Commonwealth v. Fleming, J-S25017-16

• Court: Pennsylvania Superior Court
• Writing for the Court: MEMORANDUM BY MUNDY, J.
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. DEMETRIOUS DARRON FLEMING Appellant
• Decision Date: 20 May 2016
• Docket Number: J-S25017-16,No. 925 WDA 2015

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DEMETRIOUS DARRON FLEMING Appellant

J-S25017-16
No. 925 WDA 2015

SUPERIOR COURT OF PENNSYLVANIA

MAY 20, 2016

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order May 11, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001179-2003 CP-02-CR-0006863-2002 CP-02-CR-0009253-2003

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:

Appellant, Demetrious Darron Fleming, appeals from the May 11, 2015 order, dismissing his fourth petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant's counsel has filed a petition to withdraw, together with a Turner/Finley¹ no-merit letter. After careful consideration, we grant counsel's petition to withdraw and affirm the PCRA court's order of dismissal.

From the certified record, we summarize the procedural history of this case as follows. On November 13, 2003, Appellant entered an open plea of guilty to third-degree murder in the shooting death of Marvin Housch. The

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trial court sentenced Appellant to an aggregate term of incarceration of 18 to 40 years.² Appellant filed a post-sentence motion, seeking to withdraw his plea and, alternatively, for reconsideration of his sentence. The trial court denied the motion, and Appellant timely appealed. This Court affirmed the judgment of sentence on June 13, 2006 and our Supreme Court denied Appellant's petition for allowance of appeal on November 21, 2006. See Commonwealth v. Fleming, 905 A.2d 1042 (Pa. Super. 2006) (unpublished memorandum), appeal denied, 911 A.2d 933 (Pa. 2006).

Appellant subsequently filed his first PCRA petition on April 8, 2007, which the PCRA court denied. On appeal, this Court affirmed on June 3, 2010, and our Supreme Court denied allowance of appeal on February 16, 2011. See Commonwealth v. Fleming, 4 A.3d 674 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 15 A.3d 2011 (Pa. 2011). Appellant filed a second PCRA petition on May 29, 2012, which the PCRA court denied on September 12, 2012. Appellant did not appeal that decision. Appellant filed a third PCRA petition on August 6, 2013, asserting newly-discovered alibi witnesses. The PCRA court dismissed Appellant's

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petition as untimely, determining the newly discovered fact exception under Section 9545(b)(1)(ii) did not apply because Appellant was or could have been aware of the witnesses at the time of his guilty plea. Appellant appealed, and this Court affirmed on May 7, 2014. See Commonwealth v. Fleming, 104 A.3d 40 (Pa. Super. 2014) (unpublished memorandum) (Fleming III).

Appellant filed the instant PCRA petition on November 20, 2014. On February 10, 2015, counsel entered his appearance on Appellant's behalf, and the PCRA court granted leave to file an amended PCRA petition. Appellant filed a counseled amended PCRA petition on February 17, 2015, wherein he asserted newly discovered facts. Those facts consisted of exculpatory evidence from an individual, Damile Mitchell, who claimed to be responsible for shooting and killing the victim. The PCRA court granted a hearing on the amended petition, which was held on April 21, 2015.

The PCRA court summarized the testimony produced at the hearing as follows.

At the hearing, [] Mitchell testified that he was a drug dealer and had "rented" Housch's vehicle in exchange for drugs he provided Housch. He claimed that Housch called him the night Housch was killed and asked him for help dealing with his daughter's boyfriend. When he refused, he said that Housch became angry and threatened to go to the police. Eventually, he testified, he went to Housch's home and argued with him again on the street. As they argued, he claimed that Housch reached for what he thought was a gun. He said that he feared for his

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life so he pulled his weapon and shot Housch several times. He then fled the area.

