State v. Allen

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
v. ) ID No. 1510018545A
)
ANDREW ALLEN, )
)
Defendant. )

Submitted: November 12, 2024
Decided: February 7, 2025

Upon Defendant Andrew Allen’s Motion for Postconviction Relief
DENIED.

MEMORANDUM OPINION

Amanda D. Buckworth, Esquire, Deputy Attorney General, DEPARTMENT OF
JUSTICE, 820 North French Street, 7th Floor, Wilmington, DE 19801, Attorney for
the State of Delaware.

Herbert W. Mondros, Esquire, RIGRODSKY LAW, P.A., 300 Delaware Avenue,
Suite 210, Wilmington, DE 19801, Carl Schwartz, Esquire, WISEMAN &
SCHWARTZ, The Cast Iron Building, 718 Arch Street, Suite 701 N, Philadelphia,
PA 19106, Attorneys for Defendant Andrew Allen.

WHARTON, J.
I. INTRODUCTION

Defendant Andrew Allen (“Allen”) was convicted by a jury of Home Invasion,

Robbery First Degree, Assault Second Degree, Burglary Second Degree, four counts

of Possession of a Firearm During the Commission of a Felony, and Conspiracy

Second Degree.1 After an unsuccessful direct appeal, 2 Allen now moves for

postconviction relief under Superior Court Criminal Rule 61.3 Originally, his motion

raised five claims, three of which alleged ineffective assistance of counsel (“IAC”),

a fourth reprised his unsuccessful direct appeal Brady claim, and the fifth alleged

cumulative error.4 Of the IAC claims, one faults John S. Malik, Esquire (“Trial

Counsel”) for failing to call certain independent witnesses and the other two

repackaged his unsuccessful direct appeal jury instruction arguments as IAC claims.5

He asked the Court to grant him an evidentiary hearing on all contested issues of fact

1
Allen also was indicted for Possession of a Firearm by a Person Prohibited
(“PFBPP”). The PFBPP charge was severed into a “B” trial, and the parties and the
Court anticipated that the “B” case would be tried in front of the same jury
immediately after the “A” case. Trial in the “A” caser, took longer than anticipated,
however. Trying the “B” case before that jury would have required asking the jurors
to return for a sixth day - the day before Thanksgiving. Therefore, the Court excused
the jury with intention of trying the PFBPP charge before another jury. State v. Allen,
2019 WL 4740842 at n.1, (Del. Super. Ct. Sept. 24, 2019). On September 25, 2019,
the State entered a nolle prosequi on that charge.
2
Allen v. State, 2021 WL 3012892 (Del. 2021).
3
Mot. for Postconviction Relief, D.I. 87; This case was originally assigned to
another judge of this Court. On May 15, 2023, this case was reassigned to this judge.
4
Id.
5
Id.
1
and to vacate his convictions and sentences. After carefully considering the Motion,

the Court granted his request for an evidentiary hearing, but limited it’s scope to his

IAC claim that Trial Counsel should have called certain witnesses at trial and his

Brady claim. The Court denied all of his other postconviction claims. On July 25,

2024, the Court held an evidentiary hearing. In his post-hearing submission, Allen

withdrew his Brady claim, leaving only his IAC claim for consideration. 6 After

giving careful consideration to the parties’ arguments and the record, for the reasons

set forth below, Allen’s IAC claim is DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND

The facts and procedural history prior to Allen’s direct appeal are set out in

comprehensive detail in the Trial Judge’s post-trial Opinion denying Allen’s Motion

for Judgment of Acquittal. In light of the issues to be resolved in this Motion, it is

helpful to set them out again here.

Allen and his co-defendant, Jeremy Clark, were indicted
on January 4, 2016 on charges of Home Invasion, Robbery
First Degree, Assault Second Degree, Burglary Second
Degree, four counts of Possession of a Firearm During the
Commission of a Felony, and Conspiracy Second Degree.
The charges stemmed from an incident that took place on
July 15, 2015 at a home in Wilmington, Delaware. Clark
and Allen were not tried at the same time because Allen
was not arrested until after Clark's trial. In September
2016, a jury found Clark not guilty of all the indicted
charges. On November 20, 2018, after a five-day trial, a

6
Def.’s Post-Hrg. Mem., at 1, D.I. 113.
2
jury convicted Allen of all the charges against him. Allen
filed a timely motion for judgement of acquittal.

At trial, the State presented evidence that Clark and Allen
forced their way into a residence on July 15, 2015 and
committed various crimes in the residence before fleeing.
Troy Williams testified for the State that he was at home
alone on July 15, 2015 at approximately 1:00 p.m. when
he heard a knock on his front door. From the window,
Williams saw a man at the front door holding a pizza box
and wearing a Yankees baseball cap. Williams also saw a
white Chevrolet sedan with a New York license plate
parked in his driveway. Believing the person at the door
was a delivery man who came to the wrong address,
Williams opened the door. The individual outside then
displayed a firearm and attempted to force his way into the
home. Williams resisted, but had trouble maintaining his
footing because pizza had spilled onto the floor during the
struggle. The individual outside ultimately gained entry
with the assistance of a second man.

