part of the testimony of prosecution witnesses White, Cho-
bert, and Scanlan is completely blown out of the water. What they, all three, adamantly insist-
ed happened indeed never happened, because it could not have happened.

79
Over time, none of the three witnesses were able to get the number of shots allegedly fired by
the shooter at the prone Faulkner straight; instead that number varied between two and four (For
details, see Schiffmann (2014-21), “Dossier False Witnesses. White, Chobert & Scanlan,”
attached to this essay).
The number of shots is not even
relevant. Based on the account of
these witnesses, CDA has Faulk-
ner killed by being fired at in this
prone position repeatedly, with
one shot hitting and one or more
missing.
But as for one of these shots, we
even know exactly where to look.
As mentioned above (p. 22), there
were two bullet holes in Faulk-
ner’s jacket above the right shoulder, coming from a bullet that went through the tissue, but ap-
parently without even grazing him.38 But on all the available photos, just as in the rest of the area
around Faulkner’s head an upper torso, there is just nothing there. One can hardly get any better
proof of anything than that.
But this must also mean that someone must have coordinated what these witnesses said about this
in the early morning hours of December 9, 1981, not even an hour after the events. How this hap-
pened is impossible to reconstruct with hindsight. The witnesses were all brought in at about the
same time (Chobert: 4.15, Scanlan: 4:20, White: 4:15) and interviewed shortly thereafter (Chobert:
4:25, Scanlan: 4:24, in White’s IIR, it is not mentioned when exactly the interview began).
Given what I’ve tried to explain in Section 2 above, the most reasonable assumption seems to be
that the testimony the police had White and Chobert give was oriented on what they first manipu-
lated Scanlan into saying. In all likelihood, he was at least there (see p. 9 above) and thus did see
something, even though the core of what he testified to on December 9 and all through Billy
Cook’s trial was exactly as impossible as what White and Chobert testified to.
As for Robert Chobert’s and Cynthia White’s testimony, it had not just to be manipulated; it had
to be concocted. One of the most flabbergasting statements in CDA (p. 8) is that “Mr. Scanlan
confirmed the presence of the other eyewitnesses in the general area.” It is honestly an enigma
to me how such a falsehood could slip into this brief, because, as we have seen above, not only
did Michael Scanlan not confirm the presence of both Chobert and White at the scene, he ex-
plicitly denied it! And what he did confirm was the presence of Albert Magilton, who in turn also
denied the presence of Chobert and White. See above, pp 11-13 (Chobert), p. 19 (White).

38
PPD Homicide Division, Laboratory Division, Criminalistics Unit, „Investigation of the Shooting Death of
Pol. Daniel Faulkner, #4699, LAB #81-12221“, 1, in Petitioner Jamal’s Notice. of Filing of Evidence in Support
of Memorandum of Law on Court’s Jurisdiction to Hear Petition for Post-Conviction Relief and/or Habeas Cor-
pus, a collection of documents filed by on of Abu-Jamal’s former defense teams on November 12, 2001

80
We have also seen above that literally no one saw Cynthia White at the southeastern corner of 13th
and Locust or, for that matter, anywhere else from where she could have observed the events – not
Scanlan, not Magilton, and not even Robert Chobert. She is neither mentioned by the patrons of
the night bar Whisper’s Club at the northwestern corner of the intersection, Dessie Hightower and
Robert Pigford, nor by Veronica Jones, who stood a block away at the northwestern corner of 12th
Street and Locust.
Moreover, the evolution of her testimony in the first days after the shooting – from Dec. 9 to Dec.
12 to Dec. 17 – strongly suggests that she had no idea what had happened and was also not very
good at retelling what she was being spoonfed.
As we saw on pp. 20-23, Veronica Jones also strongly indicated that Cynthia White was
NOT at 13th and Locust but was both lured and pushed by the police to testify against Abu-
Jamal, claiming he was the shooter. Jones’s testimony is all the more credible because she
does not just talk about White, but, as already quoted above on p. 21, says that she herself was
offered the same deal:

They were getting on me telling me I was in the area and I seen Mumia, you know, do it,
you know, intentionally. They were trying to get me to say something that the other girl
[Cynthis White] said. I couldn't do that. (TT, June 29, 1982, 129)

One can also add to this that Jones stuck to this testimony for the rest of her life, particularly
at Abu-Jamal’s 1996 October PCRA hearings, despite considerable pressure from the prose-
cution and the police, a story I will not repeat here because it is very well documented else-
where.39 A posthumous 2012 book of her story as told to her sister Valerie adds considerable
detail to the pressure exerted on her by the police.40

Right: Cyn-
thia White
in July 1981
Left: NYT
article on
Jones’ 1996
testimony

In 1996, Jones reverted to her original statement (see p. 21 above) that she saw two men running
from the scene while continuing to insist that the police tried to bribe and blackmail her into fin-
gering Abu-Jamal as the shooter – and that this was exactly what had been done to Cynthia White.

39
Daniel R. Williams [defense attorney for Abu-Jamal from 1994 to 2001], Executing Justice. An Inside Account
of the Case of Mumia Abu-Jamal, St. Martin’s Press 2001, 244-254.
40
Valerie Jones, Veronica and the Case of Mumia Abu-Jamal as Told to Her Sister Valerie, Xlibris 2012. I have
personally spoken to Valerie Jones and found her to be a highly credible witness to what her sister Veronica told
her about her involvement in the Faulkner/Abu-Jamal case. Jones herself died in 2011.

81
The evidence – no one saw her, her testimony is completely incredible in all crucial respects, there
is strong evidence of coaching and blackmailing – is thus overwhelming that this witness is actu-
ally a non-witness.
An additional nail in the coffin of “eyewitness” Cynthia White is her claim to have seen Robert
Chobert’s taxicab – a cab that no one else saw, whose presence was explicitly denied by Albert
Magilton and Michael Scanlan (see pp. 11-13) and of which we now know from Pedro Polakoff’s
photos (which were taken well before Chobert left the scene with Officer Sliwinski, see pp. 14-15
above) as well as from Polakoff’s personal testimony that it was not there.
As we saw above, the evolution of his testimony from the statement to Giordano “that the man
who shot the policeman ran away” (SH, June 1, 1982, 70) to his claim at the trial that he saw the
shooter “walking back about ten feet and he just fell by the curb” (TT, June 19, 211) begins to
make sense once we assume that what Chobert told defense investigator George Michael New-
man in 1995 is true and that he was parked, not behind Officer Faulkner’s RPC 610 on Locust,
but north of the intersection on the eastern side of 13th Street.

Entrance 1234 Locust

CW
RC

From all we know, Cynthia White must unequivocally be regarded as a phantom witness, just as
Chobert’s cab, if placed on Locust Street, was nothing but a phantom. The real Chobert cab was
probably parked a bit in front of the position of the car to the left. From that position, he would
have been well placed to see someone run “thirty or thirty-five steps” (see p. 16 above) in eastern
direction on the southern side of Locust Street.

Apart from the fact that there is literal proof for Chobert’s absence from where he claimed to have
been, his account at the trial of the shots that killed Officer Faulkner shares all the weaknesses of
White’s and Scanlan’s: It is simply clear that it did NOT happen that way.
If Chobert was parked as described in the box above and did not see, but only hear the shoot-
ing, the evolution of his testimony from December 9, 1981 right at the scene to June 19, 1982,

82
the day he testified at the Abu-Jamal trial, gains rhyme and reason. It seems that Chobert, for
whatever reason, wanted to be counted as an eyewitness, even though he wasn’t one. After
saying at first that the shooter ran away, he had to adjust this after he identified Abu-Jamal
right at the scene to the shooter running 30 to 35 steps and then falling (IIR Chobert, Dec. 9.,
2), and when he learned later on that Abu-Jamal was found at the right fender of his brother’s
VW, he had to again readjust this to about 10 feet.
It had all the features of the testimony of a witness doing his best to please those interrogating
him, people who were both deeply shocked at what happened had already decided then and
there that “they had the motherfucker who did it,” as press photographer Pedro Polakoff later
on described the prevalent reaction among policemen at the scene only a short while after
Chobert had “identified” Abu-Jamal as the shooter.
The fact that both Shoemaker and Forbes, the first officers to arrive at the scene, later said that
Abu-Jamal told them he was shot but that they didn’t care to tell their fellow officers about this as
well as the ensuing episode where Abu-Jamal was “accidentally” rammed into the only available
obstacle anywhere at the scene, the no-parking sign pole in front of 1234 Locust, strongly suggest
that this was in fact the attitude of the arriving police right from the start.
Against that background, the most obvious mo-
tive for Robert Chobert’s obviously false testi-
mony would have been to curry favor with the
police. He was not where he claimed to have
been, but he was near the scene and could not
fail to be questioned by the arriving police (in
fact, on the photo on the previous page – not
one by Polakoff, but taken much later – a police
car is parked approximately in the same loca-
tion where Chobert’s cab was actually parked).
It was thus clear that the police would find
out that he was driving without a license.
The fact that he was driving a cab made
this an even more severe infraction. As if
this was not bad enough, he was on proba-
tion because of arson, which was sup-
posed to end on October 21, 1982. (Phila-
delphia Court of Common Pleas, Certifi-
cation of Probation, reproduced above)
What better way to get out of this difficult and frustrating situation than telling the police who
believed they had already arrested the killer of their fellow officer that he was indeed the man?
“All this other stuff,” as Judge Sabo might have said (see above, p. 22), would then probably re-
cede into the background, and indeed it did, as I could find no report anywhere that driving with-

83
out a license that night got ever Chobert into any trouble, despite two previous cases of DUI in his
record and despite still being on probation.
As we saw above (p. 25), in August 1995 Chobert still didn’t have a license and had apparently
been busted several times for driving without one but was never punished for this beyond having
to pay a fine. (PCRA, August 15, 1995, 19-24)
Given these considerations and all the facts about Chobert recounted above, the contention in
CDA (p. 38) that

there is no reason to believe that Mr. Chobert’s probation status would have provided
him with a motive to falsely identify defendant (if anything, it would have encouraged
him to be truthful in what he reported)

sounds almost – unintentionally – like taken from a stand-up comedy act.

If one believes that cops investigating a crime scene can never do any wrong, it certainly
makes sense. But in the real world of the Philadelphia of the 1970s and 1980s in general and
the Abu-Jamal case in particular, it just represents naïve and wishful thinking and a child-like
belief that policemen in America are always only there “to protect and to serve.”
The supposed pillars of the prosecution’s case against Mumia Abu-Jamal, Cynthia White and
Robert Chobert, thus in fact amount to gigantic and glaringly obvious holes in that case.
As for the story – or rather, the stories – according to which Abu-Jamal confessed, I must admit
that for me one of the most difficult questions in analyzing this has been why anyone has ever
been able take these stories seriously.
The first story is the one told by Inspector Giordano, the man who – contrary to police protocol –
at least at first ordered Officers Wakshul and Trombetta to take Abu-Jamal to Homicide instead of
Jefferson Hospital, even though he could not have had any doubt that Abu-Jamal was very severe-
ly wounded.
Once again, the claim that Abu-Jamal, after he had just shot a cop out of blind and senseless an-
ger, told a policeman who was visibly one of the higher -ups at the scene that he “dropped it [the
gun] beside the car after I shot him” sounds more like out of a badly scripted B-movie than real-
life Philadelphia in 1981. What motive would Abu-Jamal, who was already surrounded by hostile
cops, have had to help the police in their work and doing so in a stylistically immaculate embed-
ded sentence construction (…after I shot him) at that?
I will not repeat here what I’ve said above as even prosecutor McGill dropped this alleged witness
after he had served his purpose to keep Abu-Jamal behind bars at the preliminary and bail hear-
ings on January 8 and to discredit Abu-Jamal in public via the newspaper reports according to
which “Jamal Confessed.” The early IIRs of Officer Wakshul and particularly Officer Trombetta
should be the nail in the coffin of that particular confession story.

84
The second confession story, or rather, the second batch of confession stories – “I shot the moth-
erfucker and I hope he/the motherfucker dies” (LeGrand, Durham, Wakshul, Bell), “I’m glad. If
you let me go, I will kill all of you cops” (Bray, once again claiming to have heard an impeccable
involved clause), “I got me a cop” (Weiner) – is perhaps even more preposterous than the first.
One crucial issue is the one of the belated reporting of the alleged confession(s), and because, differ-
ent from hospital guard Priscilla Durham, none of the involved cops claimed they DID report the
“confession” early on, I will begin with them. These police officers were Wakshul, Bell, and Bray.
Between them, it took them a combined 230 days to report what they had allegedly heard to their
superiors. If we put the likelihood that a police officer would neglect to immediately or very
quickly report the very rare incidence of a suspect’s confession directly after the crime conserva-
tively at 1 to 10, one would have to put the likelihood that none of these officers lied at 1 to 103 =
1 to 1,000.
In fairness to the prosecution, one might strike Wakshul from the calculation because McGill actual-
ly tried his very best to keep him OFF the stand (even though that move that was itself extremely
unfair because Wakshul had before denied that a confession had taken place). The likelihood that
Bray, who McGill tried to defend at the suppression hearing as a potential trial witness, and Bell,
who did end up testifying, were both truthful when they said Abu-Jamal confessed (either “If you let
me go, I will kill all of you cops,” or “I shot the motherfucker”) would be 1 to 102 = 1 to 100.
Abstracting away from the issue of whether Pricilla Durham did, in fact, report the confession she
claimed to have heard to her hospital superiors early on as opposed to 64 days late to the police,
the statistical situation with the confession reports by the hospital guards is quite similar.
They were, of course, not part of the PPD, but given the situation in Philadelphia’s Center City,
they were in constant interaction with crimes including shootings, and therefore, with police offic-
ers. Not knowing anything further about their tasks and their training, particularly at the time in
question, I thus take it that they were also very likely to find a confession by a suspect brought
into the hospital significant enough to very quickly report it to some authority, as indeed Priscilla
Durham later was to claim she had.
Putting the likelihood that a hospital guard would not do this at 1 to 5, the likelihood that all three
hospital guards heard a confession and none of them reported it in a timely fashion is 1 to 75.
Dropping Weiner, whose claim I discovered only through intense research and whose confession
claim was never championed by McGill, we end up with LeGrand, who McGill apparently did
keep on the backburner even at the trial, and Durham: a 1 to 25 statistical likelihood that both of
these prosecution witnesses were truthful with their belated claims about a confession.
But as we have seen above, at the Abu-Jamal trial Priscilla Durham added an additional wrinkle to
her belated confession claim, namely, that it had actually NOT been belated and that she had
made that claim already one day after the shooting to her hospital superiors Bartelle and Begley.
Case closed, is what prosecutor McGill apparently tried to project at that moment, the issue of
belatedness is moot because Priscilla Durham actually reported the confession immediately.

85
Putting only her and Officer Faulkner’s former partner Bell, who would claim emotional dis-
tress as the reason for his belated memory, on the stand substantially reduced that danger that
the jury would gain a glimpse into the whole fragile edifice of the Abu-Jamal confession story.
Officer Bell testified after Durham, and I think there was a clear strategic reason prosecutor
McGill arranged it that way.
Normally, Durham’s belated confession report on February 9, 1982 would have been suspicious
even though she was “only” a hospital guard and not a police officer. Let’s again say the credibil-
ity of this is 1 to 5. But at the trial, all of a sudden, she said she actually first reported this on De-
cember 10, 1981, which would explain why she didn’t bother to think about the issue ever after.
If this is accepted as the truth, there is no credibility issue concerning the likelihood of a very be-
lated report anymore: Durham reported Abu-Jamal’s confession to her superiors right away.
But here as in the other cases, statistics refuses to let go and asks: How likely is it that neither Bar-
telli nor Begly, Durham’s superiors at Jefferson Hospital, would have passed on Durham’s report
to the police, in one of the most important and shocking murder cases in Philadelphia? Let’s put
the likelihood for one person at 1 to 10 (twice as much as for a “simple” security guard) – and the
likelihood that both superiors of Durham did not report this to the police was 1 to 100!
In other words, from that angle alone, what she testified to at the trial about having reported the
confession to Bartelli and Begley is unlikely to the point of approaching impossibility.
And this is quite significant. I think most people would, if not in theory, then still in actual prac-
tice, accept that a story whose odds of being right are only 1 to 100 as false “beyond a reasonable
doubt”: The whole story about Priscilla Durham reporting an Abu-Jamal confession to her
superiors Bartelli and Begley on December 10, 1981 was undoubtedly a lie. Moreover, the cir-
cumstances clearly indicate that the mastermind behind this lie was prosecutor Joe McGill. Only
he could engineer the feat to ostensibly send someone “to Jefferson” and “come back” with an
unsigned machine-typed slip of paper containing the desired message, which was then accepted
by the unwitting and blindsided defense attorney, Anthony Jackson, into evidence.
This constituted both the forgery of a document and fraud on the court, even though in this case
the court itself was all too willing to be duped. Even though this might appear as just a minor epi-
sode in the larger frame of things, it was prosecutorial misconduct of monumental proportions.
People who are disinclined to believe that this could have happened should closely look at what is
at stake here: Either Abu-Jamal did shout “I shot the motherfucker and I hope the motherfucker
dies” at the hospital, or he didn’t. In the first case, the confession reports by the two hospital
guards and the two police officers might be authentic, in the second, they can’t be.
In the above considerations, I have merely addressed the issue of belatedness, leading to the con-
clusion that Durham’s story is wrong beyond a reasonable doubt. But could not at least one of the
other three persons involved, let’s (for ease of exposition, ignoring the belatedness, and because
he ended up testifying at the trial) say Police Officer Gary Bell, have in fact heard the confession,
and those other good people then just adapted their story to his to help along a worthy cause?

86
As sketched above, this is still very unlikely by a ratio of 1 to 10, assuming that most police offic-
ers are not simply goofs who have no clue about their tasks. But the chart on p, 52 above and the
following argumentation on pp. 53 to 55 clearly show that this is also not what happened.
There was no confession – if there had been one, the three police officers who helped Gary
Wakshul in carrying Abu-Jamal and many, many of the additional two and a half dozen people
who milled about in the room would have heard and reported it.
They never did. It was a lie and concoction right from the very belated start. Moreover, it is very
hard to believe that the fact that in the end, not just one, but four guards and police officers came
up with this story was the result of a spontaneous conspiracy of these guards and officers. How
did it come about and who was responsible? We will very probably never learn the details, but the
overarching answer seems so clear that I will leave it to the reader.
Subtracting the “eyewitness” testimony and the “earwitness” testimony from the case against
Abu-Jamal, the alleged mountain of evidence proving his guilt shrinks to a molehill, namely, the
fact that he had a .38 caliber gun with him that could have theoretically fired the bullet found in
Faulkner’s head.
As we have seen above, on closer inspection even this molehill collapses to almost zero. In terms
of compatibility with the deadly bullet, the police could probably have arrested people, particular-
ly males, at and around 13th and Locust, searched them for their weapons, and then charged them
with the crime almost at random.
There is no evidence that Officer Faulkner was killed by a “high-velocity ‘plus P’ bullet” as
claimed in CDA (see quote on p. 2 above) because no such bullets exist, only plus P cartridges.
The fact that Abu-Jamal had empty cartridges of that type in his Charter Arms thus tells us pre-
cisely nothing about his perpetratorship. It also tells us nothing about any viciousness of his char-
acter – if he wanted to destroy a cop’s life with a particularly strong bullet impact, why didn’t he
buy a .357 magnum-type revolver with a long barrel for that purpose, but approximately the
smallest handgun available at all in the market?
Officer Shoemaker’s story about how he kicked
Abu-Jamal because he was reaching for a gun that
later on turned out to be his sounds both unbeliev-
able – who would have kicked a gun away only
for a couple of inches under such circumstances? –
and self-serving – “The suspect was mistreated,
i.e., kicked? I had to do it because he was an im-
minent danger.”
Officer Shoemaker in 2010
Officer Forbes, the other, and central, witness to the
retrieval of Abu-Jamal’s gun, is a proven liar who both mishandled the two guns collected at the
scene in the most outlandish manner and then told the untruth about this at the trial. His accounts
of the retrieval of the guns are both marred by contradictions and extremely implausible: As Of-
ficer Shoemaker and he were the only officers at the scene and Shoemaker was tending to the

87
wounded Officer Faulkner, why wouldn’t Forbes be first and foremost concerned with preventing
both Billy Cook and Abu-Jamal, who were automatic suspects, from doing any harm, while sim-
ultaneously getting the two guns out of the suspects’ reach as far as possible?
Against the background of these common-sense imperatives, his stories sound contrived are hard-
ly credible. I do not find it far-fetched that both Shoemaker’s and his account were concocted to
conceal the fact that one of them, either then or later, pulled Abu-Jamal’s gun out of its holster
which it had never left before during this night to make sure that he could be portrayed as the kill-
er of their fellow officer. The planting of guns to finger desired suspects is nothing new and has
happened both before and after the Abu-Jamal case, both in Philadelphia and elsewhere.41
The deep-sixing of evidence that is not to
the satisfaction of the police is another thing
that has happened both before and after,
both elsewhere in the United States and in
the Philadelphia Police Department itself.
The evidence that it happened here with
regard to tests whether Abu-Jamal’s gun
was even fired on December 9, 1981 and
Mobile Crime Detection Unit L 106
wagon, see green circle, p. 67. whether he had gunshot residues on his
hands is not conclusive, even though the
fact that van L 106 arrived way before EW 601 manned by Officers Trombetta and Wakshul
and containing Abu-Jamal left the scene is certainly suggestive. What do you have a mobile
crime lab for and why is it generally expected to be as quickly on the scene as possible if not
to do tests that determine whether a gun was recently fired and who might have fired it?
The author of Amnesty International’s report in 2000, A Life in the Balance: The Case of
Mumia Abu-Jamal gave the PPD the benefit of the doubt and assumed that these tests had
indeed not been conducted, but still felt compelled to remark: “The failure of the police to test
Abu-Jamal’s gun, hands and clothing for evidence of recent firing is deeply troubling.” (Ibid., 38)
Be that as it may, the firearms part of the prosecution’s theory was embarrassingly weak from the
start and badly in need of the inflammatory remarks by Joseph McGill in his summation, in which
he glossed as much as possible over all the weak parts – no tests on the suspect’s hand and the
crime weapon, a “match” between Abu-Jamal’s gun and the deadly bullet that amounted to a

41
One does not have to search very intensely for cases in Philadelphia; as I checked the Philadelphia Inquirer in
my mailbox on June 15, 2021, I came across Samantha Malamed’s highly interesting article “The battle in Philly
DA’s Office: Conviction Integrity Unit report shows rocky path to reform,” and the first “Read More” link in
that article led me to the May 7 article by the same author, “Losing Conviction,” which reports the distressing
case of Eric Crawley who tried to defend his sister Danielle in a family feud and was shot and killed by the arriv-
ing police in the context, after which they apparently took his licensed gun out of his holster to portray him as a
mortal danger to them and justify the shooting. For one contemporary case elsewhere, see, Chris Baynes,
“Baltimore police officers ‘carried BB guns to plant on unarmed suspects they shot’, court hears,” Independ-
ent, February 1, 2018, https://www.independent.co.uk/news/world/americas/baltimore-police-carried-bb-guns-
plant-unarmed-suspects-shooting-victims-corruption-maurice-ward-a8189731.html.
For a larger perspective, see The Marshall Project, “Cops Planting Evidence. A Curated Collection of Links,”
May 20, 2021, https://www.themarshallproject.org/records/4692-cops-planting-evidence.

88
match to “multiple millions” of other firearms in the country, the oddities about the alleged recov-
ery of Abu-Jamal’s and Faulkner’s gun – in order to harp on the apparent non-fact that Abu-
Jamal’s plus P ammunition proved the defendant’s particular viciousness.

Bringing all this together, a synopsis of the above shows the following points:

• The core part of the crime scene scenario the prosecution presented at the trial – Abu-Jamal
firing away at the defenseless Officer Faulkner as the latter lay on the ground – is clearly
untenable. The missing bullet divots on the sidewalk in front of 1234 Locust prove this.

• The fact that three allegedly independent witnesses – Michael Scanlan, Cynthia White,
and Robert Chobert – told this very same story is not its strength, but its mortal weakness.
This identical, but false narrative could only have been the result of coordination by the
police. This is generally called a frame-up.

• While Michael Scanlan’s account of how Officer Faulkner was shot in the back is highly
unlikely, Cynthia White’s account is completely impossible. This leaves that part of the
prosecution’s theory of event in shambles as well.

• Eyewitness testimony, the incoherent and impossible nature of her own testimony, and
the testimony by both Veronica Jones and Yvette Williams prove beyond a reasona-
ble doubt that key prosecution witness Cynthia White was not even a witness to the
shooting because she wasn’t even there. This is additional proof of witness coaching
and a frame-up.

• Eyewitness testimony, elementary considerations of likelihood re driving without a li-

cense, the evolution of his testimony, the testimony by Pedro P. Polakoff as well as
several of Polakoff’s crime scene photos serve to show that Robert Chobert was NOT
parked behind Officer Faulkner.

• Chobert’s first statements gain plausibility by his own admission to a defense investigator
in 1995 that he was parked north of the intersection on 13th Street and didn’t see but only
hear the shooting. The police at the scene had to know this but still took down his false
testimony against Abu-Jamal. This is additional evidence for a conscious frame-up.

• Abu-Jamal’s first “confession” in EPW 601 was a concoction dredged up by the rank-
ing officer at the scene, Inspector Giordano. Had ADA McGill been interested in the
truth, he could have had Officers Trombetta and Wakshul, who were present during
the alleged event, ordered to be reinterviewed but he did not (or if he did, nothing is
known about it).

• Abu-Jamal’s crucial “hospital” confession never happened. Putting aside the obvious lies
by hospital guard Weiner and P.O. Bray, there are three reasons to be sure about this.

• First, the alleged “motherfucker” curse was supposedly shouted in an emergency area no
larger than two average living rooms in which dozens of people milled around, some of

89
 them very close to the alleged shouting. Apart from LeGrand, Durham, Wakshul, and
Bell, none of them heard anything, which makes their claim preposterous.

• LeGrand, Durham, Wakshul, and Bell waited between 57 and 80 days to report their ob-
servation to the police. The likelihood of this without at least one or two of them lying is
astronomically small. There is no evidence that prosecutor McGill was bothered by this in
the least. Rather, he seems to have egged the guards and the officers on.

• Hospital guard Priscilla Durham’s surprise revelation at the trial that she DID report Abu-
Jamal’s confession to her superiors Bartelli and Begley is preposterous as well. The likeli-
hood that neither Bartell nor Begley would have reported this to the police is so small that,
in my view, this scenario can be dismissed beyond a reasonable doubt.

• This means that the machine-typed slip of paper containing Durham’s alleged report to her
superiors and brought “back” to the court by one of McGill’s aides had to have been
manufactured by the DA’s Office itself. If not, why didn’t McGill call either Bartelli or
Begley or both to the stand? That would have sealed Abu-Jamal fate then and there.

• This particular manipulation was prosecutorial misconduct of monumental proportions.

While shining a bright light on the highly problematic other aspects of the “hospital confes-
sion,” it was apparently only the tip of the iceberg. Normal rational reasoning would seem to
indicate that all the other false confession stories were solicited by the DA’s Office as well.

• Given the propensity of the cops involved in this case to lie and given their own contradic-
tions and almost absurd features, Officer Shoemaker and Officer Forbes’s stories about the
retrieval of Abu-Jamal’s gun also do not come across as very credible. As that gun itself
could not be matched to the deadly bullet, the whole case thus essentially evaporates.
Not only are the holes in this case so enormous that you can literally drive a truck through them.
It is much worse: On close inspection, there is nothing left but holes.
And as my point of departure was CDA, I haven’t even addressed the evidence for a potential
perpetrator apart from Abu-Jamal and his brother Billy Cook, that is, for the presence of a third
man. This is a very interesting story in itself, but not necessary for the goals of this already very
long essay, whose purpose was to show that the allegedly waterproof evidence against Abu-Jamal
not only does not stand up, but was manufactured in all relevant parts.
  
In his trial in 1982, Mumia Abu-Jamal was not proven guilty beyond a reasonable doubt, which is
the gold standard in any decent jurisprudence. Rather, since then – and I believe particularly
above – it has been proven that it is the main pillars of his conviction that are untenable beyond
a reasonable doubt.
That, in itself, should be reason enough to overturn the conviction of 1982.
I think what I haven shown above goes even beyond that. I believe to have demonstrated that
there was a deliberate attempt to frame Abu-Jamal as guilty of the crime of murder even though

90
there was virtually no authentic evidence demonstrating that he did it. In my view, it is all but
certain that the police, and after it the DAO, then proceeded to manufacture that evidence.
But if that is the conclusion, overturning the conviction doesn’t seem to be enough. If it is accept-
ed, as I think it should be, Mumia Abu-Jamal must be sent home to his family.

Coda
In this essay I have only peripherally dealt with the legal questions raised in Abu-Jamal’s defense
petition of September 2019 and the response to these issues given in CDA in February 2021.
These legal issues are important in their own right and to me, to the extent that I, as a non-lawyer,
understand them, also seem to require overturning the conviction of Mumia Abu-Jamal.
But this essay is not about these questions of legal justice, it is about natural justice. A case
in which the testimony of the three core “eyewitnesses” was demonstrably false, in which the
two most crucial of these witnesses didn’t even observe the events, in which the cops arriving
at the scene manufactured a version of the events that was clearly false, in which the ranking
officer at the scene concocted a confession story that was so crude an unbelievable that the
prosecutor silently dropped it before the trial, and in which not one, not two, but a full six
police officers and hospital guards involved themselves in another falsified confession story
that doesn’t even pass the laughing test, and in which the gun of the alleged perpetrator was
never really matched to the bullet that killed the victim – such a case must be thrown out and
never be relitigated.
This conviction was obtained by a police “investigation” that was so corrupted and unfair that no
legal argument can justify upholding it. Even though a similarly corrupted appeals process has
denied this, the criminal trial was also so corrupt and unfair on account of, among other things, the
behavior of the prosecutor and the judge that the prosecution’s case is irremediably tainted. After
almost forty years, with the disappearance of much of the evidence and the death of a number of
the crucial witnesses, it is also clear that there is no way to resurrect it.
I want to close with two quotes.
The first is the assessment that a very renowned and still active investigator, George Michael
Newman, gave a short while after he had started to investigate the Abu-Jamal case on behalf of
Abu-Jamal’s defense team then led by Leonard Weinglass on July 13, 1995 (Newmann, Corre-
spondence, 2-3):

As a professional I cannot, and would not, presume to tell you that your client is innocent. I
can, however, state that his conviction is a true travesty for both Mr. Jamal and for the vari-
ous other victims of this incident. Speaking in a brutally candid fashion, this conviction
doesn’t even meet with the standards that would be required of a shoplifting case.

91
To me, that still seems to be a very good summary. And no one should be kept behind bars for
forty years on evidence not even sufficient for a shoplifting case, right?
The second quote deals in greater depth with the question of how convictions that may have gone
wrong should be dealt with:

But what if a reasonable doubt or maybe a whole lot more than a reasonable doubt shows
up long after a seemingly accurate conviction at trial, even if there is no scientific certainty
of innocence? What if, due to new developments – new evidence, old evidence that was
hidden at the trial, new scientific methods that were unavailable before, or new information
that undermines witnesses – the conviction cannot stand because it now lacks integrity and
always will? The answer must be that the conviction is reversed and the person who was
convicted goes home. Integrity and a just system require it. (Larry Krasner, For the People,
New York 2021, 146-47)

It is time for the Philadelphia D.A,’s Office to cease its opposition to Abu-Jamals demands to
overturn his conviction and to once and for all drop the case against Mumia Abu-Jamal.

