Com. v. McLean, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARNELL LAMONT MCLEAN :
:
Appellant : No. 879 MDA 2019
Appeal from the PCRA Order Entered May 2, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001342-2016
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 24, 2020
Appellant, Darnell Lamont McLean, appeals from an order entered May
2, 2019, which dismissed his petition for collateral relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The facts and procedural history of this case are as follows. On July 21,
2016 and into the early morning hours of July 22, 2016, Appellant and Marvin
Trotter, the victim, were at Dara and Jack’s Place, a bar in Chambersburg,
Pennsylvania. PCRA Court Opinion, 5/2/19, at 3. The pair interacted while
there. Id. At approximately 1:10 a.m., Trotter, his brother, and two friends
left the bar. Commonwealth v. McLean, 194 A.3d 683 (Pa. Super. 2018)
(unpublished memorandum), at 1 (citation omitted). Appellant exited shortly
thereafter and approached Trotter outside the bar. PCRA Court Opinion,
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* Former Justice specially assigned to the Superior Court.
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5/2/19, at 4. “An altercation ensued, during which Appellant slashed [Trotter]
multiple times with a box cutter, inflicting head wounds and cutting seven
tendons in [Trotter’s] left hand.” Commonwealth v. McLean, 194 A.3d 683
(Pa. Super. 2018) (unpublished memorandum), at 2 (citation omitted).
“Appellant [then] left [Trotter] lying in the street” where he was “bleeding
profusely and [] going in and out of consciousness.” Id.
Thereafter, the Commonwealth charged Appellant with attempted
murder and aggravated assault. Appellant’s jury trial commenced June 5,
2017, during which both Trotter and Appellant testified and recounted the
events of the night. PCRA Court Opinion, 5/2/19, at 3. First, Trotter testified
and explained that he and Appellant interacted “briefly” while at Dara and
Jack’s Place. Id. After leaving the bar, Trotter claimed that he was walking
to his brother’s home when someone yelled for him, causing him to turn
around. Id. at 3. Appellant then “advanced toward [] Trotter until they were
‘almost touching noses.’” Id. at 4. When Trotter tried to push Appellant away,
“his arm went limp” and then he “stepped into a hole,” fell to the ground, and
“could not remember what happened next.” Id.
Appellant, however, provided a different version of events and
attempted to prove that he acted in self-defense. Id. at 1. Specifically,
Appellant alleged that Trotter engaged in hostile behavior throughout the
night which made Appellant believe that Trotter planned to “jump him.” Id.
at 4. This caused Appellant to confront Trotter and “try to diffuse the
situation” after he saw Trotter outside of the bar. Id. Appellant claimed that
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once he approached Trotter, Trotter “sw[ung] at [him,]” “hit [Appellant’s]
glasses” and “struck [Appellant’s friend, Gershawn Samuels].” Id. at 4. After
Trotter hit Samuels, Appellant alleged that he saw “the glint of [a] blade”
which caused Appellant to “pull[] out a box cutter and swing[] it at [] Trotter
five or six times” because Appellant believed that “Trotter was going to kill
him even if he turned and ran.” Id. at 4-5. Appellant then “watched [] Trotter
fall to the ground, turned, and walked away.” Id. at 5.
Appellant’s trial concluded on June 7, 2016. The jury ultimately found
Appellant guilty of aggravated assault, but not guilty of attempted murder.
Id. at 1. On August 30, 2017, the trial court sentenced Appellant to 120 to
240 months’ incarceration. Id. This Court affirmed Appellant’s judgment of
sentence on July 17, 2018. Commonwealth v. McLean, 194 A.3d 683 (Pa.
Super. 2018) (unpublished memorandum), at 1-16 (citation omitted). Our
Supreme Court subsequently denied allocatur on November 27, 2018.
Commonwealth v. McLean, 198 A.3d 329 (Pa. 2018).
Appellant filed a timely pro se PCRA petition on December 18, 2018.
Appellant’s PCRA Petition, 12/18/18, at 1-4. In his petition, Appellant claimed
that he was entitled to a new trial because he recently met an eyewitness to
the July 2016 altercation, a fellow inmate, Joshua Fink, whose prospective
testimony constituted after-discovered evidence, which would likely compel a
different verdict. Id. Counsel was subsequently appointed and filed an
amended PCRA petition on Appellant’s behalf. Appellant’s Amended PCRA
Petition, 1/31/19, at 1-3. The PCRA court held an evidentiary hearing on
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March 14, 2019, during which Appellant presented the testimony of Joshua
Fink. The PCRA court summarized Fink’s testimony as follows.
In July [] 2016, [] Fink [lived] in Mont Alto, Pennsylvania. Before
midnight on July 21, 2016, he traveled from Mont Alto to
Chambersburg to meet his friend . . . and exchange something for
heroin and [x]anax. After obtaining the drugs, [] Fink parked his
car on South Street, near Honeywell Avenue, in Chambersburg
and prepared to intravenously inject the heroin. [] Fink estimated
that he arrived at the spot at some point between midnight and
2[:00] a.m.
***
While sitting in his car, [] Fink saw a group of four men walking
down the street. He then saw two other men approach. All
involved were black men. [] Fink explained that they were 20 to
30 feet away from him, across the street[ and that from] his
position in the alley, [] Fink was invisible to [them].
