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‘Allegheny County Clerk of Courts Received 2/7/2020 1:33 AM IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA, COMMONWEALTH OF PENNSYLVANIA, CHERON SHELTON, Defendant. CRIMINAL DIVISION CC No.: 0008964-2016/0006562-2016 THE HONORABLE EDWARD J. BORKOWSKI SECOND MOTION FOR EXTRAORDINARY RELIEF AND TO DISQUALIFY THE ALLEGHENY COUNTY DISTRICT ATTORNEY'S OFFICE Filed on Behalf of Defendant: Cheron Shelton Counsel of Record for the Party: Randall McKinney PA LD. # 209003 Law Office of Randall McKinney Mitchell Building 304 Ross Street, Suite 300 Pittsburgh, PA 15219 (412) 520-3301 thm@randallmckinneylaw.com IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION v, CC No.: 0008964-2016/0006562-2016 CHERON SHELTON, ‘THE HONORABLE EDWARD J. BORKOWSKI Defendant. SECOND MOTION FO! ALLEGHE! XTRAORDINARY RELIEF AND TO DISQUALIFY THE Introduction On February 3, 2020, as undersigned counsel was engaged in litigating the above captioned matter on behalf of Me. Shelton, he was contacted by Witness 1. Witness 1 (whose name is known to the defense and prosecution) was a Commonwealth witness and was referenced in the Affidavit of Probable Cause when this case was initiated, Witness 1 informed defense counsel that he had information of critical importance regarding W1's interactions with ADA Lisa Pelligrini and law enforcement in the lead up to Mr. Shelton’s trial. Asa result of the approximately 60 minute recorded and transcribed conversation, part of which has been corroborated by W1's counsel, Defendant argues that the prosecution has again in this case violated its due process obligation to disclose exculpatory evidence as set out under Brady v. Maryland, 373 U.S. 83. 83 S.Ct. 1194. 10 L.Ed,2¢ 215 (1963) and its progeny, as well as its obligations under Rule 573 of the Pennsylvania Rules of Criminal Procedure, Witness 1 (whose prospective testimony is completely laid out in the attached A lidavit of Probable Cause) has come forward and advised: 1, He was paid cash by law enforcement off the books on multiple occasions as well as on the books from different agencies to avoid reporting, 2. He was told to implicate Cheron Shelton by fabricating statements and given a description by law enforcement of facts in the case to assist in implicating him, 3. He was told to lie on his proffer video about leniency, when it clearly was being given, and about payments to Witness 1 for his testimony, see Witness 1 Cooperation Agreement Exhibit A, Witness 1 recorded statement- Exhibit B1, ‘Witness 1 statement transcript B2, Witness 1 text message/screen shots Exhibit C, Criminal Complaint Affidavit Exhibit D. (Exhibit A, B1 and Exhibit D Filed separately under seal) In addition, the prosecution in this case has engaged in flagrant misconduct, in making unsavory and unethical deals with a witness in this case, which deals, it is believed; include encouragement for the witness to falsely incriminate Cheron Shelton. It is averred that such lies were incorporated into much of the arrest warrants in this case, rendering said warrant invalid. While typically, these claims would be the subject of a pretrial motion to suppress, the fact that the Defense just found about the prosecution's pressure of this witness, combined with the Commonwealth's failure to disclose, payments and vital impeachment evidence about this witness, has resulted in these faets only coming to light now, after the inception of trial. The significance of the concealed evidence coupled with the prosecutorial wrongdoing added to the capital nature of this prosecution justifies a mistrial Defendant Shelton has been charged with a number of serious offenses, including Criminal Homicide and Aggravated Assault, stemming from an incident, which occurred on March 9, 2016. Trial began on February 3, 2020. There originally were two defendants in this case: Mr. Thomas and Mr. Shelton, However, the case against Mr. Thomas has been dismissed, after facts that include Witness #3 being protected from prosecution after his confession to killing an infant and being withdrawn as a witness. The Defense has learned that an individual — herein termed “Witness 1” — provided information, which the affidavit and arrest warrant in this case were based on. Additionally, itis believed that the Commonwealth entered into an agreement with this witness whereby he would provide false statements to incriminate Defendant Shelton in return for off the books cash payments, made by the Commonwealth, through varies agencies including Allegheny County Detectives, the ATF (same as Witness 3) the Attorney General's Office and a large payment funneled through a Wal-Mart in Charleston, W. VA. There are a number of reasons why the recently acquired information about Witness 1 requires a mistrial in this case. First, the prosecution engaged in violations of its discovery obligations set out in Pennsylvania Rule of Criminal Procedure $73 as