Mitchell claimed at the hearing that he did not know that anyone had been arrested or convicted of the killing, though he knew the victim had died. He first learned that [Appellant] had been convicted of the crime in the fall of 2014, when they were both inmates at the State Corrections Institution at Albion. Sometime in September, Mitchell claims to have overheard [Appellant] discussing his case with another inmate and mention the name "Mary". When he learned from the other inmate that [Appellant] had, in fact, been convicted of killing the man he now claims to have killed, he said he wrote the letter to the Innocence Institute. After doing so, he was approached by [Appellant] and confirmed what was in the letter. He agreed to sign the affidavit that was offered into evidence at the hearing. Mitchell acknowledged that he was currently serving a life sentence for murder.

[Appellant] also testified. He asserted his innocence and recounted how he came to learn of Mitchell's letter and thereafter filed his Pro Se Petition. He claimed on direct examination that he pleaded guilty because he thought he would be sentenced to not less than six nor [more] than twelve years in prison. He claimed that since shortly after he was [] sentenced to eighteen to thirty-six years in prison, he has maintained his innocence.

PCRA Court Opinion, 5/11/15, at 5-6 (footnotes omitted).

Following the hearing, the PCRA court determined Appellant's PCRA petition was timely under the Section 9545(b)(1)(ii) newly discovered fact exception. The PCRA court then addressed the merits of Appellant's substantive after discovered evidence claim. The PCRA court found the

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evidence not to be credible and by order, dated May 11, 2015, denied Appellant's request for PCRA relief.

Appellant filed a timely notice of appeal on June 10, 2015.³ On December 7, 2015, counsel filed with this Court a petition to withdraw together with a copy of his no-merit letter sent to Appellant. On February 1, 2016, Appellant filed a pro se response to counsel's petition to withdraw and no-merit letter.⁴

Counsel identifies the following issue Appellant wishes to raise on appeal.

I. Whether the PCRA [c]ourt erred in failing to grant relief to Appellant when it was proven by a preponderance of evidence that Appellant was innocent of the charges?

Counsel's No-Merit Letter at 6. In his response, Appellant addresses the foregoing question and additionally raises a question of whether the standard of "miscarriage of justice" as applied by the PCRA court to second or subsequent PCRA petitions is correct. Appellant's Pro Se Answer at 6.⁵

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Appellant also claims counsel's petition to withdraw and no-merit letter are deficient. Id. at 8-9.

Our review is regulated by the following guidelines. "Our standard of review of [an] order granting or denying relief under the PCRA requires us to determine whether the decision of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa. Super. 2015) (citation omitted). Furthermore, we are bound by the credibility determinations of the PCRA court when they are supported by the record. Commonwealth v. Johnson, 966 A.2d 523, 532, 539 (Pa. 2009). "This Court analyzes PCRA appeals in the light most favorable to the prevailing party at the PCRA level." Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa. Super. 2014) (internal quotation marks and citation omitted).

To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2), his claims have "not been previously litigated or waived[,]" and "the failure to litigate the issue prior to or during trial, ... or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." Id., § 9543(a)(3)-(4). An issue is previously litigated if "the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue[.]" Id., § 9544(a)(2). An issue is waived if appellant "could have raised it but failed to do so

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before trial, at trial, ... on appeal or in a prior state post [-]conviction proceeding." Id., § 9544(b).

Commonwealth v. Fears, 86 A.3d 795, 803-804 (Pa. 2014).

Additionally, courts will not entertain a second or subsequent request for PCRA relief unless the petitioner makes a strong prima facie showing that a miscarriage of justice may have occurred. [An a]ppellant makes a prima facie showing of entitlement to relief only if he demonstrates either that the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged.

Commonwealth. v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014) (en banc) (internal quotation marks and citations omitted), appeal granted, 105 A.3d 658 (Pa. 2014).

Our initial task is to review PCRA counsel's request to withdraw. As pronounced by our Supreme Court, the requirements PCRA counsel must comply with, when petitioning to withdraw, include the following.

1) A "no-merit" letter by PC[R]A counsel detailing the nature and extent of his review;

2) The "no-merit" letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;

3) The PC[R]A counsel's "explanation", in the "no-merit" letter, of why the petitioner's issues were meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009), quoting Finley, supra at 215. "Counsel must also send to the petitioner: (1) a copy

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of the "no-merit" letter/brief; (2) a copy of...