Williams testified the two assailants forced him to the floor
at gunpoint and duct taped his legs together and his hands
behind his back. One of the assailants then guarded
Williams at gunpoint while the other searched the home.
When Williams attempted to move, the guard struck
Williams in his head and ear with the firearm. The two
assailants searched the home and repeatedly demanded
Williams tell them where his drugs and money were
hidden. During the search, Williams overheard portions of
a phone conversation between the assailants and a third
individual, who Williams perceived was giving the two
assailants instructions. The two assailants also threatened
to wait until Williams' wife returned home from work,
insinuating that Williams would reveal the location of his
drugs and money once his wife's safety was in jeopardy.

The threats about his wife prompted Williams to attempt
to fight back. After persuading his guard to move him from
the floor to a chair, Williams broke free of the duct tape
3
that was binding him and grabbed a gun that one of the
men had left lying on the desk. The gun, however, would
not fire, and Williams continued to struggle with the two
assailants before breaking free and running upstairs.
Williams then retrieved a revolver hidden in his bedroom,
started running back downstairs, and began firing at the
two assailants, who were running out of the house. One of
Williams' shots embedded in the floor of the entryway.

Williams believed it was possible another of the shots hit
one of the assailants. He observed the two assailants flee
to the white Chevrolet that he previously saw in his
driveway, at which point the car quickly drove away. After
the men fled, Williams first called his wife at work and
told her to come home immediately. Williams then called
his close friend. Approximately 10-15 minutes after the
two assailants left, Williams called the police. After police
and an ambulance arrived, Williams received medical
attention for the injuries caused when he was struck with
the gun and during his struggle to get away from the two
assailants.

The defense cross-examined Williams to cast doubt on his
credibility. Williams acknowledged he previously was
convicted of a felony drug-related offense and lost his job
as a Chester City firefighter as a result. Williams again
admitted during cross-examination that he was not
forthcoming with police about the fact that he fired a gun
at the fleeing assailants, explaining he was hesitant to be
truthful because he knew he was not supposed to possess
a firearm as a result of his past felony conviction. Williams
testified it was not until approximately six weeks after the
incident that he told police he fired at, and likely hit, one
of the assailants. The defense also questioned Williams
regarding his finances, specifically his wherewithal to
maintain his lifestyle exclusively on income from his
rental properties and his wife's job. Williams' testimony
revealed that he paid off the mortgage on his home in five
years and he owned various other rental properties that he
managed. Williams and his wife also owned four vehicles
4
and had a pool installed at their home. The defense
suggested to the jury that the only possible explanation
was that Williams was dealing drugs to supplement his
legal sources of income.

Although Allen's pending motion focuses exclusively on
Williams' credibility, Williams' testimony was not the
State's only evidence. The jury also heard evidence during
the State's case regarding the Delaware State Police
investigation. Detective Timothy Harach of the Delaware
State Police processed the crime scene, including taking
pictures and collecting evidence. Detective Harach found
duct tape pieces on Williams' legs and wrist, in the office,
and in Williams' upstairs bedroom. The detective also
found several pizza slices on the hall floor along with a
[torn] pizza box. Police located a roll of duct tape and two
firearm magazines in the office and a bullet in the
entryway floor near the front door. In the laundry room,
police also found a cell phone belonging to Jeremy Clark.
Detective Harach processed the duct tape roll and the pizza
box for fingerprints and found possible useable prints on
both items. The detective then sent those items to the State
Bureau of Identification for further processing and
investigation.

Anthony DiNardo, a fingerprint examiner, testified that he
matched Clark's fingerprint to the fingerprint recovered
from a piece of duct tape and matched Allen's fingerprint
to the fingerprint on the pizza box. DiNardo testified he
was 100 percent certain about both matches.

The jury also heard evidence regarding cell tower records
for Allen's phone and a forensic examination of the
cellphone found at the scene. The cell tower records
showed that Allen's phone hit off a tower in Philadelphia
in the morning of July 15, 2015, and between 10:46 a.m.
and 2:49 p.m. Allen's phone repeatedly hit off a cell tower
near Williams' residence. At 2:57 p.m., the phone hit off a
tower north of the tower near Williams' residence,
5
indicating the phone was moving in a northerly direction.
At 3:33 p.m. and 3:58 p.m., Allen's phone hit off cell
towers in the Philadelphia area.

Police also analyzed the phone left in Williams' home and
discovered it belonged to Clark. After forensically
examining the phone, investigators found text messages
and phone calls between Clark and Allen, along with
communications between Clark and two other individuals,
“Sadiqq” and “Gees 2.” There were numerous
communications between Clark and those three
individuals on the day of incident, including a message
Clark sent to Gees 2 that stated, “Tape and rope.”

At the close of the State's evidence, Allen made an oral
motion for judgment of acquittal, arguing the State failed
to present a prima facie case that Allen committed any of
the charged crimes as opposed to merely being present at
the scene. The Court denied that motion, finding the State
presented sufficient evidence for a rational jury to
conclude beyond a reasonable doubt that Allen committed
the charged crimes either as a principal or as an
accomplice.

