Com. v. Fleetwood, L.

J-S37011-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LEON FLEETWOOD :

:

Appellant : No. 68 EDA 2019

Appeal from the PCRA Order Entered November 19, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0008910-2009

BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 06, 2020

Appellant, Leon Fleetwood, appeals from the November 19, 2018 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

The PCRA court aptly summarized the factual and procedural

background, as follows:

Appellant was arrested on February 17, 2009[ ,] and charged

with [murder, firearms not to be carried without a license, carrying

firearms in public in Philadelphia, reckless endangerment, and

possession of an instrument of crime[1]] in relation to the murder

of Khalif Bradford on January 6, 2009[,] at approximately 5:26 PM

at 4445 Holden Street in the City of Philadelphia. Specifically,

Appellant admitted to entering the lobby of the high-rise building,

opening fire on the decedent, and then continuing to fire as the

decedent attempted to flee. Mr. Bradford subsequently died when

one of the shots pierced his left lung, and both ventricles of his

heart. (N.T. 11/8/10, pgs. 15-19). On November 8, 2010,

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1 18 Pa.C.S. §§ 2502, 6106, 6108, 2705, and 907, respectively.

J-S37011-20

Appellant entered into a negotiated guilty plea before the

Honorable Renee Cardwell Hughes to third degree murder,

carrying a firearm on public streets, firearms not to be carried

without a license, possessing an instrument of crime and

recklessly endangering another person. Pursuant to the terms of

the negotiation, the [c]ourt imposed an aggregate sentence of 25

to 50 years imprisonment.

On October 14, 2011, Appellant filed a PCRA petition. First

PCRA counsel, Janice Smarra, Esq., filed a Finley letter followed

by a supplemental PCRA petition requesting an evidentiary

hearing regarding Appellant’s purported request to trial counsel to

file a direct appeal. Following an evidentiary hearing on October

8, 2013, the Honorable Benjamin Lerner denied Appellant’s

petition without a hearing.

On June 13, 2017, Appellant filed his instant PCRA petition.

Following the filing of a response by the Commonwealth, Appellant

filed a Supplemental PCRA on July 17, 2018. On September 21,

2018, this [c]ourt, pursuant to Pa.R.Crim.P. 907, filed a Notice of

Intent to Dismiss [Appellant’s] PCRA petition. Following the

formal dismissal of the petition on November 19, 2018, [Appellant

filed] a timely Notice of Appeal.

PCRA Court Opinion, 9/6/19, at 1–3.

In Appellant’s second supplemental PCRA petition, which underlies this

appeal, he avers that he became aware of after-discovered evidence

concerning Philadelphia Police Detective Ronald Dove, one of the detectives

involved in the investigation of Appellant’s case. PCRA Petition, 7/17/18, at

¶¶ 21–27. Specifically, Appellant claims that Detective Dove’s 2017

conviction—for withholding information and tampering with evidence in the

investigation of Detective Dove’s girlfriend—entitles Appellant to relief

because Detective Dove was the detective assigned to his case and oversaw

the collection of evidence at the crime scene. Id. at ¶¶ 10–13. Appellant

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asserted that “[b]ut for Detective Ronald Dove’s actions in fabricating and

contaminating the crime scene, implicating [Appellant’s] guilt, and directing

other detectives to use coercive tactics on [Appellant] to try and obtain

incriminating information, he would never have agreed to plead guilty.” Id.

at ¶18. 2 He further contends that had trial counsel known of this, he would

not have permitted Appellant to enter a guilty plea and, suggests had the

court known, it would not have accepted Appellant’s plea. Id. at ¶¶ 38(e),

39(b).

On July 20, 2018, the PCRA court denied Appellant’s petition. Both the

PCRA court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issue:

Did the trial court err, abuse its discretion, and/or make a mistake

of law when it denied Appellant’s Post Conviction Relief Act

(“PCRA”) petition for relief based on newly discovered evidence,

on November 19, 2018, without an evidentiary hearing, as

impeachment evidence only material, which is also barred as

being untimely filed, when the PCRA petition alleged misconduct

in the habit and routine practice of the Homicide Unit and

Detective Ronald Dove?