Michael Schiffmann
Heidelberg, June 26, 2021

92
 Sources1

1. Quoted in the Text

• A Case for Reasonable Doubt, film, 1996

• Amnesty International (2000), A Life in the Balance: The Case of Mumia Abu-Jamal,
New York, Seven Stories Press *

• Barrel of a Gun, film, 2010

• CDA: Commonwealth’s Brief for Appellee

• BC TT: Billy Cook Trial Transcripts *

• Human Right Watch, Shielded from Justice, 1998, Section on Philadelphia

• IIR: Investigation Interview Record, various witnesses, various dates (* in part)

• In Prison My Whole Life, film, 2007

• Larry Krasner (2021), For the People, New York, One World

• Memorandum and Order, Judge William Yohn Jr., December 18, 2001 *

• PCRA: Mumia Abu-Jamal Post-Conviction Relief Act Hearing Transcripts *

• PPP: Pedro P. Polakoff photos no. 1-17 & 23-31

• PRT: Police Radio Transcript December 9, 1981 *

• SH: Mumia Abu-Jamal Suppression Hearing Transcripts *

• TT: Mumia Abu-Jamal Trial Transcripts *

2. Quoted in the Footnotes

• Affidavit of Criminalist Ronald L. Singer, September 2001 *

• Chris Baynes, “Baltimore police officers ‘carried BB guns to plant on unarmed

suspects they shot’, court hears,” Independent, February 1, 2018

• Mark Bowden, “Cops on the Take,” in Road Work. Among Tyrants, Heroes,
Rogues, and Beasts, Atlantic Monthly Press, New York 2004

• Stephen Brown, “Jamal Denies Killing Cop; Alleges Brutality,” Philadelphia Daily
News, January 5, 1982

• Joyce Gemperlein and Robert J. Rosenthal, “Abu-Jamal Shot Officer in Back,

Witness Says,” Philadelphia Inquirer, January 9, 1982
1
The sources with a * are available at https://uni-mannheim.academia.edu/MichaelSchiffmann.
93
 • Valerie Jones, Veronica and the Case of Mumia Abu-Jamal as Told to Her Sister
Valerie, Xlibris 2012

• Emily Lounsberry and Michaelle Bond, “Testilying. Swearing to Tell a Lie,”

Philadelphia Inquirer, April 2, 2017

• Samantha Malamed, “Losing Conviction,” Philadelphia Inquirer, May 7, 2021

• Petitioner Jamal’s Notice. of Filing of Evidence in Support of Memorandum of Law on

Court’s Jurisdiction to Hear Petition for Post-Conviction Relief and/or Habeas Corpus

• Michael Schiffmann (2006): Race Against Death. The Struggle for the Life and
Freedom of Mumia Abu-Jamal *

• Michael Schiffmann (2007), “Spurious Witnesses, Impossible Events: What the

‘Eyewitness’ Testimony from Billy Cook’s March 29, 1982 Trial for Aggravated
Assault Reveals” *

• Michael Schiffmann (2007), “What Happened on December 9, 1981 – a Timeline” *

• Tom W. Smith and Jaesok Son, Trends in Gun Ownership in the United States,
1972-2014, March 2015

• Arne Svensson, Otto Wendel & Barry A.J. Fisher, Techniques of Crime Scene
Investigation, Elsevier 1981

• The Marshall Project, “Cops Planting Evidence. A Curated Collection of Links,”

May 20, 2021

• Wikipedia, “.38 Special,” accessed May 1, 2021

• Daniel Williams (2001): Executing Justice. An Inside Account of the Case of

Mumia Abu-Jamal, New York, St. Martin’s Press

3. Other Sources
• Maureen Faulkner & Michael Smerconish (2007), Murdered by Mumia. A Life-
Sentence of Pain, Loss, and Injustice, The Lyon’s Press, Guilford, CT

• Justice on Trial, film, 2010

• Dave Lindorff (2003), Killing Time. An Investigation into the Death Row Case of
Mumia Abu-Jamal, Monroes, Common Courage Press

• J. Patrick O’Connor (2008), The Framing of Mumia Abu-Jamal, Chicago, Chicago

Review Press

• Schiffmann (2013), “The Good Old Frame-Up. How Police, Prosecution and the
Courts Turned Mumia Abu-Jamal into a “Murderer” *

94
Appendix

95
96
 False Witnesses
A Three-Part Dossier on
Cynthia White, Robert Chobert &
Michael Scanlan
The prostitute Cynthia White, the cabdriver Robert Chobert, and the mo-
torist Michael Mark Scanlan were the most important prosecution witness-
es at the trial against Mumia Abu-Jamal. They claimed to have seen the
shooting that ended with the death of Police Officer Daniel Faulkner and
the arrest of a critically wounded Abu-Jamal as a whole or in part. The fol-
lowing three dossiers demonstrate that the most substantive parts of their
testimony were false. Because of the similarities of much of the testimony,
parts of the dossiers necessarily overlap. This overlap has not been removed
in order to make it possible to read each of the dossiers individually. These
are the core claims made in the dossiers:

• Cynthia White was not even present at the scene of the shooting.
• Robert Chobert was not where he claimed to have been and did not see
the actual shooting, but only – possibly – the shooter as he ran away.
• Michael Scanlan, who was apparently there, gave a description of the
shooting that is incompatible with the ballistic evidence.
• All three witnesses described the actual killing of Faulkner in a man-
ner that is demonstrably false.
• White and Scanlan described the beginning of the shooting in a man-
ner that is almost equally unlikely.
• All of the above strongly suggests coaching and coercion of these wit-
nesses, particularly White and Chobert, by the police.

bbyy

Michael Schiffmann
97
98
 Dossier
on
Cynthia White
Bullet Points:

• White claimed to have stood at on the sidewalk of the south-eastern cor-

ner of 13th and Locust and to have observed from a distance of no more
than 15 yards how Abu-Jamal killed Officer Faulkner execution-style
• Not one other witness saw White at the scene, not even Robert Chobert
• Witnesses Magilton and Scanlan explicitly denied White’s presence
• Prior to December 9, 1981, White had been arrested 36 times for prostitu-
tion. She would hardly have watched a traffic check from nearby
• After two further arrests in December 1981, she changed her original
statements in three very crucial respects, after which her arrests stopped
• Veronica Jones’ trial testimony, Pamela Jenkins’ PCRA testimony and a
sworn 2002 statement by Yvette Williams all indicate that White’s testi-
mony was coached by the police and that she hadn’t seen the shooting
• White consistently placed the slain officer on the sidewalk when he was
shot in the back. Had this been true, Abu-Jamal could not have been the
shooter as the bullet he fired through Faulkner’s back and neck would
then have been found on or in Locust 1234 – but it was not
• A police photo, a press photo and 9 of the 31 photos of press photographer
Pedro P. Polakoff show the absence of bullet traces on the sidewalk which
would be there if White’s account of the shooting were true
• Each of White’s statements contains numerous inconsistencies: internally,
with fact and logic, and as well as with her own other statements
• Judging from her own and others’ testimony, it is virtually certain
that she did not observe the shooting of Officer Faulkner even in part
99
100
Dossier on Cynthia White

For a large number of reasons, it is virtually certain that this witness lied at the trial against
Abu-Jamal and did not see the actual shooting. Here is a list and summary of these reasons.

1) Even though Cynthia White was the central prosecution witness and the only one who
claimed to have seen all of the shooting AND identified the shooter, not one defense or
prosecution witness testified to having seen her where she claimed to have been and ob-
served the shooting from, the southeastern corner of the intersection 13th and Locust.

2) Though she was also the only witness at the trial who corroborated the second most
important prosecution witness Robert Chobert’s claim that he was parked behind
Faulkner’s police car (MAJ TT, June 22, 1982, 106-108), not even Chobert corroborat-
ed her presence at the scene.

3) Under cross examination by Anthony Jackson, Chobert even denied having seen any-
one at the southeastern corner of 13th and Locust while he was allegedly parked there
behind the police car, letting out his fare (MAJ TT, June 19, 1982, 227-28).

4) At the trial, Michael Scanlan also denied having seen “anyone else on the street” “ex-
cluding the shooter” at the time of the shooting (MAJ TT, June 25, 1982, 20-21),1 while
remembering the presence of two men on the northwest corner of the intersection 13th
and Locust and of one man at the southwest corner (MAJ TT, June 25, 1982, 30).

5) The man at the southwestern corner was almost certainly prosecution witness Albert
Magilton. Magilton also explicitly denied having seen anyone standing at the south-
eastern corner of the intersection (MAJ TT, June 25, 1982, 86),2 while clearly remem-
bering people standing in the vicinity of the southwestern corner (Ibid., 85).

6) None of the only two defense eye-witnesses testifying at the trial, Dessie Hightower and
Veronica Jones, mentioned a woman on the southeastern corner of 13th and Locust.
However, in her first statements to the police Jones mentioned the presence of a man at
the southeastern corner of the intersection (MAJ PCRAT, October 2, 1996, 262-63).

1
The interaction between Abu-Jamal’s lawyer Jackson, Prosecutor McGill, and Judge Sabo is quite interesting and
strongly indicates an interest of the latter two to prevent Jackson from exploring the topic of White’s presence:
“Q. And was the police car right at the corner, was it some distance from the corner? A. Some distance from the
corner. Q. How much, as best you can estimate? How many car lengths from the corner was the police car
parked? A. One, at the most. Q. One at the most. Any other individuals on the street, excluding for the moment
the shooter? Anyone else -- did you see anyone else on the street at that time? A. All I focused on was the po-
liceman and the gentleman in front of the car. Q. You may have focused on the policeman and the other man, did
you see anyone else on the street? MR. MCGILL: Objection. He answered it. MR. JACKSON: He said he didn't
focus on it. THE COURT: He said he couldn't see anybody, could he? Objection is sustained. A. I didn't see
anyone else. Q. So there was no one else on the street, then, sir? MR. MCGILL: Objection, he didn’t say that.
THE COURT: Objection sustained.”
2
“Q. Right. What about the southeast corner? A. Well, there was people moving around there. Q. Did you see
anyone standing at the southeast corner? A. No. I noticed a gentleman come from through here, and he started
moving across the street, and that was Mr. Jamal. Q. All right. But you never say anyone right here on the south-
east corner? A. Not to my knowledge.”
101
 7) This is where defense witness William Singletary placed himself during his testimony
at Abu-Jamal’s 1995 PCRA hearings. Singletary testified that White had indeed brief-
ly been at the intersection before Faulkner stopped Billy Cook’s VW and talked to him
there, but then walked away four to five car lengths in southern direction on 13th Street
way before the shooting began (MAJ PCRAT, August 11, 1995, 301).3

8) Given the inconsistencies and impossibilities in his testimony both when he contacted
the defense in 1990 and at the 1995 PCRA hearing, Singletary’s presence at the south-
eastern corner of 13th and Locust during the shooting is itself in question. His presence
close to the eastern corner at that very time and at the corner after the shooting, how-
ever, is uncontroversial (MAJ PCRAT, August 11, p. 245-250).4 He was thus quite
well placed to observe White’s whereabouts, particularly her absence from the corner.5

9) Prior to December 9, 1981, Cynthia White had been arrested for prostitution 36 times
since her first arrest on May 3, 1980.6 Therefore, it is highly unlikely that White would
have watched a traffic stop with ensuing altercation from only some ten to fifteen
yards away instead of disappearing from the scene as quickly as possible.

10) From May 3, 1980 to December 9, 1981, the number of White’s arrests amounted to
approximately one every two weeks. She was again arrested on December 12 and 17
and gave statements about the shooting. After this, she was not arrested until at least
March 29, 1982, the core day of Billy Cook’s trial (BC TT, March 29, 1982, 41-57).

11) While White’s statement on the 12th added only detail to the one during the night of the
shooting, her statement on the 17th was very different in three crucial respects (IIS
White, December 12 and December 17).7

12) In her statement on December 9, White stated that the shooter “had a handgun in his
hand. He fired the gun at the Police Officer about four or five times.” (MAJ TT, June
22, 1982, 165) On December 12th, she answered the question “When he began to shoot
did he fire all at once or where the shots staggered?” with “It sounded like all at once,
like firecrackers.” (MAJ TT, June 22, 1982, 165)

3
“Q. When you came back across the street was Cynthia White still there? A. No, sir, she was down the street,
four or five cars. Q. Do you know which street? A. South on 13th. Q. And was she alone? A. She was talking to
a guy. Q. And was it then that you crossed 13th Street to where the speed line is? A. To, no, that's as the
Volkswagen approached. Q. I see. And as that happened did you see where Cynthia White was? A. She was
gone far down the street. Q. Was she on that corner with you when you saw the shooting? A. No, sir.”
4
These are the pages where prosecution attorney Arlene Fisk cross-examines Singletary, reading his alleged
original December 9, 1981 testimony to him, whose content he adamantly denies. But this alleged original
statement also places him squarely at the scene (according to it, Singletary was stopped on 13 th Street just south
of the red light of the intersection 13 th and Locust, that is, right next to both where she claimed she was and
where he claimed in 1995 that she had been).
5
And if his alleged original statement is to be believed, he could very well have been the man who Jones, whose
observations pertain to the time after the shooting, claimed she saw at the southeastern corner of the intersection.
6
For source, see next point.
7
Quotes from White’s three IIS of December 9, 12, and 17 whenever possible from MAJ TT, which are publicly
available, otherwise from the IIS themselves.
102
 13) On Dec. 17, White describes the shooting thus: “That’s when the Officer fell down
when the guy was shooting at the Officer. Then the guy went over to the Officer and
was standing over him [and] shot three more times.” (MAJ TT, June 21, 1981, 183, June
22, 1981, 175) Only now, White’s statement was consistent with witness Michael Scan-
lan’s account of the shooting in this respect.

14) Whereas she first claimed, contra Scanlan, that all shots were fired in quick succession,
she now for the first time subscribed to a shooting scenario in two parts, the latter con-
sisting in the shooter standing over the prone officer and killing him execution style.

15) On December 9, White specifically denied having seen that the officer fired or even
pulled his gun (IIS White, December 9, 1981, 3). Together with her claim to have had
the whole shooting in plain view, that made Abu-Jamal’s gunshot wound in the chest
inexplicable.

16) Questioned for the third time, on December 17 White answered the question “Did you
see the Police Officer that was shot pull his gun out?” with “Not actually, but it looked
like he grabbed for something on his side.” (MAJ TT, June 22, 1982, 179)

17) On December 9, White responded to the question “Did you see any struggle between the
Officer and any of the two men,” “the two men” referring to Billy Cook and Abu-Jamal,
unequivocally with “No, there was no struggle.” (MAJ TT, June 21, 1982, 156)

18) On December 17, she described the events leading up to the shooting in the following
way: “The Police Officer said something else to the driver of the Volkswagen and
that’s when the driver of the Volkswagen struck the Officer. The Officer grabbed him
and turned him around, the man’s hands was behind his back, the driver of the V.W.’s
back was to the Officer.” (MAJ TT, June 21, 1981 p. 183, June 22, 1981, p. 175) Here,
too, White now corroborated, instead of contradicted, Scanlan.

19) Points 11) to 18) are all by themselves very good prima facie evidence that that the
version of events White presented at Abu-Jamal’s trial was spoon-fed to her, i.e.,
coached and concocted, and moreover, for the likelihood that she actually didn’t even
observe the events she described in such contradictory terms within only eight days.

20) Points 9) and 10) strongly point to a likely motive for her changing statements, name-
ly, both coercion (two more arrests within only one week) and favors (no arrests at all
during the following roughly 3 ½ months) on the part of the police.

21) At Abu-Jamal’s trial, Veronica Jones testified that the police “were getting on me telling
me I was in the area and I seen Mumia, you know, do it, you know, intentionally. They
were trying to get me to say something that the other girl said. I couldn’t do that,” the
“other girl” clearly referring to Cynthia White (MAJ TT, June 29, 1982, 129). Given the
context,8 this is more evidence that White’s testimony was coached and coerced.

8
Where Jones describes how the police tried to get testimony against Abu-Jamal (MAJ TT, June 29, 1982, 128-30).
103
 22) In January 20002, Yvette Williams, who claimed she got to know Cynthia White in
prison in December 1981, testified that White had told her that “she didn’t even see who
shot Officer Faulkner” and that “the police and vice threatened her life. Additionally, the
police were giving her money for tricks.”

23) White also said that she “was worried the police would kill her if she didn’t say what
they wanted.” (Full Williams statement in Schiffmann, 2005, 14-15)

24) Given the known practices of the Philadelphia Police Department (PPD) at the time,
both Jones’ and Williams’ statements all by themselves cast strong suspicion over
White’s testimony against Abu-Jamal and her claim to have even seen anything. There
is no doubt that the PPD had a lot of power over her.9

25) In all of Whites (mutually and internally) inconsistent statements from December 9,
1981 to her trial testimony in June 1981, there is one curious constant: White always
placed Faulkner on the sidewalk in front of Locust 1234 at the moment when Abu-
Jamal, who was undisputedly approaching the scene from the parking lot across the
street, supposedly started shooting at him. (IIS White, Dec. 9, 3; Dec. 12, 2; Dec. 17, 1.
Also BC TT, 33-35, 66-67, 74-75. Further, MAJ TT, June 21, 1982, 93, 95, 111; June 22,
99, 105, 108-111, 134, 143, 151, 157, 191,10 234-235.)

26) For one thing, this scenario is in flat contradiction with all statements by Michael Scan-
lan, the only other prosecution witness who claimed to have seen the beginning of the
shooting, which consistently place Faulkner in the street when it erupted. (See Dossier
Michael Mark Scanlan)

27) Even more importantly, for the reasons given below in 28) to 38), White’s scenario for
the beginning of the shooting is impossible to reconcile with both the prosecution’s gen-
eral version of the events and all the known facts.

28) The scenario the prosecution presented at the trial, critically depending on White’s tes-
timony, had Abu-Jamal coming from across the street and firing one or two shots at
Officer Faulkner, hitting him once in the back. All sides indeed agree on one fact,
namely, that Abu-Jamal approached the scene from the parking lot across the street.

29) With Faulkner on the sidewalk, as alleged by White, there would have been no obsta-
cle between him and the 1234 Locust in front of which the shooting took place (see
Williams, 2001, Executing Justice, photo section, 2).

9
1997 testimony by former prostitute Pamela Jenkins tended to corroborate Jones’ 1982 and Williams’ 2002 testi-
mony. She claimed police officers “were saying that it was a shootin’ and that Mumia had did it” and were pressur-
ing her to testify against Abu-Jamal as the shooter even though she was not at the scene (MAJ PCRAT, June 26,
1997, 43-44), and that White, who she claimed she knew before December 1981, “was scared” after the shooting.
“The second time [Jenkins met her] she was in fear for her life from the police.” (ibid., 1997, 48). As Jenkins’ story
contained some gaps whose discussion would lead to far afield, her testimony is only put in this footnote.
10
Between pages 157 and 191, there are a number of references to previous statements by White.
104
 30) It is uncontested that the bullet that hit Faulkner in the back (i.e., the first one fired at
him) went through him and exited through the front of his neck (inter alia, as per tes-
timony by forensic pathologist Dr. Hoyer, MAJ TT, June 25, 1982, 164-169).

31) Bullets do not fragment when they go through soft human tissue as was the case here.11

32) With the shooter coming from the parking lot and shooting Faulkner in the back, and
with no hard obstacle between Faulkner and the building 1234 Locust, the bullet that
went through the officer would have had to have been found in one piece somewhere
in the wall or entrance or vestibule of that building.

33) The only un-fragmented bullet that was found was lodged in the left part of the door-
frame of the entrance to the building only ca. one meter above the ground level. Since
White consistently testified that the bullet fired into Faulkner’s back (which went up-
ward before exiting through his neck)12 while he was still standing, the bullet in the en-
trance cannot have been the same bullet.

34) The only substantial bullet fragment (ca. one quarter of a bullet) was found in a wall 2
meters inside the vestibule of 1234 Locust sharply to the right of the entrance.

35) It had entered through a hole in a glass panel of the door in a trajectory almost at a right
angle to the direction from which Abu-Jamal was coming, who had approached the sce-
ne by running diagonally across the parking lot from his cab which was parked on the
western side of 13th Street north of the intersection 13th and Locust.

36) If no hard obstacle intervened between the officer and 1234 Locust that could have
caused a fragmentation of the bullet, this fragment cannot have been part of the bullet
that went through Faulkner.

37) Given the direction from which Abu-Jamal was coming and the trajectory of the fragment,
the possibility that it could have been the glass that caused the fragmentation, with the
other bullet parts bouncing from the glass and going missing, must also be excluded.

38) White’s scenario that firmly puts Officer Faulkner on the sidewalk as he is shot in the
back from a shooter coming from the direction of the parking lot must thus be dismissed
as impossible.

39) White’s description of an execution style killing of Faulkner by the shooter (IIS White,
December 17, 1981, 1-2; MAJ TT, June 21 & 22, 1982, multiple places) cannot be
true. White talks about three to four shots at the prone Faulkner. Since only one shot

11
Certainly not relatively low-speed bullets as could be fired by Abu-Jamal’s Charter Arms revolver. This can
be found in any weapons or ballistics manual dealing with such questions.
12
Same source as in point 30).
105
 hit Faulkner in the head, gunshot traces of the other two to three shots would have had
to have been on or in the sidewalk area around Faulkner’s head.

40) White shared this version of the deadly shot that allegedly hit Officer Faulkner while
he was lying prone on the sidewalk with prosecution witnesses Michael Scanlan and
Robert Chobert. In her first statement on December 9, 1981, however, she mentioned
nothing of the sort. It took her more than a full week, until December 17, to reverse
her original statement that all shots at the officer had been fired in quick succession
and talk about a second phase instead that had Faulkner already lie on the ground. See
points 12) and 13) above.

41) Even though the prosecution scenario about the deadly shot into Officer Faulkner’s
head literally cried out for an intense search for such traces or marks, no pre-trial po-
lice report or trial testimony reported anything of the sort. There is no document, pho-
tograph or testimony whatsoever or by anyone indicating that such traces were there.

42) On the contrary, there is massive evidence that such traces were NOT there, among
them a number of photos taken by the first press photographer to arrive at the scene,
freelancer Pedro P. Polakoff.

43) At least one official police crime scene photograph (see Williams (2001), Executing
Justice, photo section, 2) shows the absence of bullet marks in the area in question.
The same is true of a press photograph apparently taken the morning after the shooting
(see Schiffmann (2005), Mumia Is Still the Issue, title).

44) The area in question is also displayed on nine of Pedro P. Polakoff’s photographs,
namely numbers 2, 3, 4, 6, 9, 10, 11, 14, and 31. None of them show any gunshot trac-
es, not even in 400 % enlargement.

45) The high-resolution electronic version of one of those photographs was given to a
NASA photo specialist by Philadelphia journalist Dave Lindorff. The specialist
couldn’t detect any gunshot traces on the photograph.

46) In September 2010, Philadelphia journalists Dave Lindorff and Linn Washington pub-
lished the results of a gunshot test they had done with a revolver similar to Abu-
Jamal’s and in which they had fired shots at point blank range into a concrete slab
similar to the concrete of the sidewalk on which the slain officer Daniel Faulkner had
come to lie on December 9, 1982. Of all the shots, gunshot traces were very clearly
visible on and in the concrete.

47) White was not even asked to identify Abu-Jamal at the crime scene, even though that
was easily doable and was done with witnesses Chobert (result positive) and Scanlan
(who did not identify Abu-Jamal). The first time she was presented with Abu-Jamal
was a full 30 days after the shooting at a court hearing on January 8,1982, where in
due turn, she “recognized” Abu-Jamal.
106
 48) At the March 29, 1982 trial against Abu-Jamal’s brother Billy Cook for aggravated as-
sault against Officer Faulkner, White presented a completely absurd version of the
shooting that had Abu-Jamal run towards 1234 Locust while Faulkner was on the
sidewalk facing him, and that then had Abu-Jamal shooting him in the back all the
same (for which he would have had to circle the officer, with the latter doing nothing
to stop him), after which the rest of the scenario with the officer falling and Abu-Jamal
shooting him dead execution-style unfolded. (BC TT, March 29, 1982, 92-93)

49) At this trial, even Judge Meyer Rose, who in the end found Billy Cook guilty as
charged, commented during the pronouncement of his decision that “as a matter of
fact, at one point […] I had some doubt about the entire testimony of Miss White.”
(BC TT, March 29, 1982, 146)

50) In a move to destroy the testimony by defense witness Pamela Jenkins who had
claimed to have recently seen her, Cynthia White was declared dead by the prosecu-
tion during the last spate of PCRA hearings. (PCRAT, July 26, 1997, 136-189) The ev-
idence on which this claim relies has been cast in doubt but cannot be discussed here.
Should White turn out to be alive, this would indicate prosecutorial misconduct of
monumental proportions. But even if she is actually dead, all of her testimony both at
the Billy Cook and the Abu-Jamal trial crumbles to dust under scrutiny. Since she was
not even present at the events to which she testified, her testimony by necessity had to
consist of – mostly not well-told – lies from cover to cover.

Sources:

• BC TT: Billy Cook Trial Transcripts

• IIR: Investigation Interview Record, various witnesses, various dates
• MAJ SH: Mumia Abu-Jamal Suppression Hearing
• MAJ TT: Mumia Abu-Jamal Trial Transcripts
• PCRAHT: Post-Conviction Relief Act Hearing Transcripts
• Schiffmann, Michael (2005): “Mumia Is Still the Issue. On the June 17, 2005, Court
Decision Against Mumia Abu-Jamal.”
• Schiffmann, Michael (2006): Race Against Death. The Struggle for the Life and Free-
dom of Mumia Abu-Jamal.
• Schiffmann, Michael (2007), “Spurious Witnesses, Impossible Events: What the
‘Eyewitness’ Testimony from Billy Cook’s March 29, 1982 Trial for Aggravated As-
sault Reveals.”
• Williams, Daniel (2001): Executing Justice. An Inside Account of the Case of Mumia
Abu-Jamal, New York, St. Martin’s Press

All sources except Williams’ book Executing Justice are available at

https://uni-mannheim.academia.edu/MichaelSchiffmann

107
Appendix: Photos & Summary

Illustration for 4) & 5) (Scanlan’s and Magilton’s points of view):

This is a close reproduction of prosecution witness Scanlan’s point of view (photo taken in
2010). The black car is approximately where Faulkner’s car was. The yellow arrow points to
the area where Faulkner finally came to lie, with his feet stretched out toward the observer.

The red circle is where White claimed to have been during the events. Even focused “on the
policeman and the other man” (Billy Cook) – see footnote 1 – as he later at the trial said he
was, it would have been next to impossible for him to miss White, who would have been al-
most directly in his line of sight.

This is even truer of Albert Magilton (green circle), who testified he first stood at the right side
of the zebra crossing, then walked to the middle, and then went back to where he started from.

108
Illustration I for 28) to 38): The only hard obstacle between a shooter coming from the
parking lot and Locust 1234 is the pole of the no parking sign right at the curb of the
sidewalk

On top, a well-known police photograph, mentioned in 29) in the text. The less well-known
police photo at the bottom was also taken on December 9, 1981 after the events. It shows the
only obstacle that could have split a bullet, no parking sign pole, from a different perspective.

109
Illustration II for 28) to 38):

According to White`s testimony (uncontested, in this regard) Abu-Jamal approached the scene
roughly along the line depicted by the arrow. White also consistently testified Abu-Jamal shot
Faulkner in the back while the latter was on the sidewalk, which has no possible connection
at all to the gunshot (traces) found at the scene (a ¼ bullet fragment inside the building – blue
– and a full bullet in the lower left part of the door frame – green circle).

The only explanation for the ¼ bullet fragment marked blue in the above picture is that it re-
sulted from a bullet part of which bounced off the traffic sign pole (marked in pink to the right
of the Billy Cook’s VW). In Cynthia White’s scenario where Abu-Jamal shot Faulkner while
the latter was on the sidewalk, this is impossible. Her scenario can’t be true.

110
Illustrations for 43) (Police/press photographs of the area around Faulkner’s blood):

Press photo the morning after

The absence of gunshot traces in the sidewalk as shown in one of the official
police crime scene photos. Note that the metal grid in the lower part of the
picture also shows no sign of any damage; anyway, most of it would have
been covered by Faulkner’s torso while Faulkner was killed.

111
Illustrations for 44) (Polakoff’s photos of same area):

112
These are Polakoff’s photos no. 2, 3, 4, 6, 9, 10, 11, and 14, from left to right and top to bot-
tom. Photo 31 is left out for reasons of space. None of the photos, in any resolution, shows the
slightest gunshot trace.
Summary: Cynthia White claimed to have been positioned on the sidewalk
right at the southeastern corner of 13th and Locust and to have seen all of the
shooting. Five kinds of evidence make it virtually certain that NONE of this is
true:
1) Prosecution witnesses both Magilton & Scanlan denied having seen her; 2)
No other witness, defense or prosecution, saw her at the corner where she
claimed to have been; 3) Her first statements were radically inconsistent with
her testimony at the Abu-Jamal trial; 4) Her description of the beginning of the
shooting can’t be reconciled with the evidence; 5) Her description (shared by
witnesses Chobert & Scanlan) of the execution-style killing of Faulkner by
Abu-Jamal is definitely false.
Moreover, there is ample evidence that explains why White would have had
reason to lie in her testimony, including mostly massive pressure, but also fa-
vorable treatment on the part of the police. Altogether three witnesses – Veron-
ica Jones, Pamela Jenkins, and Yvette Williams – have testified to that effect.

113
114
 Dossier
on
Robert Chobert
Bullet Points:

• Chobert claimed to have been parked one car-length behind Faulkner

and to have observed how Abu-Jamal killed the officer execution-style
• The only witness who “saw” him there was White, who was herself absent
• Witnesses Magilton and Scanlan explicitly denied Chobert’s presence
• Chobert’s cab would have blocked Scanlan’s view of the crime scene
• Chobert himself could hardly see the crime scene from his alleged location
• Given his legal troubles, Chobert would hardly park behind a police car
• A police photo shows the absence of bullet traces on the sidewalk
• A press photo from the day after shows the same absence
• 9 of the 31 Polakoff photos clearly show the absence of bullet marks
• On one Polakoff photo, this absence is corroborated by a NASA specialist
• Police photos show the absence of Chobert’s cab behind Faulkner
• Also, several Polakoff photos clearly show the absence of Chobert’s cab
• Contrary to police CSI rules, Chobert drove to Homicide in his own cab
• Polakoff took three photos with the cab absent before Chobert moved
• In 1995, Chobert stated that he actually was on 13th north of the intersection
• At the scene, Chobert stated that the shooter “ran away”
• 30 min. later at police HQ he stated the shooter ran only “30 to 35 steps”
• 3 days later and at Abu-Jamal’s trial, he reduced this to “ten feet”
• The evolution in Chobert’s testimony comports well with his actual location
• Judging from the evidence, it is virtually certain that Chobert was not
parked behind Officer Faulkner and did not observe how he was killed
and by whom
115
116
Dossier on Robert Chobert

For a large number of reasons, it is virtually certain that this witness lied at the trial against
Abu-Jamal and did not see the actual shooting. Here is a list and summary of these reasons.