The defense's theory of the case, offered largely through
Jeremy Clark's testimony, was that the July 15, 2015
incident at Williams' home was a drug deal gone awry.
Clark testified that Williams was Clark's cocaine supplier
and that on July 15, 2015, Clark purchased a large quantity
of cocaine from Williams for approximately $10,000.
Clark explained that he brought Allen along with him for
the purchase in order to introduce Allen to Williams. Clark
testified that he and Allen went to Williams' home that
morning, purchased the cocaine, waited for Williams to
count the money, and then Clark and Allen drove back to
Pennsylvania to give the cocaine to Clark's uncle, Sadiqq,
who “cooked” the cocaine to make crack cocaine for street
sales.

6
Clark further testified that while he was at Sadiqq's house,
Williams called Clark and demanded he return to
Williams' home immediately because there was a
“discrepancy.” Clark stated he returned to Delaware with
Allen and a second friend nicknamed “Gees.” While Gees
and Allen waited in the car, Clark entered Williams' home,
where Williams accused Clark of using counterfeit money
to purchase the cocaine that morning. Williams demanded
that Clark pay $5,000 cash immediately. Clark testified
Williams became enraged and threatened Clark with a
gun, at which point Clark called his uncle and allowed
Williams to speak with him. Williams purportedly did not
return Clark's phone and instead began restraining Clark
with duct tape. The two men struggled during this
encounter, and Clark testified he struck Williams' head
with the scale that Williams previously used to weigh the
cocaine. Clark ultimately freed himself from the duct tape
and ran out of Williams' residence as Williams was firing
a gun at him.

Clark was shot one time in his shoulder but fled to the car
where Allen and Gees were waiting. Allen and Gees drove
Clark to Temple University Hospital in Philadelphia,
where he was treated and released. While at the hospital,
Clark was questioned by Philadelphia police regarding the
origins of the gunshot wound. Clark lied and said he was
shot by an unknown assailant while walking through
Philadelphia.

To explain the State's fingerprint evidence, Clark testified
there was a pizza box on Williams' desk that Allen picked
up and moved to give Williams room to count the money
during the initial drug purchase. As to the “tape and rope”
text message Clark sent on the morning of July 15, 2015,
Clark explained that Williams called Clark that morning
and asked him to bring duct tape and rope with him to the
house. Clark said he tried to make a shopping list on his
phone, but accidently created a text message to Gees
instead.

7
The State cross-examined Clark about his past felony
convictions. Clark also admitted on cross-examination
that after the July 15, 2015 incident, he sent his then-
girlfriend to pay Williams money. Clark denied he was
trying to bribe Williams and testified he simply was trying
to repay Williams the money that Williams believed he
was owed. Clark also acknowledged that he saw all the
police reports and evidence in the case before testifying.

In its rebuttal case, the State offered a videotaped
statement that Allen gave the State police on July 25, 2017.
Through that statement, the State pointed out several
inconsistencies between Clark's and Allen's versions of the
events of July 15, 2015. The inconsistencies included that:
(1) Allen stated he met Clark through an individual named
Mike, while Clark denied knowing anyone named Mike;
(2) Allen told police he and Clark stopped for pizza and
cheesesteaks before going to Williams' house on the
morning of July 15, 2015, but Clark denied ever doing so;
(3) Allen denied ever entering Williams' home, but Clark
insisted Allen was in the home that morning and picked up
a pizza box from the desk; (4) Allen said only he and Clark
drove to Williams' home, but Clark testified Gees was with
them; (5) Allen said he and Clark only went to Williams'
home once, but Clark said they visited on two separate
occasions that day; (6) Allen denied knowing Clark was
involved with any drugs other than marijuana, but Clark
testified Allen was present when Clark purchased cocaine
from Williams and when Clark later gave the cocaine to
Sadiqq to “cook.”7

Allen’s direct appeal to the Delaware Supreme Court was unsuccessful. 8 This

postconviction relief motion followed.9 On April 15, 2024, this Court issued a

7
State v. Allen, 2019 WL 47480842, at *1-4 (Del. Super. Ct. Sept. 24, 2019).
8
Allen v. State, 2021 WL 3012892 (Del.)
9
Mot. for Postconviction Relief, D.I. 87.
8
Memorandum Opinion resolving most, but not all of Allen’s postconviction claims.10

In that decision, the Court granted Allen’s request for an evidentiary hearing, but

only on two issues: (1) Trial Counsel’s failure to call certain witnesses; and (2)

Allen’s Brady claim. In all other respects, it denied the Motion. 11

On July 25, 2024, the Court held an evidentiary hearing on the two remaining

issues. At that hearing, the Court heard testimony from five witnesses and received

10 exhibits into evidence. Allen presented the testimony of four witnesses – Allen’s

Trial Counsel, independent witnesses Alexander Manoogian (“Manoogian”) and

Lyndee Yorek, (“Yorek”), formerly Baldwin, and the complaining witness, Troy

Williams. The State called former State Police Detective Steven Rizzo (“Det.

