Com. v. Fleming, E. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ELIJAH FLEMING :
:
Appellant : No. 3349 EDA 2018
Appeal from the PCRA Order Entered October 24, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001341-2013
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED APRIL 27, 2020
Appellant, Elijah Fleming, pro se, appeals from the order of the Court of
Common Pleas of Philadelphia County, that dismissed his first petition filed
under the Post Conviction Relief Act (PCRA)1 without a hearing. We vacate
the order and remand for further proceedings consistent with this
memorandum.
After a jury trial, Appellant was found guilty of first degree murder,
conspiracy, and unlawful possession of a firearm.2 On May 15, 2014,
Appellant was sentenced to an aggregate sentence of life in prison without the
possibility of parole. Appellant filed a direct appeal and on March 7, 2016,
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
2 18 Pa.C.S. §§ 2502(a), 903, and 6105, respectively.
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this Court affirmed Appellant’s judgment of sentence. Appellant filed a
petition for allowance of appeal with the Pennsylvania Supreme Court, which
the Court denied on September 7, 2016.
On August 1, 2017, Appellant filed this first, pro se, petition pursuant to
the PCRA raising several claims of ineffective assistance of counsel and various
constitutional violations. Appellant filed a supplemental PCRA petition on
February 7, 2018. On March 15, 2018, George S. Yacoubian, Esquire was
appointed as PCRA counsel. On September 17, 2018, PCRA counsel filed a
“no merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), seeking to withdraw his appearance based on his assessment that all
the issues Appellant raised in his PCRA petitions were without merit. On
September 24, 2018, the PCRA court entered a notice of intent to dismiss all
claims without a hearing pursuant to Pa.R.Crim.P. 907 (Rule 907 Notice). On
October 10, 2018, Appellant filed a response to the Rule 907 Notice, stating
that he did not receive a copy of counsel’s “no merit” letter. On October 25,
2018, the PCRA court filed an order that dismissed Appellant’s PCRA petition
for lack of merit based upon counsel’s “no merit” letter and permitted PCRA
counsel to withdraw. On November 8, 2018, Appellant filed this timely notice
of appeal.
Appellant presents the following issues for our review:
1. Whether the PCRA court erred by failing to provide
Petitioner with a copy of counsel’s Finley letter prior to
the dismissal of the PCRA, which in turn failed to provide
Petitioner with an opportunity to respond to the Finley
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letter prior to the dismissal of his PCRA in violation of the
due process clause.
2. Whether PCRA counsel rendered ineffective assistance of
counsel.
3. Whether Petitioner was deprived of the effective
assistance of direct appeal counsel when counsel failed
to raise the issue that the state violated the fourteenth
amendment’s due process guarantee when it knowingly
presented and failed to correct the false testimony of
Kareem Terry at the time of Petitioner’s trial.
4. Whether Petitioner was deprived of the effective
assistance of counsel and the right to confrontation
guaranteed by the sixth amendment when trial counsel
failed to properly object to the revelation of a
nontestifying codefendant’s redacted confession which
incriminated the defendant through use of the term “the
other man.”
5. Whether Petitioner was deprived of the effective
assistance of trial counsel when counsel failed to request
a “Kloiber” instruction in connection with Samir Green’s
eyewitness testimony.
6. Whether Petitioner was deprived of the effective
assistance of direct appeal counsel when counsel
challenged the sufficiency of the evidence for a first
degree murder conviction but failed to argue that the
conviction was barred because the words allegedly said
by Petitioner could equally mean an intent to injur, [sic]
intent to intimidate, or an intent to kill, so that any
conviction for intentional murder was speculative; and
whether Petitioner was further deprived of effective
direct appeal counsel when counsel failed to argue that
the conviction of first degree murder violated the due
process guarantee because the evidence of specific intent
to kill was so lacking that no reasonable juror could find
that element beyond a reasonable doubt.
7. Whether Petitioner was deprived of the effective
assistance of trial counsel when counsel did not object or
did not properly object when the trial court permitted the
prosecution to introduce the prior consistent statement
of witnesses Samir Green and Kareem Terry when those
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statements did not predate any corrupt motive or bias
and were otherwise inadmissible as they improperly
strengthened the witness testimony, and to the extent
that counsel did not object, Petitioner was deprived of
the effective assistance of direct appeal counsel when
this issue was not raised on appeal.
8. Whether Petitioner was deprived of the effective
assistance of trial counsel when counsel failed to prepare
the “prison” tapes in a way in which the jury could hear
the audio, because this issue was crucial to the
Petitioner’s defense that Kareem Terry was the shooter
– who acted of his own decisiveness – and if the jury
heard the tapes clearly, it would have been relevant to
impeach Kareem Terry’s testimony.
Appellant’s Brief at 4-5.
In reviewing an appeal from the denial of PCRA relief, “this Court is
limited to ascertaining whether the evidence supports the determination of
the PCRA court and whether the ruling is free of legal error.” Commonwealth
v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).
This Court grant[s] great deference to the factual findings
of the PCRA court and will not disturb those findings unless
they have no support in the record. However, we afford no
such deference to its legal conclusions. Where the petitioner
raises questions of law, our standard of review is de novo
and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Appellant’s first two issues can be addressed together. “Appellant’s
claim that the PCRA court erred as a matter of law in permitting counsel to
withdraw, although necessarily discussing PCRA counsel’s alleged
ineffectiveness, is not an ineffectiveness claim.” Commonwealth v. Rykard,
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55 A.3d 1177, 1184 (Pa. Super. 2012) (citation omitted). Determining
whether PCRA counsel and the PCRA court adhered to the mandates of
Turner/Finley is a question of law; therefore, our standard of review is de
novo and our scope of review is plenary. Id. at 1183-84.