1) The only witness at the trial who corroborated Chobert’s claim that he was parked be-
hind Faulkner’s police car was Cynthia White (MAJ TT, June 22, 1982, 106-108). In-
terestingly, she said she noticed Chobert’s cab only after the arrival of the police (MAJ
TT, June 22, 1982, 107-108).1

2) Under cross examination by Anthony Jackson at the trial, both Michael Scanlan (MAJ
TT, June 25, 1982, 20)2 and Albert Magilton (MAJ TT, June 25, 1982, 86)3 explicitly
denied that a car was parked behind Faulkner’s police cruiser.

3) Had Chobert parked on the south-east corner of the intersection of 13th and Locust, his
cab would have blocked Michael Scanlan’s view of the execution-style killing de-
scribed by the three main prosecution witnesses Chobert, Scanlan, and White.

4) Under normal circumstances, the prosecution thus would have had to choose between
Scanlan and Chobert: If Chobert was there, Scanlan couldn’t have observed the kill-
ing; if Scanlan had in fact observed the killing Chobert could not have been there.

5) As for Chobert himself, it is unlikely that he would have been able to observe the events
around the killing of Faulkner about a car length away from the police car (MAJ TT, June
19, 1982, 228-229) as described by him at the trial. Faulkner’s police car (with its dome
lights on!) would probably have blocked his view. This could be checked out at the scene.

6) Chobert was driving his cab without a license, which had been rescinded on account of a
DUI violation. Also, he had a jail sentence for firebombing a school for pay and was on
probation. Pulling up behind a police cruiser with its dome light on while the officer was
carrying out a traffic stop was a most unlikely thing for him to do.

7) Also, Chobert could not have been at the corner of 13th and Locust before Cook’s and
Faulkner’s arrival as this would have prevented them from slipping into the space in
front of 1234 Locust.

1
Cross examination by Anthony Jackson. The dialogue went like this: “Q. At what point did you see the cab
there? A. When the police were there that's when I noticed. Q. You hadn't seen it before then, had you? A. I
wasn’t looking at the cab, looking for a cab. Q. I understand you weren’t looking for a cab. My question is: You
didn’t see the cab before that time, did you? A. No.”
On redirect, ADA Joseph McGill repeatedly quotes from White’s police interviews where she talks about a
“cab” or “cab driver” positioned “behind the police car” (MAJ TT, June 22, 1982, 178-179, 181.
2
“Q. So, on Locust Street was there any cars behind the police car? A. I don't believe so, no. Q. No cars behind
the police car? A. No. Q. And was the police car right at the corner, was it some distance from the corner? A.
Some distance from the corner.”
3
“Q. All right. But you never say anyone right here on the southeast corner? A. Not to my knowledge. Q. How
about a taxicab? A. There was cabs moving all around. Q. But did you see one parked? A. There was one up here
parked. Q. And did you see any other cab that was parked? A. No.”
117
 8) Chobert’s description of an execution style killing of Faulkner by the shooter (MAJ
TT, June 19, 1982, 210, 210-211, 215-216, 232)4 cannot be true. Chobert talks about
three to four shots at the prone Faulkner. Since only one shot hit Faulkner in the head,
gunshot traces of the other two to three shots would have had to have been on or in the
sidewalk area around Faulkner’s head. These marks are clearly absent.

9) At least one official police crime scene photograph (see Williams (2001), Executing
Justice, photo section, 2) shows the absence of bullet marks in the area in question.
The same is true of a press photograph apparently taken the morning after the shooting
(see Schiffmann (2005), Mumia Is Still the Issue, title).

10) The area in question is also displayed on nine of Pedro P. Polakoff’s photographs,
namely numbers 2, 3, 4, 6, 9, 10, 11, 14, and 31. None of them show any gunshot trac-
es, not even in 400 % enlargement.

11) The high-resolution electronic version of one of those photographs was given to a
NASA photo specialist by Dave Lindorff. The specialist couldn’t detect any gunshot
traces on the photograph.

12) An official police crime scene photo (see Williams (2001), Executing Justice, photo sec-
tion, 2) inconclusively indicates that Chobert’s was not parked “a car length” behind
Faulkner. Another police photo (from Tigre Hill’s film Barrel of a Gun) conclusively
shows the complete absence of the cab on the southeast corner of the intersection.

13) Pedro P. Polakoff’s photos 8, 12, 14, and 31 definitely show the absence of Chobert’s
cab at the scene. 8 & 12 do so with unequivocal clarity. All of these photos were taken
before the police photograph; the first three way before.

14) Polakoff himself insists that neither at his arrival, nor at any time later while he was
present, any cab or other car was parked behind Faulkner’s police car.

15) Polakoff’s statements indicate that photos 8, 12, and 14 (three of the above) were taken
between 4:02:27 to 4:04:27 (Polakoff’s arrival)5 and 4:07:55 (Abu-Jamal’s departure)6

4
For statements by Chobert during direct examination see 210: “Well, I let my fare out and I’m marking down
on my pad how much it was, and then I heard a shot. I looked up, I saw the cop fall to the ground, and then I saw
Jamal standing over him and firing some more shots into him,” 210-211: “A. I saw him shoot him again several
more times. Q. Several more times? A. Yes,” 215-216: “Q. Now, when the Defendant was standing over the
officer, could you show me exactly what motion he was making or what you saw? A. I saw him point down and
fire some more shots into him. Q. Now you're indicating, for the Record, a movement of his right arm with his
finger pointed toward the direction of the ground and moving his wrist and hand up and down approximately
three, four times; is that right? A. Yes. Q. You may sit down.”
For a statement during cross, see 232: “Q. How many shots did you hear? A. Three or four more shots. Q. Which
direction were the shots fired? A. Down. Q. You're sure of that? A. Yes, I'm sure.”
5
Polakoff’s arrival at the scene “ten to twelve minutes” after news that an officer was shot went over police
radio (Wakshul and Trombetta at 3:52:27: “Yeah we just got information from a passerby, there’s a policeman
shot.” Seconds later the location at 1234 Locust is given via radio.)
6
That’s the time around which police radio advised Wakshul and Trombetta to take Mumia “over to Jefferson
Hospital,” to which they responded, “Yeah, if that’s what C1-1 wants, that’s what we’ll do.” Caveat: We do not
know for sure when Wakshul and Trombetta actually acted on that statement.
118
 as Polakoff says that one or more of his five missing pictures 18-22 show Wakshul and
Trombetta’s EPW 601 with Abu-Jamal inside.

16) Quite obviously, Chobert’s cab was moved from the crime scene. In his police interview
at 5:25 the night of the shooting, P.O. Sliwinski says he was told by a lieutenant to ride
over to Homicide with a cab driver, after which he got into the cab and was driven there
by the cab driver. Circumstances make clear this cab driver was Robert Chobert.

17) The police radio transcript reproduced in the “Appendix” below shows that Sliwinski
(partnered with Officer Haggerty in EPW 905) acted on the lieutenant’s order after
Wakshul and Trombetta announced they would now drive Mumia to Jefferson Hospital.

18) According to Sliwinski (IIR Sliwinski, December 9, 1981, 2), he and the cab driver ar-
rived at homicide at 4:14. This closely tallies with the arrival date given on Chobert’s
IIR on December 9 (4:15).

19) The above strongly indicates that Chobert’s cab was removed from its original position on-
ly after Polakoff shot his first series of 17 shots, as one of photos 18-22 shows EPW 601
with Abu-Jamal inside still at the scene and the announcement that he would be taken to
Jefferson was made before Sliwinski announced he would go to Homicide with Chobert.

20) The absence of Chobert’s cab behind Faulkner’s police car on photos 8, 12, and 14
thus indeed demonstrates that Chobert had not parked his cab there. At the same time,
Sliwinski’s IIR shows that Chobert’s cab had also been moved7 – but not from behind
Faulkner’s police car, but rather from a different location.

21) According to testimony Chobert gave to private investigator George Michael Newman
in 1995, he was indeed not parked behind Faulkner’s police car but on the eastern side
of 13th Street north of the intersection 13th & Locust with his car facing away from the
crime scene and didn’t see the shooting (Affidavit by George Michael Newman 2001).8

22) Chobert’s first testimony after the shooting was to the ranking police officer at the
scene, Inspector Alfonzo Giordano. According to Giordano, all Chobert said was “The

7
Per research by Linn Washington this was contrary to the regulations for the handling of crime scenes in force
at the time. Also, the position of any moved vehicle would have had to be indicated by chalk marks.
8
The last part of paragraph 6 and the almost full text of paragraph 7 of the affidavit read: “I subsequently inter-
viewed Robert Chobert at his residence. 7. In discussing Chobert's statements with Weinglass it became apparent
that Chobert's statements to me were in conflict with earlier reports of his observations. I later telephoned Cho-
bert in an attempt to clarify details. During the course of that telephone conversation, Mr. Chobert recanted the
key points of his testimony at the trial of Mumia Abu-Jamal. Chobert told me that on December 9, 1981, he had
actually been parked, in his taxi, on 13th Street, north of Locust. (This contradicted his trial testimony that he
was parked behind Officer Faulkner's police car on Locust St., east of 13th Street.) Chobert told me that he did
not see anyone standing over a prone Officer Faulkner, firing shots at the officer. Chobert said that what actually
happened was that he was sitting in his taxi when he heard gunfire. He exited the taxi and saw a Black male
standing next to a police car that was parked on Locust, east of 13th Street. The Black male slumped down. Cho-
bert walked toward that area and when he got closer saw a police officer sprawled on his back on the sidewalk
and a Black male sitting nearby. (This contradicted Chobert's trial testimony claiming that he saw Mumia Abu-
Jamal standing over a prone Officer Faulkner and firing shots at him.)” The full affidavit can be found on the
web at https://www.freemumia.com/declaration-of-george-michael-newman/.
119
 white cab driver stated that the man that shot the policeman ran away and he was a
MOVE member” (MAJ SH, June 1, 1982, 70).

23) Still according to Giordano, it was only afterwards that Chobert was shown Abu-
Jamal lying inside EPW 601 and identified him as the shooter by saying: “That’s the
man. He shot the policeman” (MAJ SH, June 1, 1982, p. 71).

24) Only about half an hour later9 at the police department, Chobert modified the state-
ment he first made to Giordano. He now said that he “saw the black male [namely, the
shooter] start running towards 12th Street. He didn’t get far, maybe thirty or thirty-five
steps and then he fell” (Chobert IIR, December 9, 1981, 2).

25) Just three days later, Chobert again crucially modified his testimony. Now (Chobert
IIR, December 12, 1981, 1) he claimed that the man who shot the cop and ran towards
12th Street ran no further than “about a car length only”! This is already in line with
his trial testimony during direct examination: “Then I saw him walking back about ten
feet and he just fell by the curb” (MAJ TT, June 19, 211).

26) This evolution in Chobert’s testimony comports well with what we have reason to be-
lieve was his actual location: the eastern side of Locust north of the intersection, fac-
ing away from 1234 Locust.

27) When shots rang out in a quick succession, it is plausible that he couldn’t turn around
quickly enough to see who fired them but then was able to see that someone ran away
towards 12th Street. After being shown and “recognizing” the presumable shooter in
the police van, he qualified his previous statement by saying that the shooter got no
further than “maybe thirty to thirty-five steps” – exactly the stretch from 1234 Locust
towards 12th Street he could see from his vantage point on 13th Street.

28) Another three days later, Chobert had already learned that Abu-Jamal was never
caught running but found right at the crime scene, and once again changed his testi-
mony accordingly. This seems like a clear indication that Chobert was ready to adjust
(or manipulated/coerced into adjusting) his “memory” to whatever the circumstances –
or “authorities”! – required.

Sources:
• IIR: Investigation Interview Record, various witnesses, various dates
• MAJ SH: Mumia Abu-Jamal Suppression Hearing
• MAJ TT: Mumia Abu-Jamal Trial Transcripts
• Schiffmann, Michael (2005): “Mumia Is Still the Issue. On the June 17, 2005, Court
Decision Against Mumia Abu-Jamal.”
• Williams, Daniel (2001): Executing Justice. An Inside Account of the Case of Mumia
Abu-Jamal, New York, St. Martin’s Press.
All sources except Williams on https://uni-mannheim.academia.edu/MichaelSchiffmann.

9
Chobert’s interview began at 4:25.
120
Appendix: Photos & Summary

Illustration for 3) (Scanlan’s point of view):

This is a close reproduction of Scanlan’s point of view (photo taken in 2010). The black car is
approximately where Faulkner’s car was. The yellow arrow points to the area where Faulkner
finally came to lie, with his feet stretched out toward the observer.

How much Scanlan could have seen in the area where, according to him, Faulkner’s head was
is very much open to question.

It is clear, however, that the presence of a cab or other car at the southeast corner of Locust
(see red circle) would have completely blocked his view of what he claimed to have seen.

121
Ilustrations for 9) (Police/press photographs of the area around Faulkner’s blood):

Press photo the morning after

The absence of gunshot traces in the sidewalk as shown in one of the official
police crime scene photos. Note that the metal grid in the lower part of the
picture also shows no sign of any damage; anyway, most of it would have
been covered by Faulkner’s torso while Faulkner was killed.

122
Illustrations for 10) (Polakoff’s photos of same area):

These are Polakoff’s photos no. 2, 3, 4, 6, 9, 10, 11, and 14, from left to right and top to bot-
tom. Photo 31 is left out for reasons of space. None of the photos, in any resolution, shows the
slightest gunshot trace.
123
Illustrations for 12) (Absence of Chobert’s cab behind Faulkner’s police car):

On top, the well-known police photograph mentioned in 12) in the text. The police photo at the
bottom is less known because it was first displayed only in Tigre Hill’s 2010 film Barrel of a
Gun but also authentic and taken the morning of December 9, 1981. It leaves no doubt about the
absence of a cab or indeed any other car behind P.O. Faulkner’s police car RPC 610.

124
Illustrations for 13) & 14) (Polakoff’s photos showing the absence of Chobert):

Polakoff Photos 8, 12, 14, and 31 showing the absence of Robert Chobert’s cab behind Faulk-
ner’s police car.

Illustration for 17) (Sliwinski rode with Chobert only after Abu-Jamal was sent to Homicide):

EPW 601: Police wagon operated

by Officers Trombetta and Wakshul

EPW 905: Police wagon operated

by Officers Haggerty and Sliwinski

125
Illustration for 22) – 28) (Chobert tailored his testimony according to what he was told):

Chobert first said the shooter “ran away,” then changed this to saying the shooter ran only 30
to 35 feet and then fell. From the vantage point the photo above is taken from, the observable
distance from the entrance of 1234 Locust is about 20 steps/meters. From the apparent van-
tage point of Chobert on 13th Street north of the intersection 13th and Locust, indicated by the
red arrow, that distance would be slightly greater – namely about 30 to 35 steps!

Later on, Chobert had apparently learned that Abu-Jamal was found slumped to the front of
Billy Cook’s VW. This was indeed reported in the news in Philadelphia, as was the purported
fact that the shooting had happened right in front of 1234 Locust. Accordingly, the distance that
the shooter had allegedly run shrank from 30 to 35 steps to 10 feet (indicated in blue), that is, by
90 percent from at least 30 meters to around 3. According to Chobert’s own testimony, the ac-
tual distance should be zero as Abu-Jamal was found right beside the dying Faulkner.

126
Summary: Robert Chobert claimed to have pulled up and parked one car
length behind Faulkner. Three kinds of evidence make it virtually certain that
he was NOT there:
1) Prosecution witnesses Magilton & Scanlan and independent witness Po-
lakoff; 2) Police photos (inconclusive because taken after Chobert’s cab was
moved) and three Polakoff photos (conclusive because – as can be demonstrat-
ed by police radio records – taken before Chobert’s cab was moved); 3) Cho-
bert’s own admission to George Michael Newman in 1995.
In the conversation under 3), Chobert also admitted that he was actually parked
on 13th north of the intersection 13th and Locust, facing away from the scene,
and didn’t see the shooting. This comports very well with the evolution of his
testimony within the first three days of the shooting.

127
128
 Dossier
on
Michael Mark Scanlan
Bullet Points:

• Scanlan claimed to have seen a man coming from the parking lot across
from 1234 Locust shoot at Faulkner and then finish the officer with 3 to
4 more shots as the latter lay helplessly on the sidewalk
• There is little doubt that Scanlan was actually where he claimed to have
been, i.e., in a car on Locust west of the intersection 13th & Locust
• At the crime scene, Scanlan misidentified Abu-Jamal as the man who had
been stopped by Officer Faulkner, i.e., the driver of Billy Cook’s VW
• In his first statement and at Cook’s trial, Scanlan claimed the struggle bet-
ween Faulkner and Cook and the shooting took place in front of Cook’s
VW; at Abu-Jamal’s trial he placed both events in front of Faulkner’s car
• At Abu-Jamal’s trial, Scanlan admitted to having had “a few cocktails”
• Scanlan claimed to have seen how Cook and Faulkner hit each other even
though his view was blocked by Faulkner’s car (and in his first version,
also Cook’s, and according to Chobert, in addition to that Chobert’s cab)
• Scanlan’s account of the shot into Faulkner’s back cannot be true as the
core parts of a bullet from the direction of the parking would have been
found on or in Locust 1234, where only a small fragment was recovered
• A police photo, a press photo and 9 of the 31 photos of press photographer
Pedro P. Polakoff show the absence of bullet traces on the sidewalk which
would be there if Scanlan’s account of the shooting were true
• The cocktails, the misidentification, the contradictions and the impossi-
bilities point to stark confusion on Scanlan’s part, as well as to massive
manipulation on the part of the interrogators (police & prosecution)
129
130
Dossier on Michael Mark Scanlan

Different from Cynthia White and Robert Chobert, Michael Scanlan apparently did have a
view on how Officer Faulkner was shot. All the same, in its most crucial aspects his testimo-
ny is demonstrably false, a fact that is most likely due to either his apparent intoxication, or
manipulation and coercion by police and prosecution, or both.

1) In his first interview, Scanlan told the police: “I looked around me for another Police-
man and didn’t see one, so I took off in my car to look for one. I found one up on
Walnut St. about a block towards Broad St. I told them I just saw an Officer get shot
and told them where.” (IIR Scanlan, December 9, 1981, 1-2)

2) As the police radio transcripts show that indeed exactly one minute after police radio
had assigned them as back-up for Faulkner, Officers Wakshul and Trombetta were ap-
proached by a “passerby” at the intersection of Walnut and Juniper, and told that a po-
liceman had been shot,1 it seems clear that this “passerby” was Scanlan, and that there
is thus little doubt that he was present during the shooting.

3) Scanlan’s claim in the night of the shooting was that the shooter had come running
across the street from the parking lot vis-à-vis 1234 Locust and then “pulled out a pis-
tol and started shooting at the Officer. […] He fired at the Officer once, and the Of-
ficer fell down. He stood over the Officer and fired three or more shots point blank at
the Officer on the ground.” (IIR Scanlan, December 9, 1981, 1)

4) Different from White and Chobert, Scanlan never identified Abu-Jamal as the shooter.
When taken to the police van into whose back part Abu-Jamal had been put after be-
ing apprehended in front of 1234 Locust and asked “to take a look at him,” he was
“pretty sure the guy in the van was the one the Police Officer had first stopped and
was fighting with,” i.e., Billy Cook (IIR Scanlan, December 9, 1981, 2).

5) At Billy Cook’s March 29, 1982 trial for Aggravated Assault, Scanlan answered District
Attorney Joseph McGill’s question whether it was true that he was “unable to identify
anyone” with an express “Yes” (BC TT, March 29, 1982, 104). That is, he could neither
identify Abu-Jamal as the shooter, nor Billy Cook as the driver of the VW.

6) At the Abu-Jamal trial, he corroborated that statement once more, answering McGill’s
question whether he was “able to identify anybody, either the driver, or the man who ran
over and shot the police officer?” with a clear “No” (MAJ TT, June 25, 1982, 12).

7) This inability to identify people whose actions and behavior he nevertheless claimed to
be able to describe with striking precision and sometimes in minute detail could very
well have had to do with his own condition at the time of the shooting (likely intoxica-
tion), on which more in point 47).

1
See Police Radio Transcript in Appendix (for 2)). Walnut/Juniper is exactly one block away from Broad Street.
131
8) In this first statement, Scanlan placed the location where the first shot was fired “in
front” of Cook’s VW (IIR Scanlan, December 9, 1981, 1). This had to be the shot that
hit Faulkner in the back and exited through his throat. As I demonstrate in points 26)
to 39), either this bullet as a whole or its main parts should have struck either the left
part of 1234 Locust or the adjacent building 1232 Locust.

9) As this area was later carefully searched by the police and nothing of the sort was
found (the one undamaged bullet that was found was recovered from the frame of the
entrance door to 1234 Locust in the middle of the building and only one meter above
the ground, that is, in a different place from where it should have been and much too
low to be the one that exited the front of Faulkner’s neck while he was still standing),
this part of Scanlan’s narrative is clearly false. For the details, see again 26) to 39).

10) Equally importantly, the second part of Scanlan’s December 9, 1981, testimony, the one
concerning Officer Faulkner’s death, is also demonstrably false. Scanlan in this early
testimony was actually the first to claim that Abu-Jamal had fired “three or four more
shots” at the Officer on the ground, a claim that was repeated in those very same words
by Robert Chobert at the Abu-Jamal trial (MAJ TT, June 19, 1982, 232).

11) Apart from the shot into his back that exited through his throat, the only shots that ei-
ther hit Faulkner or ripped his clothes were the deadly one into his forehead, and a
shot that went through the upper right shoulder part of his jacket leaving two holes,
but without touching his body.

12) The shooter thus cannot have fired three, much less four shots at the Officer” while the
latter lay on the ground. With the exception of the bullet that came to lodge in Faulk-
ner’s brain, all of these, including the one that went through Faulkner’s jacket, would
have left enormous marks in the sidewalk large and clear enough for everyone to see.

13) The best-known police crime scene photograph (see Williams (2001), Executing Jus-
tice, photo section, 2) clearly shows the absence of any bullet marks in the area in
question. A press photograph apparently taken the morning after the shooting (see
Schiffmann (2005), Mumia Is Still the Issue, title) shows the very same thing.

14) The area in question is also displayed on nine of Pedro P. Polakoff’s photographs,
namely numbers 2, 3, 4, 6, 9, 10, 11, 14, and 31. None of them show any gunshot trac-
es, not even in 400 % enlargement. The high-resolution electronic version of one of
those photographs was given to a NASA photo specialist by Philadelphia journalist
Dave Lindorff. The specialist couldn’t detect any gunshot traces on the photograph.

15) As it is all but certain that neither Cynthia White nor Robert Chobert saw the shooting,
Scanlan is the possible ultimate source of their testimony about the shooter firing sev-
eral shots at Faulkner as he lay on the ground. In White’s case, Scanlan’s testimony is
also the possible ultimate source of the claim that the man coming from the parking lot
shot Faulkner in the back.

132
 16) Even though the evidence indicates that Scanlan was at the scene while the shooting
took place, the two crucial parts of his testimony – the shot in the back and the ensuing
series of shots one of which killed Faulkner – are contradicted by the facts. Either his
depiction of events was a case of honest but false memory, which was then spoon-fed
to White and Chobert, or he, too, was told what to say, which would make the police
itself the ultimate source of all three witnesses’ testimony

17) In his IIR of December 9, 1981, 1, Scanlans states about the events leading up to the
shooting: “I noticed the Officer approach a black guy standing outside a car, in front
of it. The Officer asked him a few questions and then he spread the guy across the car
with his arms out, and the guy turned back around and swung at the Officer. The Of-
ficer took his billy club out and swung hard at the guy. […] Then I noticed another
black guy come running across the street. […] The guy […] pulled out a pistol and
started shooting at the Officer.”

18) Beginning with this statement, Scanlan’s various accounts of the alleged first shot
fired at Faulkner until and including Billy Cook’s March 29, 1982 trial for Aggravated
Assault all placed Faulkner and Cook “in front of” the latter’s VW.

19) Scanlan’s two IIR of December 9 and 11, 1982 were unspecific about what exactly “in
front of” meant. The most natural interpretation that would have Faulkner with his
back towards the parking lot and Billy Cook spread-eagled over the left side of the
front hood of his car is in clear contradiction with the facts mentioned in points 8) and
9) above.

20) However, at Billy Cook’s trial, Scanlan placed the quarrel between Cook and Faulkner
not only “in front of the Volkswagen,” but also claimed that “the policeman was fac-
ing me” (BC TT, March 29, 1982, 107, 108), that is, that Faulkner was literally in front
of Billy Cook’s car with his back towards the Ford parked in front of the VW and Bil-
ly Cook sandwiched between the Officer and the hood of his own car.2

21) No question was raised at Cook’s trial as to how a shooter coming from the parking lot
and approaching the spot where Faulkner and Cook were allegedly located diagonally,
that is, not just crossing the street but also running in the direction of 12th Street – how
that shooter could manage to get in Faulkner’s back and fire at him in such a way that
the bullet went through him only in a very slight (15 degrees) right to left angle.

22) Actually, in the scenario described by Scanlan, one would expect the assailant to shoot
the Officer from the front, not the back, the latter of which under the circumstances is
actually an impossible feat. And should one, to save the scenario, assume that Faulk-
ner momentarily (and irrationally, as the assailant must have been almost squarely in
his view) turned his back towards the street, the same arguments apply that were put
forward in 8), 9), and 19) above.

2
The whole context on pages 107-110 of BC TT makes clear that this is indeed Scanlan’s intended scenario.
133
 23) At the Abu-Jamal trial, Scanlan’s testimony changed in two significant respects.

24) For the first time, he now testified that “I think it all took place in front of the police
car. […] I believe this day, it was in front of the police car” (MAJ TT, June 25, 1982,
68), bringing his description somewhat more in line with White’s testimony which al-
so placed Faulkner and Cook between the VW and Faulkner’s police car.3

25) The second change was that he now, also for the first time, explicitly – and in contra-
diction to his testimony at the Cook trial – stated that Faulkner’s back was turned “to
the man who was running across the street, and who shot him.” (MAJ TT, June 25,
1982, 11), which of course was the only plausible possibility to begin with.

26) However, even the crucially modified scenario Scanlan gave at the Abu-Jamal trial
suffers from a defect similar to the one which points to the impossibility of Cynthia
White’s description of the shot into Faulkner’s back (see Dossier Cynthia White,
points 28) to 38)).

27) As pointed out there (point 28), all sides in the Faulkner/(Abu-Jamal case “agree on
one fact, namely, that Abu-Jamal approached the scene from the parking lot across the
street” from 1234 Locust.

28) Had Abu-Jamal shot Faulkner in the back with Faulkner on the sidewalk as described
by White in all of her versions, the bullet that went through him would have had to
have been found, basically intact, pretty high above the ground on or in 1234 Locust,
because in that scenario, there was nothing between Faulkner and the building that
could have diverted the bullet.

29) However, the only complete bullet that was found was recovered from the doorframe
of the entrance about one meter above the ground (MAJ TT, June 19, 1982, 72),4 much
too low to have been the bullet that struck Faulkner in the back.

30) The same considerations as in 28) and 29) apply if Faulkner was, as claimed by Scan-
lan and contra White, in the street, and there was no object between him and Locust
1234 that could have diverted or destroyed the bullet that went through him.

31) The only such object that could save Scanlan’s (but not White’s) scenario of the begin-
ning of the shooting is the no-parking sign pole in front of 1234 Locust. Faulkner would
then have been (as claimed by Scanlan) in the street and turned his back towards the
parking lot, AND he would have had to have been sandwiched between the no-parking
sign pole and the shooter.

3
This still leaves the contradiction that White in all her statements placed Faulkner on the sidewalk whereas
Scanlan placed him in the street.
4
To be precise, it was found “three and a half inches west of the west [sic! As crime scene sketches and photos
show, the bullet lodged in the eastern, not the western part of the doorframe] door edge and three feet seven
inches up from the sidewalk” (ibid.).
134
 32) The bullet would then have gone through the Officer, hit the pole, and splintered under
the impact into fragments, explaining why no intact bullet was found in those upper
areas on or in the building where one would have expected it.

33) In fact, only one fragment the size of about a quarter of a bullet was found inside the
vestibule of 1234 Locust (Firearms Identification Unite Report (FIUR), January 5,
1982, 2).5 It had smashed a hole through the upper glass panel of the entrance door
and come to lodge a good part to the right of the entrance in a distance of about six
feet, ten inches from the outer wall of the building.6

34) The only explanation for the presence of this fragment in this location is that it is in-
deed a splinter from a bullet that hit the no-parking pole. The only alternative would
be a bullet that hit the glass and splintered, with the part that was found inside the ves-
tibule going through and the larger part of the projectile bouncing off in some other di-
rection.

35) According to the literature, generally the only case where bullets that hit glass shatter,
with parts of them bouncing off, is when the angle with which they hit is very shallow.7
This is not applicable here because it is implausible how anyone at the scene could have
shot at the panel at such an angle. The bullet part in the vestibule must thus have come
from a bullet that fragmented elsewhere, which leads us back to the no-parking pole.

36) However, the fact, that the quarter of a bullet found in the vestibule was the only sub-
stantial fragment found at the scene8 strongly militates against the shot having come
from the direction of the parking lot.

37) Again, according to the literature as well as to experts,9 if bullets splinter upon striking
hard objects, the main parts generally continue their previous course relatively un-
changed, which means that the core parts of a bullet coming from that direction should
also have been found on or in the building, quite a bit to the left of the hole in the door
punched by the fragment found in the vestibule.

38) The whole area of the door was closely searched, to the extent that even seven tiny
lead particles with a total weight of 18 grain that were probably unrelated to the De-

5
To be exact, the weight of the splinter was 39.4 grains, about 26 % of the weight of the two whole bullets re-
covered from the scene, namely, the one in the doorframe of 1234 Locust (151.3 grains) and the one removed
from the back of Abu-Jamal’s chest cavity (151.5 grains) (see FIUR, January 5, 1982, 2 and 3).
6
According to trial testimony (MAJ TT, June 19, 1982, 57), the fragment was found “inside the vestibule of 1234
Locust Street, six foot eight inches east of the west wall and six feet ten inches south of the front door.” Judging
from the available crime scene photographs and sketches, in terms of being to the right of the entrance hole in
the glass panel of the door “six foot eight inches east of the west wall” would probably mean between two to two
and a half meters.
7
See, among other sources, Kneubühl (1999).
8
The only exception was a damaged copper jacket, “irregular in shape, bearing a portion of one knurled canne-
lure, weighing 14,6 grains” (FIUR, January 5, 1982, 2), found “eleven feet four inches south of the south curb of
Locust Street and nine feet west of the east property line of Locust 1234” (MAJ TT, June 19, 1982, 70), which
would mean directly to the right of and very close to the entrance door of the building.
9
Such as the former head of the ballistics department of the Institute for Forensic Medicine of Tübingen, Ger-
many, Dr. König, p.c., 2006; also see Kneubühl (1999), pages 45-75.
135
 cember 9, 1981 shooting were found “three feet seven inches west of the doorway and
seven inches up from the sidewalk” (FIUR, January 5, 1982, 2).

39) No other parts of the bullet that sent one fragment into the vestibule 1234 Locust upon
shattering to pieces when hitting the no-parking sign pole were found on or in the
building, making it all but impossible for the bullet having come from the direction of
the parking lot. This excludes Abu-Jamal, who by all accounts did come from the
parking lot, as the shooter. Scanlan’s scenario seems to be untenable.