well as Brady v Maryland, 373 U.S, 83, 83 S.Ct. 1194, 10 L.Bd.2d 215 (1963), by failing to disclose impeachment evidence about Witness 1 ~ mainly, evidence that this Witness had entered into an agreement with the Commonwealth whereby the Commonwealth would provide financial assistance if the Witness would inculpate Defendant Shelton in the homicides at issue. See also Commonwealth ‘Smith, 615 A.2d 321, 325 (Pa. 1992) (where Commonwealth intentionally withheld information from a capital defendant, including an agreement with, keep chief witness pursuant to which he received lenient treatment at sentencing on unrelated charges in exchange for his testimony and the court reversed). Witness 1 (who contacted within Counsel and Casey White on February 3, 2020, after reading about Witness 3 in the media) wanted to bring his dealings with the Allegheny County District Attomey’s Office, Allegheny County Police and the ATP as related to this case. Second, this discovery violation is part of a pattern of discovery violations plaguing this case and which have already played a role in the non-prosecution of Defendant Shelton’s Co- defendant Robert Thomas. The pattern of misconduct not only characterizes the entirety of this prosecution but also leaves the Defendant and the Court wondering: what other discovery violation has the prosecution committed? The Commonwealth’s wrongdoing contaminates the entirety of this case. Third, the Commonwealth's misconduct herein was intentional. Where prosecutor's error “intentionally subvert{s] the court process, then a fair trial is denied.” Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa, Super. 2013). Fourth, there is very little direct evidence of Defendant Shelton’s involvement in these homicides. Defendant Shelton was charged via an Affidavit if Probable Cause consisting primarily of the Commonwealth's jailhouse informants that are no longer being used). That now two of these witnesses ~ Witness ! and Witness 3— have been promised and received financial remuneration and leniency in regard to crimes in which they have been involved in exchange for assistance in this case thus takes on more significance in assessing the importance of this concealed evidence. Moreover, WI’s tape-recorded statement alleges W1’s cooperation as a Jailhouse witness was also based on made up information, If this case involved eyewitnesses, or a confession, or other type of inculpatory statement, or incriminating physical evidence — then the significance of Witness 1 would be less. But in the absence of such evidence, this witness simply takes on a more critical role in the prosecutor's case, making the non-disclosure of impeachment evidence that much more problematic, In addition Witness 1 clearly states he was threatened and fed information in this case and told specific facts known only to law enforcement what his testimony needed to include. He was advised to incriminate Cheron Shelton, and paid to do it. Additionally, itis averred that the falsehoods put forth by Witness 1 at the behest of the Commonwealth were included in the affidavit arrest and caused evidence to be illegally gathered applications and thus constituted violations under Franks. In Franks v, Delaware, the Supreme Court created procedural protections for a defendant who claimed that the affidavit Exhibit D supporting the probable cause of an affidavit contained intentional or reckless falsehoods. The Court stated that it presumed the validity of the affidavit in support of the warrant. 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The burden is on the defendant to show such falsehoods in the affidavit. 1d. If the defendant meets this burden, then the question becomes whether the affidavit is sufficient to support probable cause without the falsehoods. Id. Ifit is sufficient, then the warrant is valid. Id. at 171-72, 98 S.Ct. 2674. If it is insufficient, then the defendant is entitled to a hearing concerning the probable cause in the affidavit. Id. at 172, 98 S.Ct. 2674. Of course, there has been no Franks hearing in this ease because it only just came to the attention of the Defense about the ethical problems with the Commonwealth's use of Witness #1, and Franks issues are brought pretrial. However, the very real possibility that the warrants in this case were constitutionally infirm as they contained falsehoods corrupts this capital case, an infirmity of such magnitude as to justify a mistrial and suppression of any fruits post arrest that ‘were a result. Fifth, this case involves the death penalty, which is accompanied by a heightened demand for reliability. The prosecution’s withholding of information about financial benefits provided to ‘ cooperating witness is egregious. Add to this the belief that the prosecution encouraged Witness #1 to incriminate Shelton (and Thomas) and it simply cannot be said that this trial, ifit were to go forward, could be deemed reliable so as to allow a murder conviction