Com. v. Fleming, D.

J-S25017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DEMETRIOUS DARRON FLEMING

Appellant No. 925 WDA 2015

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.: FILED MAY 20, 2016

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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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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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(unpublished memorandum), appeal denied, 911 A.2d 933 (Pa. 2006).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(unpublished memorandum), appeal denied, 15 A.3d 2011 (Pa. 2011).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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2
Appellant also entered guilty pleas to two weapons offense counts at two
other dockets. By agreement the sentences for those charges were to run
concurrently with whatever sentence the trial court imposed on the third-
degree murder charge. The trial court imposed a sentence of three to six
years’ incarceration on each firearm count to run consecutively with each
other but concurrently with the third-degree murder sentence. There was
no provision in the plea agreement for a minimum sentence on the
homicide. The weapons charges are not a subject of Appellant’s instant
PCRA petition.

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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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3
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). On August 14, 2015, the PCRA court issued a statement
pursuant to Rule 1925(a) referencing its May 11, 2015 memorandum opinion
and order as containing the reasons for its decision.
4
The Commonwealth has not filed an appellee brief in this appeal.
5
Appellant’s Pro Se Answer is not paginated. Therefore, sequential page
numbers are supplied.

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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 counsel’s petition to withdraw;

and (3) a statement advising petitioner of the right to proceed pro se or by

new counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.

2007).

[W]here counsel submits a petition and no-
merit letter that do 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. By contrast, if
the claims appear to have merit, the court will deny
counsel’s request and grant relief, or at least instruct
counsel to file an advocate’s brief.

Id. (citation omitted).

Instantly, we conclude that PCRA Counsel has complied with the

requirements of Turner/Finley. Specifically, PCRA counsel’s Turner/Finley

letter/brief details the nature and extent of his review, addresses the claim

Appellant raised in his amended PCRA petition, and determines that the

issue lacks merit on appeal. PCRA counsel discusses Appellant’s claim,

explaining the reasons for his conclusion that the issue is meritless.

Additionally, PCRA counsel served Appellant with a copy of the petition to

withdraw and Turner/Finley letter/brief, advising Appellant that, if he is

permitted to withdraw, Appellant has the right to proceed pro se or with

privately retained counsel.

As noted, Appellant filed a response to the petition to withdraw and

no-merit letter. Therein Appellant suggests that PCRA counsel’s no-merit

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letter was deficient because PCRA counsel merely concluded that Appellant’s

issues had no merit rather that concluding the appeal was wholly frivolous.

Appellant’s Pro Se Answer at 8, citing Commonwealth v. Baney, 860 A.2d

127, 132 (Pa. Super. 2004), appeal denied, 877 A.2d 459 (Pa. 2005).

Baney, however, involved a petition to withdraw during a direct appeal,

implicating the requirements imposed by Anders v. California, 386 U.S.

738 (1967) and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009). We have previously noted the distinctions between the requirements

of Anders/Santiago and the requirements of Turner/Finley, including the

following.

It is … apparent that Anders and Turner/Finley are
close cousins, bearing similarities in that counsel is
required to examine the record, present issues, and
request permission to withdraw. However, there are
also significant differences. Anders applies to direct
appeals; Turner/Finley applies to PCRA cases.
Anders counsel is not permitted to withdraw unless
the appeal is wholly frivolous, but Turner/Finley
counsel is permitted to do so if the case lacks merit,
even if it is not so anemic as to be deemed wholly
frivolous.

Wrecks, supra at 721-722.

Appellant also contends that Attorney Farrell failed to comply with the

mandates of Turner/Finley because “he fails to list and address the nature

and extent of all of the Appellant’s claims.” Appellant’s Pro Se Answer at 8.

Appellant’s arguments in this regard pertain first to a disagreement with

PCRA counsel’s conclusion that the issue on appeal is without merit and,

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second, to a disapproval of PCRA counsel’s performance at the PCRA hearing

for failing to introduce additional witness statements.6 Id. at 11-12. We will

address the former argument as part of our independent review. We note

that the latter argument is not about PCRA Counsel’s technical compliance

with PCRA Counsel’s Turner/Finley obligations or the merits of the appeal,

but is about PCRA Counsel’s stewardship at the April 21, 2015 PCRA hearing.

Thus, Appellant is actually asserting an ineffective assistance of counsel

claim. However, this Court, after exhaustively reviewing our Supreme

Court’s jurisprudence, has held that even in circumstances as these, “claims

of PCRA counsel’s ineffectiveness may not be raised for the first time on

appeal.” Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014),

appeal denied, 101 A.3d 785 (Pa. 2014). Consequently, we cannot address

Appellant’s assertions in this regard.