40) It is important to note that Scanlan’s testimony at the Abu-Jamal trial is in flat contra-
diction with alleged eyewitness Robert Chobert’s claim to have been parked behind
Faulkner’s police car during the events and to have watched the shots that killed
Faulkner from this location.

41) At the Abu-Jamal trial, Michael Scanlan (MAJ TT, June 25, 1982, 20),10 explicitly de-
nied that a car was parked behind Faulkner’s police car.

42) An inspection of the scene shows that the presence of Chobert’s cab a few yards be-
hind Faulkner’s police cruiser would also have blocked Scanlan’s view of the execu-
tion-style killing of Faulkner he described both at Billy Cook’s trial11 and at Abu-
Jamal’s trial.12

43) This shows that either Chobert or Scanlan did not tell the truth at the Abu-Jamal trial.
If Chobert was there, Scanlan could not have observed the execution style killing of
Faulkner he described. If Chobert was not there, HE could not have observed the exe-
cution-style killing of Faulkner he described.

44) However, inspection of the scene also shows that even in the absence of Chobert’s cab,
Scanlan was hardly able to see what was happening on the sidewalk of Locust between
Cook’s VW and the Ford in front of it, approximately one and a half yards to the right of
the cars, the location where the dying Faulkner was found by arriving police.

45) Thus, not only is it impossible for the shooter to have fired several shots at Faulkner
with the latter lying prone on the sidewalk, as claimed by Scanlan – he was also prob-
ably not even in a position to observe any such event, even had it actually happened.

46) In all the versions of his testimony, Scanlan claimed to have seen how Cook and
Faulkner hit and fought each other either in front of Cook’s VW or Faulkner’s police
car, even though his view was blocked at the very least by Faulkner’s car. In his first

10
“Q. So, on Locust Street was there any cars behind the police car? A. I don't believe so, no. Q. No cars behind
the police car? A. No. Q. And was the police car right at the corner, was it some distance from the corner? A.
Some distance from the corner.”
11
At that trial, Scanlan said that the officer “fell down on the sidewalk, and was laying there when the gentleman
walked over with the pistol, and fired two times, striking the officer. I noticed he hit the officer with the – I no-
ticed the bullet hit the officer, because his body jerked.” (BC TT, March 29, 1982, 99)
12
“Then the officer fell down and the man walked over and stood at his feet, and fired, twice, two or three
times.” (MAJ TT, June 25, 1982, 38)
136
 version, maintained until and including the March 29, 1982 Billy Cook, trial, Scanlan
would also have had to have seen through Cook’s car parked in front of Faulkner’s. If
one were to believe Chobert’s claim that he was parked behind Faulkner with his cab,
this would be yet another car that would have been in Scanlan’s line of sight.13

47) A further element that calls Scanlan’s description of the shooting into question is the
continuously vacillating number of shots allegedly fired at the prone Faulkner. On De-
cember 9, 1981 (IIR Scanlan, December 9, 1981, 1), he talks about “three or more
shots,” on December 11, 1981 (IIR Scanlan, December 11, 1981), he talks about “two
or three shots,” at the Cook trial (BC TT, March 29, 1982, p. 99) he claims the shooter
“fired two times,” and at the Abu-Jamal trial (MAJ TT, June 25, 1982, 38), it is back to
“two or three times.”

48) It is clear from Scanlan’s own trial testimony (MAJ TT, June 25, 1982, p. 13) that he had
been drinking before he arrived at the scene.14 This much overlooked fact is a potential
source of both honest, but false testimony and possible police pressure to deliberately
testify falsely. Just as Chobert never had to face more than a fine for continuously driv-
ing a cab without a license, Scanlan was apparently never taken to task for DUI.

Sources:

• BC TT: Billy Cook Trial Transcripts

• FIUR: Firearms Identification Unit Report, January 5, 1982
• IIR: Investigation Interview Record, various witnesses, various dates
• Kneubeuhl, Beat (1999): Das Abprallen von Geschossen aus forensischer Sicht, Dis-
sertation, Thun (Switzerland)
• MAJ SH: Mumia Abu-Jamal Suppression Hearing
• MAJ TT: Mumia Abu-Jamal Trial Transcripts
• Schiffmann, Michael (2005): “Mumia Is Still the Issue. On the June 17, 2005, Court
Decision Against Mumia Abu-Jamal.”
• Schiffmann, Michael (2007): “The Forgotten Trial: Spurious Witnesses, Impossible
Events. What the ‘Eyewitness’ Testimony from Billy Cook’s March 29, 1982 Trial for
Aggravated Assault Reveals.”
• Williams, Daniel (2001): Executing Justice. An Inside Account of the Case of Mumia
Abu-Jamal, New York, St. Martin’s Press

All sources apart from Kneubühl and Williams are on

https://uni-mannheim.academia.edu/MichaelSchiffmann

13
For more on the whole area of the altercation between Cook and Faulkner, see Schiffmann, Michael, “The
Forgotten Trial: Spurious Witnesses, Impossible Events. What the ‘Eyewitness’ Testimony from Billy Cook’s
March 29, 1982 Trial for Aggravated Assault Reveals,” finished in May 2007.
14
Here is the full dialogue between defense attorney Jackson and him:
“Q. Had you been drinking, sir, or had any other intoxicants?
A. Yes. I had a few cocktails.
Q. How much earlier from the time you arrived at that intersection?
A. A couple of hours before then.” (Ibid.)
137
Appendix: Photos & Summary

Ilustrations for 2) (Scanlan very likely observed the shooting):

Exactly one minute after the police radio assigns Officers Wakshul and Trombetta as backup
to Faulkner, the pair reports information about a “policeman shot” [as told] “per passerby.”
Scanlan’s description of his own itinerary after observing the confrontation at 13th and Locust
makes clear that he was the passerby Trombetta and Wakshul were talking about.

138
Illustrations for 13) (Police/press photographs of the area around Faulkner’s blood):

Press photo the morning after

The absence of gunshot traces in the sidewalk as shown in one of the official
police crime scene photos. Note that the metal grid in the lower part of the
picture also shows no sign of any damage; anyway, most of it would have
been covered by Faulkner’s torso while Faulkner was killed.

139
Illustrations for 14) (Polakoff’s photos of same area):

These are Polakoff’s photos no. 2, 3, 4, 6, 9, 10, 11, and 14, from left to right and top to bot-
tom. Photo 31 is left out for reasons of space. None of the photos, in any resolution, shows the
slightest gunshot trace.
140
Illustrations for 20) to 25) (Location of shooting & positioning of officer):

The above picture presents Michael Scanlan’s different versions of the shot into Faulkner’s
back: At Billy Cook’s March 29, 1982 trial, Scanlan claimed that Faulkner at that moment
was between Cook’s VW and the Ford parked in front of it, and that he faced 13th Street
(where he, Scanlan, was waiting at the intersection for the light to turn green). At the Abu-
Jamal trial, he testified that Faulkner was actually between the VW and the police car behind
it, AND facing the building 1234 Locust and turning his back towards the parking lot.

This was much more in line with the various statements by Cynthia White, all of which
placed Faulkner between the VW and the police car when the first shot was fired.

However, a sharp contradiction between all of White’s statements and all of Scanlan’s state-
ment remained: Even at the Abu-Jamal trial, Scanlan still continued to place Faulkner in the
street when fired in the back, whereas White still placed him on the sidewalk, one of the few
points where all of her statements were consistent.

141
Illustration for 40) – 43) (Scanlan’s point of view):

This is a close reproduction of Scanlan’s point of view (photo taken in 2010). The black car is
approximately where Faulkner’s car was. The yellow arrow points to the area where Faulkner
finally came to lie, with his feet stretched out toward the observer.

How much Scanlan could have seen in that area of Faulkner, Faulkner’s body “jerking,” an
assailant standing over him firing at the sidewalk, etcetera is very much open to question.

Not in question, however, is the easily demonstrated fact that the presence of a cab or other
car at the southeast corner of Locust (see red circle) would have completely blocked his view
of what he claimed to have seen.

If one, contra the arguments set out in “Dossier on Robert Chobert,” believes Chobert that his
cab was parked near the corner, that belief excludes Scanlan as a witness of the alleged shoot-
ing scene on the sidewalk. If one believes (contra the arguments set out in this Dossier) that
Scanlan indeed observed an execution-like shooting of Faulkner as he lay on the sidewalk,
Chobert cannot have been present.

142
Summary: Of the three main “eye”-witnesses of the prosecution, Michael
Scanlan seems the only one who was actually there to possibly see some of the
shooting. However, most of his testimony is either invalidated entirely or called
into question by the following facts:
1) Scanlan could not identify the core actors of his own scenario, the driver of
the VW and the shooter of Faulkner, with Billy Cook and Mumia Abu-Jamal,
respectively.
2) As demonstrated by ballistic arguments, his scenario of the shot into Faulk-
ner’s back is probably just as false as Cynthia White’s.
3) His description of the execution-style shooting of a prone Faulkner by sever-
al shots is not only disproved by the evidence (literally) on the ground, but
probably also by his own vantage point during the shooting.
4) Because the presence of “witness” Chobert’s cab would have blocked his
view of Faulkner’s death as described by him, one can only (at most) believe
him or Chobert, certainly not both.
5) Scanlan apparently had been drinking before he arrived at the scene. This
could explain poor testimony on his part both in terms of honest confusion
and manipulation/blackmail by the police.

143
144
Appendix II

145
146
 Received 2/3/2021 11:50:20 AM Superior Court Eastern District

IN THE
SUPERIOR COURT OF PENNSYLVANIA
EASTERN DISTRICT

290 EDA 2019

COMMONWEALTH OF PENNSYLVANIA
Appellee

V.

WESLEY COOK, a/k/a MUMIA ABU-JAMAL

Appellant

COMMONWEALTH'S BRIEF FOR APPELLEE

Nunc Pro Tunc Defense Appeal from Prior Orders of the Court of Common
Pleas of Philadelphia County, Trial Division, Criminal Section, Dismissing De-
fendant’s PCRA Petitions Filed in Docket No. CP-51-CR-0113571-1982.

GRADY GERVINO
Assistant District Attorney
LAWRENCE J. GOODE
Supervisor, Appeals Unit
NANCY WINKELMAN
Supervisor, Law Division
CAROLYN ENGEL TEMIN
First Assistant District Attorney
LAWRENCE S. KRASNER
District Attorney of Philadelphia

Three South Penn Square

Philadelphia, PA 19107
(215) 686-5728
grady.gervino@phila.gov
 TABLE OF CONTENTS

PAGE
Table of Authorities iv-ix

Counter-Statement of the Questions Involved 1

Counter-Statement of the Case 2-22

Summary of Argument 22-24

Argument 24-95

THE PCRA COURT PROPERLY DENIED POST-CONVICTION RE-

LIEF

I. TRIAL COUNSEL DID NOT PROVIDE INEFFEC-

TIVE ASSISTANCE BY NOT QUESTIONING
ROBERT CHOBERT ABOUT HIS PROBATIONARY
STATUS. 26-43

A. The Relevant Background to Defendant’s

Claim. 26-27

B. The PCRA Court’s Analysis of the Claim. 27-28

C. Davis v. Alaska did not Provide a Basis for the

Cross-examination. 28-33

D. Mr. Chobert Could not Have Been Cross-

examined Regarding his Probationary Status. 33-39

E. Had Counsel Cross-examined Mr. Chobert Re-

garding his Probation, it Would not Have
Made a Difference at Trial. 39-43

i
II. THE PROSECUTOR DID NOT COMMIT A BRADY
VIOLATION BY NOT DISCLOSING HE TOLD ROB-
ERT CHOBERT HE WOULD TRY TO FIND OUT
HOW HE COULD GET HIS DRIVER’S
LICENSE RESTORED. 44-48

A. The Relevant Background to Defendant’s

Claim. 44-45

B. The PCRA Court’s Analysis of the Claim. 45

C. There was no Brady Violation. 46-48

III. DEFENDANT’S CLAIM THAT THE PROSECUTION

SUPPRESSED EVIDENCE THAT CYNTHIA WHITE
LIED AT TRIAL PROVIDES NO BASIS FOR RELIEF. 49-57

A. The Relevant Background to Defendant’s

Claim. 49-50

B. The PCRA Court’s Analysis of the Claim. 50

C. Defendant’s Claim is Based Entirely on Inad-

missible Hearsay. 50-57

IV. TRIAL COUNSEL DID NOT PROVIDE INEFFEC-

TIVE ASSISTANCE REGARDING THE BALLISTICS
OR MEDICAL FORENSIC EVIDENCE. 57-70

A. The Relevant Background to Defendant’s

Claim. 58-61

B. The PCRA Court’s Analysis of the Claim. 62-63

C. Trial Counsel did not Provide Ineffective As-

sistance with Regard to the Ballistics Evidence. 64-67

ii
 D. Trial Counsel did not Provide Ineffective As-
sistance with Regard to the Medical Forensic
Evidence. 67-70

V. THE PCRA COURT PROPERLY DENIED DEFEND-

ANT’S BATSON CLAIM. 70-85

A. The Relevant Background to Defendant’s

Claim. 71-76

B. The PCRA Court’s Analysis of the Claim. 76-77

C. Defendant may not Relitigate his Batson

Claim Where the Pennsylvania Supreme
Court Already Found it Meritless. 78-82

D. Defendant has not met the Standard Neces-

sary to Succeed on a Batson Claim That was
not Raised at Trial. 82-85

VI. THE PCRA COURT PROPERLY QUASHED SUB-

POENAS DEFENDANT SENT TO JURORS IN AN
ATTEMPT TO HAVE THEM IMPEACH THEIR
VERDICT. 85-95

A. The Relevant Background to Defendant’s

Claim. 86-87

B. The PCRA Court’s Analysis of the Claim. 87

C. Defendant was Properly Precluded from Pre-

senting Jurors at the PCRA Hearing to Im-
peach Their Verdict. 88-95

Conclusion 96

iii
 TABLE OF AUTHORITIES
Page(s)
Federal Cases

Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir. 2008)............................................. 13, 78

Abu-Jamal v. Horn, 2001 WL 1609690 (E.D.Pa. Dec. 18, 2001) ................... Passim

Abu-Jamal v. Pennsylvania, 498 U.S. 881 (1990) .................................................. 11

Abu-Jamal v. Pennsylvania, 501 U.S. 1214 (1991) ................................................ 11

Abu-Jamal v. Pennsylvania, 528 U.S. 810 (1999) .................................................. 12

Abu-Jamal v. Secretary, Pennsylvania Dept. of Corrections, 643 F.3d 370

(3d Cir. 2011) ................................................................................................. 13, 14

Batson v. Kentucky, 476 U.S. 79 (1986) .......................................................... Passim

Brady v. Maryland, 373 U.S. 83 (1963) ........................................................... 22, 44

Davis v. Alaska, 415 U.S. 308 (1974) .............................................................. Passim

Kyles v. Whitley, 514 U.S. 419 (1995) .................................................................... 43

Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017)................................... 88, 91, 92

Smith v. Spisak, 558 U.S. 139 (2010) ..................................................................... 13

Strickland v. Washington, 466 U.S. 668 (1984) ..................................................... 35

Swain v. Alabama, 380 U.S. 202 (1965) ................................................................. 71

Tanner v. United States, 483 U.S. 107 (1987) ................................................. Passim

Wetzel v. Abu-Jamal, 565 U.S. 943 (2011) ............................................................. 14

Williams v. Pennsylvania, 136 S.Ct. 1899 (2016) .................................. 2, 14, 15, 19

Witherspoon v. Illinois, 391 U.S. 510 (1968) ......................................................... 74

iv
State Cases

Cluggage’s Lessee v. Swan, 4 Bin. 150 (Pa. 1811) ................................................ 89

Commonwealth ex rel. Darcy v. Claudy, 79 A.2d 785 (Pa. 1951) ................... 90, 94

Commonwealth v. Abu-Jamal, 40 A.3d 1230 (Pa. 2012) ....................................... 13

Commonwealth v. Abu-Jamal, 555 A.2d 846 (Pa. 1989) ................................ Passim

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998) ......................................... 11

Commonwealth v. Abu-Jamal, 720 A.2d 121 (Pa. 1998) ....................................... 12

Commonwealth v. Abu-Jamal, 833 A.2d 719 (Pa. 2003) ....................................... 12

Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008) ..................................... 12

Commonwealth v. Abu-Jamal, 2013 WL 11257188 (Pa.Super., July 9, 2013) ...... 14

Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998) ........................................... 74

Commonwealth v. Auker, 681 A.2d 1305 (Pa. 1996) ............................................. 36

Commonwealth v. Baez, 720 A.2d 711 (Pa. 1998) ................................................. 32

Commonwealth v. Blakeney, 108 A.3d 739 (Pa. 2014) .................................... 83, 84

Commonwealth v. Bond, 819 A.2d 33 (Pa. 2002)................................................... 79

Commonwealth v. Borders, 560 A.2d 758 (Pa. 1989) ............................................ 36

Commonwealth v. Bozyk, 987 A.2d 753 (Pa.Super. 2009) ..................................... 32

Commonwealth v. Bracero, 473 A.2d 176 (Pa.Super. 1984) ........................... 54, 55

Commonwealth v. Brown, 141 A.3d 491 (Pa.Super. 2016) .................................... 57

Commonwealth v. Bryant, 855 A.2d 726 (Pa. 2004) ........................................ 46, 48

Commonwealth v. Cascardo, 981 A.2d 245 (Pa.Super. 2009) ............................... 56

Commonwealth v. Clair, 326 A.2d 272 (Pa. 1974) ................................................ 73

v
Commonwealth v. Colon, 846 A.2d 747 (Pa.Super. 2004) ..................................... 53

Commonwealth v. Cook, 30 Phila.Co.Rptr. 1, 1995 WL 1315980

(Pa.Com.Pl. 1995) ......................................................................................... Passim

Commonwealth v. Cox, 728 A.2d 923 (Pa. 1999) .................................................. 43

Commonwealth v. Culmer, 604 A.2d 1090 (Pa.Super. 1992)................................. 42

Commonwealth v. Dennis, 17 A.3d 297 (Pa. 2011).................................... 46, 47, 48

Commonwealth v. Dennis, 859 A.2d 1270 (Pa. 2004)...................................... 79, 84

Commonwealth v. Eichinger, 108 A.3d 821 (Pa. 2014) ......................................... 88

Commonwealth v. Evans, 512 A.2d 626 (Pa. 1986) ............................. 34, 35, 36, 37

Commonwealth v. Fletcher, 861 A.2d 898 (Pa. 2004) ........................................... 82

Commonwealth v. Fowler, 523 A.2d 784 (Pa.Super. 1987) ................................... 90

Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003) .......................................... 74

Commonwealth v. Gentile, 640 A.2d 1309 (Pa.Super. 1994) ................................. 42

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) ............................................... 25

Commonwealth v. Greevy, 114 A. 511 (Pa. 1921) ................................................. 89

Commonwealth v. Grosella, 902 A.2d 1290 (Pa.Super. 2006) .............................. 25

Commonwealth v. Hardcastle, 701 A.2d 541 (Pa. 1997) ....................................... 79

Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014) ....................................... 25

Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011) ............................ 83, 84, 85

Commonwealth v. Johnson, 139 A.3d 1257 (Pa. 2016).......................................... 25

Commonwealth v. Johnson, 532 A.2d 796 (Pa. 1987)............................................ 35

Commonwealth v. Joines, 399 A.2d 776 (Pa.Super. 1979) .................................... 34

vi
Commonwealth v. Kerpan, 498 A.2d 829 (Pa. 1985) ............................................. 90

Commonwealth v. Lawrence, 960 A.2d 473 (Pa.Super. 2008) ............................... 43

Commonwealth v. Ligons, 971 A.2d 1125 (Pa. 2009) ...................................... 83, 85

Commonwealth v. McGill, 832 A.2d 1014 (Pa. 2003)............................................ 26

Commonwealth v. Murphy, 591 A.2d 278 (Pa. 1991) ...................................... 37, 38

Commonwealth v. Nero, 58 A.3d 802 (Pa.Super. 2012)......................................... 24

Commonwealth v. Patrick, 206 A.2d 295 (Pa. 1965) ............................................. 88

Commonwealth v. Pompey, 375 A.2d 163 (Pa.Super. 1977) ............................ 51, 55

Commonwealth v. Presbury, 478 A.2d 21 (Pa.Super. 1984) ............................ 32, 33

Commonwealth v. Reid, 99 A.3d 427 (Pa. 2014).................................................... 81

Commonwealth v. Reid, 235 A.3d 1124 (Pa. 2020).................................... 19, 20, 21

Commonwealth v. Rizvi, 166 A.3d 344 (Pa.Super. 2017)....................................... 22

Commonwealth v. Robinson, 780 A.2d 675 (Pa.Super. 2001) ............................... 54

Commonwealth v. Saunders, 946 A.2d 776 (Pa.Super. 2008)................................ 82

Commonwealth v. Sepulveda, 55 A.3d 1108 (Pa. 2012) .................................. 84, 85

Commonwealth v. Simpson, 66 A.3d 253 (Pa. 2013) ............................................. 81

Commonwealth v. Spence, 627 A.2d 1176 (Pa. 1993)............................................ 82

Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006) .................................. 46, 47, 82

Commonwealth v. Statum, 769 A.2d 476 (Pa.Super. 2001) ................................... 55

Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008) ................................... 90, 91, 95

Commonwealth v. Stern, 573 A.2d 1132 (Pa.Super. 1990) .............................. 80, 82

vii
Commonwealth v. Tedford, 960 A.2d 1 (Pa. 2008) .......................................... 90, 94

Commonwealth v. Thompson, 106 A.3d 742 (Pa. 2014) ........................................ 82

Commonwealth v. Triplett, 381 A.2d 877 (Pa. 1977) ............................................. 35

Commonwealth v. Uderra, 862 A.2d 74 (Pa. 2004) ............................................... 83

Commonwealth v. Walker, 740 A.2d 180 (Pa. 1999) ................................. 35, 36, 37

Commonwealth v. Wiley, 966 A.2d 1153 (Pa.Super. 2009) ................................... 25

Commonwealth v. Williams, 420 A.2d 727 (Pa.Super. 1980) ................................ 88

Commonwealth v. Williams, 640 A.2d 1251(Pa. 1994) .......................................... 55

Commonwealth v. Williams, 863 A.2d 505 (Pa. 2004) ........................................... 82

Commonwealth v. Woods, 575 A.2d 601 (Pa.Super. 1990).................................... 55

Commonwealth v. Yarris, 731 A.2d 581 (Pa. 1999) ......................................... 53, 57

Friedman v. Ralph Bros., 171 A. 900 (Pa. 1934) ................................................... 89

In re: Conflict of Interest of the Office of the Philadelphia District Attorney,

125 EM 2019 .................................................................................................. 19, 20

Redmond v. Pittsburgh Railways Co., 198 A. 71 (Pa. 1938).................................. 89

State Statutes

18 Pa.C.S.A. § 503 .................................................................................................. 52

42 Pa.C.S.A. § 9545(b)(2) ...................................................................................... 21

42 Pa.C.S.A. §§ 9543(a)(3) ..................................................................................... 78

State Rules

Pa.R.E. 606(b)(1) .................................................................................................... 88

Pa.R.E. 606(b)(2)(A)............................................................................................... 88

viii
Pa.R.E. 606(b)(2)(B) ............................................................................................... 88

Pa.R.E. 801(c) ......................................................................................................... 51

Pa.R.E. 802.............................................................................................................. 51

Pa.R.E. 804(3) ......................................................................................................... 51

ix
 COUNTER-STATEMENT OF THE QUESTIONS INVOLVED

I. Did trial counsel provide ineffective assistance by not questioning Rob-

ert Chobert about his probationary status?

(Answered in the negative by the court below.)

II. Did the prosecutor commit a Brady violation by not disclosing that he

told Robert Chobert he would try to find out how he could get his driver’s license

restored?

(Answered in the negative by the court below).

III. Did defendant’s claim that the prosecution suppressed evidence that

Cynthia White lied at trial provide a basis for PCRA relief?

(Answered in the negative by the court below.)

IV. Did trial counsel provide ineffective assistance with respect to the bal-

listics and medical forensic evidence?

(Answered in the negative by the court below.)

V. Did defendant’s Batson claim provide a basis for relief?

(Answered in the negative by the court below.)

VI. Did the PCRA court improperly quash subpoenas defendant sent to ju-

rors in an attempt to have them impeach their verdict?

(Answered in the negative by the court below.)

1
 COUNTER-STATEMENT OF THE CASE

This is a nunc pro tunc appeal from prior orders dismissing defendant’s PCRA

petitions. Defendant was convicted of first-degree murder and possessing an instru-

ment of crime in 1982 for the shooting death of Philadelphia police officer Daniel

Faulkner. Defendant’s judgment of sentence was affirmed by the Pennsylvania Su-

preme Court.

In the ensuing years, defendant filed four PCRA petitions, each of which was

denied by the PCRA court, and in each case the dismissal of the petition was unani-

mously affirmed by the Pennsylvania Supreme Court. Although he was originally

sentenced to death, that sentence was subsequently vacated by the federal courts due

to instructional error at the penalty hearing. The Commonwealth elected not to pur-

sue a death sentence at a new penalty hearing, and thus a sentence of life imprison-

ment was imposed for defendant’s first-degree murder conviction.

In August of 2016, more than thirty years after he was convicted of murdering

Officer Faulkner, defendant filed a fifth PCRA petition. Relying on Williams v.

Pennsylvania, 136 S.Ct. 1899 (2016), defendant claimed he was entitled to reinstate-

ment of his PCRA appellate rights from the dismissal of his four prior PCRA peti-

tions. Defendant argued reinstatement of his prior PCRA appeals was warranted be-

cause Chief Justice Castille had served as the District Attorney of Philadelphia

2
during his direct appeal and had later not recused himself from considering the

PCRA appeals.

Defendant subsequently filed an amended petition in which he added a second

claim based on a letter provided to him during PCRA discovery. Defendant claimed

that the letter, which was authored by Justice Castille while District Attorney,

showed that the justice was biased against those convicted of killing police officers,

and based on that alleged bias, he should have recused himself from hearing the prior

PCRA appeals. Although the PCRA court ultimately rejected the Williams-based

claim raised in the fifth PCRA petition, it granted relief based on the new claim

raised in the amended petition and reinstated defendant’s PCRA appellate rights.

The reinstatement of those appellate rights is the basis of this appeal.

Statement of Facts

The facts as presented to the jury were this: During the early-morning hours

of December 9, 1981, Officer Faulkner stopped a Volkswagen driven by defendant’s

brother, William Cook, near the corner of 13th and Locust Streets in Philadelphia.

The officer was in uniform and was driving a marked police car. Shortly after stop-

ping the car, the officer sent a radio message requesting the assistance of a police

van. The officer stood behind Mr. Cook and was apparently about to frisk him when

Mr. Cook turned and punched him in the face. As Officer Faulkner attempted to

subdue and handcuff Mr. Cook, defendant ran out of a parking lot on the opposite

3
side of the street. Defendant ran over to the officer, whose back was turned, and shot

him in the upper back with a five-shot revolver. The officer turned, grabbed for his

own sidearm, and managed to fire one shot that hit defendant in the upper chest.

Officer Faulkner fell to the ground and lay face-up. Defendant stood over him and

repeatedly fired his revolver at the officer. One of defendant’s high-velocity “plus

P” bullets struck the officer between the eyes and entered his brain (N.T. 6/19/82,

106, 209-16, 276-77; 6/21/82, 4.79-4.106; 6/22/82, 5.179; 6/23/82, 6.97; 6/25/82,

8.4-8.34, 8.181; 6/28/82, 28.65).

Officer Robert Shoemaker and his partner, Officer James Forbes, were al-

ready on their way to 13th and Locust Streets in response to Officer Faulkner’s radio

message. A taxi driver flagged them down and told them an officer had been shot.

Officer Shoemaker approached the shooting scene with his gun drawn and saw de-

fendant sitting on the curb. His right arm was across his chest and his left hand was

on the ground beside his leg. Officer Shoemaker said, “freeze,” but defendant instead

began to reach for something to his left. Officer Shoemaker could not see what it

was. He stepped to one side for a better view and saw that defendant was reaching

for a gun that was on the sidewalk beside him, about eight inches from his hand.

When defendant ignored his second order to “freeze,” Officer Shoemaker kicked

defendant and knocked him to the ground, and then kicked the gun out of defendant’s

reach. Officer Forbes covered defendant’s brother, who was frisked and found to be

4
unarmed. Defendant’s brother said, “I ain’t got nothing to do with this” (N.T.

6/19/82, 112-19, 127, 150-52, 155).

Officer Faulkner was put in a police van and rushed to Jefferson University

Hospital. When the police attempted to handcuff defendant and place him in a police

wagon to transport him to the hospital, he violently resisted. He continued to struggle

against the officers when they subsequently brought him inside the hospital, the

same one in which doctors were attempting to save Officer Faulkner’s life. The of-

ficers carrying defendant—he refused to walk—temporarily placed him on the floor

of the lobby next to the entrance to the emergency room. While lying there, defend-

ant boasted, “I shot the mother fucker and I hope the mother fucker dies.” A few

moments later, as the officers were about to carry him into the emergency room,

defendant repeated, “Yeah, I shot the mother fucker and I hope the mother fucker

dies.” Shortly thereafter, Officer Faulkner was pronounced dead (N.T. 6/19/82, 176-

200, 263-64; 6/21/82, 4.109; 6/24/82, 27-30, 33-34, 56-61, 112-16, 133-36).

Defendant’s Trial and Direct Appeal

Defendant was tried before the Honorable Albert F. Sabo and a jury in June

of 1982. At trial the Commonwealth presented three eyewitnesses to the shooting.

All three of the eyewitnesses, two of whom were able to identify defendant as the

shooter, provided a consistent version of events. A fourth witness testified to seeing

5
defendant quickly approach the scene with his hand behind his back just before the

shooting occurred. These four witnesses did not know one another.

Michael Scanlan testified that he was in his car waiting for the light to change

at the corner of 13th and Locust Streets, when he saw an encounter between Officer

Faulkner and a man who was driving a Volkswagen (that man would subsequently

be identified as defendant’s brother, Mr. Cook). During this encounter, Officer

Faulkner spoke with Mr. Cook and directed him to stand “spread-eagle” in front of

the police car. While Mr. Cook was standing “spread-eagle,” he turned around and

punched Officer Faulkner in the face. As Officer Faulkner tried to subdue Mr. Cook,

another man (who would subsequently be identified as defendant) came “running

out from a parking lot across the street towards the officer.” Officer Faulkner’s back

was to defendant. According to Mr. Scanlan:

I saw a hand come up, like this, and I heard a gunshot. There was an-
other gunshot when the man got to the policeman, and the gentleman
he had been talking to. And then the officer fell down on the sidewalk
and the man walked over and was standing at his feet and shot him
twice. I saw two flashes.

Defendant shot at the officer’s face two or three times. One of the bullets struck its

target, as Mr. Scanlan was able to see that Officer Faulkner’s “whole body jerked”

following one of the gunshots (N.T. 6/25/82, 8.4-8.11, 8.18-8.28).

Robert Chobert, a taxi driver, testified that he had just let off a fare and was

filling out paperwork at 13th and Locust Streets, when he heard a shot:

6
 I looked up, I saw the cop fall to the ground, and then I saw [defendant]
standing over him and firing more shots into him.

Mr. Chobert demonstrated how defendant stood over the fallen officer and fired at

his face multiple times (N.T. 6/19/82, 209-16, 276-77).

