Com. v. Horton, L. ( 2021 )

J-S06035-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEE A. HORTON :
:
Appellant : No. 85 EDA 2020
Appeal from the PCRA Order Entered November 25, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0731772-1993
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: April 22, 2021
Lee A. Horton (Horton) appeals from the order of the Court of Common
Pleas of Philadelphia County (PCRA court) denying his fourth petition filed
under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
I.
The PCRA court summarized the facts underlying Horton’s convictions.
The evidence adduced at trial established that on May 31, 1993,
[Horton], his brother Dennis Horton (“Dennis”), and a co-
conspirator Robert Leaf (“Leaf”) robbed Filito’s Bar located at 5th
and Hunting Park Avenue. During the course of the robbery,
Dennis, who was brandishing a rifle, shot Samuel Alemo multiple
times. He later died from his gunshot wounds. Dennis also shot
Luz Archella and her daughter Luz Martinez, injuring both. After
leaving the bar, the three men fled in a blue automobile. A
passerby was able to supply a description of the vehicle and a
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* Retired Senior Judge assigned to the Superior Court.
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partial license plate number. A radio call was sent out, which
included a description of the three assailants, their vehicle, and
the last four digits of the license plate. A police officer observed
the vehicle a short time later only a mile from the crime scene and
placed [Horton] and his companions under arrest. Police
recovered a .22 caliber semi-automatic rifle from the backseat of
the car as well as a black pellet gun under the front passenger
seat. Ballistics testing identified the rifle as the same weapon
used during the robbery at Filito’s. [Horton], Dennis, and Leaf
were taken to the hospital where Martinez and her daughter, as
well as another bar patron Miguel DeJesus, identified them as the
robbers.
PCRA Court Opinion (PCO), 6/17/20, at 2.
In September 1994, a jury convicted Horton of second-degree murder,
three counts of robbery, four counts of aggravated assault, conspiracy and
possession of an instrument of crime. In March 1995, the trial court sentenced
Horton to life imprisonment for second-degree murder and a consecutive 18½
to 61 years’ imprisonment on the remaining counts.1 This Court affirmed the
judgment of sentence on direct appeal. Commonwealth v. Horton, 678
A.2d 828 (Pa. Super. 1996) (unpublished memorandum). Horton did not file
a petition for allowance of appeal.
Horton filed three successive PCRA petitions in the next two decades.
In each case, though, the PCRA court dismissed the petition. Horton appealed
each dismissal to no avail. Commonwealth v. Horton, 736 A.2d 9 (Pa.
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1 Dennis Horton (Dennis) and Robert Leaf (Leaf) were co-defendants at trial.
Dennis was convicted of second-degree murder and sentenced to life
imprisonment, while Leaf was convicted of third-degree murder and sentenced
to a term of years.
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Super. 1998) (unpublished memorandum) (first petition); Commonwealth
v. Horton, 48 A.3d 479 (Pa. Super. 2012) (unpublished memorandum)
(second petition); Commonwealth v. Horton, 134 A.3d 495 (Pa. Super.
2015) (unpublished memorandum) (third petition).
After his third petition, Horton requested review of the homicide
investigation file through the Philadelphia District Attorney Office’s Conviction
Integrity Unit. On September 18, 2018, Horton received the file and learned
that it contained two documents that the Commonwealth did not disclose in
discovery. The two documents were preliminary handwritten notes by the
lead detective. Both notes listed everyone involved in the crime - including
all defendants and victims - and included a notation next to Leaf’s name, in
parenthesis, that he was the “shooter.”2 The evidence at trial established that
Horton’s brother, Dennis, was the shooter.
Relying on these notes, Horton filed this petition on November 16, 2018.
Recognizing that the petition was untimely, Horton pled the jurisdictional
time-bar exceptions for interference by government officials and newly
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2 The investigation file also contained a “complaint fact record.” This
document, which a detective wrote the night of the murder, included the
notation: “Leaf is shooter.” Horton, however, obtained this document in 2014
and included it in a supplement to his third petition. We determined that the
document was a matter of public record and not newly-discovered evidence.
See Commonwealth v. Horton, 2015 WL 754205, at *3 (Pa. Super.
November 17, 2015) (unpublished memorandum). As a result, we will not
consider this document as part of our determination.
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discovered facts. 42 Pa.C.S. § 9545(b)(1)(i), (ii).3 Turning to the merits,
Horton asserted that the Commonwealth committed a Brady4 violation for
failing to disclose the handwritten notes. According to Horton, these notes
showed that the police at first believed that Leaf and not his brother was the
shooter. On October 29, 2019, the PCRA court issued notice under
Pa.R.Crim.P. 907(1) that it intended to dismiss Horton’s petition. The PCRA
court dismissed the petition on November 25, 2019, following which Horton
timely appealed.
The PCRA court later explained its dismissal in its Pa.R.A.P. 1925(a)
opinion. First, the PCRA court clarified that Horton’s petition was timely under
the newly discovered facts exception.