Therefore, finding PCRA counsel compliant with the technical

requirements of Turner/Finley and their progeny, we proceed to perform

an independent merits review of Appellant’s claims. We note the PCRA court

determined that Appellant’s PCRA petition qualified for an exception, under

Section 9545(b)(1)(ii) to the one-year jurisdictional time limit for filing for

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6
Those statements, by purported alibi witnesses, were the subject of one of
Appellant’s earlier PCRA petitions. We affirmed the PCRA court’s
determination at that time that the statements did not constitute newly
discovered facts as to constitute an exception to the timeliness requirements
of the PCRA. See Fleming III, supra.

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PCRA relief.7 The PCRA court determined that Mitchell’s statement and

existence as a witness were unknown at the time of Appellant’s plea, could

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7
The timeliness of an appellant’s petition is a threshold issue “because the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of a petition.” Commonwealth
v. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015) (citations omitted),
vacated on other grounds, 131 A.3d 482 (Pa. 2016).

Our Supreme Court has previously described a
petitioner’s burden under the newly-discovered fact
exception as follows.

[S]ubsection (b)(1)(ii) has two components,
which must be alleged and proved. Namely,
the petitioner must establish that: 1) “the facts
upon which the claim was predicated were
unknown” and 2) “could not have been
ascertained by the exercise of due diligence.”
42 Pa.C.S. § 9545(b)(1)(ii) (emphasis added).

Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d
1264, 1272 (2007). “Due diligence demands that
the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he
could not have learned the new fact(s) earlier with
the exercise of due diligence. This rule is strictly
enforced.” [Commonwealth v.] Williams, [35
A.3d 44, 53 (Pa. Super. 2011), appeal denied, 50
A.3d 121 (Pa. 2012)]. Additionally, as this Court has
often explained, all of the time-bar exceptions are
subject to a separate deadline.

The statutory exceptions to the timeliness
requirements of the PCRA are also subject to a
separate time limitation and must be filed
within sixty (60) days of the time the claim
could first have been presented. See 42
Pa.C.S.A. § 9545(b)(2). The sixty (60) day
time limit … runs from the date the petitioner
first learned of the alleged after-discovered
(Footnote Continued Next Page)

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not have been earlier discovered by due diligence, and were raised within 60

days of Appellant’s first awareness of the information. PCRA Court Opinion,

5/11/15, at 6. Upon review of the record, we conclude the PCRA court’s

timeliness determination is supported. The subject “facts” came to light

when Mitchell sent a letter on October 20, 2014 to “Innocence Institute of

Western Pennsylvania,” a copy of which was forwarded to Appellant, on

October 27, 2014, by its former director, Professor William Moushey. Id. at

5; see also Amended PCRA Petition, 2/17/15, Exhibits a, b. Appellant filed

his pro se PCRA petition raising this claim on November 20, 2014. We

accordingly conclude Appellant’s subject PCRA petition qualifies for the

Section 9545(b)(1)(ii) newly discovered fact exception to the PCRA’s one

year timeliness constraint.

We therefore proceed to address the merits of Appellant’s substantive

after discovered evidence claim under Section 9543(a)(2)(vi).

To obtain relief based upon newly-discovered
evidence under the PCRA, Appellant must establish
that: (1) the evidence has been discovered after trial
and it could not have been obtained at or prior to
trial through reasonable diligence; (2) the evidence
_______________________
(Footnote Continued)
facts. A petitioner must explain when he first
learned of the facts underlying his PCRA claims
and show that he brought his claim within sixty
(60) days thereafter.

Id. (some citations omitted).

Medina, supra at 1216.

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is not cumulative; (3) it is not being used solely to
impeach credibility; and (4) it would likely compel a
different verdict.

Commonwealth v. Washington, 927 A.2d 586, 595-596 (Pa. 2007).

Additionally, although Appellant urges us to hold otherwise, because this is

not Appellant’s first PCRA petition reviewed on its merits, he must show a

strong prima facie case of innocence or a miscarriage of justice. See

Medina, supra.8

[B]efore granting a new trial, a court must assess
whether the alleged after-discovered evidence is of
such nature and character that it would likely compel
a different verdict if a new trial is granted. In
making that determination, 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. See also Commonwealth v.
Washington, 592 Pa. 698, 717, 927 A.2d 586, 597
(2007) (stating exculpatory accomplice testimony
should be viewed with suspicion where accomplice
has already been tried and has nothing to lose);
Argyrou[v. State, 349 Md. 587, 709 A.2d 1194,]
1204 [(1998)] (noting “cases that have addressed
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8
Appellant argues that “the miscariage [sic] of justice standard first
announced in [Commonwealth v.] Lawson, [549 A.2d 107 (PA 1988)]
should no longer appply [sic] to second of subsequent PCRA petitions.
Foremost, the language of the PCRA does not imposed [sic] such a
requirement.” Appellant’s Pro Se Answer at 6. Appellant argues, that
Lawson, decided before the 1995 Amendments to the PCRA, is obsolete and
the amendments, including the timeliness requirements, obviate the policy
reasons behind the Lawson holding. Id. at 6-7. Nevertheless, we are
bound by our recent precedents confirming Appellant’s burden in this case.
See Medina, supra. Furthermore, given the PCRA court’s credibility
determinations in this case, Appellant’s claims would fail even absent the
additional burden imposed in second or subsequent PCRA petitions.