[] Fink then heard someone yell, “Hey!” He looked up and saw
one man, dressed in red, stop walking and drop back from the
group of four. The man wearing red was approached by a man
wearing grey, who was part of [a] group of two. The man in red
and the man in grey squared off, while the other men backed
away.
[] Fink now believes that the man in red was [] Trotter[,] and the
man in grey was [Appellant].
[] Fink recounted that he glimpsed something shiny in [] Trotter’s
hand. He then saw [] Trotter “take a swing” [at] [Appellant],
knocking [Appellant’s] glasses off. To [] Fink, it appeared that
[Appellant] responded by slapping [] Trotter multiple times in the
head. He thought he saw [Appellant] holding a lighter or
something plastic in his hand. [] Fink then watched [] Trotter fall
to the ground. He stated that [Appellant] did not run away but
instead backpedaled, turned, and exited [] Fink’s view.
[] Fink then heard someone say, “call 911” or “call an ambulance.”
Possessing illegal drugs, driving without a license, and realizing
that the police may be arriving, [] Fink immediately left the scene.
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[] Fink agreed that he would not have been willing to speak to
police as an eyewitness. He affirmed that he had not learned that
criminal charges were filed as a result of the altercation and told
no one [] what he witnessed.
[] Fink was arrested two weeks after the incident between []
Trotter and [Appellant] on charges of robbery and other related
offenses. He was initially held in the Franklin County Jail until he
was released on bail in May [] 2017. Following his convictions by
jury for his charged offenses, [] Fink began serving his sentences
[at] SCI-Forest [where he met Appellant during a softball event.
Specifically, Fink explained that during this event, he approached
Appellant because he recognized him from the Franklin County
Jail. He then learned the reason for Appellant’s incarceration, and
told Appellant that he had witnessed the incident between him and
Trotter. Appellant subsequently asked if Fink would write a
statement].
PCRA Court Opinion, 5/2/19, at 5-7. On May 2, 2019, the trial court entered
an order denying Appellant’s PCRA petition. PCRA Court Order, 5/2/19, at 1.
This timely appeal followed.1
Appellant raises the following issue on appeal:
Did the [PCRA] court err and abuse its discretion when it denied
Appellant’s [PCRA petition] based upon after-discovered evidence
when Appellant’s petition and [the] evidence presented at the
[March 14, 2019 evidentiary hearing] met all [the] factors
required in order to grant a new trial?
Appellant’s Brief at 7.
As we have stated:
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1 Appellant filed a notice of appeal on May 30, 2019. On May 31, 2019, the
PCRA court entered an order directing Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Appellant
timely complied. The PCRA court issued an opinion pursuant to Pa.R.A.P.
1925(a) on June 27, 2019, expressly incorporating its opinion dated May 2,
2019.
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[t]his Court's standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA
court is supported by evidence of record and is free of legal error.
In evaluating a PCRA court's decision, our scope of review is
limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party
at the trial level. We may affirm a PCRA court's decision on any
grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
Herein, Appellant argues that the PCRA court erred in denying his PCRA
petition. Specifically, Appellant contends that Joshua Fink’s testimony “would
directly support [his] self-defense claim and provide the jury with eyewitness
testimony.” Appellant’s Brief at 10. As such, “Fink’s testimony passes the
four-part test to be considered after-discovered evidence [and] warrant[s] a
new trial.” Id. We disagree.
To be eligible for relief under the PCRA, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “unavailability at the time of trial of
exculpatory evidence that has subsequently become available and would have
changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.A.
§ 9543(a)(2)(vi). To obtain relief based on after-discovered evidence, an
appellant must show that the evidence:
(1) could not have been obtained prior to the conclusion of the
trial by the exercise of reasonable diligence; (2) is not merely
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corroborative or cumulative; (3) will not be used solely to impeach
the credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.
Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citations
omitted). To determine whether the evidence is “of such a nature and
character” to compel a different verdict in a new trial, a court should consider
“the integrity of the alleged after [-] discovered evidence, the motive of those
offering the evidence, and the overall strength of the evidence supporting the
conviction.” Id. at 365.
In this case, the PCRA court concluded that Appellant failed to show
that Fink’s testimony would likely produce a new verdict. PCRA Court Opinion,
5/2/19, at 8. Per the court, Fink’s testimony “d[id] not materially strengthen
the self-defense theory pursued at trial” because, “[b]y all accounts, including
[] Fink’s,” Appellant “provoked the altercation” when he “initiated contact with
[] Trotter by following [Trotter after he] left the bar and then approaching him
in the street.” Id. at 9. As such, even with Fink’s testimony, Appellant cannot
meet the “requirements for self-defense with deadly force as a matter of law.”
Id. The PCRA court also found Fink’s testimony incredible. Id. Indeed, it
determined that the “circumstances under which [his] testimony [came] to
light” were “dubious” and held that Fink’s account of the July 2016 events
“contain[ed] a significant disparity with the recollections of both [] Trotter and
[Appellant].” Id. Upon review, we conclude that the PCRA court’s findings
are supported by the record and devoid of legal error.
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For these reasons, we agree with the PCRA court that Appellant is not
entitled to relief on his after-discovered evidence claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/24/2020
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