Rizzo”). All but Det. Rizzo testified regarding Allen’s IAC claim. Det. Rizzo’s

testimony addressed the Brady claim as did a portion of Williams’ testimony. The

exhibits, all introduced by the defense, consisted of excerpts from police reports and

trial transcripts, 911 calls, photographs, and videos. The relevant evidence will be

discussed in detail in the context of the particular claims.

After the hearing and the preparation of the transcript, the parties submitted

memoranda in support of their positions. Briefing was completed on November 12,

2024.

10
State v. Allen, 2024 WL 1654514 (Del. Super. Ct. Apr. 15, 2024)
11
Id.
9
III. THE PARTIES’ CONTENTIONS

In his remaining IAC claim, Allen contends that “Trial Counsel was

ineffective under the Sixth Amendment and Article I, Section 7 of the Delaware

Constitution for failing to introduce evidence, provided in discovery and introduced

at co-defendant Jeremy Clark’s (“Clark”) earlier trial, that “powerfully

corroborated” the defense theory that Clark was the only person inside Williams’

home on the afternoon of July 15, 2015.”12 Allen concedes that he was in Williams’

house earlier in the day and returned later when the relevant incident occurred, but

did not enter Williams’ house. Instead, he remained outside in a vehicle with another

individual and did not participate in any crimes in Williams’ house. Allen contends

that Trial Counsel was ineffective in failing to introduce evidence from Manoogian

and Yorek, two witnesses who called 911. Both Manoogian and Yorek only saw one

person who appeared injured, on Foulk Road, in contrast with Williams who claimed

he saw two people fleeing across his front yard, cross Foulk Road and enter a car in

a medical office complex. He argues that: (1) Trial Counsel’s performance was

deficient because it was inexplicable and indefensible for him to have relied

exclusively on Clark’s testimony alone when the witnesses would have effectively

corroborated Allen’s account of the events; 13 and (2) Allen has been prejudiced

12
Mot. for Postconviction Relief, at 20, D.I. 87.
13
Id. at 30-31.
10
because the witnesses’ testimony “would have revealed the defense theory as the

most plausible account; and ultimately as the truthful account.” 14 As noted, Allen

has withdrawn his Brady claim.15

In its post-hearing letter memorandum responding to Allen’s post-hearing

memorandum, the State asks the Court to consider all of its prior submissions.16

Prior to the hearing, and before the Court’s April 15, 2024 decision, the State took

the position that Allen had failed to demonstrate Trial Counsel was deficient because:

(1) “Trial counsel’s decision to refrain from introducing the 911 calls and Williams’

statement during his August 2015 interview falls within the wide range of

professional assistance[;]”17 and (2) “Trial counsel’s decision is entitled to a strong

degree of deference and the decision to do so was not unreasonable.” 18 Additionally,

the State argued that even if Trial Counsel had presented testimony from the two 911

callers, Allen cannot show that the trial outcome would have been different.19

14
Id. at 32. (emphasis in original.)
15
Def.’s Post-Hrg Mem., at 1, D.I. 113.
16
State’s Post-Hrg. Mem., at 1, D.I. 115.
17
State’s Amend. Resp, at 24, D.I. 99.
18
Id.
19
Id. at 26.
11
In his reply to the State’s post-hearing letter memorandum, Allen argues that

the evidence against him was not overwhelming.20 He also takes issue with the

State’s understanding of prejudice under Strickland v. Washington. 21

IV. STANDARD OF REVIEW

To successfully bring an IAC claim, a claimant must demonstrate: (1) that

counsel’s performance was deficient; and (2) that the deficiencies prejudiced the

claimant by depriving him or her of a fair trial with reliable results.22 To prove

counsel’s deficiency, a defendant must show that counsel’s representation fell below

an objective standard of reasonableness.23 Moreover, a defendant must make

concrete allegations of actual prejudice and substantiate them or risk summary

dismissal. 24 “[A] court must indulge in a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” 25 A successful

Sixth Amendment claim of IAC requires a showing “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” 26 An inmate must satisfy the proof requirements of both

20
Def.’s Post-Hrg. Reply Mem, at 1-5, D.I. 115.
21
Id. at 5-8.
22
Strickland v. Washington, 466 U.S. at 688 (1984).
23
Id. at 667-68.
24
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
25
Strickland, 446 U.S. at 689.
26
Id. at 694.
12
prongs to succeed on an IAC claim. Failure to do so on either prong will doom the

claim and the Court need not address the other.27

V. DISCUSSION

The Court first considers whether Trial Counsel’s performance was deficient

under Strickland. Neither Trial Counsel’s affidavit, nor his hearing testimony

support an argument that his performance fell within the “wide range of reasonable

professional assistance.” As the Court found in its April 15, 2024 Memorandum

Opinion:

Trial Counsel’s affidavit appears to understand Allen’s
argument to be that “trial counsel should have argued that
Allen never entered Williams’ house.” 28 But, that is not
Allen’s argument. Allen’s argument is “that trial counsel
failed to utilize readily available evidence supporting his
own theory, that Allen never entered the house that
afternoon when the alleged crime occurred.”29 In other
words, Allen’s claim acknowledges that he entered the
house on an earlier visit, but not at a second, later time
when the alleged crime occurred. He contends that the
missing testimony of both Manoogian and Baldwin that
they only saw one individual fleeing and getting into a car
would have corroborated his version and contradicted
Williams’ testimony.30