[The handwritten notes] were previously unknown to [Horton] and
it is unlikely that he would have been able to gain access to them
any earlier with the exercise of due diligence as they were in the
possession of the District Attorney’s Office. As stated above, this
analysis does not require any merits analysis of the underlying
claims. It is sufficient that this evidence was new to [Horton] and
he likely could not have ascertained them any earlier with the
exercise of due diligence.
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3 At the time, under 42 Pa.C.S. § 9545(b)(2), PCRA petitioners had 60 days
to file their petition from the date when their claims could have been raised.
Based on this, Horton asserted in his petition that he timely filed within 60
days of learning about the documents. An amendment to Section 9545(b)(2),
which became effective on December 24, 2018, changed the language to
require that a petition “be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2). That amendment applies to
any claims arising on or after December 24, 2017, which would include
Horton’s claims.
4 Brady v. Maryland, 373 U.S. 83 (1963).
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PCO at 6.
Despite the petition being timely, the PCRA court found the petition to
be meritless. Though styled as a Brady violation, the PCRA court treated
Horton’s petition as raising an after-discovered evidence claim under 42
Pa.C.S. § 9545(a)(2)(vi). Finding that it did not meet the criteria, the PCRA
court made two findings. First, the PCRA court found that Horton would use
the notes for impeachment purposes, as Horton asserted that the documents
undercut the reliability of the various witnesses. PCO at 7. Next, the PCRA
court found that Horton could not show that the documents would compel a
different verdict. The court explained:
The evidence shows that [Horton] entered the bar with Leaf and
Dennis, who were both armed. [Horton] took money from a bar
patron while Leaf held a gun to the patron’s head. [Horton]
remained present when Dennis opened fire on two other bar
patrons and murdered Alemo. He then fled the bar together with
Leaf and Dennis, and was arrested with them a short time later.
Thus, even if the police notations contain contradictory
information as to whether it was Dennis or Leaf who shot the bar
patrons, all evidence including the notations themselves, remain
steadfast that [Horton] was present and committed the armed
robbery alongside Dennis and Leaf. Regardless who opened fire,
[Horton] remains liable as an accomplice for any resulting deaths
as well as any other crimes committed that night at Filito’s bar
during the robbery.
Id.
After finding no relief due under Section 9545(b)(2)(vi), the PCRA court
then determined that Horton could not establish a Brady violation either. In
its discussion, the court noted that a defendant must show that prejudice
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resulted from the prosecution’s suppression of the favorable evidence. Id. at
8 (citing Commonwealth v. Stetler, 95 A.3d 864, 878 (Pa. Super. 2014)).
Finding no prejudice, the court reiterated its prior analysis that the
handwritten notes did not negate that Horton was present and participated in
the robbery that led to the murder of Samuel Alemo. Id.II.
On appeal, Horton argues that the PCRA court erred in dismissing his
petition and that his petition established that he was entitled to relief or, at
the very least, an evidentiary hearing.5
Horton begins by attacking the evidence for his convictions, first
criticizing the eyewitness identifications of himself and his brother. Besides
citing a non-record report about the fallibility of eyewitness testimony, Horton
goes through the witnesses at the bar and highlights their inconsistencies in
their identification of the three defendants. Id. at 9-11. He does the same
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5 Our standard of review in a PCRA appeal requires us to determine whether
the PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error. Commonwealth v. Staton, 184
A.3d 949, 954 (Pa. 2018). We consider the record in the light most favorable
to the prevailing party in the PCRA court. Commonwealth v. Mason, 130
A.3d 601, 617 (Pa. 2015). In our review, we defer to the PCRA court’s findings
supported by the record, and we will not disturb those findings unless they
have no support in the certified record. Commonwealth v. Rigg, 84 A.3d
1080, 1084 (Pa. Super. 2014). Additionally, “the decision whether to grant
an evidentiary hearing is within the discretion of the PCRA court and will not
be overturned absent an abuse of discretion.” Commonwealth v. Reid, 99
A.3d 470, 485 (Pa. 2014) (citation omitted).
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for the partial license plate description that led to the vehicle stop, suggesting
that the police fabricated the information. To support this speculative claim,
he cites non-record studies and unrelated cases from Philadelphia. Id. at 11-
13. Horton then goes into an oral statement that Leaf gave to the lead
detective, as well as a jailhouse declaration of a cellmate who claimed that
Leaf confessed to the murder. Id. at 13-15.6
Moving to relevant law, Horton emphasizes that materiality for a Brady
violation does not require the petitioner to show that “disclosure of the
suppressed evidence would have results ultimately in a defendant’s acquittal.”
Id. at 16 (quoting Kyles v. Whitely, 514 U.S. 419, 434 (1995)). Horton
contends that if the Commonwealth had turned over the handwritten notes,
they would have shown that the Commonwealth’s theory - that his brother
was the shooter and not Leaf - was wrong. On the other hand, he asserts,
even if the detective were wrong in this belief, then that would cast doubt on
the integrity of the investigation. Id. at 17. Horton reasserts this point later
in his argument when he argues that the PCRA court applied an incorrect,
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6 This Court considered this alleged jailhouse confession in connection with
Dennis’ second PCRA petition. There, we held that the alleged confession
constituted clear hearsay and would not qualify under the statement against
the penal interest exception. See Commonwealth v. Horton, 2881 EDA
2010, at *11-12 (Pa. Super. April 17, 2012) (unpublished memorandum).
