J-S48020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEWIS E. BENTLEY :
:
Appellant : No. 3970 EDA 2017
Appeal from the PCRA Order November 30, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0408841-2006, CP-51-CR-0807031-2006
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 28, 2018
Lewis E. Bentley (Appellant) appeals pro se from the order dismissing
his second Post Conviction Relief Act (PCRA) petition as untimely.1 We affirm.
Appellant, who relies on a wheelchair, was charged with the July 10,
2005 non-fatal shooting of Anthony Fitzsimmons, and the July 21, 2005 fatal
shooting of Vernon Purnell. A jury trial was held in December of 2007.2
Because Appellant invokes the newly-discovered evidence exception to the
PCRA’s time bar, we recount the facts adduced at trial below.
Fitzsimmons testified that on the morning he was shot, he encountered
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546. The Commonwealth has not filed a brief.
2 The trial judge also presided over both of Appellant’s PCRA proceedings.
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Appellant near Upland and Greenway Streets in Philadelphia, used Appellant’s
cell phone for five minutes, and returned it to him. Fitzsimmons further
testified that later that day, he was at a friend’s house. This Court, in our
disposition of Appellant’s direct appeal, explained:
[A] male banged on the door and told Fitzsimmons that
[A]ppellant wanted to see him on Upland Street. . . . When
[Fitzsimmons arrived, A]ppellant was not there. Appellant’s
brother told Fitzsimmons to wait for [A]ppellant to return because
they had something to discuss. [T]hree other males were present
at the time. Fitzsimmons knew [them] through his participation
in drug sales in the neighborhood. [Fitzsimmons and A]ppellant’s
brother began arguing about [whether] Fitzsimmons stole
[Appellant’s] cell phone[. Fitzsimmons was] worried about being
attacked by the other males [and thus] walk[ed] out into the
street where it was more open . . . . He walked up towards
Greenway Avenue and the males followed, threatening [and
arguing with] him. . . . By the time he reached the corner of 66th
and Greenway, the argument between Fitzsimmons and
[A]ppellant’s brother had intensified. The three males were
standing on the corner and [A]ppellant was a short distance away
from them in his wheelchair, against the wall, next to a payphone.
Fitzsimmons heard [A]ppellant say “fuck that,” then heard a pop
and saw flashes coming from where [A]ppellant was sitting in his
wheelchair. The males then fled. Fitzsimmons tried to take
cover[, but was shot and] called for an ambulance[.] Fitzsimmons
suffered three gunshot wounds. . . .
. . . Fitzsimmons did not immediately tell police that he knew who
had shot him. However, he later identified a photograph of
[A]ppellant as his assailant. . . .
Commonwealth v. Bentley, 2127 EDA 2008 (unpublished memorandum at
2-3) (Pa. Super. Oct. 2, 2009). Police recovered three .32 fired cartridge
casings (FCCs) from the crime scene. At trial, Fitzsimmons identified
Appellant as the shooter.
With respect to the other victim, Purnell’s girlfriend, April Floyd, testified
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that she previously dated Appellant. “On one occasion, [A]ppellant attempted
to break into her house at 5416 Thomas Avenue [in Philadelphia] while she
and Purnell were sleeping inside. Floyd called police.” Id. at 8. In the early
morning hours of July 21, 2005, Purnell was fatally shot outside of Floyd’s
house. He was found “hanging out of the passenger side door” of a car, and
the driver side window was “shot out.” Id. at 4. There were no eyewitnesses
to the shooting. The police recovered, inter alia, two .32 caliber FCCs and ten
.40 caliber FCCs from this crime scene.
Additionally, Appellant’s fiancée, Aisha Patton, testified that on March 4,
2005 (four months before the above shootings), she and Appellant were
arguing and tussled over a gun. The gun discharged and shot Patton in the
leg. See Bentley, 2127 EDA 2008 at 1-2, 6-7. A .40 caliber projectile was
recovered, and forensic testing showed that this projectile and the .40 caliber
FCCs from Purnell’s shooting were fired from the same gun. Appellant did not
testify or call any witnesses at trial. Trial Court Opinion, 12/31/08, at 11.