27
Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013)
(“Strickland is a two-pronged test, and there is no need to examine whether an
attorney performed deficiently if the deficiency did not prejudice the defendant.”).
28
Allen’s Reply to State’s Am. Resp., at 3, D.I. 100.
29
Id.
30
State v. Allen, 2024 WL 1654514, at *16 (Del. Super. Ct. Apr. 15, 2024).
13
Trial Counsel’s hearing testimony was similarly unhelpful, characterized by a

notable lack of recollection, and occasional confusion concerning the identities of

key trial participants. Ultimately, the Court was left with this exchange:

THE COURT: …Do you agree with that, that if –that the
testimony of Williams and Manoogian Baldwin and
Manoogian that they only saw one person would have
contradicted Williams’ testimony?

THE WITNESS: Yes.

THE COURT: Why didn’t you call either one?

THE WITNESS: I don’t recall, Your Honor. I have no
recollection.31

Absent any explanation from Trial Counsel for his failure to call independent

witnesses whom he admitted would contradict Williams’ testimony, the Court cannot

conclude that he acted within “the wide range of reasonable professional assistance.”

The Court must conclude that Trial Counsel’s performance “fell below an objective

standard of reasonableness.”

The Court’s focus now turns to whether Trial Counsel’s deficient performance

prejudiced Allen by depriving him of a fair trial with reliable results.32 In other

words, the Court must determine whether Allen has made a showing “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

31
Hrg. Tr. (July 25, 2024) at 57:2–9.
32
Strickland v. Washington, 466 U.S. at 688.
14
proceeding would have been different.”33 “A reasonable probability means a

probability sufficient to undermine confidence in the outcome, a standard lower than

more likely than not. The likelihood of a different result must be substantial not just

conceivable.”34

The potentially exculpatory evidence comes from the statements and

testimony of Manoogian and Yorek. Both were 911-callers who witnessed Clark on

Foulk Road on the day of the home invasion.

First, the Court reviews Williams’ testimony. During Clark’s trial, 35 Williams

testified as to his account of Allen and Clark fleeing his home:

A. I hear my front door open and I think - - when the front
door open [sic] I think that they're about to let the third - -
they're yelling for the third guy to come help us because
this guy got out of control and he's fighting us, we need
more help.

So when I hear my front door open, I immediately
turn - - I come up, I turn my - - come around the corner
and I'm looking down my stairwell. And when I look down
my stairwell, I see somebody pop out of my office and I
just left [sic] off, boom, boom, boom. I shoot three times
and they run out the door.

I run down the steps behind them and I run out the
door behind them. And when I run out the door, they’re
running across my front lawn which leads to Foulk Road.
And they cross Foulk Road. And by this time, there's the

33
Id. at 694.
34
Swan v. State, 284 A.3d 839, 859 (Del. 2021) (citing Green v. State, 238 A.3d
160, 174 (Del. 2020)) (quoting Starling v. State, 130 A.3d 316, 325 (Del. 2015)).
35
State v. Jeremy Clark, 150900095.
15
same white car that was parked in my driveway when they
dropped them off is across the street in a medical complex.
He’s backing out of the parking spot and he's coming down
the hill to Foulk Road.

They run across Foulk Road, they get in that car and
they turn and make a left - - well, they make a right on
their right and they go down toward Silverside Road. 36
…

Q. And from the time that you started firing to the time that
- - did they - - were they - - did they wait in the house, did
they leave immediately, did they leave a little later? Do
you know how long it was after you fired that they left the
house?

A. Oh, they were running out of the house after I started -
- after I was firing.

Q. So the vehicle - - you said that you saw both of them
run to a vehicle?

A. Yes.37
…

Q. Were you able to tell while you were watching them
which - - where the two ended up entering the car? Did
you see them actually enter the car?

A. I did but, no, I didn't make note of which one got in
which space.

Q. But you saw them both enter?

A. They both got in that car and drove off, yes.

36
Clark’s Trial Tr. (Sept. 21, 2016) at 81:18-82:22, D.I. 106.
36
Id. at 94:11-21.
16
Q. And I know you testified, but where did you see them
drive off to?

A. They came - - they came out of the medical center,
which is - - which basically is - - it's not directly across the
street from my house, but it's - - he's next door to the guy
across the street from my house, so it's over this side.

They came down there, down out of the driveway
of [sic] there and they made - - which would have been
their right to my left - - and they went toward Silverside
Road. I didn't see where they went after, I just know they
went toward Silverside Road.38

During Allen’s trial, Williams again testified as to his account of Allen and

Clark fleeing his home:

MS. DILIBERTO: … So you went up to the bedroom, you
grabbed that gun, it was still there and you said you were
standing at the top of your stairwell?

WILLIAMS: I was standing in the doorway of my
bedroom, which - - standing in the doorway of my
bedroom, it’s a wall there but on the other side of that wall
is a stairwell that comes down the steps back downstairs.
So I’m standing there with the gun holding it, waiting for
somebody to come upstairs.