Cynthia White, a prostitute, testified she was standing on the corner at 13th

and Locust Streets and saw Officer Faulkner stop the Volkswagen driven by defend-

ant’s brother. She saw Mr. Cook punch the officer in the face. As the officer at-

tempted to handcuff Mr. Cook, she saw defendant run toward the officer from the

parking lot on the opposite side of the street. Defendant shot twice from behind the

officer. Officer Faulkner staggered, and grabbed for something at his side; she could

not see what it was because defendant moved into her line of view. The officer fell

to the ground. Defendant then stood over the officer and fired down at him several

times (N.T. 6/21/82, 4.92-4.107; 6/22/82, 5.179).

A fourth witness, Albert Magilton, did not see the shooting itself. However,

he testified he saw a police officer pull over a Volkswagen at the corner of 13 th and

Locust Streets. The officer and the driver then met on the sidewalk. Mr. Magilton

continued walking, and he saw defendant, who was on foot and holding his right

hand behind his back, moving “across the street fast” in the direction of the stopped

Volkswagen. A few moments later, Mr. Magilton heard a number of gunshots. When

he looked back toward the Volkswagen, he no longer saw the officer. Mr. Magilton

crossed the street and cautiously approached the stopped vehicle. When he got to the

7
sidewalk, he saw Officer Faulkner lying there. Defendant was sitting on the curb

nearby (N.T. 6/25/82, 8.75-8.79, 8.104-8.112, 8.137-8.138).

Each of the above four witnesses testified that the only people present at the

shooting scene were Officer Faulkner; defendant’s brother, who moved toward the

wall of a building and did nothing; and defendant. No one else was at the spot where

the shooting occurred, although Mr. Scanlan confirmed the presence of the other

eyewitnesses in the general area (N.T. 6/19/82, 212, 227-28, 233-34; N.T. 6/21/82,

4.106; 6/22/82, 5.134-5.135; 6/25/82, 8.20-8.21, 8.29-8.30). Two additional wit-

nesses, a hospital security guard and a police officer, testified to the incriminating

statements defendant made at the hospital, wherein he boasted that he shot Officer

Faulkner and hoped he would die (N.T. 6/24/82, 28-30, 33, 113-16, 135-36).

Officer James Forbes testified that he was one of the two officers who first

arrived at the shooting scene and that he recovered two handguns: the gun that de-

fendant had been reaching for, a five-shot Charter Arms .38 caliber revolver with a

two-inch barrel; and, from the street, a standard police-issue six-shot Smith and Wes-

son .38 caliber Police Special revolver with a six-inch barrel. The police gun, which

was registered as issued to Officer Faulkner, contained six Remington .38 special

cartridges, only one of which had been fired. The Charter Arms gun contained five

cartridges, all of which had been fired (N.T. 6/19/82, 152-54, 162-63, 175-76;

6/23/82, 6.18-6.23, 6.90-6.100).

8
 The trial evidence established that defendant had purchased the Charter Arms

gun on June 27, 1979, and that it was registered to him. All of defendant’s ammuni-

tion was of the “plus P” high-velocity type: four Federal .38 caliber “+P” and one

Smith and Wesson .38 caliber “+P.” The manager of the sporting goods store where

defendant bought the gun explained that the “+P” is known in the gun trade as a

“devastating bullet” because “[w]hen it hits the target, it just almost explodes” (N.T.

6/21/82, 4.32-4.59).

The bullet that struck defendant entered his right chest and was surgically re-

moved from his right back. Ballistics testing confirmed that it had been fired from

Officer Faulkner’s gun. Another bullet was removed from Officer Faulkner’s head.

It was too deformed to be ballistically matched to a particular gun, but was caliber

.38/.357 (.38 and .357 calibers are interchangeable), consistent with defendant’s .38

caliber handgun. Moreover, it had a hollow base, a characteristic of ammunition

manufactured by the Federal firearms company; four of the five spent shells in de-

fendant’s gun were of Federal manufacture. A copper bullet jacket, two flattened

and distorted bullet specimens, and a number of fragments were also recovered from

the shooting scene, all unusable for ballistics matching. However, one of the flat-

tened bullet specimens, like the bullet taken from Officer Faulkner’s head, had a

hollow base—as did defendant’s Federal brand ammunition. The bullet taken from

Officer Faulkner’s head had been fired from a gun barrel with eight lands, eight

9
grooves, and a right-hand twist. Defendant’s gun had eight lands, eight grooves, and

a right-hand twist. Finally, both the officer’s and defendant’s clothing tested positive

for primer lead residue, which showed that both had been shot at a range of less than

twelve inches (N.T. 6/19/82, 152-55; 6/23/82, 6.2-6.5, 6.100-6.114, 6.163-6.168;

6/26/82, 10-18, 32).

Defendant presented a number of witnesses at trial, most of whom were char-

acter witnesses. None of the witnesses observed the shooting;1 nor did any of them

present testimony that exculpated defendant. Neither defendant nor his brother tes-

tified.

On July 2, 1982, the jury convicted defendant of first-degree murder and pos-

sessing an instrument of crime. The following day, after a penalty hearing, the jury

sentenced defendant to death. Defendant filed post-verdict motions, which the trial

court denied after a hearing. The court then imposed the death sentence returned by

the jury plus a consecutive sentence of two and one-half to five years’ incarceration

for possessing an instrument of crime.

1
The sole exception was Cynthia White, an eyewitness who previously testified
for the Commonwealth. Defendant called her during the defense case to ask her if
she could remember in which hand the gunman (i.e., defendant) held the gun. Ms.
White testified that she could not remember in which hand defendant was carrying
the gun (N.T. 6/29/82, 180-96).

10
 With new counsel, defendant appealed to the Pennsylvania Supreme Court,

which unanimously affirmed his judgment of sentence. Commonwealth v. Abu-

Jamal, 555 A.2d 846 (Pa. 1989), and the Court subsequently denied defendant’s re-

quest for reargument. Commonwealth v. Abu-Jamal, 569 A.2d 915 (Pa. 1990).2 The

United States Supreme Court denied defendant’s petition for a writ of certiorari.

Abu-Jamal v. Pennsylvania, 498 U.S. 881 (1990). The federal high Court subse-

quently denied defendant’s two petitions for rehearing. Abu-Jamal v. Pennsylvania,

498 U.S. 993 (1990), and Abu-Jamal v. Pennsylvania, 501 U.S. 1214 (1991).

Defendant’s First Four PCRA Petitions

Defendant filed his first PCRA petition in 1995. A number of hearings were

held, and Judge Sabo denied the petition. Defendant appealed to the Pennsylvania

Supreme Court. On two occasions, the Supreme Court remanded the case to the

PCRA court so defendant could present testimony from additional witnesses. On

both occasions, after hearing the additional testimony, the PCRA court denied relief.

The Pennsylvania Supreme Court unanimously affirmed the denial of PCRA relief,

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998), and the Court subsequently

2
Chief Justice Castille was not a member of the Court during defendant’s direct
appeal or the Court’s consideration of his request for reargument.

11
denied defendant’s reargument request.3 The United States Supreme Court denied

defendant’s petition for a writ of certiorari. Abu-Jamal v. Pennsylvania, 528 U.S.

810 (1999).

In 2001, defendant filed a second PCRA petition, which the Honorable Pam-

ela Pryor Dembe dismissed as untimely. The Pennsylvania Supreme Court unani-

mously affirmed the dismissal. Commonwealth v. Abu-Jamal, 833 A.2d 719 (Pa.

2003), and the United States Supreme Court denied defendant’s petition for a writ

of certiorari. Abu-Jamal v. Pennsylvania, 541 U.S. 1048 (2004).

In 2003, defendant filed his third PCRA petition, which Judge Dembe dis-

missed as untimely. The Pennsylvania Supreme Court unanimously affirmed the dis-

missal of the petition, Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008), and

the United States Supreme Court denied defendant’s petition for a writ of certiorari.

Abu-Jamal v. Pennsylvania, 555 U.S. 916 (2008).

3
During this and the three subsequent PCRA appeals, Chief Justice Castille
was a member of the Court and participated in the consideration of the appeals. De-
fendant filed a motion seeking the justice’s recusal from his first PCRA appeal. The
motion was denied because, as Justice Castille explained in his opinion in support
of the motion’s denial, he was not personally involved in the prosecution of defend-
ant’s case at the trial level or on direct appeal. Commonwealth v. Abu-Jamal, 720
A.2d 121 (Pa. 1998) (Castille, J., denying recusal). Defendant also unsuccessfully
sought Justice Castille’s recusal from his second PCRA appeal.

12
 In 2009, defendant filed a fourth PCRA petition, which Judge Dembe dis-

missed. The Pennsylvania Supreme Court unanimously affirmed the dismissal of the

petition. Commonwealth v. Abu-Jamal, 40 A.3d 1230 (Pa. 2012).

Defendant’s Federal Habeas Corpus Petition

Meanwhile, in 1999, defendant filed a petition for a federal writ of habeas

corpus in the United States District Court for the Eastern District of Pennsylvania.

The federal district court granted defendant a new penalty hearing (due to instruc-

tional error at the penalty hearing) and denied relief in all other respects. Both parties

appealed, and the United States Court of Appeals for the Third Circuit affirmed the

district court’s decision. Abu-Jamal v. Horn, 520 F.3d 272 (3d Cir. 2008). The Third

Circuit denied defendant’s petition for an en banc rehearing of the case, see Abu-

Jamal v. Secretary, Pennsylvania Dept. of Corrections, 643 F.3d 370, 371 (3d Cir.

2011) (stating that reargument had been denied), and the United States Supreme

Court denied defendant’s petition for a writ of certiorari. Abu-Jamal v. Beard, 556

U.S. 1168 (2009). However, the Court granted the Commonwealth’s petition for a

writ of certiorari and remanded the case to the Third Circuit for further consideration

in light of its decision in Smith v. Spisak, 558 U.S. 139 (2010).4 On remand the Third

Circuit affirmed the district court’s order granting defendant a new penalty hearing.

4
The relevant portion of Spisak involved alleged instructional error during the
penalty phase of a capital trial.

13
Abu-Jamal v. Secretary, Pennsylvania Dept. of Corrections, supra. The United

States Supreme Court denied the Commonwealth’s petition for a writ of certiorari.

Wetzel v. Abu-Jamal, 565 U.S. 943 (2011).

The Imposition of a Life Sentence

The Commonwealth subsequently declined to seek a new death sentence.

Thus, on August 14, 2012, the trial court imposed a sentence of life imprisonment.

Defendant filed post-sentence motions, which the trial court denied. He then ap-

pealed to this Court, raising claims regarding the imposition of his life sentence. This

Court affirmed the judgment of sentence in a nonpublished opinion. Commonwealth

v. Abu-Jamal, 3059 EDA 2012, 2013 WL 11257188 (Pa.Super., July 9, 2013).

Defendant’s Fifth PCRA Petition

Defendant filed a fifth PCRA petition in 2016. Relying on the United States

Supreme Court’s decision in Williams v. Pennsylvania, supra, he claimed he was

entitled to de novo review of his appeals from his prior four PCRA petitions. In

Williams, the United States Supreme Court held that Chief Justice Castille should

have recused himself from the Pennsylvania Supreme Court’s consideration of Wil-

liams’ PCRA appeal. This was because, as District Attorney, Chief Justice Castille

had approved the trial prosecutor’s request to seek the death penalty in that case.

According to the Court, that act amounted to “significant, personal involvement in a

critical decision” in the case that “gave rise to an unacceptable risk of actual bias.”

14
Williams, 136 S.Ct. at 1908. The Court noted that the Commonwealth had argued

that Chief Justice Castille’s approval of the request to seek the death penalty was

nothing more than a brief administrative act. The Court, however, explained that that

characterization could not be “credited.” Id. at 1907. This was because the Court was

unwilling to assume that District Attorney Castille would treat “so major a decision

as a perfunctory task requiring little time, judgment, or reflection on his part.” Id.

In the present case, defendant pointed out that Chief Justice Castille had

served as the District Attorney of Philadelphia during his direct appeal and that, ac-

cordingly, he likely had personal involvement in his case that warranted recusal un-

der Williams. Defendant claimed that his petition was timely because he filed it

within sixty days of the Williams decision and because Williams supposedly revealed

that Justice Castille’s denial of personal involvement in this case was likely not cred-

ible. He also claimed that Williams recognized a new constitutional right that applied

retroactively.

Along with his PCRA petition, defendant filed a motion for discovery relating

to evidence of District Attorney Castille’s personal involvement in the case. The

PCRA court (the Honorable Leon W. Tucker) concluded it had jurisdiction over this

case based on the newly-discovered-fact exception (Opinion, Tucker, J., filed Dec.

27, 2018, p. 9). The “newly-discovered fact,” according to the PCRA court, was the

Williams holding “that there is an impermissible risk of actual bias when a judge

15
earlier had significant personal involvement as a prosecutor in a critical decision

regarding a defendant’s case” (id. at 13). Having concluded that it had jurisdiction

over the case and that the matter involved “exceptional circumstances,” the PCRA

court granted the discovery request (id. at 8 & n.6).

During the discovery process, defendant obtained a June 15, 1990 letter that

District Attorney Castille had sent to Governor Robert P. Casey in which he urged

the governor to sign death warrants in cases in which the direct appeal process had

concluded. Because defendant’s direct appeal was then ongoing, the letter did not

refer to him. In the letter, District Attorney Castille singled out the case of Leslie

Beasley, who had been convicted of killing a Philadelphia police officer. District

Attorney Castille told the governor that signing Beasley’s death warrant was espe-

cially important because in the past ten days two other Philadelphia police officers

had been shot to death in separate incidents. In that context, District Attorney Cas-

tille wrote, “I urge you to send a clear and dramatic message to all police killers that

the death penalty in Pennsylvania actually means something.”

Seven months after receiving the above letter, on the date the PCRA court had

ordered any amended petition to be filed, defendant filed an amended PCRA peti-

tion. In that petition, he continued to argue that he was entitled to PCRA relief based

on his Williams claim regarding Chief Justice Castille’s supposed personal involve-

ment in his direct appeal. Defendant also raised a new “second claim” that was

16
“independent of Williams” and that was based on the June 15, 1990 letter (defend-

ant’s amended PCRA petition, filed July 9, 2018, ¶ 30; N.T. 10/29/18, 7). Defendant

argued that the letter was newly-discovered evidence that showed that Chief Justice

Castille was biased against those convicted of killing police officers and therefore,

for that reason as well, should have recused himself from hearing his PCRA appeals.

On December 27, 2018, the PCRA court entered an order (and filed an ac-

companying opinion) in which it denied defendant’s Williams-based claim. The

court denied the claim because it found that defendant had failed to show that, as

District Attorney, Justice Castille had had “significant personal involvement in a

critical decision” in his case (Opinion, Tucker, J., filed Dec. 27, 2018, pp. 16, 26-

27). The court, however, concluded that defendant was entitled to relief based on his

second claim, the one involving the June 15, 1990 letter to the governor. In the

court’s view, the letter called into question Chief Justice Castille’s impartiality in

cases, like the present one, involving the murder of a police officer (id. at 30-32).

Thus, the court found that Chief Justice Castille should have recused himself from

the PCRA appeals, and defendant was entitled to have those appeals reheard before

a tribunal free of any influence from his potential bias. Accordingly, the PCRA court

reinstated defendant’s appellate rights from the dismissal of his four prior PCRA

petitions.

17
Proceedings During the Current Appeal

After defendant filed his appellate brief, and 20 days before the Common-

wealth’s brief was due in this Court, Officer Faulkner’s widow, Maureen Faulkner,

filed a King’s Bench petition asking the Pennsylvania Supreme Court to remove the

Philadelphia District Attorney’s Office from the case and replace it with the Penn-

sylvania Attorney General’s Office.5 Mrs. Faulkner contended that removal of the

District Attorney’s Office was necessary because of alleged conflicts of interest that

supposedly prevented the office from properly handling this case.6 In response, the

Supreme Court entered an order in which it stayed the present appeal and appointed

the Honorable John M. Cleland as special master to investigate the allegations.

After conducting his investigation, Judge Cleland filed a report announcing

that he had found no basis for recommending the removal of the District Attorney’s

Office from the case:

5
On the day he filed his appellate brief, defendant also filed a motion for a
remand to the PCRA court to present what he contends is newly-discovered evi-
dence. This alleged newly-discovered evidence consists of documents his attorneys
found during a review of the Commonwealth’s file for the case. Defendant maintains
in his motion that the documents relate to the claims he has raised in the present
appeal. The Commonwealth filed a response stating that it did not oppose a remand
so the documents could be presented to the PCRA court. This Court has issued an
order stating that decision on defendant’s motion is deferred to the panel of this
Court assigned to decide the merits of this appeal.
6
Mrs. Faulkner had previously filed a motion in this Court seeking the removal
of the District Attorney’s Office from the case due to alleged conflicts of interest.
This Court denied the motion.

18
 Having completed my investigation, it is my conclusion that
[Mrs. Faulkner] has failed to establish the existence of a direct conflict
of interest, which compromises the ability of the District Attorney or
his assistants and staff to carry out the duties of his office. Nor has she
established the existence of an appearance of impropriety that would
compromise a reasonable person’s confidence in the capacity of the
District Attorney or his assistants and staff to serve the fair and impar-
tial administration of justice in defending the conviction of [defendant]
against issues raised in the pending PCRA petition.

In re: Conflict of Interest of the Office of the Philadelphia District Attorney, 125 EM

2019 (Cleland, J., Report of the Special Master, filed June 17, 2020, pp. 1-2). Thus,

he recommended that the King’s Bench petition be dismissed. The Pennsylvania Su-

preme Court subsequently entered an order stating that, “in accordance with the spe-

cial master’s recommendation,” it was dismissing the King’s Bench petition. Id. (per

curiam order, filed Dec. 16, 2020). The Court further lifted the stay in the present

appeal.

After the stay was lifted, defendant filed a motion in this Court requesting

permission to file a supplemental memorandum to his brief addressing the relevance

of Commonwealth v. Reid, 235 A.3d 1124 (Pa. 2020), a case decided while the Su-

preme Court’s stay here was in effect. Defendant claimed it was necessary to address

Reid because Justice Dougherty, in his concurring opinion in support of the order

denying Ms. Faulkner’s King’s Bench petition, suggested that Reid requires dismis-

sal of this appeal. Justice Dougherty stated that in Reid the Supreme Court held that

Commonwealth v. Williams, supra, “does not provide an exception to the PCRA’s

19
timeliness requirements, and that nunc pro tunc appeals reinstated pursuant to Wil-

liams are subject to sua sponte quashal.” In re: Conflict of Interest of the Office of

the Philadelphia District Attorney, supra (Dougherty, J., concurring statement, filed

Dec. 16, 2020, p. 19). Justice Dougherty went on to state that, “[b]y all appearances,

[defendant’s] case falls squarely in this category.” Id.

Defendant attached the proposed supplemental memorandum to his motion,

and this Court subsequently granted the motion and directed that it and the supple-

mental memorandum “be placed with” his earlier-filed brief (Superior Court Order,

filed Feb. 1, 2021). Defendant contends in the supplemental memorandum that Reid

does not require dismissal of this appeal because his appellate rights were not rein-

stated pursuant to Williams. Defendant points out that the PCRA court rejected his

Williams-based claim and instead restored his appellate rights based on District At-

torney Castille’s letter to the governor, which he states is newly-discovered evidence

that came to light during the PCRA proceedings. Defendant maintains that “[t]his is

a solid basis for the courts’ jurisdiction” (defendant’s proposed supplemental mem-

orandum, 11).

The Commonwealth agrees that because the PCRA court denied defendant’s

Williams-based claim and instead restored his appellate rights based on the letter,

Reid does not control the outcome here. But that does not mean that Reid is irrelevant

to the threshold issue of the timeliness of defendant’s PCRA petition.

20
 This is because Reid established that defendant’s original (fifth) PCRA peti-

tion, which was based on Williams, did not meet any time-bar exception and so

should have been dismissed as untimely by the PCRA court. Given Reid, defendant

thus needs to establish that his amended petition, in which he raised for the first time

his newly-discovered-evidence claim based on the June 15, 1990 letter, was itself

timely filed. This he cannot do.

Defendant was provided the letter no later than early October of 2017 (N.T.

4/30/18, 10).7 At that time, pursuant to the PCRA time-bar, defendant was required

to raise any claim “within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).8 Defendant, however, did not raise his newly-discovered

evidence claim based on the letter until he filed his amended PCRA petition seven

months later, on July 9, 2018. Thus, it appears that defendant did not timely raise the

claim and that, accordingly, the PCRA court was statutorily barred from granting

relief based on it and restoring his appellate rights.9

7
See also defendant’s October 19, 2017 letter to the PCRA court, filed of rec-
ord, in which he quotes from the June 15, 1990 letter and states he received it as an
attachment to a letter the PCRA court sent counsel on October 3, 2017.
8
The 60-day period has since been extended to one year for claims arising on
or after December 24, 2017. See Act 2018, Oct. 24, P.L. 894, No 146.
9
During the proceedings below, the PCRA court entered orders stating that de-
fendant had fifteen days following receipt of discovery to file any amendments to
his original (fifth) PCRA petition, and the court ultimately gave defendant until July
(footnote continued . . . )

21
 In any event, even if the PCRA court correctly restored defendant’s appellate

rights from the dismissal of his prior PCRA petitions, as demonstrated below, none

of his claims provides a basis for relief.

SUMMARY OF ARGUMENT

I. Trial counsel did not provide ineffective assistance by not invoking Da-

vis v. Alaska, 415 U.S. 308 (1974), as a basis for cross-examining Robert Chobert

with his probation status to show his alleged bias. Given the different facts of this

case, the trial court would not have been required to allow such cross-examination.

In fact, under Pennsylvania law at the time of trial, cross-examining Mr. Chobert

with his probation status would not have been permitted. Further, even if such cross-

examination had been permissible, it would not have made a difference in the out-

come at trial.

II. Defendant’s claim that the trial prosecutor violated Brady v. Maryland,

373 U.S. 83 (1963), by failing to disclose “that he had agreed to look into reinstating

Mr. Chobert’s suspended driver’s license” (Brief for Appellant, 32) is meritless. The

evidence presented at the PCRA hearing established that at some point, “probably”

9, 2018, to file an amended petition (N.T. 4/30/18, 40). The PCRA court, however,
did not have the authority to extend the PCRA’s timeliness requirements with respect
to raising a new claim. See Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.
2017) (“[t]he PCRA’s time limitations are mandatory and interpreted literally; thus,
a court has no authority to extend filing periods except as the statute permits”) (in-
ternal quotation marks and citation omitted).

22
during trial, and maybe not until after he had already testified, Mr. Chobert simply

asked the prosecutor if he could tell him what steps he needed to take to have his

license restored; the prosecutor responded that he would “look into it” but never did

anything about it.

In any event, this information was not material to defendant’s guilt or inno-

cence. This is especially so because Mr. Chobert consistently identified defendant

as the gunman going all the way back to the time of the shooting, well before trial

and before he had even met the prosecutor. Additionally, there was overwhelming

evidence that corroborated Mr. Chobert’s testimony. Because the information was

not material, no Brady violation could have occurred.

III. The PCRA court properly dismissed defendant’s third PCRA petition

in which he claimed that Cynthia White, who was then long-deceased, had twenty

years earlier supposedly told a fellow inmate that the police were forcing her to

falsely claim she had seen defendant shoot Officer Faulkner. The claim was based

entirely on inadmissible (and unreliable) hearsay and could not establish any excep-

tion to the PCRA time-bar or the merits of any underlying claim.

IV. Trial counsel did not provide ineffective assistance by failing to “mean-

ingfully consult” with or present the testimony of a ballistics or medical forensic

expert. Defendant presented such experts at the PCRA hearing, and nothing they

23
said undermined the evidence of his guilt. If anything, their testimony supported the

Commonwealth’s case.

V. Defendant’s claim that the prosecutor violated Batson v. Kentucky, 476

U.S. 79 (1986), by using some of his peremptory challenges against African Amer-

icans provided no basis for relief. The claim was considered by the Pennsylvania

Supreme Court on direct appeal, when Chief Justice Castille was not a member of

the Court, and found meritless. Defendant could not relitigate the claim under the

PCRA. In any event, the evidence he presented at the PCRA hearing failed to estab-

lish that a Batson violation occurred.

VI. The PCRA court properly quashed subpoenas defendant served on two

jurors whereby he attempted to elicit testimony regarding alleged discussions some

of the jurors had prior to formal deliberations. Such testimony is precluded by the

rule prohibiting jurors from impeaching their verdict with post-verdict testimony re-

garding their internal discussions.

ARGUMENT

THE PCRA COURT PROPERLY DENIED POST-CONVICTION RELIEF.

When reviewing the denial of PCRA relief, this Court determines whether the

PCRA court’s ruling is supported by the record and free of legal error. Common-

wealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012). The PCRA court’s findings will

not be upset unless there is no support for them in the certified record. Id. Also, this

24
Court may affirm the PCRA court’s decision if there is any basis in the record to

support it and thus may rely on a basis different than that relied upon by the court

below. Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa.Super. 2009).

For ineffective assistance of counsel claims, the following standards apply:

“Counsel is presumed to be effective; accordingly, to succeed on a claim of ineffec-

tiveness the petitioner must advance sufficient evidence to overcome this presump-

tion.” Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016). In order to over-

come the presumption, a defendant must establish that: 1) the underlying claim has

arguable merit; 2) counsel had no reasonable basis for his act or omission; and 3)

“but for counsel’s act or omission, the outcome of the proceedings would have been

different.” Commonwealth v. Grosella, 902 A.2d 1290, 1294 n.7 (Pa.Super. 2006).

Defendant’s direct appeal was decided before Commonwealth v. Grant, 813

A.2d 726 (Pa. 2002), which held that claims of ineffective assistance of trial counsel

should generally be deferred to the PCRA. Prior to Grant, a defendant was required

to raise any ineffective assistance of counsel claims at the first opportunity he had to

do so, see, e.g., Commonwealth v. Henkel, 90 A.3d 16, 23 (Pa.Super. 2014)—which

in this case would have been on direct appeal, where defendant was represented by

new counsel. If a defendant was represented by new counsel on direct appeal, and

he failed to raise a claim of trial counsel’s ineffectiveness at that stage, in order to

obtain review of the claim under the PCRA he had to “layer” his claim. Specifically,

25
he had to demonstrate both that trial counsel was ineffective and that direct appeal

counsel was ineffective for not raising trial counsel’s ineffectiveness. See Common-

wealth v. McGill, 832 A.2d 1014 (Pa. 2003).

I. TRIAL COUNSEL DID NOT PROVIDE INEFFECTIVE ASSISTANCE

BY NOT QUESTIONING ROBERT CHOBERT ABOUT HIS PROBA-
TIONARY STATUS.

Defendant claims trial counsel provided ineffective assistance by not ques-

tioning Commonwealth witness Robert Chobert about his probationary status. He

further claims direct appeal counsel was ineffective for not raising this claim. At the

time of trial, however, Mr. Chobert could not have been cross-examined regarding

his probationary status. And even if such cross-examination was permissible, it

would not have made a difference in the trial’s outcome. Thus, defendant is not en-

titled to relief on this claim.

A. The Relevant Background to Defendant’s Claim.

Mr. Chobert testified at trial that he was driving a taxi at the time of the inci-

dent and saw defendant shoot Officer Faulkner. Mr. Chobert was on probation for

an arson conviction, and during cross-examination, trial counsel attempted to im-

peach him with the conviction, claiming it constituted crimen falsi. The Common-

wealth objected, and the trial court sustained the objection because arson is not a

crimen falsi offense (N.T. 6/19/82, 216-23).

26
 Defendant claims that, rather than attempting to cross-examine Mr. Chobert

with his conviction on the ground that it was crimen falsi, his counsel should have

used the fact that he was on probation for that conviction to cross-examine him for

bias. According to defendant, Mr. Chobert’s probationary status provided “a power-

ful motive” for him to have favored the prosecution (Brief for Appellant, 17). Cross-

examining Mr. Chobert regarding that probationary status, defendant contends,

would have been proper under Davis v. Alaska, 415 U.S. 308 (1974), but because

counsel was not familiar with that case, he did not advance that basis for the cross-

examination and so was ineffective.

B. The PCRA Court’s Analysis of the Claim.

The PCRA court rejected this claim. See Commonwealth v. Cook, 30

Phila.Co.Rptr. 1, 89-90 & n.34, 1995 WL 1315980 (Pa.Com.Pl. 1995) (hereinafter

“PCRA Court Opinion I”). The court explained that Davis v. Alaska did not apply to

this case because Davis “involved a witness who allegedly feared his own probation

would be revoked because of his participation in the same crime with which the

accused was charged” (id. at 89). In this case, however, “the fact that [Mr. Chobert]

was on probation for arson, without more, did not bring him within the rule in Davis

because there was no reason—nor has [defendant] suggested any—for Mr. Chobert

to fear having his probation revoked” (id.). The court acknowledged that cases de-

cided after defendant’s trial “have expanded the scope of the rule in Davis” (id. at

27
89 n.34). Trial counsel, however, could not have been ineffective “for failing to ap-

ply later-decided cases” (id.).

The PCRA court further found that defendant failed to prove he was preju-

diced by the absence of the cross-examination (id. at 89-90). Although defendant

called Mr. Chobert as a witness at the PCRA hearing, he did not question him with

regard to this claim. Additionally, the court pointed out, Mr. Chobert’s testimony

was corroborated by other witnesses; he immediately identified defendant as the

shooter at the scene of the crime; and his pretrial statements regarding the shooting

were consistent with his trial testimony (id. at 90).10

C. Davis v. Alaska did not Provide a Basis for the Cross-exami-

nation.

The PCRA court correctly concluded that Davis v. Alaska did not apply to this

case. In Davis, the United States Supreme Court considered whether a state law pre-

cluding the use of juvenile adjudications in most court proceedings would have to

give way where it conflicted with a criminal defendant’s right to demonstrate a wit-

ness’s potential bias. Davis v. Alaska, 415 U.S. at 309.

Davis was charged with breaking into an Anchorage bar and stealing its safe.

The safe was subsequently found about twenty-six miles from Anchorage, near the

10
The federal district court considered this claim on habeas corpus review and
similarly concluded it provided no basis for relief. See Abu-Jamal v. Horn, No. CIV.
A. 99-5089, 2001 WL 1609690 (E.D.Pa. Dec. 18, 2001), memorandum and order at
23, 57 (hereinafter “Federal District Court Opinion”).

28
house in which Richard Green lived with his parents. The safe had been pried open

and its contents removed. Green told responding officers that he had seen two men

standing next to a late-model blue Chevrolet that had been parked near where the

safe was found. The next day, Green was shown photographs of Davis and five other

men, and he identified Davis as one of the men he saw standing by the car. Green

would go on to be a “crucial witness” against Davis at trial. Id. 310. In addition to

testifying to the above facts, he stated that when he observed Davis standing near

where the pried-open safe was subsequently found, Davis was holding a crowbar.

Additional evidence presented at trial established that Davis had rented a blue Chev-

rolet and that paint chips found in its trunk “could have” come from the stolen safe.

Id. at 310.

At the time of the crime and trial, Green was on juvenile court probation after

having been adjudicated delinquent for two burglaries. Davis wanted to cross-exam-

ine Green regarding this probation to show his potential bias. Davis contended the

cross-examination could show that Green had falsely identified him to the police as

a way of shifting suspicion away from himself, and that he was cooperating with the

authorities because he feared his probation would be revoked. The trial court pre-

cluded the cross-examination based on an Alaska statute prohibiting the use of juve-

nile adjudications in most court proceedings.