much less a death penalty. The prosecution's mishandling of its discovery obligations is thus more concerning in the context of this capital matter. Compare with x Parte Adams, 768 S.W.2d 281, 291-93 (Tex. Crim. App. 1989) (where defendant was convicted of murder and sentenced to death, where at trial, prosecutor suppressed information about secret deal made with witness, as well as that witness's lengthy criminal record, and also withheld exculpatory information about two other witnesses; twelve years after the trial, appellate court found that the prosecutor "knowingly used perjured testimony [and] ... knowingly suppressed evidence,” leading to exoneration of defendant); {n re Womack, 541 So. 2d 47, 62 (Ala. 1988) (finding in capital case that district attomey’s office had failed to disclose exculpatory evidence that it had a plea bargain with a critical prosecution witness, resulting in order for new trial); Reasonover v. Washington, 60 F. Supp. 2d 937, 981 (E.D. Mo. 1999) (vacating conviction for capital murder where prosecutor failed to tum over tapes of contradicting conversations made by witnesses and evidence of leniency arrangements between government and each of two witnesses, court ruling. that concealment of evidence denied petitioner fair trial, in violation of her due process rights, under Fourteenth Amendment); Conyers v. State, 790 A.2d 15, 41 (Md. 2002) (remanding for new trial where state failed to disclose information about favorable plea agreement deal made with key witness in capital case). Sixth, itis averred that the Commonwealth encouraged Witness 1 to lie, thus violating the ethical standards to which all attomeys in Pennsylvania are held. Rule 8.4 of the ABA Rules of Professional Responsibility provide, in pertinent part: “It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (4) engage in conduct that is prejudicial to the administration of justice.” In preparing arrest warrants in this case with knowingly false ~ and improperly procured ~ statements from Witness #1, the prosecutor in this case has committed violated the ethical standards under which all attorneys. must abide. And this wrongdoing is more egregious in this case. .a capital case, in which a man’s life is as stake. Itis averred that the combination of failing to disclose impeachment evidence about Witness 1 along with paying Witness 1 and advising the witness to lie in said proffer about consideration to provide false statements to be used in the arrest warrant i the context of other ‘wrongdoing that has come to light in this case shows that the Commonwealth repeatedly as acted in an intentional manner to thwart justice in a capital case. The prosecutorial tactics in this case can only be characterized as “egregious.” Only via a mistrial can the prosecution be penalized for its misconduct. Only through a mistrial can this Court be ensure that a jury not convict Defendant — and potentially sentence him to death ~ based on unethically procured and falsified evidence. There is case law ~ albeit from other jurisdictions’ ~ suggesting that failing to reveal that ‘a witness has been paid constitutes a Brady violation which can disrupt a verdict. For example, in State v. Bennett, 81 P. 3d 1 (Nev. 2003) the Defendant was convicted of murder and sentenced to * The paucity of caselaw in Pennsylvania about prosecutorial misconduct related to Brady violations suggests the propriety of looking to other jurisdictions for guidance. 8 death. In his second post-conviction proceeding, the district court granted his petition in part by his death sentence and granting him a new penalty hearing. It concluded that the State violated the requirements of Brus'v. Mlarylurul. The appellate court agreed. Among other categories of Brady material the state failed to disclose was the fact that police had paid a witness $50 on each of four or five occasions for informant work. He then relayed the Defendant’s purported admission to the murder and robbery to the police and testified at the guilt ‘and penalty phases of the Defendant's trial, but the jury was never told that this witness had a history as a paid informant, The court found it appropriate to charge the state with constructive knowledge of the evidence because the police assisted in the investigation of this crime and initially supplied the information received from the witness to the police department. Moreover, the detective, who knew of the payments, testified at the guilt and penalty phases of the trial but denied that the witness was paid. It found that the withheld evidence could have been material to ‘the jurors' penalty determination. Further, this and two other instances of undisclosed evidence ‘were deemed to be collectively material to the Defendant's case in mitigation. It therefore concluded that the district court correctly vacated his death sentence and ordered a new penalty hearing. Instructive, albeit not precedential, is U.S. v. Librach, 520 F.2d $50 (8* Cir. 