Instead, I hear my front door open and I don’t know
if they are either leaving, coming, I don’t know if they
went and got the other guy who brought the phone to the
door, his backup to come get me, so I immediately spinned
around - - and I’m standing at the top of the steps now.
And when I’m standing at the top of the steps, I see the
guy with the white Jordans come out of my office and he’s
standing at the front door. And the guy with the Yankee’s

38
Id. at 95:15-96:14.
17
cap is standing outside on the steps saying: Come on.
Come on. Come on.

As I come down the steps, I come down the steps
and I shoot three times: Boom, boom, boom. I don’t know
if I hit him at the time or not, but I shot three times going
down the steps. They both - - he ran out of the door and
both of them ran across my lawn towards the - - it’s an
office complex, doctors office across the street with a
parking lot. And they were running across my yard and
then across Foulk Road up the hill to the doctor’s office
where I assumed there was a car parked.

So now I come down from the steps behind them
and come out the front door. And I’m standing on the steps
yelling, just yelling obscenities or whatever emotion that I
was yelling at the time about them: Come back. Come
back. Come back. I got you now. Whatever anger I was
yelling when they were running across the street.

And then I see the same white Chevrolet with the
New York plates on it, it’s pulling out of the doctor’s office
and then they both jump in that car and they pull off and
they go south on Foulk Road.

MS. DILIBERTO: So the car you saw - - after you fired
your gun and they ran outside, do you go outside and
follow them out to see where they are going?39

WILLIAMS: Yeah, I’m out on the step. I don’t think I went
any further than my step., [sic] my stoop outside of my
door, but - -

MS. DILIBERTO: Okay?

WILLIAMS: But I was [sic] definitely ran out after them.

39
Allen’s Trial Tr. (Nov. 15, 2018) at 43-44, D.I. 69.
18
MS. DILIBERTO: Okay. And you said you see them kind
of run across Foulk Road?

WILLIAMS: Yeah, I saw them run diagonally across
Foulk Road. Directly across me on Foulk Road is another
house, but to the left of that house is a - - you go up a hill,
it’s on a raised hill and it’s a little office complex right
there.

MS. DILIBERTO: Did it appear to you that someone else
was driving - -

WILLIAMS: Oh somebody was definitely driving. The
car was moving.

MS. DILIBERTO: So this car you saw, was this, did this
appear to be the same car you saw initially in your
driveway?

WILLIAMS: I believe that it was the same car that I saw
initially in my driveway.

MS. DILIBERTO: Okay. Was the car moving?

WILLIAMS: The car was moving. 40

MS. DILIBERTO: Okay. And where was it moving
toward?

WILLIAMS: It pulled out of that doctors office and it
made - - that would have been making a right on Foulk
Road and it went south on Foulk Road. 41

At the evidentiary hearing, Williams testified on cross-examination by the

State:

40
Id. at 45.
41
Id. at 46.
19
Q. Okay. So when you shot the three shots, is it fair to say
one of the suspects was still inside your residence?

A. One was still in my front yard looking into my front
door.

Q. Okay. And is it fair to say that the suspects did not exit
your residence at the same time?

A. Technically, no. One was outside already and one was
still in the house looking for something in the office. 42

On recross-examination, Williams testified:

Q. Once you got down your steps –

A. What do I see? I see the same white Chevrolet with I
see them getting in that Chevrolet, which whether I
actually physically saw the second guy get in the
Chevrolet is irrelevant because they were both in my house
and hey both left in that Chevrolet.

They came in that Chevrolet and they left in that
Chevrolet, so why wouldn’t I think that they ran across the
street and got in the Chevrolet? He didn’t teleport there.
He had to run across the street and get in that Chevrolet
with them and then those three guys left in that Chevrolet.

Q. Can you recall whether you saw them get in the
Chevrolet at the exact same time?

A. No. 43

In response to the Court’s questions, Williams testified:

THE COURT: You testified at trial that after the second
person left your house, the one you shot at –

42
Hrg. Tr. (July 25, 2024) at 103:9-19.
43
Id. at 111:1-16.
20
THE WITNESS: Right.

THE COURT: -- you went down and I guess right outside
your front door you saw them running across your yard,
across Foulk Road and getting into a car.

THE WITNESS: Yes.

THE COURT: How close together were they?