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[newly-discovered evidence] have focused not
simply on the credibility of the person offering the
exculpatory evidence, but on the credibility or
trustworthiness of the evidence itself, as well as the
motive, or other impeaching characteristics, of those
offering it”).

Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010) (some

citations omitted), appeal denied, 14 A.3d 826 (Pa. 2010).

Instantly, the PCRA court first noted that the fairness of Appellant’s

guilty plea proceedings has already been determined during Appellant’s

direct appeal and earlier PCRA proceedings. PCRA Court Opinion, 5/11/15,

at 7.

That leaves for consideration that claim that a
miscarriage of justice occurred because the
[Appellant] is innocent of the crime. To meet this
burden, [Appellant] would have to establish that the
after discovered evidence was such that had he been
found guilty following a trial, the new evidence would
require that he be granted a new trial.

Id. The PCRA court then engaged in its duty to evaluate the credibility of

Appellant’s proffered after-discovered evidence. See Padillas, supra.

Appellant argues “the admission by []Mitchell that he was the actual killer of

Marvin Housch coupled with the Affidavits of … Alibi witnesses and

Appellant’s PCRA testimony all implicate … Appellant’s actual innocence.”

Appellant’s Pro Se Answer at 6. The PCRA court explained its contrary

findings as follows.

Neither [Appellant] nor Mitchell provided credible,
believable testimony.

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Though [PCRA] counsel argued that Mitchell’s
testimony should be believed because his testimony
exposed him to criminal liability for the murder of
Marvin Housch, Mitchell is already serving a life
sentence. A conviction in the death of Housch would
not mean any additional time. The suggestion that
Mitchell could face the death penalty if he were tried
is absurd. The District Attorney’s Office did not seek
the death penalty against Petitioner, meaning that
the circumstances of the crime did not provide the
required aggravating circumstances. Mitchell’s
homicide conviction came after the date that Housch
was killed so the multiple murder aggravator would
not be present. Accordingly, Mitchell did not expose
himself to any additional punishment through his
admission to having killed the victim.

Moreover, Mitchell’s testimony was that he
acted in self[-]defense when he shot the victim.
Though he claimed to have killed Housch, he was
careful to make sure that he described his actions in
a manner that would allow him to claim he was
justified in doing so.

In assessing Mitchell’s credibility, the [PCRA
c]ourt must also consider that it is inconsistent with
[Appellant’s] testimony at the plea hearing and at
sentencing. [Appellant], while under oath at both
proceedings, admitted that he shot and killed the
victim. Though he claimed at the PCRA hearing that
he lied at both of those proceedings because he
thought he would be sentenced to no more than
twelve years in prison, [the trial c]ourt has already
rejected that claim as being unworthy of belief.

The [PCRA c]ourt also considered, in rejecting
the testimony of Mitchell, the lack of any
corroboration. Mitchell’s description of the killing
offered no facts that were not available from either
the record in this matter, most of which [Appellant]
has access to, or available from [Appellant] himself.
[Appellant] presented no other witness or evidence
that corroborated any of the claims made by
[Mitchell]. All that he has offered in support of his

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claim of innocence is Mitchell’s “risk-free” admission
to the crime and his own previously rejected claim of
innocence. In the absence of some corroboration of
Mitchell’s claims or some other reason to credit his
testimony, the Petitioner has failed to meet his
burden of establishing that a miscarriage of justice
has occurred because he is innocent of the charges
to which he has plead guilty.

PCRA Court Opinion, 5/11/15, at 7-9.

PCRA counsel in his no-merit letter expresses his disagreement with

the PCRA court’s credibility findings, but concedes “[i]t is well-settled that a

PCRA court’s credibility determinations are binding upon an appellate court

so long as they are supported by the record.” Counsel’s No-Merit Letter at

9, quoting Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa. 2013).

Indeed, upon careful review, we conclude the PCRA court’s findings are

amply supported by the record and we may not disturb them. See

Melendez-Negron, supra; Johnson, supra. Accordingly, we agree with

counsel that Appellant’s issue on appeal lacks merit and we conclude the

PCRA court correctly denied relief. We therefore affirm the PCRA court’s May

11, 2015, order and grant counsel’s petition to withdraw.

Order affirmed. Petition to withdraw as counsel granted.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/20/2016

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