1975), in which the defendant had been convicted by a jury of filing a false claim and using a false document to obtain an urban renewal relocation payment of $9,700 from the Department of Housing and Urban Development (HUD). On appeal he challenged the lower court's refusal to grant a new trial based on prosecutorial suppression of favorable evidence. The appellate court agreed that the defendant had been denied a fair trial by the government's suppression of evidence material to impeach its key witness and thus reversed and remand for a new trial. He designated three items of evidence relevant to impeach the Government's key witness, including the undisclosed fact that the witness was paid nearly $10,000 during the six months from until after trial. The court declared this “an egregious case of prosecutorial suppression of evidence that was both favorable and material to the defense.” Id. at $53. It reasoned that “the Government's paying a monthly subsidy to a witness is certainly a fact that should be disclosed to the trier of the facts since itis relevant to the witness's interest in testifying.” Id. It concluded that suppression warranted a new trial Alternatively, if this Court were disinclined from immediately ordering a mistrial, Defendant suggests that at a minimum, it postpone trial until the parties ~ and most importantly, the Court —can question Witness 1 to assess whether, as the Defense believes, he was paid by the ‘Commonwealth to provide damning for false evidence against Defendant Shelton so as to support the Commonwealth's procurement of Criminal Complaint A ffidavit/arrest warrant and subsequent evidence in this case. Witness 1 has indicated that he is willing to testify to the allegations made in his approximately 60 minute recorded statement. In addition, itis critical that the Court order the recusal of The Allegheny County District Attomey’s office as ADA Pellegrini likely to be a witness to any hearing about allegations of wrongdoing vis-a-vis Witness 1. As a potential witness to the misconduct as alleged herein, she cannot simultaneously continue to serve as a prosecutor. In addition, it appears that she has been involved in the patter of discovery violations and deals with informant/witnesses that have plagued this case. 10 As this Court has often repeated, “(a} fair trial is not simply a lofty goal, it is a constitutional mandate, ... [and] [wJhere that constitutional mandate is ignored by the Commonwealth, we cannot simply turn a blind eye and give the Commonwealth another opportunity.” Ch jel, 777 A.2d at 464 (quoting monwealth v. Martorano, 559 Pa. 533, 741 A.2d 1221, 1223 (1999)). Here, Defendant Shelton can not get a fair trial in this capital case if the prosecution is permitted to proceed in this trial, after arguably obtaining affidavit and/or arrest warrants based on false statements procured by the Commonwealth's payments to an informant, a deal that was never revealed to the Defense in violation of Brady rules and corresponding criminal procedural rules. The Commonwealth has violated Defendant's rights to due process and to a fair trial by making a financial deal with a government witness for false testimony, and by failing to disclose information about this witness so as to allow the Defense to adequately assess the propriety of the affidavit and/or arrest warrants in this case. The Commonwealth’s flagrant disregard for discovery rules, mandated under Constitutional law as well as state criminal rules of procedure, in this capital case, which misconduct very well might be just the tip of the iceberg, calls for a strong response. Because a capital murder trial is the ‘most serious prosecution a defendant can face with the most severe of punishments, the Court should require a heightened standard of reliability in assessing the Defendants’ culpability Based on the newest revelation the Commonwealth's behavior inthis case cannot withstand such a heightened scrutiny. Accordingly, Defendant respectfully requests this Honorable Court to grant a mistrial, order a hearing on the Brady violations and to onder recusal of The District Attomey’s Office. u Respectfully submitted, Landalll WheRinmeg Randall McKinney Pa, LD. No. 209003 Law Office of Randall McKinney Mitchell Building 304 Ross Street, Suite 300 Pittsburgh, PA 15219 (412) 520-3301 thm@randallmekinneylaw.com Attomeys for Defendant, Cheron Shelton 12 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION v. CC No.: 0008964-2016/0006562-2016 CHERON SHELTON, ‘THE HONORABLE EDWARD J. Defendant. BORKOWSKI ORDER OF COURT AND NOW, this day of. 2020, upon consideration of Second Motion For Extraordinary Relief and to Disqualify The Allegheny County District Attorney's Office, IT IS HEREBY ORDERED, ADJUDGED, and DECREED, BY THE COURT: CERTIFICATE OF COMPLIANCE 1, Randall McKinney, hereby certifies that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents. Dated: _ February 7, 2020 Submitted by: Defendant