Consistent with this holding, we attach no weight to this inadmissible
evidence. We do the same for Leaf’s oral statement, which, as Horton notes,
was not admitted at trial.
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more-demanding standard for materiality than required under Brady. Id. at
20.7
Under Brady, the prosecution’s failure to disclose exculpatory evidence
violates a defendant’s Fourteenth Amendment due process rights.
Commonwealth v. Ly, 980 A.2d 61, 75 (Pa. 2009). To establish a Brady
violation, the burden is on the defendant to plead and prove that “(1) the
prosecutor has suppressed the evidence; (2) the evidence, whether
exculpatory or impeaching, is helpful to the defendant; and (3) the
suppression prejudiced the defendant.” Commonwealth v. Carson, 913
A.2d 220, 244 (Pa. 2006).
In assessing the prejudice under Brady, favorable evidence is material
and constitutional error results from its suppression by the government if
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7 The Commonwealth insists that despite the PCRA court’s finding, Horton’s
petition does not qualify under any of the jurisdictional time-bar exceptions
under 42 Pa.C.S. 9545(b)(1). After review, however, we find that the PCRA
court did not err in finding Horton’s fourth petition timely under the newly-
discovered evidence exception, despite the Commonwealth’s contention to the
contrary. To establish the exception, a petitioner must prove that “the facts
upon which [his] claim is predicated were unknown to [him] and could not
have been ascertained by the exercise of due diligence.” 42 Pa.C.S
§ 9545(b)(1)(ii). “Due diligence demands the petitioner to take reasonable
steps to protect [his] own interests.” Commonwealth v. Shiloh, 170 A.3d
553, 558 (Pa. Super. 2017) (citation omitted). As the PCRA court observed,
Horton did not know about the handwritten notes and could not have
discovered them earlier, since he obtained the notes only after seeking review
with the newly instituted Conviction Integrity Unit. As Horton’s claim sounded
in Brady, the focus is on the previously unknown handwritten notes, not on
whether Leaf was the shooter, as the Commonwealth seems to think it should
be. Thus, we will address the merits of Horton’s petition.
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there is a reasonable probability that, had the Commonwealth disclosed the
evidence, the result of the proceeding would have been different.
Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013). Reasonable
probability is a probability sufficient to undermine confidence in the outcome.
Id. In determining if the petitioner has shown a reasonable probability of a
different outcome, the question is not whether the defendant would more
likely than not have received a different verdict with the evidence, but whether
in its absence he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence. Id. “The 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.”
Commonwealth v. Chambers, 807 A.2d 872, 887 (Pa. 2002).
Putting aside whether Horton’s claim satisfies the first two elements of
a Brady claim, we agree with the PCRA court’s conclusion that Horton could
not show prejudice. As summarized above, Horton’s argument on this issue
seems to be that this was a closely contested case in which the handwritten
notes would have tipped the scaled. It would not have done so.
First, the jury convicted Horton of second-degree murder. See 18
Pa.C.S. § 2502(a)(2) (“A criminal homicide constitutes murder of the second
degree when it is committed while defendant was engaged as a principal or
an accomplice in the perpetration of a felony.”). Regardless of the shooter,
all the evidence, including the detective’s notes themselves, is consistent that
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Horton participated in the robbery with his brother Dennis and Leaf. See PCO
at 7. Like the PCRA court, we fail to see how these preliminary investigation
notes detract from the evidence that Horton was guilty of second-degree
murder. Whether Leaf or his brother Dennis was the shooter had little or no
connection with the jury’s finding that Horton participated in the robbery.
Horton tries to counter this by arguing that the inconsistency about the
shooters casts the entire investigation in doubt, including his identification as
being a participant. We disagree. As we have discussed, the handwritten
notes merely have a notation of “shooter” next to Leaf’s name - no information
is given about when the detective made this notation or who was the source
for this information. As Horton acknowledges, the lead detective presumably
got the information from one of the witnesses. Yet as he recounts in his brief,
there were inconsistencies between not only the witnesses’ testimony, but
their own identifications themselves. These were developed and raised at
trial.
For that reason, we find the PCRA court did not err in finding that Horton
was prejudiced by not having the lead detective’s preliminary investigation
notes. Besides not undermining his second-degree murder conviction, the
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notes merely suggest a possible inconsistency that, in any event, was raised
at trial. Thus, no relief is due.8
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/21
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8 Horton also argues that he is entitled to relief under § 9545(a)(2)(vi),
presumably because the PCRA court decided to analyze whether the
handwritten notes constituted after-discovered evidence warranting a new
trial. In his November 16, 2018 petition, Horton raises only Brady as a basis
for relief; he never claims that he is entitled to relief under § 9545(a)(2)(vi)
or that the handwritten notes constitute after-discovered evidence. As a
result, Horton has waived this claim. “Any claim not raised in the PCRA
petition is waived and not cognizable on appeal.” Commonwealth v.
Washington, 927 A.2d 586, 601 (Pa. 2007); Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal.”).
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