29
 At trial, Davis questioned Green at some length regarding whether he was

concerned the police might suspect he was involved in the crime. Green gave some-

what conflicting answers, saying he did not think the police would suspect him; stat-

ing that he “thought they might ask a few questions is all;” and allowing that it did

“cross his mind” that the police might suspect him. Id. at 312-13. Green, however,

claimed that he was not bothered by the fact that the police might think he was in-

volved; it was not something he was worried about. And, when he was asked if he

had ever been questioned by the police like he was in this case, he flatly answered,

“No.” Id. Because of the trial court’s earlier ruling, Davis did not question Green

about the fact that he was on probation for committing other burglaries at the time

he spoke with the police about the burglary at issue in the case and when he testified

at trial.

The United States Supreme Court subsequently held that Davis’s right to con-

front his accuser was violated by the trial court’s prohibition on questioning Green

about his juvenile record. The Court explained that because Davis was not allowed

to ask Green about his juvenile court adjudication and probation stemming from the

other burglaries, “Green’s protestations of unconcern over possible police suspicion

that he might have had a part in the [crime] and his categorical denial of ever having

been the subject of any similar law-enforcement interrogation went unchallenged.”

Id. at 313-14.

30
 The Court noted that Green was aware that Davis could not ask him about his

juvenile record, and this fact likely caused him to testify in a different manner than

he would have had such cross-examination been permitted. Id. at 314. As the Court

explained, “It would be difficult to conceive of a situation more clearly illustrating

the need for cross-examination.” Id. Indeed, “[s]erious damage to the strength of the

State’s case would have been a real possibility had [Davis] been allowed to pursue

this line of inquiry.” Id. at 319. Thus, the Court held, “[i]n this setting,” Davis’s right

of confrontation took precedence over the State’s policy of preventing the disclosure

of a juvenile’s record, and Davis should have been allowed to cross-examine Green

regarding his record. Id. at 319-20.

Davis does not support defendant’s argument because this case is not at all

similar to Davis. Here, unlike in Davis, there is no reason to believe Mr. Chobert

feared he might be a suspect for the shooting; that such fear might have stemmed in

part from his being on probation for having committed a similar crime; and that he

identified defendant to deflect suspicion from himself. Mr. Chobert was not a sus-

pect; he was not on probation for having committed a similar crime; and no one has

suggested that he identified defendant to deflect suspicion from himself. Mr. Chobert

was simply driving a taxi at the time of the incident; he happened to witness the

shooting; and he immediately identified defendant as the person who shot Officer

Faulkner.

31
 Further, defendant has not pointed to anything Mr. Chobert testified to at trial

that, like in Davis, would have been contradicted by the fact that he was on proba-

tion. Unlike in Davis, “serious damage” would not have occurred to the prosecu-

tion’s case had defense counsel questioned Mr. Chobert about his probation. Thus,

the relevant circumstances of this case are not at all similar to those in Davis, and

defendant is wrong when he claims that, under Davis, he had the right to cross-ex-

amine Mr. Chobert regarding his probation. Cf. Commonwealth v. Baez, 720 A.2d

711, 726 (Pa. 1998) (explaining that in Davis, “[s]ince defense counsel was prohib-

ited from making any inquiry as to whether the witness was presently on probation,

the witness’ categorical denial of ever having been the subject of any similar law-

enforcement interrogation went unchallenged) (internal quotation marks and citation

omitted); Commonwealth v. Bozyk, 987 A.2d 753, 757 (Pa.Super. 2009) (citing Da-

vis for the proposition that a witness may be questioned about prior convictions

where there is a possibility that the witness might be guilty of the crime and moti-

vated to deflect blame from himself).

Defendant seems to believe that Davis established a per se constitutional right

to question a witness about his probationary status regardless of the relevant circum-

stances or lack thereof. That is too broad a reading. This Court’s decision in Com-

monwealth v. Presbury, 478 A.2d 21 (Pa.Super. 1984), makes that clear. In Pres-

bury, this Court explained that in Davis the United States Supreme Court “held that

32
a state’s interest in protecting juvenile offenders had to give way to the right of a

criminal defendant to challenge the credibility of witnesses appearing and testifying

against him.” Id. at 24. However, this Court explained, Davis “did not hold that a

witness’ record was invariably admissible to attack credibility.” Id. Rather, to be

admissible, the record “must be relevant.” Id.

In Presbury, the appellant claimed counsel was ineffective for failing to intro-

duce evidence showing that a witness was incarcerated at the time of trial due to an

adjudication of delinquency in an unrelated case. Presbury claimed this fact would

show the witness’s potential bias. This Court, however, rejected the claim because

the fact that the witness was incarcerated for an adjudication of delinquency (and

thus was under the supervision of the state) did not, by itself, establish a reason to

believe he was biased in favor of the prosecution. Id. at 24-25. Thus, this Court’s

decision in Presbury, which was decided just two years after defendant’s trial, makes

clear that Davis did not establish a per se right to question a witness about the fact

that he is under the supervision of the state.

D. Mr. Chobert could not have been Cross-examined Regarding

his Probationary Status.

Absent the type of circumstances present in Davis—where there were partic-

ular facts that made the witness’s record relevant to showing his potential bias—at

the time of defendant’s trial a witness could be cross-examined for bias with respect

to his criminal record only where there was proof that the prosecution had the ability

33
to offer him leniency in a pending case. E.g., Commonwealth v. Joines, 399 A.2d

776 (Pa.Super. 1979). That scenario did not apply here because Mr. Chobert did not

have any open proceedings pending against him. He was serving the last year of a

court-imposed five-year sentence of probation that was outside the prosecution’s

control. Thus, under the law that applied at the time of trial, Mr. Chobert could not

have been cross-examined for bias with his arson conviction.

Cases decided after defendant’s trial expanded the scope of permissible im-

peachment. In Commonwealth v. Evans, 512 A.2d 626 (Pa. 1986), the Pennsylvania

Supreme Court announced a “new” rule, id. at 632, that shifted the analysis from the

prosecutor’s actual ability to provide leniency in a pending matter, to the possibility

of leniency in the mind of the witness in any non-final matter:

While we have always acknowledged the right of a party to impeach by

showing bias, new in the present case is our willingness to acknowledge
what we had previously thought was too speculative: that a prosecution
witness may be biased because of the expectation of leniency in some
pending matter even when no promises have been made. Thus, we hold
that the right guaranteed by Art. I Section 9 of the Pennsylvania Con-
stitution to confront witnesses against a defendant in a criminal case
entails that a criminal defendant must be permitted to challenge a wit-
ness’s self-interest by questioning him about possible or actual favored
treatment by the prosecuting authority in the case at bar, or in any other
non-final matter involving the same prosecuting authority.

Id. at 632 (emphasis added).

Trial counsel, of course, could not have been ineffective for failing to apply

the new rule announced in Evans since that case was not decided until four years

34
after defendant’s trial. See Strickland v. Washington, 466 U.S. 668, 690 (1984)

(counsel’s performance is judged under the “prevailing professional norms;” not

later developments); Commonwealth v. Johnson, 532 A.2d 796, 801-02 (Pa. 1987)

(counsel not ineffective for not relying on future cases); Commonwealth v. Triplett,

381 A.2d 877, 880-81 (Pa. 1977) (counsel cannot be faulted for failing to predict

future changes in the law; thus, counsel’s representation must be considered under

the standards that existed at the time of his alleged ineffectiveness). Because (as

Evans makes clear) at the time of trial the mere fact that a witness was on probation

was not a sufficient basis for impeaching him for bias, counsel could not have been

ineffective for failing to attempt to impeach Mr. Chobert.

In any event, even if Evans had been decided prior to trial, given the relevant

circumstances of this case, there is no reason to believe that counsel would have

been permitted to cross-examine Mr. Chobert with his arson conviction. This is be-

cause even under Evans, a defendant is not automatically entitled to cross-examine

a witness with respect to his probationary or parole status. Instead, a defendant must

be able to demonstrate a plausible reason to believe that the witness’s probationary

or parole status may have led the witness to falsely accuse him—which is not the

case here.

This point was made clear by the Pennsylvania Supreme Court in Common-

wealth v. Walker, 740 A.2d 180 (Pa. 1999). In that case, the Court considered its

35
decision in Evans (and also repeatedly referenced Davis v. Alaska; see Walker, 740

A.2d at 181-82). The Court explained that, although a defendant has a constitutional

right to cross-examine a witness for bias, this does not mean that a trial court may

no longer function as the gatekeeper in determining the relevance of the evidence

supposedly showing bias:

As previously noted, in Commonwealth v. Evans we recognized that a

defendant’s entitlement to challenge a witness’s self-interest is rooted
in the confrontation clauses of the state and federal constitutions. Not-
withstanding this constitutional dimension, we have also recognized
that the issue is essentially an evidentiary ruling regarding ‘the scope
and manner of cross-examination [which is] within the sound discretion
of a trial judge whose decision[ ] will not be overturned absent an abuse
of discretion.’ Commonwealth v. Auker, 681 A.2d 1305, 1317 (Pa.
1996). See also Commonwealth v. Borders, 560 A.2d 758, 760 (Pa.
1989) (“the better course . . . is to favor the defendant’s ability to fully
and freely challenge the testimony and evidence of the prosecution with
whatever tools are at his disposal, so long as that use can be justified
by an offer of relevance at the proceedings”).

Walker, 740 A.2d at 184 (emphasis supplied by Walker).11

In Walker, the appellant claimed the trial court erred in preventing him from

cross-examining a prosecution witness regarding the fact that he was on parole when

the witness first identified him to the police as the person who robbed him and also

when he identified him at the preliminary hearing. The Pennsylvania Supreme Court

recognized that a witness’s probationary or parole status may be a proper subject for

11
Throughout this brief, for the purpose of uniformity, the Commonwealth has
occasionally reformatted citations contained in the passages it quotes.

36
cross-examination to show the witness’s bias. However, the Supreme Court con-

cluded that that did not mean that Walker was automatically entitled to question the

witness about his parole status.

The Court found Walker’s theory unpersuasive because he “made only a very

general offer of proof as to the possible probative value of the fact that [the witness]

had been on parole at the time of the incident.” Id. at 185. Specifically, Walker

claimed that the witness ran a speakeasy out of his house and thus “might have had

an ulterior motive to cooperate with the police to avoid being charged with a proba-

tion violation for this illegal activity.” Id. The Court concluded that, given the cir-

cumstances of the case, there was no reason to believe that the witness falsely iden-

tified Walker as the perpetrator because he was concerned about his parole status.

Thus, the Court held, the trial court did not abuse its discretion in precluding Walker

from questioning the witness about that status. Id. at 185.

Commonwealth v. Murphy, 591 A.2d 278 (Pa. 1991) (a case that followed

Evans, is discussed in Walker, and is relied upon by defendant) shows the type of

facts that would indicate that a witness’s probation status might be relevant to her

potential bias. Murphy was convicted of first-degree murder for the shooting death

of the victim. The only eyewitness to the shooting was Wanda Wilson, who was nine

years old when it occurred. At trial, which was not held until five years after the

crime, Wilson, who was then on juvenile probation, testified that she saw Murphy

37
shoot the victim. When she was interviewed shortly after the shooting, however,

Wilson did not identify Murphy as the shooter. Instead, it was not until four years

later that she first identified him. Given Wilson’s years-long delay in identifying

Murphy, the Pennsylvania Supreme Court held that defense counsel should have

brought to the jury’s attention that Wilson was on probation at the time of trial. This

was because that probation status might have provided a motive for her to cooperate

in the prosecution (by identifying Murphy when she had not done so previously) and

therefore was relevant to her potential bias.

The facts of the present case are much different than those in Murphy. Unlike

the witness in Murphy, Mr. Chobert did not initially fail to identify defendant and

then wait until years later, when he was on probation, to come forward with the

identification. On the contrary, Mr. Chobert immediately identified defendant as the

shooter at the scene of the crime. At that time, of course, the police investigation was

just beginning, and it would have been extremely foolish (especially because he was

on probation) for Mr. Chobert to have knowingly misdirected that investigation by

providing the officers with false information. Thus, there is no reason to believe that

Mr. Chobert’s probation status would have provided him with a motive to falsely

identify defendant (if anything, it would have encouraged him to be truthful in what

he reported). Accordingly, even under the new law that did not come into effect until

38
after trial, the trial court would have been within its rights in precluding counsel from

cross-examining Mr. Chobert about his probation.

E. Had Counsel Cross-examined Mr. Chobert Regarding his

Probation, it Would not Have Made a Difference at Trial.

Even if counsel had been permitted to cross-examine Mr. Chobert regarding

his probation, defendant’s claim would still fail because such cross-examination

would not have made a difference at trial. As explained above, Mr. Chobert was not

in any way involved in the crime; he merely happened to witness it; and he immedi-

ately identified defendant as the shooter right after it occurred. There is no reason to

believe that the fact he was on probation for a completely unrelated matter would

have caused him to falsely identify defendant. In fact, the only thing that potentially

could have created a problem for him with the authorities would have been falsely

identifying defendant as the shooter and thereby misdirecting the police investiga-

tion in a matter as important as this. Thus, if anything, the fact that he was on pro-

bation would have served as a motivation for him to be truthful with the police.

Additionally, Mr. Chobert’s testimony was corroborated by an abundance of

other evidence. He testified at trial that he heard a shot, looked up, saw Officer

Faulkner fall, and then saw defendant shoot him in the face. Defendant then went to

the curb and fell (N.T. 6/19/82, 209-11). Cynthia White saw defendant run from the

parking lot and shoot Officer Faulkner in the back. After the officer fell, defendant

stood over him and shot down at him; then defendant slouched and sat down on the

39
curb (N.T. 6/21/82, 4.93-4.94). Michael Scanlan testified that he saw a man doing

the same things the other witnesses saw defendant do: run from the area of the park-

ing lot, shoot the officer from behind, and then stand over him and shoot him in the

face (N.T. 6/25/82, 8.6-8.8). Albert Magilton testified that he saw defendant, who

had one of his hands behind his back, moving “across the street fast” in the direction

of Officer Faulkner; he heard a number of gunshots; and he saw the officer lying on

the ground and defendant sitting on the curb nearby (id. at 8.75-8.79, 8.138). These

witnesses did not know each other, and they all gave statements immediately after

the shooting. Thus, there was no opportunity for them to coordinate their accounts.

Additionally, when the police arrived on the scene they found defendant sit-

ting on the curb. The officers ordered him to “freeze,” but he refused their command

and reached for a gun that was on the sidewalk about eight inches from his hand.

The gun was registered to defendant and consistent with having been the one that

fired the bullet that killed Officer Faulkner. Defendant physically resisted the arrest-

ing officers. After he was taken to the hospital, he twice stated that he shot Officer

Faulkner and hoped he would die (N.T. 6/19/82, 116, 119, 152-55, 178-82, 194-200;

6/21/82, 4.32.-4.36; 6/23/82, 6.107-6.116; 6/24/82, 28-30, 113, 135-36; 6/25/82,

8.178-8.181).

Defendant attempts to dismiss the overwhelming evidence presented against

him by pointing to alleged discrepancies among the testimony of the various

40
eyewitnesses or between a particular eyewitness’s testimony and her prior state-

ments. These alleged discrepancies pertain to things such as the words the witnesses

used to describe defendant’s hairstyle, whether they remembered a taxi being parked

behind Officer Faulkner’s car, whether they remembered hearing one or two shots

fired before they saw Officer Faulkner fall to the ground, and the relative heights of

Officer Faulkner, defendant, and defendant’s brother.12 That there may have been

some inconsistencies regarding some of these details, however, is hardly surprising.

Given their relative insignificance, they are not the types of details that would have

necessarily been impressed upon the witnesses’ minds.

What is significant is that the testimony and statements of all four eyewit-

nesses was mutually corroborating and internally consistent with respect to the fact

that defendant was the person who fatally shot Officer Faulkner. And, as already

12
Defendant focuses much of his attention on the testimony of Cynthia White,
a prostitute who was an eyewitness to the shooting. He even suggests that the pros-
ecutor had concerns about her credibility by pointing to his comment, during closing
argument, that “at times she wasn’t very good at an explanation” (N.T. 7/1/82, 182).
Defendant takes the prosecutor’s comment out of context. He made the statement
while explaining why her testimony was credible—she gave substantially the same
version of events right after the shooting occurred and her testimony was corrobo-
rated by all of the other witnesses—while effectively acknowledging that she was
not the most articulate or sophisticated individual (id. at 180-82; see also N.T.
6/21/82, 4.185, where, during a sidebar, the court states, “We all know she’s . . . not
exactly bright and she’s a prostitute”). Indeed, during his examination of Ms. White,
the prosecutor demonstrated that she gave substantially the same version of events
throughout her various statements and the multiple times she testified (N.T. 6/22/82,
5.165-5.194).

41
explained, the witnesses’ testimony was corroborated by the evidence establishing

that defendant was arrested at the scene of the crime, his gun was lying on the side-

walk next to him, he resisted arrest, and he admitted that he was the person who shot

Officer Faulkner.13

Given the overwhelming evidence of defendant’s guilt, and the fact that there

is no reason to believe that Mr. Chobert’s probationary status would have caused

him to fabricate his testimony, defendant could not have possibly been prejudiced

by trial counsel’s failure to cross-examine him with respect to his probation. Cf.

Commonwealth v. Gentile, 640 A.2d 1309, 1314 (Pa.Super. 1994) (any error in trial

court’s ruling prohibiting defendant from cross-examining witness regarding bias

was harmless since the substance of the witness’s testimony was confirmed by other

witnesses); Commonwealth v. Culmer, 604 A.2d 1090 (Pa.Super. 1992) (even if trial

court erred in precluding defendant from cross-examining the victim for bias regard-

ing his two juvenile matters and an adult criminal charge, the error was harmless;

the victim immediately and unequivocally identified defendant as his assailant, and

13
Defendant also claims that if trial counsel had cross-examined Mr. Chobert
about his probation, the jurors might have convicted him of third-degree murder or
voluntary manslaughter rather than first-degree murder. It is difficult to understand
how Mr. Chobert’s probationary status could have been relevant to whether defend-
ant acted with the specific intent to kill or under the heat of passion when he killed
Officer Faulkner. Moreover, defense counsel himself instructed the jurors not to
“compromise” their verdict and asked them to either find defendant guilty of first-
degree murder or not guilty of anything at all (N.T. 7/1/82, 80-81).

42
thus there was no reason to believe his identification was influenced by his own

criminal matters; also, the victim’s identification testimony was corroborated by an-

other witness).14 Thus, even if such cross-examination had been permissible at the

time of defendant’s trial—it was not—trial counsel could not have been ineffective

for not pursuing it. See Commonwealth v. Cox, 728 A.2d 923, 932-33 (Pa. 1999)

(trial counsel could not have been ineffective for failing to cross-examine prosecu-

tion witnesses for bias based upon an outstanding warrant, criminal charges, proba-

tion, or parole, as there was no reason to believe such cross-examination would have

led to a different result at trial). And because the underlying claim of trial counsel

ineffectiveness fails, direct appeal counsel could not have been ineffective for not

raising it. See Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa.Super. 2008) (ap-

pellate counsel will not be found ineffective for failing to raise a meritless claim).

14
In arguing there is a reasonable probability that cross-examining Mr. Chobert
about his probation would have resulted in a different verdict, defendant relies on
Kyles v. Whitley, 514 U.S. 419 (1995). In that case the Court found there was a rea-
sonable probability that evidence that was suppressed by the prosecution would have
made a difference at trial if the defense had been aware of it. According to the Court,
the suppressed evidence (which consisted of multiple items) would have, among
other things, “substantially reduced or destroyed” the testimony of two of the eye-
witnesses, id. at 441; it would have called into question “the thoroughness and even
the good faith of the investigation,” id. at 445; and it would have demonstrated that
“the most damning physical evidence was subject to suspicion”, id. at 454. Thus, the
quality of the evidence at issue in Kyles was of a much different nature than the
evidence at issue here—the fact that Mr. Chobert was on probation for a completely
unrelated crime. Accordingly, defendant’s reliance on Kyles is misplaced.

43
II. THE PROSECUTOR DID NOT COMMIT A BRADY VIOLATION BY
NOT DISCLOSING HE TOLD ROBERT CHOBERT HE WOULD
TRY TO FIND OUT HOW HE COULD GET HIS DRIVER’S LICENSE
RESTORED.

Defendant raises a second claim regarding prosecution witness Robert Cho-

bert. He argues the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by

failing to disclose that he “agreed he would look into helping Mr. Chobert—a cab

driver—regain his suspended driver’s license” (Brief for Appellant, 14). Defend-

ant’s claim provides no basis for relief.

A. The Relevant Background to Defendant’s Claim.

Defendant presented Mr. Chobert as a witness during the litigation of his first

PCRA petition. He testified that his driver’s license was suspended in December of

1981; that he had previously worked as a school bus driver; and that he was working

as a cab driver at the time of the murder. He explained that at some point—he did

not know when, but it “probably” was “sometime during the trial,” and maybe after

he testified—he asked the prosecutor “if he could help me find out how I could get

my license back.” The prosecutor responded that he would “look into it.” Mr. Cho-

bert stated that he knew the prosecutor did not have the power to get his license back

for him; he was simply asking him to explain the law regarding what steps he had to

take to get it restored. Mr. Chobert did not ever bring the issue up again with the

prosecutor; the prosecutor never followed up; and at the time of the PCRA hearing,

44
which was held more than ten years after trial, Mr. Chobert still had not gotten his

license back (N.T. 8/15/95, 4-19).

B. The PCRA Court’s Analysis of the Claim.

The PCRA court rejected this claim (see PCRA Court Opinion I, at 64-65,

71). The court found Mr. Chobert’s PCRA testimony to be credible (id. at 64-65).

Specifically, the court credited Mr. Chobert’s testimony that at some point during

trial (it may have been after he testified), he asked the prosecutor to help him “find

out how I could get my license back” (id. at 65). The prosecutor stated he would

“look into it,” but never got back to him (id.). The court further credited Mr. Cho-

bert’s PCRA testimony that, based on the prosecutor’s statement that he would “look

into it,” he did not expect that the prosecutor would restore his license; rather, he

simply expected that the prosecutor would tell him what he needed to do to have his

license restored (id.).

The PCRA court explained that to succeed on a Brady claim, a defendant must

establish that the prosecution withheld evidence that was material to his guilt or in-

nocence (id. at 71). Based on the above factual findings, the court determined that

defendant failed to prove that the Commonwealth withheld any material evidence

(id.).15

15
The federal district court considered the claim on habeas corpus review (see
Federal District Court Opinion, at 15-18, 22, 24). The court concluded that, based
(footnote continued . . . )

45
 C. There was no Brady violation.

To establish a Brady violation, a defendant must show there was evidence

suppressed by the state, either willfully or inadvertently; the evidence is favorable

to the defense; and “the evidence was material, meaning that prejudice must have

ensued.” Commonwealth v. Bryant, 855 A.2d 726, 751 (Pa. 2004). Both impeach-

ment evidence and exculpatory evidence fall within this rule. Commonwealth v.

Dennis, 17 A.3d 297, 308 (Pa. 2011).

“[T]he mere possibility that an item of undisclosed information might have

helped the defense, or might have affected the outcome of the trial does not establish

materiality in the constitutional sense.” Id. Instead, for Brady purposes, evidence is

considered “material” if there is “a reasonable probability that, had the evidence

been disclosed, the result of the proceeding would have been different.” Common-

wealth v. Spotz, 896 A.2d 1191, 1248 (Pa. 2006).

“[A] reasonable probability of a different result is established when the gov-

ernment’s suppression of evidence undermines confidence in the outcome of the

trial.” Commonwealth v. Dennis, 17 A.3d at 308 (internal quotation marks and

on the evidence presented at the PCRA hearing, “it was not unreasonable for the
PCRA court to determine that Chobert made no deal with the prosecutor in exchange
for favorable testimony” (id. at 18, 22, 24). And, “because it is axiomatic that a
Brady claim cannot survive where a defendant fails to demonstrate that evidence
allegedly withheld by the prosecution even existed in the first instance” (id. at 18),
it found the claim provided no basis for relief.

46
citation omitted). In determining whether the standard of materiality has been met,

a court “is not to review the undisclosed evidence in isolation, but, rather, the omis-

sion is to be evaluated in the context of the entire record.” Id. at 309.

Here, the evidence presented at the PCRA hearing established that the prose-

cutor did not promise Mr. Chobert any assistance with respect to his license in ex-

change for his testimony. Mr. Chobert specifically explained that he “didn’t testify

because [he] was trying to get [his] license back” (N.T. 8/15/95, 7). At some point,

“probably” during trial, and maybe not until after he had already testified, he simply

asked the prosecutor “if he could help [him] find out how [he] could get [his] license

back” (id. at 4-5, 16-17, 19). The prosecutor responded that he would “look into it,”

but then did nothing about it, and years later Mr. Chobert still had not regained his

license (id. at 4, 18-19).

It was defendant’s burden to prove his Brady claim, which required him to

establish, among other things, there was a “reasonable probability” the undisclosed

information would have made a difference in the outcome at trial. Commonwealth

v. Spotz, 896 A.2d at 1248. There is not a reasonable probability the verdict would

have been different if the jury heard that, at some point, and maybe not even until

after he had already testified, Mr. Chobert asked the prosecutor if he could tell him

what steps he needed to take to have his license restored, and the prosecutor replied

he would look into it. This is especially the case given that Mr. Chobert consistently

47
identified defendant as the person who shot Officer Faulkner, going all the way back

to the time of the incident, which was long before he met the prosecutor and

broached the subject with him.

Additionally, as explained above in Section I, subpart E, Mr. Chobert’s testi-

mony was corroborated by three other eyewitnesses, by defendant’s presence and

actions when the responding officers arrived on the scene, and by his own admis-

sions that he shot Officer Faulkner. Because defendant failed to prove a reasonable

probability that the undisclosed information would have made a difference at trial,

the PCRA court properly rejected the claim. See Commonwealth v. Dennis, 17 A.3d

at 309 (rejecting Brady claim where defendant failed to demonstrate there was a

reasonable probability the use of the nondisclosed evidence would have led to a dif-

ferent result at trial); Commonwealth v. Bryant, 855 A.2d at 751 (rejecting Brady

claim where defendant failed to demonstrate the evidence was material to his guilt

or innocence).

48
III. DEFENDANT’S CLAIM THAT THE PROSECUTION SUPPRESSED
EVIDENCE THAT CYNTHIA WHITE LIED AT TRIAL PROVIDES
NO BASIS FOR RELIEF.

Defendant claims he was entitled to PCRA relief because newly-discovered

evidence “establishes that the prosecution suppressed evidence that Cynthia White

lied at [his] trial when she claimed she observed him shoot Officer Faulkner” (Brief

for Appellant, 34). Defendant, however, failed to offer to present any competent ev-

idence in support of this claim. Instead, his claim was based entirely on inadmissible

and unreliable hearsay. Thus, it could not have entitled him to relief.

A. The Relevant Background to Defendant’s Claim.

Cynthia White testified at trial that she was standing on the corner at 13 th and

Locust Streets and saw Officer Faulkner stop the Volkswagen driven by defendant’s

brother. According to her testimony, she saw defendant’s brother punch the officer

in the face. As Officer Faulkner attempted to handcuff defendant’s brother, she saw

defendant run toward the officer from the parking lot on the opposite side of the

street. Ms. White further testified that she saw defendant shoot at Officer Faulkner

twice from behind. Officer Faulkner fell, and defendant stood over him and fired

down at him several times (N.T. 6/21/82, 4.92-4.107; 6/22/82, 5.179).

In 2003, more than twenty years after trial, defendant filed his third PCRA

petition. Defendant attached to that petition a declaration from Yvette Williams. In

her declaration, Ms. Williams stated that she was incarcerated with Ms. White in

49
December of 1981 (the month in which Officer Faulkner was killed). Ms. Williams

claimed that Ms. White told her the police had “threatened her life” and forced her

to say that defendant shot Officer Faulkner “when she really did not see who did it.”

Ms. Williams came forward with this information twenty years after Ms. White sup-

posedly made the statement and nine years after she had died.

B. The PCRA Court’s Analysis of the Claim.

The PCRA court found this claim provided no basis for relief (PCRA Court

Memorandum and Order, Dembe, J., filed May 27, 2005) (hereinafter, “PCRA Court

Opinion III). The court concluded that the petition raising the claim was not timely

filed; that the claim was based entirely on inadmissible hearsay; and that Ms. White’s

trial testimony was “cumulative of other eyewitness testimony” (id. at 7, 13-17 &

n.15).

C. Defendant’s Claim is Based Entirely on Inadmissible Hear-

say.

Defendant’s claim that “the prosecution suppressed evidence that Cynthia

White lied at [his] trial when she claimed she observed him shoot Officer Faulkner”

(Brief for Appellant, 34) is based entirely on inadmissible hearsay and thus provides

no basis for relief.

“Hearsay” is a statement that is offered to prove the truth of the matter asserted

and that was not made by the declarant “while testifying at the current trial or

50
hearing.” Pa.R.E. 801(c). It is not admissible unless it falls within a specific excep-

tion to the rule against hearsay. Pa.R.E. 802.

Defendant recognizes that Ms. White’s statement to Ms. Williams is hearsay,

but he claims it falls within the statement against penal interest exception to the

hearsay rule. He is wrong.

There are three requirements that must be met for a statement to be admissible

under this exception: (1) the declarant must be unavailable; (2) a reasonable person

in the declarant’s position would have made the statement only if she believed it was

true because, when made, it had a great tendency to expose her to criminal liability;

and (3) the statement must be “supported by corroborating circumstances that clearly

indicate its trustworthiness.” Pa.R.E. 804(3). Here, Ms. White’s alleged statement to

Ms. Williams fails to meet the latter two requirements.

Defendant claims Ms. White’s statement is against her penal interest because

she admitted “that she was planning to commit perjury and had signed false state-

ments” (Brief for Appellant, 40). Nowhere in Ms. Williams’ declaration, however,

does she state that Ms. White told her that she was going to commit perjury, and

even if she had, it does not appear that a statement that one intends to commit a crime

would fall within this exception. See Commonwealth v. Pompey, 375 A.2d 163, 165

(Pa.Super. 1977) (declarant’s statement that during an altercation he pulled out a

knife and “was going to cut the [defendant]” may not have been a statement against

51
penal interest because the fact that the declarant “may have been in a frame of mind”

to assault the defendant “hardly amounts to a crime”).

Further, according to the declaration, Ms. White stated she falsely claimed to

have seen defendant shoot Officer Faulkner because “the police were making her

lie;” they had “threatened her life;” and she was worried they “would kill her if she

didn’t say what they wanted” (Williams declaration, ¶¶ 2, 6, 7). Under these circum-

stances, Ms. White’s “false statements” accusing defendant of committing the shoot-

ing would have been “justifiable,” see 18 Pa.C.S.A. § 503, and thus her alleged state-

ment to Ms. Williams could not be considered to be against her penal interest.

Defendant also asserts that Ms. White’s alleged statement to Ms. Williams

was against her penal interest because in it she admitted to being a prostitute and

drug user. Ms. White, however, was known to authorities as “a long-time drug addict

and prostitute” who had been arrested more than thirty times (e.g., PCRA Court

Opinion III, at 14; N.T. 6/19/82, 13-14; 6/21/82, 4.80, 4.185; 6/22/82, 5.72). In Ms.