Appellant’s Brief at 2 (verbatim). [3]

____________________________________________

2 Appellant claims that other law enforcement personnel, at Detective Dove’s

direction, denied Appellant food, water, and restroom breaks for hours,

attempting to coerce him into making a statement. Supplemental PCRA

Petition, 7/17/19, at ¶ 14. Other than this bald assertion, Appellant’s

supplemental petition is devoid of any facts supporting this allegation.

3 To the contrary, the PCRA court determined that Appellant’s petition was

timely filed. See PCRA Court Opinion, 9/6/19, at 3 (“Appellant’s claim is

timely.”).

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Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. Id. “With

respect to the PCRA court’s decision to deny a request for an evidentiary

hearing, or to hold a limited evidentiary hearing, such a decision is within the

discretion of the PCRA court and will not be overturned absent an abuse of

discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

Additionally, a PCRA petition must be filed within one year of the date

that the judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This

time requirement is mandatory and jurisdictional in nature, and the court may

not ignore it in order to reach the merits of the petition. Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

As noted above, Appellant entered a negotiated guilty plea on November

8, 2010, and did not file a direct appeal. Thus, Appellant’s judgment of

sentence became final on December 8, 2010, thirty days after the entry of his

negotiated plea. See 42 Pa.C.S. § 9545(b)(3) (“For purposes of this

subchapter, a judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.”). Therefore, Appellant had to file a PCRA petition by December

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8, 2011, in order for it to be timely. Appellant’s second PCRA petition, filed

more than five years later, on June 13, 2017, is patently untimely.

Nevertheless, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met. Pursuant to Section 9545(b):

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the

date the judgment becomes final, unless the petition

alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the

result of interference by government officials with the

presentation of the claim in violation of the

Constitution or laws of this Commonwealth or the

Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were

unknown to the petitioner and could not have been

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that

was recognized by the Supreme Court of the United

States or the Supreme Court of Pennsylvania after

the time period provided in this section and has been

held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

A petition invoking one of these exceptions must be filed within sixty

days of the date the claim could first have been presented. 42 Pa.C.S.

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§ 9545(b)(2).4 It is well established that the burden is on the petitioner to

prove that one of the timeliness exceptions applies. Commonwealth v.

Marshall, 947 A.2d 714, 719 (Pa. 2008). Further, Section 9545(b)(1)(ii)

“requires [a] petitioner to allege and prove that there were ‘facts’ that were

‘unknown to him’ and that he could not have ascertained those facts by the

exercise of ‘due diligence.’” Id. at 720 (emphasis omitted).

In the instant case, Detective Dove pleaded guilty on April 26, 2017,

and Appellant filed the instant PCRA petition on June 13, 2017, which was

within sixty days of Detective Dove’s guilty plea. Accordingly, Appellant’s

PCRA petition, in which he alleged newly-discovered facts under Section

9545(b)(1)(ii), was filed within sixty days pursuant to Section 9545(b)(2). We

conclude that Detective Dove’s convictions were necessarily unknown to

Appellant and could not have been ascertained through due diligence because

the convictions did not occur until April 26, 2017. Therefore, we discern no

error in the trial court concluding that it had jurisdiction to adjudicate

Appellant’s facially untimely PCRA petition, as Appellant satisfied the exception

under 42 Pa.C.S. § 9545(b)(1)(ii).

____________________________________________

4 Section 9545(b)(2) was amended, changing the amount of time a PCRA

petitioner has to present a claim under Section 9545(b)(1) from sixty days to

one year from the time the claim could have been presented. This change

applies only to claims arising on or after December 24, 2017. 42 Pa.C.S.

§ 9545(b)(2), cmt. Herein, Appellant’s claims arose on April 26, 2017, when

Detective Dove pleaded guilty. Consequently, the amended statute is not

implicated and the sixty-day period applies.