THE WITNESS: I can’t remember. Nine years ago. I
can’t remember.44

Manoogian was one of the two witnesses who called 911. In his call,

Manoogian stated that he saw a man who “had blood all over his white T-shirt and

what looked like a hole in his back.”45 Manoogian added that the man ran across

Foulk Road.46 In a later interview, Manoogian indicated that he was driving north

on Foulk Road and that the man was jogging south on the sidewalk to his left.47

Manoogian emphasized that the man was alone.48

Manoogian testified at the hearing, but not at either Clark’s trial or Allen’s

trial. At the hearing, Manoogian testified in response questioning by counsel for

Allen that he was driving north on Foulk Road when he saw someone on the

44
Id. at 111:21-112:9.
45
Mot. for Postconviction Relief Appendix at A46, D.I. 88.
46
See id.
47
Id. at A48. Manoogian also stated that he appeared at Court and was excused
upon his request. Manoogian was not sure which defendant was on trial during his
appearance.
48
Id.
21
southbound sidewalk “kind of jogging that had I believe a white shirt with a lot of

blood on it at the time” who appeared to be by himself. 49 He saw him jogging for

about three or four seconds, but did not see where he went. 50 On cross-examination

by the State, Manoogian acknowledged that it was possible that there were other

pedestrians he did not see, and that he did not see the person get into a vehicle.51

Under questioning by the Court Manoogian said that what drew his attention from

the road and oncoming traffic was the person jogging on the opposite side of Foulk

Road, but did not remember if he saw anyone as close as 10 or 20 feet in front of

that person. 52

Yorek was the other witness who called 911. Yorek told the 911 operator that

while she was driving on Foulk Road she saw a man enter the backseat of a vehicle.53

She also said that the man entered the vehicle in the middle of the road and that he

had blood on his shirt. 54 At Clark’s trial, Yorek testified as a witness for the State.55

She testified that she viewed the man as she drove down a “little hill” on Foulk Road

next to an office complex.56 She stated that there were two other men in the vehicle;

49
Hrg. Tr. (July 25, 2024), at 63:8-20.
50
Id. at 63:21-64:2.
51
Id. at 65:14-20.
52
Id. at 68:10-69:16.
53
Id. at A45.
54
Id.
55
Clark’s Trial Tr. (Sept. 21, 2016) at 3, D.I. 106.
56
See id. at 4-5, 8-9.
22
one man was in the driver’s seat and one man was in the passenger seat.57 Yorek

described the passenger seat as “leaned all the way back.”58 In a later interview with

Allen’s private investigator, she specified that the man with the bloody T-shirt

entered the backseat of the vehicle on the driver’s side.59

At the hearing, on direct-examination by Allen’s counsel, Yorek testified that

she was driving southbound on Foulk Road coming to a stop at the intersection with

Silverside Road when she observed a person coming from her right with a bloody

shirt cross in front of her and get into the rear driver’s side seat of a vehicle in the

turn lane to turn left onto Silverside Road.60 Two other people were already in the

vehicle – the driver and a person in the front passenger seat.61 When she first saw

the person who got in the rear seat, he was alone.62 On cross-examination, Yorek

recalled that the person initially “was going to get behind the passenger, but the

passenger seat was leaned so far back that I don’t know if he can fit”, but was not

entirely sure of that recollection.63 On redirect-examination she felt that “maybe he

did go to that side of the door first and it might have been locked or something took

place because the person in the passenger seat was leaned back, so he was leaning

57
Id. at 9.
58
Id. at 20-21
59
Mot. for Postconviction Relief Appendix at A47, D.I. 88.
60
Hrg. Tr. (July 25, 2024), at 72:10-73:8.
61
Id.
62
Id. at 74:11-13.
63
Id. at 77:13-19.
23
and then he went like that and then I think walked around and then sat behind the

driver.”64

Obviously, the Court’s task in determining whether Allen received a fair trial

with reliable results and whether, but for Trial Counsel’s errors, there is a reasonable

probability that the outcome of his trial would have been different goes beyond

simply comparing the witnesses in Clark’s trial and in Allen’s trial and attributing

the difference outcomes to the difference in witnesses. The defense attorneys were

different, the lead prosecutors were different, and most importantly, the juries were

different. Instead, the Court does three things. First, to the extent it is able, it

assesses the degree to which Yorek’s testimony contributed to the outcome in Clark’s

trial. Next, it looks at the probative value of the proposed testimony of Manoogian

and Yorek. Finally, it balances the weight of their testimony against the strength of

the State’s case.

Allen’s counsel has provided the Court with transcriptions of most, but not all,

of Clark’s trial proceedings. 65 The Court has before it four days of witness

testimony, September 20 through September 23, 2016, but it does not have

transcripts of jury selection, opening statements, closing arguments, or jury

instructions. 66 The Court assumes those latter proceedings were not transcribed

64
Id. at 81:3-8.
65
See, D.I. 106.
66
Id.
24
because Clark was acquitted and only transcripts of witness testimony would be of

any value for Allen’s trial. 67 Therefore, the Court looks to Yorek’s cross-examination

by Clark’s counsel to divine what significance he attributed to her testimony.