Williams’ declaration she states that the whole reason she approached Ms. White in

prison was because she “knew she was a prostitute in center city Philadelphia,” and

“considering [prostitution] as an occupation” herself, she wanted to find out “what

[it] was all about” (Williams declaration, ¶¶ 3, 5). Ms. Williams further claimed that

Ms. White told her she had police officers for clients (id. ¶ 6). Given these circum-

stances, it cannot plausibly be said that by talking to Ms. Williams about her

52
prostitution and drug use Ms. White believed she was admitting to any conduct of

which the authorities were unaware. Thus, the statement was not against her penal

interest. See Commonwealth v. Colon, 846 A.2d 747, 757 (Pa.Super. 2004) (a state-

ment is not against interest if it does not expose the declarant to any additional crime

or punishment).

Even if Ms. White’s alleged statement to Ms. Williams was against her penal

interest, it would still fail to meet the hearsay exception because there were no cir-

cumstances that provided clear assurance that it was trustworthy and reliable. See

Commonwealth v. Yarris, 731 A.2d 581, 591 (Pa. 1999) (“[d]eclarations against pe-

nal interest are admissible as an exception to the hearsay rule only where there are

existing circumstances that provide clear assurances that such declarations are trust-

worthy and reliable”).

According to Ms. Williams, the alleged conversation she had with Ms.

White—during which the latter supposedly admitted that she had falsely accused

defendant of shooting Officer Faulkner—took place in December of 1981. Ms. Wil-

liams, however, did not reveal the conversation until twenty years later and nine

years after Ms. White had died and thus was no longer available to either corroborate

or contradict anything Ms. Williams said. Additionally, Ms. Williams was herself a

“violent” criminal who was incarcerated with Ms. White and who was intending to

continue her life of crime (Williams declaration, ¶ 5). The timing of Ms. Williams’

53
revelation of Ms. White’s alleged statement and Ms. Williams’ own background se-

riously call into question the reliability of the alleged statement. See Commonwealth

v. Robinson, 780 A.2d 675 (Pa.Super. 2001) (PCRA court did not abuse its discretion

in concluding that one inmate’s testimony that another inmate admitted committing

the robbery for which defendant was convicted was not made under circumstances

providing assurance that the admission was trustworthy and reliable so as to be ad-

missible as a statement against penal interest; the inmate did not prepare an affidavit

recounting the other inmate’s admission until after the inmate had died, and the in-

mate who recounted the other inmate’s alleged admission was himself “engaged in

a criminal lifestyle”).

Additionally, statements offered as declarations against penal interest are suf-

ficiently trustworthy to be admissible only if “they were made to persons of authority

or to persons having adverse interests to the declarant.” Commonwealth v. Bracero,

473 A.2d 176, 179 (Pa.Super. 1984), aff’d, 528 A.2d 936 (Pa. 1987).

Here, Ms. White’s alleged statement was not made to a person of authority or

to someone whose interests were adverse to hers. Instead, it was made to a fellow

inmate who came to her for advice about working as a prostitute. Also, her alleged

statement was, in essence, a recantation of her prior statements identifying defendant

as the person who shot Officer Faulkner. For these reasons as well, the statement

was not sufficiently reliable to qualify as a statement against penal interest. See

54
Commonwealth v. Williams, 640 A.2d 1251, 1263 & nn. 8, 10 (Pa. 1994) (one in-

mate’s testimony that another inmate admitted to him that he committed the murder

for which defendant was on trial, and another inmate’s testimony that a woman told

him she was present during the murder and defendant did not commit it, were not

admissible as declarations against penal interest since they were not made under cir-

cumstances assuring they were trustworthy and reliable); Commonwealth v. Woods,

575 A.2d 601, 603 (Pa.Super. 1990) (“recantation evidence is highly suspect”);

Commonwealth v. Bracero, 473 A.2d at 179-80 (out-of-court statement not admis-

sible as statement against penal interest where it was not made to anyone in authority

or with an interest adverse to the declarant); Commonwealth v. Pompey, 375 A.2d at

165 (out-of-court statement not admissible under statement against penal interest

exception where “[i]t was not made to a public official or to anyone with an interest

adverse to the declarant;” rather, “[i]t was simply made to another onlooker at the

scene of the [crime]”).16

Defendant attempts to demonstrate the reliability of Ms. White’s alleged state-

ment by pointing to other evidence that supposedly corroborates it. This argument is

16
Compare Commonwealth v. Statum, 769 A.2d 476, 480 (Pa.Super. 2001)
(confession by defendant’s friend that she, and not defendant, was the person in-
volved in drug transaction was sufficiently trustworthy to be admissible as statement
against penal interest where the friend made the statement to defendant’s attorney,
who was an officer of the court, and thus a reliable person of authority, and the state-
ment was made in the attorney’s office in front of the friend’s mother, defendant, the
attorney, and members of the attorney’s staff).

55
unavailing. As this Court has explained, for purposes of the statement against penal

interest exception, “[r]eliability is determined by referring to the circumstances in

which the declarant gave the statement, not by reference to other corroborating evi-

dence presented at trial.” Commonwealth v. Cascardo, 981 A.2d 245, 258 (Pa.Super.

2009). Thus, the fact that defendant can point to evidence that supposedly supports

the allegation that Ms. White did not really see him shoot Officer Faulkner does not

support his claim that the out-of-court statement was admissible as a statement

against penal interest.

But even if it were proper to look at the other evidence introduced at trial, his

argument would fail. This is because a review of that evidence demonstrates the

reliability of Ms. White’s testimony that she saw defendant shoot the officer. Ms.

White gave a detailed description of the shooting within twenty minutes of its oc-

currence (N.T. 6/21/82, 4.164-4.165). Her account was corroborated by the three

other eyewitnesses who testified at trial. It was further corroborated by defendant’s

presence at the crime scene; by the fact that his own gun was on the ground next to

where he was sitting (and he reached for it when the police arrived on the scene);

and by his own admissions that he shot the officer. Indeed, when Ms. White gave

her statement to the police just minutes after the shooting occurred, the investigation

of the crime was just beginning, and those who were interviewing her would have

no reason to know what other eyewitnesses might say.

56
 In short, the only evidence defendant proffered in support of his claim that

“Cynthia White lied at [his] trial when she claimed she observed him shoot Officer

Faulkner” (Brief for Appellant, 34) was a twenty-year-old statement that was alleg-

edly made by her and was inadmissible hearsay. Such inadmissible hearsay could

neither have established a time-bar exception nor the merits of any underlying claim.

See Commonwealth v. Yarris, 731 A.2d at 592 (“A claim which rests exclusively

upon inadmissible hearsay is not of a type that would implicate the after-discovered

evidence exception to the timeliness requirement, nor would such a claim, even if

timely, entitle Appellant to relief under the PCRA”); Commonwealth v. Brown, 141

A.3d 491, 501-02 (Pa.Super. 2016) (another individual’s alleged confession to the

murder for which defendant was convicted was hearsay that did not meet the re-

quirements for a statement against penal interest and, thus, could not be relied upon

to establish the newly-discovered-facts exception to the time-bar). Accordingly, the

PCRA court properly denied the claim.

IV. TRIAL COUNSEL DID NOT PROVIDE INEFFECTIVE ASSISTANCE

REGARDING THE BALLISTICS OR MEDICAL FORENSIC EVI-
DENCE.

Defendant claims trial counsel provided ineffective assistance by “fail[ing] to

engage or meaningfully consult a medical forensics or ballistics expert to testify

about problems with the prosecution’s case theory and to assist him in preparing to

cross-examine the Commonwealth’s expert witnesses” (Brief for Appellant, 41).

57
 Specifically, defendant contends counsel should have brought out the fact that

the medical examiner noted on his report that the bullet removed from Officer Faulk-

ner’s head was “44 cal,” which supposedly would have been significant because

defendant’s gun was a .38 (id. at 42). He also argues that an expert could have testi-

fied that there were “standard procedures” the police could have conducted (but did

not do) to determine whether he had fired his gun (id. at 42-43). And, he claims that

counsel could have presented expert testimony regarding the trajectory of the bullet

that Officer Faulkner fired into him that supposedly would have contradicted the

Commonwealth’s “theory of the case” (id. at 43-44).

A. The Relevant Background to Defendant’s Claim.

Defendant presented three experts at the PCRA hearing regarding this claim.

Their relevant testimony is described below.

1. George Fassnacht.

At the PCRA hearing, defendant presented George Fassnacht, a “forensic fire-

arms consultant” (N.T. 8/2/95, 44). Mr. Fassnacht stated that before trial he con-

sulted with defendant’s attorney regarding the ballistics evidence (id. at 48-50).

However, he stated he ended his involvement in the case because, after he billed

58
defendant’s attorney for some of his initial work, he was informed that no additional

funds would be available to continue to retain his services (id. at 50).17

Mr. Fassnacht explained that, had he been retained by defense counsel, he

could have pointed out that there was no indication in the ballistics reports that any

testing had been done to determine whether defendant’s gun had been fired. He as-

serted the police could have determined whether defendant fired the gun by “[s]im-

ply sniffing it.” This is because, according to Mr. Fassnacht, “it’s possible to smell

a recently-fired firearm. The unmistakable odor lingers for several hours.” Mr. Fass-

nacht, however, did not claim that at the time of the shooting it was the policy of the

Philadelphia Police Department to conduct such a “sniff test.”18 He further acknowl-

edged that, based on the information he had seen, it appeared that the bullet that was

removed from Officer Faulkner’s brain was a .38, i.e., the same caliber as defend-

ant’s gun (id. at 58, 66-68, 102-13, 159-60).

17
The record establishes that trial counsel was provided with funds to hire a
ballistics expert (N.T. 1/20/82, 35-37). Counsel was also informed that if he needed
additional funding he could file a petition with the trial judge, and the additional
funding would likely be approved as long as it was shown “that the work was nec-
essary and was relevant to the proceedings” (id. at 40-41).
18
He did state that when he worked for the Philadelphia Police Department’s
Firearms Unit—during a period that was not contemporaneous with the shooting—
he would sometimes give a lecture to the police recruits and “tell them about this
test of smelling the barrel of a gun to see if it had recently been fired” (N.T. 8/2/95,
164).

59
 Mr. Fassnacht also testified that there were “hand-wipe analysis” tests, such

as the “neutron activation analysis test,” the police could have performed on defend-

ant to determine whether he had fired the gun. According to him, these tests were

“available” to the police at the time of the shooting, although he did not know how

often they were used by the Philadelphia Police Department at that time. Mr. Fass-

nacht explained that the test “has to be done almost immediately,” and at the time

that he offered this opinion, he was unaware of the circumstances of defendant’s

arrest. When told that defendant had engaged in a physical struggle with the police

at the scene of the shooting; that he had to be handcuffed with his hands behind his

back; that he was taken to the hospital to receive treatment for his own gunshot

wound; and that even there he continued to struggle with the police, Mr. Fassnacht

acknowledged that the traces of gunshot residue could have been lost and the test

“may have been very difficult to perform” (N.T. 8/2/95, 58, 68-73, 113-26).

2. John Hayes, M.D.

Defendant also presented Dr. John Hayes, a New York City medical exam-

iner, at the PCRA hearing. He testified that the bullet that struck defendant travelled

in a straight line through his body (although it did not exit it), passing from the right

side of his chest backwards, downwards, and towards the left. Dr. Hayes explained

that while a bullet can “tumble” as it passes through a body, that would not change

its “angulation.” He further stated that there was no evidence that the bullet

60
ricocheted as it passed through defendant’s body. Additionally, the doctor, a defense

expert, testified that the wound path was consistent with a scenario whereby defend-

ant shot the officer in the back and the officer spun around and fired at defendant

while the latter was “slightly bent” forward (N.T. 8/4/95, 16, 20-22, 76-80, 114).

3. Paul Hoyer, M.D.

Defendant also presented Dr. Paul Hoyer at the PCRA hearing. Dr. Hoyer,

who also testified at trial, was the medical examiner who conducted the autopsy of

Officer Faulkner. At the PCRA hearing, he acknowledged that one of the papers

relating to the autopsy contained a handwritten note from him stating “Shot 44 cal.”

Defendant argued that this .44 caliber reference was significant because his gun was

a .38. Dr. Hoyer, however, explained that the notation was contained on something

that was “an intermediate work product,” i.e., “a piece of paper” that would “nor-

mally” be “discarded.” Notations such as those, he explained, were often made be-

fore he had even done the autopsy. Dr. Hoyer did not know why he had made that

notation: “It could have been based on something I saw, it could have been based on

something I was told. I can’t tell you why it’s there.” Dr. Hoyer further testified at

the PCRA hearing that he was not an expert in the field of ballistics and firearms

identification and had never received any formal training in that area (N.T. 8/9/95,

185-93, 198-201).

61
 B. The PCRA Court’s Analysis of the Claim.

The PCRA court rejected defendant’s claim that trial counsel provided inef-

fective assistance regarding the ballistics and medical forensic evidence (PCRA

Court Opinion I, at 39-41, 46-49, 88-89). The court found that trial counsel could

not have been ineffective for failing to present a ballistician or pathologist at trial

because the evidence defendant presented at the PCRA hearing “fail[ed] to establish

any such expert would have been helpful to his case, let alone change the outcome”

(id. at 88). The court pointed out that some of the evidence defendant presented on

this subject at the hearing “not only contradicted his own PCRA claims, it corrobo-

rated the Commonwealth’s evidence from trial” (id.).

With respect to Mr. Fassnacht, the court explained that he “could not demon-

strate that any of the ballistic evidence or testimony submitted at trial was false or

incorrect” (id. at 39). Although Mr. Fassnacht testified that certain scientific tests

were not done, he was unable to offer an opinion as to what the results of the tests

would have been had they been performed (id. at 39-40).

With respect to Dr. Hayes, the PCRA court concluded that he “offered no

opinion that would be inconsistent with the trial evidence” (id. at 47-49, 80). The

trial evidence “showed [defendant] shot Officer Faulkner in the back, [defendant]

was shot by the officer in turn, and then [defendant] blatantly executed Officer

Faulkner by shooting him in the face as he lay helpless on the ground” (id. at 47-48).

62
Dr. Hayes conceded that Officer Faulkner could have shot defendant “just before

falling,” and because “none of the eyewitnesses to the murder were able to testify to

the victim’s precise posture at the instant he returned [defendant’s] fire,” the doctor’s

opinion could not have possibly contradicted their testimony (id. at 46-47).

The PCRA court further found that trial counsel could not have been ineffec-

tive by failing to cross-examine Dr. Hoyer regarding his “44 cal” notation (id. at 88-

89). The court found that had trial counsel cross-examined the doctor on this subject,

he would have explained that the notation was not a part of his report; that those

types of notes were ordinarily written before he would even begin the autopsy; and

that any reference at that point to the caliber of the bullet removed from Officer

Faulkner “was a mere lay guess on his part” (id. at 49, 88-89). In fact, the court

explained, defendant’s own expert at the PCRA hearing, Mr. Fassnacht, contradicted

any claim that the fatal bullet was a .44 (id. at 80).19

19
On habeas corpus review, the federal district court considered defendant’s
claim that trial counsel was ineffective for failing to obtain a ballistics expert and
pathologist. The court explained that, because Mr. Fassnacht’s opinion “does noth-
ing to refute the evidence that was presented at trial,” counsel could not have been
ineffective for failing to present him (Federal District Court Opinion, at 53, 55, 75-
76). With respect to Dr. Hayes, the court found his testimony was consistent with a
scenario whereby defendant “had been leaning forward while shot or the officer had
the gun pointing down slightly” at the time he fired it (id. at 76). Because such a
scenario was not inconsistent with the eyewitness testimony presented at trial, coun-
sel could not have been ineffective for failing to call him (id. at 53, 55, 76).

63
 C. Trial Counsel did not Provide Ineffective Assistance with Re-
gard to the Ballistics Evidence.

Defendant claims trial counsel provided ineffective assistance with regard to

the ballistics evidence. First, he asserts that trial counsel should have brought before

the jury the fact that Dr. Hoyer made the “44 cal” notation in reference to the autopsy

of Officer Faulkner. Defendant believes bringing out this fact would have been sig-

nificant because his gun was a .38.

Contrary to what defendant claims, cross-examining Dr. Hoyer regarding the

“44 cal” notation would not have made a difference at trial. As the medical examiner

explained at the PCRA hearing, he was not a ballistics expert and had never received

any formal training in that area. Thus, he did not have the competency to determine

what the caliber of the bullet was. In fact, Dr. Hoyer did not know what prompted

him to make that notation. It was not something that he wrote in his final report—

rather, it was noted in his “intermediate work product,” and notations such as those

were often made before he had even conducted the autopsy (N.T. 8/9/95, 185-93,

198-201).

Most importantly, a ballistics expert was presented at trial, and his testimony

established that the bullet removed from Officer Faulkner was .38 caliber and was

consistent with having been fired from defendant’s gun (N.T. 6/23/82, 6.107-6.110).

Moreover, defendant’s own ballistics expert testified at the PCRA hearing that the

bullet removed from Officer Faulkner was definitely not .44 caliber, but rather, in

64
his opinion, was a .38, i.e., the same caliber as defendant’s gun (N.T. 8/2/95, 158-

60). Trial counsel could not have been ineffective for failing to make an issue out of

the medical examiner’s “44 cal” notation when any suggestion that the bullet was a

.44 would have been soundly refuted by the available expert testimony.

Defendant next claims “there was no evidence at trial that [his] gun had been

fired at all on the night of [the shooting]” (Brief for Appellant, 42). He points out

that Mr. Fassnacht testified at the PCRA hearing that the police could have tested

his hands “for evidence of firing a gun” and smelled his gun “for evidence of recent

firing” (id. at 43). According to defendant, “trial counsel did not mention the lack of

this testing in front of the jury” (id.).

In fact, defense counsel elicited testimony at trial establishing that a suspect’s

hands can be tested to determine if he recently fired a gun (N.T. 6/26/82, 53-55).

The test that the witnesses discussed—the neutron activation test—was the same test

Mr. Fassnacht described at the PCRA hearing. Trial counsel further elicited testi-

mony establishing that that test had not been performed on defendant (N.T. 6/29/82,

50-53). Additionally, in his closing argument, trial counsel asserted there were tests

that the police could have performed, including the neutron activation test, but did

not, and he suggested that they did not conduct those tests because of their “precon-

ceived bias as to what happened” (N.T. 7/1/82, 68, 125-30, 141). Thus, defendant’s

65
assertion that “trial counsel did not mention the lack of this testing in front of the

jury” (Brief for Appellant, 43), is belied by the record.

Additionally, the lead detective on the case explained that it was not possible

to perform the neutron activation test at the time of the shooting because the police

department did not have the necessary kits (N.T. 6/29/82, 50-53). Testimony from

the Commonwealth’s expert at trial and defendant’s expert at the PCRA hearing fur-

ther established that, given the circumstances of defendant’s arrest, it was unlikely

that such a test could have been successful (N.T. 6/26/82, 87-95; 8/2/95, 113-16,

120-21). With respect to the “sniff test” to determine whether defendant’s gun had

been fired, defendant did not present evidence at the PCRA hearing that established

that that test was part of the police protocol at the time of the shooting. And with

respect to both tests, defendant’s expert was unable to say that, had they been per-

formed, they would have demonstrated that he did not shoot the officer.

Indeed, defendant’s claim that “there was no evidence at trial that [his] gun

had been fired at all on the night of [the shooting]” (Brief for Appellant, 42) is con-

tradicted by the record. The ballistics and forensic evidence presented at trial estab-

lished that Officer Faulkner was shot in the back from a distance of twelve inches or

less and shot in the face from a distance of approximately twenty inches or less (N.T.

6/25/82, 8.165-8.166; 6/26/82, 15-18, 44-45). Multiple eyewitnesses testified that

defendant ran up to Officer Faulkner, whose back was to him, and fired one or two

66
times at him; after Officer Faulkner fell to the ground, defendant stood over him and

fired a number of additional shots at him (e.g., N.T. 6/19/82, 210-16, 276-77;

6/21/82, 4.93-4.94, 4.98-4.104; 6/25/82, 8.6-8.11). One of the eyewitnesses testified

to seeing “flashes” coming from defendant’s hand as he pointed downward at the

officer—this was at the same time the witness heard the gunshots (N.T. 6/25/82, 8.7-

8.8, 8.73-8.74).

After shooting the officer, defendant sat on the curb. When the police arrived

moments later, he reached for his gun, a five-shot revolver with a two-inch barrel

(N.T. 6/19/82, 152-54, 162-63, 175-76; 6/23/82, 6.96), which was lying on the

ground nearby. The officers recovered the gun, and a subsequent examination of the

weapon established that it contained five cartridges, all of which had been fired (N.T.

6/23/82, 6.96-6.97). Thus, there was overwhelming evidence that defendant had

fired his gun, and testimony from defense experts that there were tests that, poten-

tially, could have confirmed that fact (but that were not conducted) would not have

made a difference at trial.

D. Trial Counsel did not Provide Ineffective Assistance with Re-

gard to the Medical Forensic Evidence.

The evidence presented at trial conclusively established that the bullet that

struck defendant was fired from Officer Faulkner’s gun (e.g., N.T. 6/23/82, 6.181).

Nevertheless, defendant claims that trial counsel was ineffective for failing to pre-

sent a medical forensic expert who could have testified that that bullet travelled in a

67
downward path as it passed through his body. According to defendant, such testi-

mony would have “contradicted the prosecution’s narrative that, while lying on the

ground after being shot himself, Officer Faulkner shot [defendant]” (Brief for Ap-

pellant, 43).

As an initial matter, counsel presented testimony at trial from the surgeon who

treated defendant’s gunshot wound. The surgeon testified at trial, as did defendant’s

expert at the PCRA hearing, that the bullet that struck defendant travelled in a down-

ward path through his body (N.T. 6/28/82, 28.65-28.68). Thus, trial counsel did not

need to call an expert—beyond defendant’s treating physician, whom he did call—

to establish the downward trajectory of the bullet.

Defendant, however, contends that his attorney should not have relied solely

on the treating physician to establish the downward trajectory of the bullet. This is

because the doctor testified that a bullet might ricochet or tumble as it passes through

a body and, according to defendant, thereby suggested that the ricochet or tumble—

rather than the angle at which the shot was fired—might explain why the bullet was

found lower in defendant’s body than where it entered. But while the doctor did

testify that a bullet might ricochet or tumble, he did not claim that that had neces-

sarily occurred here.

More importantly, even if counsel had presented an expert at trial, such as Dr.

Hayes, who established without a trace of doubt that the bullet had travelled through

68
defendant’s body in a downward path, that would not have made a difference in the

trial’s outcome. As stated above, defendant claims that such evidence would have

“contradicted the prosecution’s narrative that, while lying on the ground after being

shot himself, Officer Faulkner shot [defendant]” (Brief for Appellant, 43). Contrary

to what defendant suggests, however, none of the Commonwealth’s witnesses testi-

fied that Officer Faulkner shot defendant while he was lying on the ground. In fact,

none of the witnesses claimed to know when the officer fired back at defendant.

What the Commonwealth’s evidence did establish, however, was that defend-

ant shot Officer Faulkner in the back; that Officer Faulkner did not immediately fall

to the ground; that he turned around and appeared to be grabbing for something; that

before he fell to the ground another gunshot may have been fired; that after he fell

to the ground defendant walked over to where he lay and fired a number of shots at

him, one of which struck him in the face and killed him; and that the bullet that was

subsequently removed from defendant was fired from the officer’s gun (e.g., N.T.

6/19/82, 215-16, 276-77; 6/21/82, 4.93-4.94, 4.102-4.103, 4.190, 6/22/82, 5.123,

5.127, 5.133-5.134; 6/23/82, 6.181; 6/25/92, 8.6-8.11, 8.28, 8.33-8.34, 8.38, 8.64).

Thus, the Commonwealth’s evidence did not indicate that Officer Faulkner

shot defendant while he (the officer) was lying on the ground. Rather, it strongly

suggested that after defendant shot Officer Faulkner in the back, the officer spun

around and shot defendant before falling to the ground. Significantly, Dr. Hayes’

69
testimony at the PCRA hearing established that such a scenario was entirely plausi-

ble based on the trajectory of the bullet through defendant’s body along with the

possibility that he might have been leaning forward slightly at the time he was shot

(N.T. 8/4/95, 76-80, 114). Thus, if anything, presenting Dr. Hayes’ testimony would

have supported the Commonwealth’s case. Accordingly, trial counsel could not have

been ineffective for failing to present Dr. Hayes’ testimony or any of the other bal-

listics or medical forensic evidence defendant presented at the PCRA hearing. The

PCRA court properly rejected this claim.

V. THE PCRA COURT PROPERLY DENIED DEFENDANT’S BATSON

CLAIM.

Defendant claims this Court should remand the case for further proceedings

because he has supposedly demonstrated a prima facie case that the prosecutor used

his peremptory challenges to discriminate against African Americans in violation of

Batson v. Kentucky, 476 U.S. 79 (1986). The Pennsylvania Supreme Court, however,

considered defendant’s Batson claim on direct appeal and found it was both waived

and meritless. Having already been rejected by the Supreme Court, the claim could

not be brought again under the PCRA. But even if defendant were entitled to litigate

his Batson claim again in the PCRA court, it was properly rejected because he failed

to demonstrate that a Batson violation occurred.

70
 A. The Relevant Background to Defendant’s Claim.

1. The relevant law.

In Batson v. Kentucky, supra, the United States Supreme Court “reaffirm[ed]

the principle” that purposefully denying African Americans the right to serve as ju-

rors based on their race violates the Equal Protection Clause of the federal constitu-

tion. Id., 476 U.S. at 84. Although this prohibition against discriminating against

potential jurors on account of their race was recognized decades earlier in Swain v.

Alabama, 380 U.S. 202 (1965), in Batson the Court clarified the standard by which

a defendant could establish such a violation.

In Swain, the Court stated it could not hold “that the striking of [African

Americans] in a particular case is a denial of equal protection of the laws.” Swain,

380 U.S. at 221. However, the Court explained, “when the prosecutor in a county,

in case after case, whatever the circumstances, whatever the crime and whoever the

defendant or the victim may be” removes qualified African Americans from the ve-

nire such that they never serve on petit juries, a constitutional violation may be

found. Id. at 223.

In Batson, the Court overruled Swain to the extent it suggested that a consti-

tutional violation could not be found based upon a prosecutor’s use of peremptory

challenges in a single case. Batson, 476 U.S. at 92-93, 100 n.25. The Court held that

a defendant could establish purposeful discrimination based solely on the

71
prosecutor’s actions in his own case, and it set forth a three-step process for deter-

mining whether a defendant had met his burden of proving discrimination: First, the

defendant had to establish a prima facie case that the prosecutor had engaged in

purposeful discrimination in removing African Americans from the jury; then, if the

defendant made that showing, the prosecutor had to identify race-neutral reasons for

removing the African Americans; and, finally, if the prosecutor put forth such rea-

sons, the trial court had to determine whether the defendant had proven purposeful

discrimination. Id. at 93-98.

The Court explained that to establish a prima facie case a defendant had to

show that he was a member of a cognizable racial group and that the prosecutor used

peremptory challenges to remove members of that group from the venire. Id. at 96.

He could “rely on the fact, as to which there could be no dispute, that peremptory

challenges constitute a jury selection practice that permits those to discriminate who

are of a mind to discriminate.” Id. (internal quotation marks and citation omitted).

And, he had to show “that these facts and any other relevant circumstances raise an

inference that the prosecutor used that practice to exclude the veniremen from the

petit jury on account of their race.” Id. Some of these “relevant circumstances” might

include a prosecutor’s “pattern of strikes against black jurors included in the partic-

ular venire,” and questions and statements made by the prosecutor during voir dire

72
that might “support or refute an inference of discriminatory purpose.” Id. (internal

quotation marks omitted).

2. The relevant procedural history.

In the present case, defendant was tried in 1982, a few years before Batson,

but well after Swain. Defendant did not claim during jury selection or trial that the

prosecutor used his peremptory challenges in a discriminatory manner. He did, how-

ever, claim on direct appeal that the prosecutor violated Batson by removing African

Americans from his jury.

The Pennsylvania Supreme Court found that defendant waived the claim by

not raising it at trial:

There can be no doubt that under the longstanding teaching of Com-

monwealth v. Clair, 326 A.2d 272 (Pa. 1974), [defendant] has waived
any claim that the prosecutor engaged in discriminatory use of peremp-
tory challenges to obtain an unrepresentative jury. Not only did he fail
to advance the issue in any form resembling that adopted by the Su-
preme Court in Batson, he made no attempt even to frame the issue
under the then prevailing rules of Swain v. Alabama.

Commonwealth v. Abu-Jamal, 555 A.2d at 849.

Although the Supreme Court found defendant’s Batson claim waived, it ex-

plained that in direct appeals of capital cases it had “at times” addressed the merits

of waived claims due to “the extreme, indeed irreversible, nature of the death pen-

alty.” Id. Because defendant was sentenced to death, and because the Common-

wealth, while asserting the claim was waived, also argued it was meritless, the Court

73
went on to address the merits of the claim and found it baseless. 20 The Court ex-

plained:

Applying the “standards” set out in Batson for assessing whether

a prima facie case exists, vacuous though they may be, we do not hesi-
tate to conclude that no such case is made out here. That [defendant] is
a member of a cognizable racial group and that the prosecutor used per-
emptory challenges to remove some members of [defendant’s] race are
facts so obvious to anyone even marginally acquainted with this case
as to cause embarrassment at the need to set them out in writing. They
are, nevertheless, two of the three “elements” necessary to establish a
prima facie case. According to Batson, these facts, when taken with
“any other relevant circumstances”, must raise an inference that the
prosecutor used his peremptory challenges to exclude venirepersons on
account of their race. Examples of such “relevant circumstances” that
might support or refute such an inference are a “pattern” (or not) of
strikes against black jurors, and the prosecutor’s questions and com-
ments during voir dire.

We agree with the Commonwealth that mere disparity of number

in the racial make-up of the jury, though relevant, is inadequate to es-
tablish a prima facie case. The ultimate composition of the jury is af-
fected not only by the prosecutor’s use of peremptories, but by the de-
fendant’s use of such, by challenges for cause (more acute in capital
cases because of the Witherspoon inquiry),[21] and by jurors’ inability
to serve for personal reasons. The Commonwealth cites at least one in-
stance where [defendant] removed a black juror already passed as ac-
ceptable by the Commonwealth; it cannot be determined whether any
of the venire, who were dismissed when it was [defendant’s] turn to
first pass on their acceptability, were black and might have been

20
Defendant is no longer sentenced to death. Additionally, the Supreme Court
has abrogated what was previously known as its “relaxed waiver” doctrine. See
Commonwealth v. Freeman, 827 A.2d 385, 393-403 (Pa. 2003); Commonwealth v.
Albrecht, 720 A.2d 693, 700 (Pa. 1998).
21
Referring to Witherspoon v. Illinois, 391 U.S. 510 (1968), and questions re-
garding a juror’s willingness or inability to impose a death sentence.

74
 acceptable to the Commonwealth. Moreover, we find no “pattern” in
the use of peremptories. The Commonwealth used fifteen of the twenty
available challenges. The record reflects that eight of these venireper-
sons were black.[22] Had [defendant] not peremptorily challenged the
black venireperson acceptable to the Commonwealth, the first two ju-
rors seated would have been black. We also note our agreement with
the Commonwealth’s argument that the replacement of the first juror
chosen, a black woman, with an alternate, a white man, was entirely
beyond the Commonwealth’s control, and the resulting disparity in
numbers of blacks and whites on the jury is no basis for an inference of
purposeful discrimination. Finally, we have examined the prosecutor’s
questions and comments during voir dire, along with those of [defend-
ant] and his counsel, and find not a trace of support for an inference that
the use of peremptories was racially motivated.