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Although Appellant satisfied the newly discovered facts exception to the

PCRA’s timeliness requirements, in order to be eligible for substantive relief

in the form of a new trial, Appellant must meet additional requirements. See

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (stating

that once jurisdiction is established under 42 Pa.C.S. § 9545(b)(1)(ii), a PCRA

petitioner may then present the substantive claim of after-discovered-

evidence pursuant to 42 Pa.C.S. § 9543(a)(2)(vi)); see also

Commonwealth v. Burton, 158 A.3d 618, 628-629 (Pa. 2017) (the nature

of the after-discovered facts is relevant to our disposition). Our Supreme

Court explained:

the newly-discovered facts exception to the time limitations of

the PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct

from the after-discovered evidence basis for relief delineated in

42 Pa.C.S. § 9543(a)(2). To qualify for an exception to the

PCRA’s time limitations under subsection 9545(b)(1)(ii), a

petitioner need only establish that the facts upon which the claim

is based were unknown to him and could not have been

ascertained by the exercise of due diligence. However, where a

petition is otherwise timely, to prevail on an after-discovered

evidence claim for relief under subsection 9543(a)(2)(vi), a

petitioner must prove that (1) the exculpatory evidence has been

discovered after trial and could not have been obtained at or prior

to trial through reasonable diligence; (2) the evidence is not

cumulative; (3) it is not being used solely to impeach credibility;

and (4) it would likely compel a different verdict.

Burton, 158 A.3d at 629.

In the instant case, the PCRA court concluded as follows:

[Appellant] contends that [the evidence of Dove’s conviction]

would have been admissible to show that Dove tampered with

evidence in the instant case and coerced him into giving an

inculpatory statement. Further, [Appellant] contends that Dove’s

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misconduct when combined with evidence concerning a civil suit

against Lt. Philip Riehl, Detective George Pirrone, and Detective

James Pitts regarding their actions in a 2012 case, and a separate

2012 incident involving the removal [of] Captain John McCloskey

of the 35th Police District Police Division and Inspector Aaron

Horne of Northwest Police Division1 would have established a

pattern of misconduct within the Homicide Unit of the Philadelphia

Police. He asserts that had he known of these scandals he would

not have pleaded guilty in the present matter.

1 With respect to the allegations concerning

Captain McCloskey and Inspector Horne, [Appellant]

cites only a newspaper article eluding to the

allegations. The Pennsylvania Supreme Court has

previously determined that newspaper article[s] are

not “evidence” supporting an after–discovered

evidence claim. Commonwealth v. Castro, [93

A.3d 818, 821 n.7 Pa. 2014)].

* * *

Further, the proffered evidence concerning Detective Dove

pertains to the attempts by the detective to hinder the

apprehension of his girlfriend in 2015. Appellant has offered no

evidence that Detective Dove had a romantic involvement with

any of the parties in the instant case or that he was engaging in

any sort of similar misconduct in 2009, when the instant case was

investigated. Nor has he proffered any evidence that Detective

Dove’s conduct was in anyway intertwined with the separate cases

involving Lt. Riehl, Detective Pirrone, Detective Pitts, Captain

McCloskey and Inspector Horne. Indeed, McCloskey and Horne

were not related to the Homicide Unit in any way.

Even more fundamentally, Appellant’s PCRA petition and

supplemental petition fail to proffer any evidence that Detective

Dove played a role material to the investigation and prosecution

of the instant case. While the crime scene log indicates that

Detective Dove was the investigator “assigned at the scene” (see

Crime Scene Unit Report MIL-09-0014 attached to amended

petition filed 7/17/18), the Crime Scene Unit Report and property

receipts attached to Appellant’s petition indicate the scene was

processed and evidence recovered by Officers John Taggart and

Michael Maresca of the Crime Scene Unit - not Det. Dove.2

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2 Appellant has provided no evidence to support

his assertion that Officers Taggart and Maresca were

part of [a] larger conspiracy directed by Det. Dove.

Appellant, likewise, claims that Detective Dove coerced him

into giving a statement but has failed to show that a statement

even exists. No statement was referenced in the factual basis

given at the time of Appellant’s plea on November 8, 2010. The

Commonwealth’s letter brief submitted on March 8, 2018,

indicates that a review of the DA trial file revealed that Detective

Dove was not the assigned investigator for Appellant’s case, did

not arrest Appellant, and did not take a statement from him.