On direct examination, Yorek’s testimony was substantively the same as her

911 call and her testimony at the evidentiary hearing.68 Cross-examination was

unremarkable, comprising slightly more than 11 pages of transcript.69 What is

noteworthy for purposes of this Motion, however, is that in his questioning, Clark’s

attorney placed absolutely no emphasis on the fact that Yorek testified that there

were already two people in the vehicle when she saw the injured person enter it as it

prepared to turn left onto silverside Road. In other words, he made to attempt to

contradict Williams’ testimony with Yorek’s testimony. The Court cannot afford her

testimony the significance Allen ascribes to it. There simply is no support in the

Clark trial record that Yorek’s testimony played any role in Clark’s acquittal.70

Next, the Court assesses the probative value of the testimony of Manoogian

and Yorek. Manoogian and the injured person he saw jogging were travelling in

67
The transcripts of Clark’s trial were not filed until November 19, 2018, well after
his trial in 2016, but during Allen’s trial. State v. Clark, I.D. No. 150900095, D.I.
47.
68
Clark Tr. (Sept. 21, 2016), at 3:17-15:15, D.I. 106.
69
Id. at 16:3-27:15.
70
For purposes of this Motion, the Court need not attempt to explain the basis for
Clark’s acquittal. But a fair reading of his trial transcript appears to show that his
attorney aggressively cross-examined Williams on his version of events.
25
opposite directions on Foulk Road on opposite sides of the street. He did not see

whether there was anyone else jogging 10 to 20 feet ahead of that person, nor did he

see any vehicle that the injured person entered. Clearly, his testimony leaves open

the possibility that another person outside of his limited range of vision was ahead

of the injured person. Manoogian only saw a relatively small snippet of a larger

incident. The impeachment value of his testimony is affected by his limited

perspective. The Court finds the probative value of Manoogian’s testimony only

marginally impeaches Williams’ testimony, and assigns it little probative value.

The Court views Yorek’s testimony at the evidentiary hearing as what Allen

contends Trial Counsel should have presented at his trial rather that her relatively

innocuous testimony at Clark’s trial. While it more directly contradicts Williams’

testimony it is not without its potential downside for Allen. Yorek testified that the

person who was in the front passenger seat, presumably Allen, had “his seat [was]

leaned extremely far back, so – I mean, you could just see, like his head and shoulder

so he was just, you know, hunkered down like this and I thought, you know, this just

doesn’t look right…”71 The obvious inference to be drawn is that Allen was trying

to conceal himself from view due to a consciousness of guilt. For that reason, the

Court assigns Yorek’s testimony some, but limited probative value.

71
Clark Tr. (Sept. 21, 2016), at 11:20-12:3 D.I. 106.
26
In weighing the State’s trial evidence against the proffered testimony of

Manoogian and Yorek, the Court finds that Trial Counsel’s deficient performance

did not deprive Allen of a fair trial with reliable results. The Court determines that

there is not a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. In reaching this conclusion, the

Court relies not only on Williams trial testimony, but also on other evidence

corroborating that testimony. That other evidence includes: (1) duct tape found on

Williams’ wrist and leg, and in his office and upstairs bedroom; (2) slices of pizza

and a torn pizza box found in the downstairs hallway; (3) a roll of duct tape and two

firearm magazines found in Williams’ office; (4) Clark’s fingerprint on a piece of

duct tape and Allen’s fingerprint on the pizza box; (5) Allen’s cell phone repeatedly

pinging off a cell phone tower near Williams’ residence between 10:46 a.m. and 2:49

p.m.; and (6) messages on Clark’s cell phone, including one sent to Gees 2, “Tape

and rope.”

Additionally, Allen’s statement to police is inconsistent in several important

respects with his defense at trial presented through Clark. In that regard, attacking

Williams’ credibility through the testimony of Manoogian and Yorek is akin to

judging the mote in Williams’ eye while ignoring the beam in his own. Specifically,

Allen said he stopped for pizza and cheesesteaks before going to Williams’ house,

but Clark denied ever doing so. Allen denied ever entering Williams house at all,

27
while Clark testified Allen went in the house the first time they were there.

Importantly, this denial leaves Allen’s fingerprint on the pizza box unexplained by

him. Allen told police that only he and Clark went to Williams home. Clark testified

that Gees was with them too. Contradicting Allen, Yorek testified that there were

three people in the car she saw, further weakening the beneficial impact of her

proposed testimony. Allen told the police that he and Clark only went to Williams’

house once that day, while Clark testified they went twice. Allen’s cell phone

pinging off a cell tower near Williams’ house for four hours undermines Allen’s

version. In sum, the Court finds there are major inconsistencies and discrepancies

between Allen’s statement to the police and his own theory of defense. Those

inconsistencies and discrepancies significantly outweigh any flaws in Williams’

description of his assailants’ flight.

Finally, although neither party argued the issue, either on postconviction relief

or at trial, the jury was instructed on accomplice liability.72 In her Opinion on Allen’s

Motion for Judgement of Acquittal, the Trial Judge noted that during trial, she denied

Allen’s earlier Motion for Judgment of Acquittal at the close of the State’ case,

finding, “the State presented sufficient evidence for a rational jury to conclude

beyond a reasonable doubt that Allen committed the charged crimes ether as a

72
D.I. 60.
28
principal or as an accomplice.”73 The Court finds that even if the jury disregarded

Williams’ testimony about how many people entered his house, there was sufficient

evidence for the jury to find him guilty as an accomplice and for that result to be

reliable. Accordingly the Motion is DENIED.

VI. CONCLUSION

For the foregoing reasons, Allen’s Motion for Postconviction Relief is

DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton
Ferris W. Wharton, J.

73
State v. Allen, 2019 WL 4740842, at *4 (Del. Super. Ct. Sept 24, 2019).
29