The jury found Appellant guilty of first-degree murder (the shooting of
Purnell), aggravated assault (the shooting of Fitzsimmons), and two counts of
carrying a firearm without a license. On February 15, 2007, the court
sentenced Appellant to an aggregate term of life imprisonment and a
consecutive 5 to 10 years’ imprisonment.
Appellant appealed, challenging the sufficiency and weight of the
evidence. On October 2, 2009, this Court affirmed the judgment of sentence.
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Pertinently, we rejected Appellant’s claims that there was insufficient evidence
to establish the identity of the person who shot Fitzsimmons, that Fitzsimmons
“speculated that Appellant was the shooter because he saw flashes coming
from Appellant’s wheelchair,” and “the fact that four other men were [present
during the shooting] was overlooked.” Bentley, 2127 EDA 2008 at 10. We
reasoned:
Fitzsimmons testified that while he was engaged in an altercation
with Appellant and three other individuals, he heard Appellant say,
“[F]uck that[,]” Appellant was sitting in a wheelchair in front of
him on the right and the other men were standing a few feet
away[, and] Fitzsimmons then heard several shots . . . and saw
flashes coming from the direction of Appellant’s wheelchair.
Id. at 12. Appellant filed a petition for allowance of appeal with the
Pennsylvania Supreme Court, which was denied on March 16, 2010.
Commonwealth v. Bentley, 653 EAL 2009 (Pa. Mar. 16, 2010).
On March 2, 2011, Appellant filed a counseled, timely PCRA petition, in
which he raised several claims of ineffective assistance of counsel. The PCRA
court denied relief, and on March 14, 2014, this Court affirmed on appeal.
Commonwealth v. Bentley, 831 EDA 2013 (unpublished memorandum)
(Pa. Super. Mar. 14, 2014). Appellant did not file a petition for allowance of
appeal with the Pennsylvania Supreme Court.
On August 16, 2017, Appellant filed the pro se PCRA petition at issue in
this appeal, invoking the “newly-discovered facts” exception to the one-year
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filing deadline of the PCRA3 on the basis of a letter he received on June 30,
2017. Appellant attached a copy of the letter, which was signed “Maureese
aka Red.” As the PCRA court pointed out, it appeared that Maureese and
Appellant knew each other. See PCRA Court Opinion, 2/5/18, at 4.
Maureese’s letter stated that in July of 2005, he was the person firing a .32
caliber gun at the corner of 66th Street and Greenway Avenue, and that his
target was Appellant. Appellant’s “Motion for Newly Discovered Evidence
PCRA,” 8/16/17, Exhibit at 1. Maureese further stated that a couple days
later, a “Mal Parker” offered him money “to send [Appellant] a message,”
because Mal Parker owed Appellant money for a .40 caliber gun that Mal
Parker had already taken possession of. Id. at 2. Mal Parker also told
Maureese that Appellant “had a house on 54th Thomas Ave [sic].” Id. at 2.
“On the day before the shooting,” Mal Parker gave Maureese “half the money
up front” and the .40 caliber gun, telling him to use it against Appellant. Id.
at 3. On the morning of the shooting, Maureese parked his car “on the corner
on 54th Street,” “walk[ed] up the block to the tinted Honda [sic],” and fired
two guns — a .32 caliber gun and the .40 caliber gun that Mal Parker gave
him — at the car window and door. Id. Maureese then ran to his car and
drove away. The letter made no mention of anyone else present in this second
incident. Finally, Maureese stated that he was not willing to go to the police
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3 See 42 Pa.C.S.A. § 9543(b)(1)(ii).
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or the District Attorney’s office, but that he was writing to Appellant because
his conscience was wearing on him.