Indeed, the Commonwealth’s letter brief indicates that Appellant

surrendered to police in the company of his attorney, Richard

Giuliani, and did not give a statement. (Commonwealth’s Letter

Brief filed March 8, 2018, p. 1). [Appellant’s] claim, therefore, is

frivolous and warrants no relief.

PCRA Court Opinion, 9/6/19, at 4–6.

On appeal, Appellant asserts that the information concerning Detective

Dove’s convictions would not be used solely for impeachment purposes.

Appellant’s Brief at 8. Appellant argues instead that the evidence of Detective

Dove’s misconduct is admissible under Pa.R.E. 406 as indicative of Detective

Dove’s habit or practice in conducting police work, and, as such, is

distinguishable from impeachment evidence. Id. at 12. We disagree.

“For evidence of habit to be admissible, the habit must have occurred

with sufficient regularity to make it probable that it would be carried out in

every instance or in most instances.” Commonwealth v. Harris, 852 A.2d

1168, 1178 (Pa. 2004) (citation omitted). Moreover, this Court has

explained, “Habit refers to the type of nonvolitional activity that occurs with

invariable regularity. It is the nonvolitional character of habit evidence that

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makes it probative. Thus, habit is a consistent method or manner of

responding to a particular stimulus. Habits have a reflexive, almost

instinctive quality.” Sutch v. Roxborough Memorial Hospital, 151 A.3d

241, 252 (Pa. Super. 2016) (citations omitted).

The specifics of Detective Dove’s malfeasance clearly are not

encompassed in this description of Pa.R.E. 406 habit or practice evidence.

The only substantiated evidence of wrongdoing by Detective Dove is related

to the criminal charges and eventual conviction arising from Detective Dove’s

interference with his girlfriend’s arrest. This one situation, unseemly though

it might be, does not demonstrate that Detective Dove had a habit of

obstructing justice. Accordingly, unless Appellant can establish a sufficient

nexus to his case, Detective Dove’s convictions would be used only for

impeachment purposes. See Commonwealth v. Johnson, 179 A.3d 1105,

1123 (Pa. Super. 2018) (former Detective Dove’s criminal convictions that

occurred years after Appellant’s trial have no bearing on Appellant’s own

case).

As the PCRA court correctly observed, Appellant “fail[ed] to proffer any

evidence that Detective Dove played a role material to the investigation and

prosecution of the instant case.” PCRA Court Opinion, 9/6/19, at 5–6.

Appellant presented no supporting evidence and merely alleged in the filings

in this matter that Detective Dove mishandled evidence and compromised

the integrity of the investigation of Appellant’s case. Absent evidence that

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Detective Dove did anything inappropriate in relation to Appellant’s criminal

case, Appellant cannot show that the evidence of Detective Dove’s convictions

influenced Appellant’s prior decision to plead guilty. See Commonwealth

v. Foreman, 55 A.3d 532, 537–538 (Pa. Super. 2012) (finding the appellant

failed to satisfy fourth prong of after-discovered evidence test where the

appellant filed to show any nexus between his case and criminal charges filed

against case officer on unrelated matter.).

Finally, a review of Appellant’s guilty plea hearing demonstrates that

he entered his plea knowingly, intelligently, and voluntarily. In addition to

acknowledging that he reviewed the written guilty plea colloquy with counsel,

N.T. (Guilty Plea), 11/8/20, at 5, Appellant underwent an oral colloquy that

again informed him of the rights he had and those he was waiving by pleading

guilty. Id. at 3–10. More importantly, the record establishes that Appellant

entered his plea knowingly, intelligently, and voluntarily. There simply is no

evidence that Appellant would not have pleaded guilty here if he had been

aware that Detective Dove was engaged in criminal conduct.

For the reasons set forth above, we conclude that Appellant is not

entitled to relief. Accordingly, we affirm the November 19, 2018 order

denying Appellant’s second PCRA petition.

Order affirmed.

Judge Nichols did not participate in the consideration or decision of this

case.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/20

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