Signature: Aenclall WloKa Name: Randall McKinney Pa. Attorney Registration Number: 209003 Your caller !D: (412) 520-3301 lused to always call and deal with a detective grill from the county Police them text messages is from a detective from the county Police and no | did not talk to Lisa through text always through county Police or through face-to-face or through lawyer other amounts was 300. Was around 3 years ago | can tell you exactly because I got arrested a month later so it was a month before my arrest date | have pictures of me meeting up with them but it's in my other phone and McKeesport police took my phone it's in there evidence room | have text messages more from them regarding your case and money transactions in not phone but it's in McKeesport police evidence room but again they gave me $1,000 to come down here | was given another $300 when | was in the hotel for | was able to upgrade my room to a hotel suite | received around 1,700 around the first time when | was in the hotel and the detectives would give me $100 here and there when Wwe meet up for my pocket | signed for some of the money so they got documented but some of the money was not signed for \.also have text messages from the ATF Your caller ID: (412) 520-3301 AC35cif6d23d6478a4958caec36flae 926/Messages/ MMiede7d019492630e35ea6b31e19f d5d7/Media/ 198c0970896ecae4bf7a6a34c 382f8 V'll need the actual phone number for him in your phone? Not that I'm going to contact him, but to prepare for your testimony. No I sent he is a sergeant but he's a part of a task force of county detectives working with the feds Ok hold on Ok, is Ernst his actual last name and is he Allegheny County Police? (412) 495-6732 county detective number+1 304-218-9375 ATF Ross Yes that's his last name and he is. Allegheny county Police but he told me he works directly for the district attorney's office 2 Ay d Pray Deer] ek RE) Pas me an informant is @ beneficial for me how... and technically the first few control cells you label me an informant but | wasn't signed up understanding the gov- ernment take care of their informants not burn them after they get what they want 26 mins You do whatever you think Meirson loi ec vient dumb shit you pulled, | put you in a hotel and moved you out of town. And! was lucky to get that for you: @-s3-external-1.amazonaws.com @ CaCO I Ro) Ee Se USC) cold... Brenda also advise me to call Fred Rabner .. and this type of situation your agency was supposed to help me get established here in Texas rent furniture something.. so yet again I'm telling you | am almost homeless | need help!!! Thu 11:33AM vere re e-tol ea etait going to get into a debate CORNEUM NAL you think was said over text messages Te ! got to go officially no @ place.. so you and your office act like y'all can't help me okl!!!.. 6:42AM Allegheny County Clerk of Courts Received 2/7/2020 1:33 AM (CERTIFICATE OF SERVICE | hereby certify that a ue end coret copy of the within Defendant's Second Motion For Lxiroinry Relief endo Disquaiy The Alegheny Coury DisrtAtcorney’s Office fed on behal? of Defendare, Cheon Shion, was served tis “Play of Fstrua 2020, inthe manner inde ‘The Honorable Béward J. Borkowski 513 Allegheny County Courthouse 436 Grant Stet Ptsbucgh, PA 15219 Via Hand Delivery ADA Lisa Pellegrini Allegheny County District Attorney's Ofice 303 Allegheny County Courthouse 436 Grant Street, Pittsburgh, PA 15219 Ipelogrini@da.allegheny.pa.us Via Hand Delivery ADA Kevin Chernosky Allegheny County District Attorney's Ofce 303 Allegheny County Courthouse 136 Grant Steet Picsburgh, PA 15219 kchemosky@alleghenycounsyda.us Via Hand Delivery, Court Administrator —Thomas McCaffrey 535 Allegheny County Courthouse 1436 Grant Stet Pittsburgh, PA 15219 Via Hand Delivery CCheron Shelton DOC# 141788, Pod: 46 fo Allegheny County Jil 980 2nd Avenue Pittsburgh, PA 15219, Via US. Mail Randall Yio Randall MeKinney ‘Allegheny County Clerk of Courts Received 2/7/2020 1:33 AM (CERTIFICATE OF SERVICE U hereby ceify tht aru and comet copy of the wih Extraordinary Relief and to Disqualify The Allegheny County Deter Cheon Shen, as ee0 ht “PAR at Defendant's Second Motion For sri Attorney's Oiice Filed on behalf of uy, 2020, inthe manrer iced The Honorable Edward J. Borkowski S13 Allegheny County Courthouse 436 Grant Street Pitsburgh, PA 15219 Via Hand Octivery ADA Lisa Pellegrini Allegheny County Distet Atorey’s Office 1303 Allegheny County Courthouse 436 Grane Street Pisburgh, PA 15219 Ipellegrni@da.allegheny.pa.us Via Hand Delivery ADA Kevin Chernasky Allegheny County District Atzorey's Office 303 Allegheny County Courthouse 436 Grant Street Pinsburgh, PA 15219 kchernosky@alleghenycountyda. us Via Hand Delivery ‘Court Administrator—Thomas McCaffrey '535 Allegheny County Courthouse 436 Grant Steet Pittsburgh, PA 15219 Via Hand Detivery ‘Cheron Sheton DOCH 141788, Pod: 4E lo Allegheny County Jail, 950 2nd Avenue Pitsburgh, PA 15219 Via U.S, Mail Ranclall Wok ee 7 ial MeKinney