Id. at 850.

Defendant re-raised his Batson claim in his first PCRA petition. Although he

was given the opportunity to further develop a record in support of it, the only evi-

dence he presented at the PCRA hearing was a stipulation indicating that ten African

Americans were peremptorily struck by the prosecutor.23 As stated above, on direct

appeal defendant had claimed that eleven African Americans were removed by the

prosecutor, and the record, which was silent as to the race of some of the stricken

22
The Court noted that defendant claimed that eleven of the fifteen jurors struck
by the prosecutor were African American, but that that number was in dispute since
the race of several of the peremptorily-struck jurors did not appear in the record.
Commonwealth v. Abu-Jamal, 555 A.2d at 848-89.
23
The stipulation initially indicated that eleven African Americans were per-
emptorily struck by the prosecutor, but defendant subsequently withdrew the stipu-
lation with regard to one of the stricken jurors, thereby bringing the number down
to ten (PCRA Court Opinion I, at 102).

75
jurors, showed only that eight of them were African American. Although defendant

originally claimed he wanted the prosecutor to testify at the PCRA hearing regarding

the Batson claim, and thus the prosecutor (who was then in private practice) made

himself available during the hearing, defendant ultimately decided not to call him as

a witness (N.T. 8/3/95, 256-60; 8/4/95, 117-20).

B. The PCRA Court’s Analysis of the Claim.

The PCRA court found defendant’s claim failed for a number of reasons

(PCRA Court Opinion I, at 101-04). First, the PCRA court judge—the same judge

who presided at trial—stated that “[t]he Commonwealth did not intentionally or ra-

cially discriminate against African-American jurors in its use of peremptory strikes

in violation of Batson and its progeny” (id. at 102). The court also pointed out that

the issue had been previously litigated on the merits before the Pennsylvania Su-

preme Court and could not be relitigated again “merely because a new or different

theory is posited as a basis for reexamining a claim that has already been decided”

(id.). The court further noted that, at the PCRA hearing, the Commonwealth with-

drew any objection to defendant presenting evidence on the subject. The only evi-

dence defendant advanced, however, was the stipulation indicating that ten (rather

than eight) African Americans were removed from the jury by the prosecutor (id.).

Although the trial prosecutor was available to testify for the defense, defendant de-

clined to call him (id.).

76
 The PCRA court found that the stipulation indicating that ten (rather than

eight) of the jurors removed by the prosecutor were African American did not in any

way undermine the Supreme Court’s conclusion that there was no Batson violation.

The PCRA court explained:

The Supreme Court’s analysis . . . did not turn on whether eleven (as
[defendant] claimed on appeal), ten (as claimed at the PCRA hearing),
or eight (as shown in the trial record) of the venirepersons removed by
the Commonwealth were black. Rather, the court focused on the third
prong of the Batson prima facie analysis—whether “any other relevant
circumstances” existed to support an inference of discriminatory intent.

(id. at 103) (citations omitted).

The PCRA court pointed out that the Supreme Court determined that those

other relevant circumstances “refuted” defendant’s claim (id.). Because defendant

failed to demonstrate that the Supreme Court’s analysis was incorrect, the PCRA

court held, even if the claim was cognizable, it provided no basis for relief (id. at

103-04). The PCRA court also found that trial counsel could not have been ineffec-

tive “for failing to raise a Batson claim or make a Batson record at voir dire . . . since

that case was handed down after the trial” (id. at 88).24

24 The federal district court considered the claim on habeas corpus review (Fed-
eral District Court Opinion, at 103-09). The court held that the state courts’ finding
that defendant had not demonstrated a prima facie case of discrimination was not an
unreasonable application of Batson (id. at 107). In reaching this conclusion, the court
pointed out that the record failed to contain much of the relevant information for a
Batson claim, and that the absence of that information was especially noteworthy
because defendant had the opportunity to supplement the record at the PCRA hearing
(footnote continued . . . )

77
 C. Defendant may not Relitigate his Batson Claim Where the
Pennsylvania Supreme Court Already Found it Meritless.

Defendant effectively ignores the fact that the Supreme Court has already con-

sidered, and rejected, this claim on direct appeal. Obviously unhappy with the result,

he attempts to litigate the claim again in this PCRA appeal. However, the PCRA

prohibits a claim that has been decided on the merits on direct appeal from being

relitigated under the PCRA. See 42 Pa.C.S.A. §§ 9543(a)(3) (to be eligible for PCRA

relief, a petitioner must plead and prove “[t]hat the allegation of error has not been

previously litigated”); 9544(a)(2) (an issue is “previously litigated” if “the highest

appellate court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue”).

but failed to do so with the exception of the stipulation regarding the race of two of
the stricken jurors (id. at 106). The court also found that, because defendant’s “sub-
stantive” claim regarding the prosecutor’s striking of African American jurors was
“without merit,” his claim that trial counsel was ineffective for failing to object to
the prosecutor’s use of peremptories necessarily failed (id. at 53, 55).
The United States Court of Appeals for the Third Circuit affirmed the federal
district court’s decision. Abu-Jamal v. Horn, 520 F.3d at 279-94. The court held that,
because defendant “did not object to the prosecutor’s use of peremptory challenges
at any point during voir dire or at his 1982 trial,” he had “forfeited” his jury discrim-
ination claim. Id. at 283-84. The court went on to hold that, even assuming defend-
ant’s failure to object “is not fatal to his claim,” the claim would still fail because he
“has failed to meet his burden in proving a prima facie case.” Id. at 284. Like the
district court, the federal appellate court focused on defendant’s failure to provide
the necessary record for consideration of a Batson claim. Id. at 290-93. The court
also explained that it had “never found a prima facie case based on similar facts” as
here, where the prosecutor used ten of fifteen peremptory strikes against members
of a racial group. Id. at 293.

78
 And, the prohibition against relitigating a claim previously decided on direct

appeal stands even if the defendant advances a new theory in support of the claim.

See Commonwealth v. Bond, 819 A.2d 33, 38-39 (Pa. 2002) (despite the fact that

defendant raised new theories in support of his claims, court would not, on PCRA

appeal, address the claims, as it had previously considered them on direct appeal).

Accordingly, defendant may not now relitigate his failed Batson claim. See Com-

monwealth v. Dennis, 859 A.2d 1270, 1279-80 (Pa. 2004) (defendant could not re-

litigate Batson claim under the PCRA since it was already rejected on the merits by

the Supreme Court on direct appeal; although defendant wanted to litigate the claim

again so he could remedy deficiencies in the record that were noted by the Supreme

Court on direct appeal, the Court had nevertheless rejected the claim on the merits,

and thus it could not be raised again); Commonwealth v. Hardcastle, 701 A.2d 541,

548 (Pa. 1997) (defendant’s Batson claim would not be entertained on PCRA appeal

where the claim was found meritless on direct appeal).

Defendant apparently believes he should be able to relitigate his previously-

rejected Batson claim again on appeal because he presented “new evidence” in sup-

port of it at the PCRA hearing (Brief for Appellant, 48). This “new evidence” con-

sisted of a stipulation indicating that the prosecutor used peremptory challenges to

strike ten African Americans, one less than what defendant claimed on direct appeal

but two more than what the record then showed. Of course, the reason why this “new

79
evidence” was not a part of the record at the time the claim was considered on direct

appeal was because defendant did not raise the claim at trial, and therefore there was

no reason for the trial court to have noted for the record the races of the jurors struck

by the prosecutor.

In any event, even if the Supreme Court had been aware of the precise number

of African American jurors struck by the prosecutor—i.e., ten, rather than eleven as

claimed by defendant and eight as shown by the record—it would not have made a

difference in the Court’s ruling. This is because in considering this claim the Su-

preme Court, quite properly, did not focus on the particular number of African Amer-

icans the prosecutor removed from the jury. See Commonwealth v. Stern, 573 A.2d

1132, 1135 (Pa.Super. 1990) (there is no particular number of strikes against minor-

ity veniremen that shows a prima facie case of discrimination). Rather, the Court

considered the totality of the circumstances and found that there was no reason to

believe the prosecutor’s use of peremptory challenges was racially motivated. Com-

monwealth v. Abu-Jamal, 555 A.2d at 850.

In particular, the Court noted that the composition of a jury is affected not

only by the prosecutor’s use of peremptory challenges, but also by the defendant’s

use of them, by challenges for cause, and by the inability of certain jurors to serve

due to personal reasons. The Court pointed out that the first two persons selected for

the jury were African American; that one of the African Americans accepted by the

80
prosecutor was subsequently removed by the trial court because of a matter that “was

entirely beyond the Commonwealth’s control;” that defendant removed at least one

African American juror who was accepted by the Commonwealth; that the record

did not show the race of the jurors who were removed by defendant before the pros-

ecutor had an opportunity to accept them; that the prosecutor used only fifteen of his

twenty available peremptory challenges; that the disparity in the number of African

Americans and Caucasians on the jury did not indicate that purposeful discrimina-

tion had occurred; and that a review of the prosecutor’s, defendant’s, and defense

counsel’s statements and questions during voir dire showed there was “not a trace

of support for an inference that the use of peremptories was racially motivated.” Id.

The only evidence defendant introduced at the PCRA hearing regarding his

Batson claim was the stipulation that ten of the fifteen jurors struck by the prosecutor

were African American. This evidence, however, did nothing to upset the Supreme

Court’s above analysis of this claim. This is especially true given that the Supreme

Court and this Court have repeatedly rejected Batson claims in cases where there

were higher disparities in the prosecutor’s use of peremptory challenges than in the

present case. See, e.g., Commonwealth v. Reid, 99 A.3d 427, 461-62 (Pa. 2014) (no

Batson violation even though prosecutor struck three times as many African Amer-

ican jurors as Caucasian ones); Commonwealth v. Simpson, 66 A.3d 253, 261-64

(Pa. 2013) (no Batson violation where the prosecutor used thirteen of his eighteen

81
peremptory challenges against African Americans); Commonwealth v. Spotz, 896

A.2d 1191, 1211-14 (Pa. 2006) (prosecutor’s use of peremptory challenges to strike

nine women and only one man did not establish a prima facie case of gender dis-

crimination); Commonwealth v. Williams, 863 A.2d 505, 514-15 (Pa. 2004) (no Bat-

son violation even though prosecutor used fourteen of his sixteen peremptory strikes

against African Americans); Commonwealth v. Saunders, 946 A.2d 776, 783-84 &

n.10 (Pa.Super. 2008) (no Batson violation even though, according to the defense,

all of the prosecutor’s peremptory challenges were used against African-American

women); Commonwealth v. Stern, 573 A.2d at 1134-36 (prosecutor’s use of peremp-

tory challenges to strike eight African Americans and only one Caucasian did not

establish a prima facie case of discrimination).25

D. Defendant has not met the Standard Necessary to Succeed on

a Batson Claim that was not Raised at Trial.

Even if litigation of defendant’s Batson claim were not barred by the Supreme

Court’s consideration and rejection of it on direct appeal, he would still not be

25
Although defendant presented evidence at the PCRA hearing indicating the
race of the jurors struck by the prosecutor, he did not provide any evidence regarding
the race of the jurors he struck, even though the Pennsylvania Supreme Court noted
this omission in the record when considering the claim on direct appeal. Common-
wealth v. Abu-Jamal, 555 A.2d at 850. Defendant’s failure to complete the record is,
itself, significant, as the Supreme Court has repeatedly stated it will not grant relief
on a Batson claim where the defendant has not provided a complete record for its
review. See, e.g., Commonwealth v. Thompson, 106 A.3d 742, 751-52 (Pa. 2014);
Commonwealth v. Fletcher, 861 A.2d 898, 909-10 (Pa. 2004); Commonwealth v.
Spence, 627 A.2d 1176, 1182-83 (Pa. 1993).

82
entitled to relief. This is because he did not meet the standard necessary to succeed

on a Batson claim that, like here, was not raised at trial.

In presenting this claim, defendant contends that “[t]he only question here is

whether [he] has demonstrated a prima facie case at the first step of the Batson in-

quiry” (Brief for Appellant, 48). According to defendant, “[t]hat does not require

[him] to show that the challenge was more likely than not the product of purposeful

discrimination” (id.) (internal quotation marks and citation omitted). This is a mis-

statement of the law.

The Pennsylvania Supreme Court has made clear that where, as here, a de-

fendant raises a Batson claim on collateral review that was not presented to the trial

court during voir dire, he is not entitled to rely on Batson’s burden-shifting frame-

work. Commonwealth v. Hutchinson, 25 A.3d 277, 287 (Pa. 2011). “Rather, when a

claim of racial discrimination in jury selection has not been preserved, a post-con-

viction petitioner bears the burden in the first instance and throughout of establishing

actual, purposeful discrimination by a preponderance of the evidence.” Id.; accord

Commonwealth v. Blakeney, 108 A.3d 739, 769 (Pa. 2014); Commonwealth v. Li-

gons, 971 A.2d 1125, 1142 (Pa. 2009); Commonwealth v. Uderra, 862 A.2d 74, 87

(Pa. 2004). This requirement of proving “actual, purposeful discrimination” is “in

addition to all of the other requirements” a defendant must meet “to overcome the

waiver of the underlying claim.” Commonwealth v. Uderra, 862 A.2d at 87.

83
 Here, the only evidence defendant presented at the PCRA hearing regarding

his Batson claim was the stipulation indicating that the prosecutor struck a total of

ten African Americans from the jury, two more than the total of eight that had pre-

viously been shown by the record. As explained above, this evidence was not suffi-

cient to establish a prima facie case of discrimination, let alone prove the “actual,

purposeful discrimination,” Commonwealth v. Hutchinson, 25 A.3d at 287, neces-

sary for him to succeed on the claim. In fact, the Pennsylvania Supreme Court has

specifically held that “statistics could never demonstrate an intention to remove Af-

rican-American venire members from the juror pool,” Commonwealth v. Dennis,

859 A.2d at 1280 (emphasis added), which is what defendant needed to show to

succeed on his claim. See also Commonwealth v. Blakeney, 108 A.3d at 769-70

(finding the statistical evidence forwarded by the defendant did not prove the “in-

tentional discrimination” he needed to show to succeed on his Batson claim); Com-

monwealth v. Sepulveda, 55 A.3d 1108, 1131-33 (Pa. 2012) (same).

In order for defendant to have proved “actual, purposeful discrimination,”

Commonwealth v. Hutchinson, 25 A.3d at 287, he had to demonstrate that the pros-

ecutor struck the African American jurors because of their race and not because of

any other race-neutral reasons. Defendant did not meet this burden. Although the

trial prosecutor was available to testify during the PCRA hearings—and could have

been questioned by the defense to determine what his reasons were for striking the

84
African Americans jurors (and whether those reasons were race neutral or, rather,

showed an intent to discriminate)—defendant elected not to present him. Having

failed to meet his burden of proving “actual, purposeful discrimination” on the part

of the prosecutor, defendant could not have succeeded on his Batson claim. See

Commonwealth v. Sepulveda, 55 A.3d at 1132-34 (referring to the defendant’s Bat-

son claim, which he did not raise at trial, as “frivolous” where he “failed to prove

that the Commonwealth actually and purposefully discriminated in its peremptory

challenges” and, instead, focused his argument on an attempt to make out a “prima

facie case” of discrimination). Accordingly, even if not previously litigated, the

claim was properly rejected by the PCRA court.26

VI. THE PCRA COURT PROPERLY QUASHED SUBPOENAS DEFEND-

ANT SENT TO JURORS IN AN ATTEMPT TO HAVE THEM IM-
PEACH THEIR VERDICT.

Defendant claims the PCRA court erred by quashing subpoenas he sent to two

jurors. Defendant issued the subpoenas because he hoped the jurors would impeach

their verdict by testifying that some of the jurors discussed the trial evidence in the

26
At the conclusion of his argument, defendant states that if his failure to raise
this claim at trial is deemed “significant,” trial counsel should be found ineffective
for failing to advance it (Brief for Appellant, 56). But since defendant did not prove
that the prosecutor engaged in “actual, purposeful discrimination,” his ineffective-
ness claim also necessarily fails. See, e.g., Commonwealth v. Hutchinson, 25 A.3d
at 286-89 (since defendant’s proffered evidence did not establish “actual, purposeful
discrimination in jury selection,” his claim that counsel was ineffective for failing to
raise a Batson claim necessarily failed); Commonwealth v. Ligons, 971 A.2d at 1145-
46 (same).

85
evenings while sequestered in a hotel. Because Pennsylvania law prohibits jurors

from impeaching their own verdict, the PCRA court properly quashed the subpoe-

nas.

A. The Relevant Background to Defendant’s Claim.

Defendant attached to his first PCRA petition an affidavit prepared by one of

his attorneys. In the affidavit, defendant’s attorney claimed that on January 9, 1994,

i.e., more than eleven years after trial, he went to the home of one of the jurors and

“interviewed” her. Defendant’s attorney claimed the juror told him that in the eve-

nings, while the jurors were sequestered in their hotel, three other jurors would meet

in the hotel room of one of those jurors and discuss the evidence presented in court

that day. Defendant’s attorney claimed the juror told him that whenever one of the

jurors had a different view of the evidence than the other two, that juror “was invar-

iably silenced and made to go along.”

During the PCRA proceedings, defendant issued a subpoena for the juror who

supposedly spoke to his attorney as well as for the jury foreman, who was identified

as one of the three jurors who took part in the alleged conversations. The Common-

wealth opposed defendant’s attempt to present testimony from the jurors because

such testimony was barred by the “no-impeachment rule.” The Commonwealth also

expressed concerns that defendant’s attorneys were attempting to intimidate the

86
jurors. The PCRA court quashed the subpoenas (N.T. 8/1/95, 152-66; 8/2/95, 11-12,

185-89; PCRA Court Opinion I, at 20-21).

B. The PCRA Court’s Analysis of the Claim.

The PCRA court precluded defendant from presenting the jurors as witnesses

at the PCRA hearing for a number of reasons (PCRA Court Opinion I, at 107-08).

First, the Court found defendant’s claim waived because he did not raise it at trial or

on direct appeal and did not offer to prove that the information could not have been

obtained then with the exercise of reasonable diligence (id.). Next, the court held

that testimony from the jurors regarding the alleged premature discussions was not

permissible under Pennsylvania law, although the court noted that defendant could

have presented testimony from any non-jurors who had witnessed the alleged dis-

cussions (id. at 107-08). And, finally, the court found defendant failed to demon-

strate that this new evidence was exculpatory or would have changed the verdict (id.

at 108).27

27
The federal district court found this claim did not provide a basis for habeas
corpus relief (Federal District Court Opinion, at 112-13). The court explained that
under Pennsylvania law jurors are not permitted to impeach their own verdict, and
defendant had failed to demonstrate that clearly established federal law was to the
contrary (id.).

87
 C. Defendant was Properly Precluded from Presenting Jurors
at the PCRA Hearing to Impeach Their Verdict.

Under long-standing Pennsylvania law, jurors are not allowed to testify in

post-verdict proceedings as a means of impeaching their verdict. Commonwealth v.

Eichinger, 108 A.3d 821, 846 (Pa. 2014); Commonwealth v. Patrick, 206 A.2d 295,

297 (Pa. 1965); Commonwealth v. Williams, 420 A.2d 727, 729 (Pa.Super. 1980);

Pa.R.E. 606(b)(1).28 This rule derives from the common law, and there are “[s]ub-

stantial policy considerations” that support it. Tanner v. United States, 483 U.S. 107,

119 (1987). These include bringing finality to cases and preventing the constant re-

litigation of matters decided by the jury; protecting jurors from being “harassed and

beset by the defeated party” in an attempt to obtain information that might be used

to undo the verdict; and preventing the jurors’ words and conduct from being re-

vealed and subject to scrutiny such that the public’s confidence in the jury system

itself might be severely undermined. Id. at 120-21. As the United States Supreme

Court has explained, allowing jurors to impeach their verdict by offering evidence

28
There are a few exceptions to this rule, none of which is applicable here. A
juror may testify post-verdict regarding whether “prejudicial information not of rec-
ord and beyond common knowledge and experience was improperly brought to the
jury’s attention.” Pa.R.E. 606(b)(2)(A). A juror may also testify regarding whether
“an outside influence was improperly brought to bear on any juror.” Pa.R.E.
606(b)(2)(B). And, in an exception carved out by the United States Supreme Court,
“where a juror makes a clear statement that indicates he or she relied on racial stere-
otypes or animus to convict a criminal defendant,” the no-impeachment rule must
give way. Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 869 (2017).

88
of juror misconduct might lead to the invalidation of some verdicts that were reached

after irresponsible or improper juror behavior. Id. at 120. “It is not at all clear, how-

ever, that the jury system could survive such efforts to perfect it.” Id.29

In fact, not only are jurors precluded from impeaching their own verdict, but

attorneys are forbidden from engaging in post-verdict ex parte communications with

them in an attempt to obtain information that might be used to undo the verdict. In a

case in which a defendant attempted to undermine his death sentence by reporting

statements made by some of the jurors during post-trial interviews, the Pennsylvania

Supreme Court explained as follows:

The practice of interviewing jurors after a verdict and obtaining from

them ex parte, unsworn statements in answer to undisclosed questions
and representations by the interviewers is highly unethical and im-
proper and was long ago condemned by this court in Cluggage’s Lessee
v. Swan, 4 Bin. 150, 158 (Pa. 1811), reiterated and reaffirmed in Fried-
man v. Ralph Bros., Inc., 171 A. 900, 901 (Pa. 1934), and again quoted
from at length in Redmond v. Pittsburgh Railways Co., 198 A. 71, 72
(Pa. 1938). It is forbidden by public policy: Commonwealth v. Greevy,
114 A. 511, 512 (Pa. 1921). Certainly such post-trial statements by ju-
rors are not to be given any weight on even an application for a new
trial, much less a petition for a writ of habeas corpus.

29
This is not to say there are no protections against juror misconduct. The whole
point of voir dire, of course, is to obtain competent, fair, and impartial jurors who
will be able to follow the court’s instructions; during trial the behavior of the jurors
is observable by the lawyers, the judge, and court personnel; jurors may report mis-
conduct of other jurors before the verdict is received; and after the verdict parties
may present evidence of juror misconduct from persons other than the jurors them-
selves. See Tanner v. United States, 483 U.S. at 127.

89
Commonwealth ex rel. Darcy v. Claudy, 79 A.2d 785, 786 (Pa. 1951). See also Com-

monwealth v. Tedford, 960 A.2d 1, 20 (Pa. 2008) (stating that the practice of inter-

viewing jurors post-verdict to obtain support for overturning a verdict “is con-

demned”); Commonwealth v. Fowler, 523 A.2d 784, 786 (Pa.Super. 1987) (“post-

trial affidavits and evidence of jurors elicited by the examination of counsel or by a

litigant for the purpose of . . . impeaching the verdict are improper”).

Defendant claims the no-impeachment rule “is limited to precluding testi-

mony about statements made during deliberations” and does not “prohibit jurors

from testifying that certain jurors improperly met to discuss evidence and prejudge

the case prior to deliberations” (Brief for Appellant, 61). He is wrong.30

In Commonwealth v. Steele, 961 A.2d 786 (Pa. 2008), the Pennsylvania Su-

preme Court specifically considered the issue presented here: whether the no-im-

peachment rule applies to premature jury deliberations. In that case a juror provided

a post-verdict declaration indicating that during trial one of the jurors made racially-

prejudiced comments against the defendant; that some of the jurors had predisposed

opinions regarding the defendant’s guilt; and that “deliberative discussions” were

held “prior to formal deliberation.” Id. at 807. The Court acknowledged that the no-

30 Defendant relies on Commonwealth v. Kerpan, 498 A.2d 829 (Pa. 1985), in

support of his claim. That case, however, did not involve juror impeachment of the
verdict. Rather, in Kerpan the Court found counsel ineffective for failing to object
to the court’s instructing the jurors that they could discuss the case before formal
deliberations. Here, there was no such instruction; thus, Kerpan is inapposite.

90
impeachment rule contains “a narrow exception” for post-verdict testimony regard-

ing “extraneous influences” that might have prejudiced the jury against the defend-

ant. Id. at 808. The Court, however, held that that exception did not apply to the

jurors’ own statements, including statements made prior to formal deliberations:

Despite [defendant’s] contentions, the exception to the general

no impeachment rule is not implicated here. The exception only applies
to outside influences, not statements made by the jurors themselves.
Here, one particular juror made some troubling statements. However,
these statements were not based on any evidence not of record, or on
any outside influences. Rather, one juror was attempting to influence
the other jurors’ opinion, although it was done inappropriately before
deliberations. Indeed, [the reporting juror’s] declaration states that the
juror “. . . seemed to prey on the weaker jurors and tried to sway them.”
Nevertheless, the influence here was internal, not from outside sources.
Once the verdict was entered, the jurors, including [the reporting juror],
became incompetent to testify regarding any internal discussions or de-
liberations.

Id. (citations omitted; emphasis in original).31

31
As stated above, in Pena-Rodriguez v. Colorado, supra, the United States Su-
preme Court, on constitutional grounds, carved out an exception to the no-impeach-
ment rule for evidence that clearly indicates a juror “relied on racial stereotypes or
animus to convict a criminal defendant.” Id., 137 S.Ct. at 869. In its opinion the
Court noted that, like the Colorado Supreme Court in the case before it, the Penn-
sylvania Supreme Court, in Steele, had not recognized an exception to the no-im-
peachment rule for evidence of racial bias. Id. at 865. Thus, to the extent Steele in-
dicates there is no exception to the no-impeachment rule for evidence of racial bias,
that portion of the opinion is no longer good law. Pena-Rodriguez, however, does
not in any way undermine Steele’s more general holding that the no-impeachment
rule applies not only to formal deliberations but also to internal discussions and state-
ments made by jurors prior to deliberations. In fact, in Pena-Rodriguez, the improper
statements were made during formal deliberations. Thus, any conceivable distinction
between formal deliberations and premature deliberations was not before the Court.
(footnote continued . . . )

91
 The United States Supreme Court has similarly concluded that the federal ver-

sion of the no-impeachment rule applies not only to formal deliberations but also to

alleged juror misconduct that occurred before deliberations. In Tanner v. United

States, supra, two jurors contacted Tanner’s attorney after trial and reported juror

misconduct that occurred during trial. Specifically, the jurors stated that, during

lunch breaks and at other times throughout the trial, several jurors drank excessive

amounts of alcohol and used marijuana and cocaine. According to the reports, a

number of the jurors fell asleep during trial, and one of the jurors even described

himself as “flying” during the case. Id., 483 U.S. at 115-16.

The United States Supreme Court considered whether evidence of the jurors’

pre-deliberations misconduct, as reported by the jurors themselves, fell within the

no-impeachment rule. It found that it did. The Court explained that under the com-

mon law no-impeachment rule exceptions were made “only in situations in which

an ‘extraneous influence’ was alleged to have affected the jury.” Id. at 117 (citation

omitted). Determining whether the impropriety was considered the result of an in-

ternal or external influence, the Court stated, did not depend “on whether the juror

In the present case, the affidavit defendant presented from his attorney did not claim
that the juror gave any indication that race played a role in the premature delibera-
tions she supposedly overheard. Thus, the exception carved out in Pena-Rodriguez
does not apply here.

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was literally inside or outside the jury room when the alleged irregularity took place;

rather, the distinction was based on the nature of the allegation.” Id.

Thus, if the jurors learned information about the case from a newspaper, even

if they acquired that knowledge while in the deliberations room, that was considered

an external influence, and the exception applied. Id. at 118. If, however, the jurors

reported after the verdict that they were unable to hear or understand the court’s

instructions, or if evidence was uncovered post-trial showing that a juror was not

competent during the trial, that would be considered an “internal” matter, evidence

of which would be prohibited by the no-impeachment rule. Id.

The Court explained that when the applicable federal rule of evidence was

adopted—a rule similar to Pennsylvania’s—it was intended that the distinction be-

tween internal and external influences would continue to determine whether an ex-

ception to the no-impeachment rule applied. Id. at 121. Because the jurors’ alleged

drug and alcohol use and drowsiness during trial would be considered an internal

influence, juror testimony on those matters was prohibited by the no-impeachment

rule. Id. at 125.

In reaching its conclusion, the Court also rejected Tanner’s assertion that pre-

cluding the jurors from testifying regarding the alleged misconduct would violate

his constitutional right to a fair trial before an impartial and competent jury. The

Court recognized that defendants are entitled to have their cases heard by such a

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jury, but that there are other “aspects of the trial process” that protect that right. Id.

at 127. Thus, there was not a sufficient basis under the constitution to invalidate the

long-recognized and well-justified rule precluding jurors from impeaching their ver-

dict. Id. at 126-27.32

As explained above, one of the reasons for the no-impeachment rule is to pre-

vent a losing party from harassing the jurors after the verdict in the hopes of garner-

ing information that might be used to attack the verdict. In this case, more than

eleven years after trial, one of defendant’s attorneys went to the home of one of the

jurors and interviewed her about the case. Defendant has not pointed to anything in

the record indicating his attorneys were given permission to engage in this ex parte

communication with the juror.

By going to the juror’s home and conducting an ex parte interview of her, it

appears defendant’s attorney engaged in the very practice that has long been “con-

demned” by the Pennsylvania Supreme Court. Commonwealth v. Tedford, 960 A.2d

at 20; Commonwealth ex rel. Darcy v. Claudy, 79 A.2d at 786. For that reason alone,

his claim should be rejected. See Tanner v. United States, 483 U.S. at 126 (stating

32
Defendant states there is disagreement among various jurisdictions regarding
whether the no-impeachment rule applies to juror misconduct that occurs prior to
formal deliberations. This Court, of course, is bound by decisions of the Pennsylva-
nia Supreme Court. As demonstrated above, the Pennsylvania Supreme Court (as
well as the United States Supreme Court) has held that the no-impeachment rule
applies not only to the jury’s formal deliberations but also to juror misconduct that
occurs before formal deliberations.

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that juror’s affidavit was obtained by the defendant in violation of the post-verdict

court’s order and the local rule against juror interviews; “on this basis alone the

[post-verdict court] would have been acting within its discretion in disregarding the

affidavit”).

But even assuming it was not improper for defendant’s attorney to conduct an

ex parte interview of the juror, the information he allegedly obtained from her pro-

vided no basis for relief. That information consisted of the juror’s allegation that

during trial other jurors engaged in premature discussions regarding the case. As

demonstrated above, such discussions among the jurors themselves, regardless of

whether they occurred before or during formal deliberations, are precisely the type

of “internal discussions or deliberations” that fall within the no-impeachment rule

and about which no juror may testify. Commonwealth v. Steele, 961 A.2d at 807-08.

Accordingly, the PCRA court properly quashed the subpoenas seeking testimony

from the jurors, and defendant’s claim provides no basis for relief.

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 CONCLUSION

For the foregoing reasons, including those set forth in the PCRA court’s opin-

ions, the Commonwealth respectfully requests that this Court affirm the orders deny-

ing post-conviction relief.

Respectfully submitted,

/s/ Grady Gervino

GRADY GERVINO
Assistant District Attorney
LAWRENCE J. GOODE
Supervisor, Appeals Unit
NANCY WINKELMAN
Supervisor, Law Division
CAROLYN ENGEL TEMIN
First Assistant District Attorney
LAWRENCE S. KRASNER
District Attorney of Philadelphia

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