Appellant argues that he never received a copy of PCRA counsel’s “no
merit” letter and, therefore, the PCRA court erred in dismissing his petition
and allowing counsel to withdraw. Appellant raised this issue in his response
to the PCRA court’s Rule 907 Notice and requested permission to amend his
PCRA petition. Therefore, Appellant has preserved this issue for review. See
id. at 1186.
Defendants have a general rule-based right to the assistance of counsel
for their first PCRA Petition. Pa.R.Crim.P. 904(C); Commonwealth v.
Cherry, 155 A.3d 1080, 1082 (Pa. Super. 2017) (citation omitted). In
addition, a defendant is entitled to “effective representation” on the part of
counsel who represents a PCRA petitioner. Finley, 550 A.2d at 215. Counsel
who petitions to withdraw from PCRA representation must proceed in
accordance with Turner, 544 A.2d 927 and Finley, 550 A.2d 213, and must
also comply with additional procedural requirements. See also
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011) (citation
omitted) (the additional procedural requirements that counsel must also send
to the petitioner: (1) a copy of the “no-merit” letter/brief; (2) a copy of
counsel's petition to withdraw; and (3) a statement advising petitioner of the
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right to proceed pro se or by new counsel are applicable during collateral
review).
Counsel petitioning to withdraw from PCRA representation
must proceed under . . . Turner . . . and Finley . . . and
must review the case zealously. Turner/Finley counsel
must then submit a “no-merit” letter to the trial court, or
brief on appeal to this Court, detailing the nature and extent
of counsel’s diligent review of the case, listing the issues
which petitioner wants to have reviewed, explaining why
and how those issues lack merit, and requesting permission
to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that
satisfy the technical demands of Turner/Finley, the court—
trial court or this Court—must then conduct its own review
of the merits of the case. If the court agrees with counsel
that the claims are without merit, the court will permit
counsel to withdraw and deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510–11 (Pa. Super. 2016)
(internal citation omitted) (some formatting).
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the
merits of the underlying claims but, rather, will merely deny
counsel's request to withdraw. Upon doing so, the court will
then take appropriate steps, such as directing counsel to file
a proper Turner/ Finley request or an advocate's brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (internal
citations omitted).
Instantly, the record shows that counsel filed a Turner/Finley “no
merit” letter with the PCRA court. The letter stated, “I have informed Mr.
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Fleming that, in my opinion, there are no viable PCRA claims and that, in the
event his pro se petitions are dismissed pursuant to Finley, he will no longer
be eligible for court-appointed counsel, but could represent himself or retain
counsel.” “No merit” letter, at 1 (unpaginated). At the bottom of the “no
merit” letter, appears the following, “cc: DA’s Office, PCRA unit[,] Court of
Common Pleas PCRA Unit[,] Defendant Elijah Fleming[.]” Id. at 5
(unpaginated). There is no certificate of service attached to counsel’s “no
merit” letter. Moreover, in his “no merit” letter, counsel does not state that
he is intending to send or has already sent a copy of the “no merit” letter to
Appellant.
We find the record does not conclusively demonstrate that PCRA counsel
ever provided Appellant a copy of the “no-merit” letter.3 PCRA counsel did
not state in the “no merit” letter filed with the PCRA court that he had served
or was going to serve the “no merit” letter on Appellant, and the letter lacks
a certificate of service showing the letter was in fact served. While Appellant
was included on the “cc” line of the “no merit” letter, there is no indication of
the manner that the letter was sent or the address to which it was sent. We
note the Commonwealth, in its brief to this Court, stated it does not oppose
the PCRA court determining on remand whether defendant was provided an
opportunity to respond meaningfully to PCRA counsel’s “no merit” letter.
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3We note that counsel also did not file an application to withdraw with his “no
merit” letter, and, therefore, obviously did not comply with the directive to
serve a copy of the application to withdraw to Appellant as dictated in Muzzy.
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Commonwealth’s brief at 14. See Commonwealth v. Bush, 197 A.3d 285,
287-88 (Pa. Super. 2018) (PCRA counsel failed to comply with technical
requirements of Turner/Finley where “no merit” letter stated counsel
“intends to provide” appellant with copy of “no merit” letter and “will advise”
appellant of his right to proceed pro se or hire private counsel).
In light of Attorney Yacoubian’s failure to satisfy the dictates of
Turner/Finley and Widgins, requiring counsel to serve a copy of the “no
merit” letter to Appellant, we find the PCRA court erred by permitting counsel
to withdraw. Consequently, we vacate the PCRA court’s order dismissing
Appellant’s PCRA petition and remand with instructions that counsel file an
amended PCRA petition or refile a Turner/Finley “no merit” letter with the
PCRA court that fully complies with the mandates of Turner/Finley and
Widgins, including the direction to serve a copy of his “no merit” letter to
Appellant. If, upon receipt of PCRA counsel’s newly filed “no merit” letter or
amended PCRA petition, the PCRA court subsequently intends to deny relief
without a hearing, it must issue a notice pursuant to Pa.R.Crim.P. 907
explaining the reasons for its dismissal, and it must serve the notice upon
Appellant in accordance with Pa.R.Crim.P. 114.4
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4 Since we are vacating the PCRA court’s order based on Appellant’s first two
issues, we need not address his remaining issues. We note that the
Commonwealth, in its brief, requested that this Court remand to allow
Appellant the opportunity to respond to discovery related to Detective Nordo
that the Commonwealth sent to Appellant in August 2019. Nothing in this
opinion is intended to limit PCRA counsel from filing a petition to amend the
PCRA petition following remand.
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Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/20
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