On October 24, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of
intent to dismiss the PCRA petition without a hearing, finding that the petition
was untimely filed. Appellant filed a timely pro se response, but the court
dismissed his petition on November 30, 2017. The court subsequently
explained that it rejected Appellant’s claim that at the time of trial, he was
unaware of Maureese’s involvement in the crimes. The court reasoned that
“Appellant, who is apparently familiar with Maureese[,] does not explain why
he could not have learned earlier of Maureese’s involvement.” PCRA Court
Opinion, 2/5/18, at 4. The court also recounted that Fitzsimmons testified
that he was “moving away from [A]ppellant at the time he was shot” and that
“he saw flashes and heard the shots coming from . . . the wall where
[A]ppellant sat in his wheelchair.” Id. Finally, the court stated that even if
Appellant met the timeliness requirement of the PCRA, he would not be
entitled to relief because: (1) Maureese stated that he was not willing to
disclose his alleged confession to the police or District Attorney’s office; (2)
“Maureese’s alleged confession, if believed, would be used solely to impeach
the credibility of the eyewitness testimony and the testimony of the ballistics
expert;” and (3) the letter would not likely compel a different verdict if a new
trial were granted. Id. at 5.
Appellant timely appealed. The PCRA court did not order him to comply
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with Pa.R.A.P. 1925(b), but issued an opinion on February 5, 2018. Appellant
presents one issue:
Was the PCRA Court in violation of Appellant’s rights under Article
1 Section 9 to The Constitution of the Commonwealth of
Pennsylvania and The Fourteenth Amendment to Equal Protection
of the law by finding that Appellant’s Petition for Newly Discovered
Evidence was untimely and was in violation for not scheduling a
proper hearing?
Appellant’s Brief at 6.
Appellant avers that the PCRA court violated his rights in finding that his
petition was untimely. He claims that he properly invoked the newly-
discovered facts exception, where the written confession from “Maureese aka
Red[ ]” supported his claim of actual innocence, Appellant “could not have
known or discovered this information without Maureese’s confession because
[Appellant] was not present at” either shooting, and he filed the petition within
60 days of receiving Maureese’s letter. Id. at 13. Appellant further asserts
that the PCRA court erred in relying on “certain sections of . . . inconsistent
[trial] testimony . . . to justify her decision.” Id. at 14. In support, Appellant
extensively reviews Fitzsimmon’s trial testimony, arguing that it was
inconsistent and emphasizing that Fitzsimmons stated that he did not see a
gun in Appellant’s hand during the shooting. See id. at 14-22.
This Court has stated:
“In reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination is supported by the record and free of
legal error.” “The 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.”
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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
“Before we may address the merits of Appellant’s arguments, we must
first consider the timeliness of Appellant’s PCRA petition because it implicates
the jurisdiction of this Court and the PCRA court.” Id. A PCRA petition “shall
be filed within one year of the date the judgment becomes final, unless the
petition alleges and the petitioner proves” one of the three limited exceptions
set forth at 42 Pa.C.S.A. § 9545(b)(1). 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
With respect to the “newly discovered evidence” at Subsection 9545(b)(1)(ii):
[T]he petitioner must establish only that (1) the facts upon which
the claim was predicated were unknown and (2) they could not
have been ascertained by the exercise of due diligence. We have
unequivocally explained that “the exception . . . does not require
any merits analysis of the underlying claim.” Rather, the
exception only requires a petitioner to “prove that the facts were
unknown to him and that he exercised due diligence in discovering
those facts.”
Once jurisdiction has been properly invoked . . . the relevant
inquiry becomes whether the claim is cognizable under the PCRA.
Section 9543, titled “Eligibility for relief,” governs this inquiry.
[Pertinently], section 9543 delineates seven classes of allegations
that are eligible for relief under the PCRA. See 42 Pa.C.S.A. §
9543(a)(2). Of relevance here is the “after-discovered evidence”
provision, which states that a claim alleging “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” is cognizable under the PCRA.[4] 42
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4 Our Supreme Court has noted that a comparison of Subsections
9543(a)(2)(vi) (after-discovered evidence requirement) and 9545(b)(1)(ii)
(newly-discovered evidence exception) “reveals a superficial resemblance, as
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Pa.C.S.A. § 9543(a)(2)(vi). To establish such a claim, a petitioner
must prove 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 is not cumulative; (3) it is
not being used solely to impeach credibility; and (4) it would likely
compel a different verdict.”
Commonwealth v. Cox, 146 A.3d 221, 227-228 (Pa. 2016).
Here, Appellant does not claim that his PCRA petition was filed within
the one-year filing requirement; instead, he maintains that he is entitled to
relief under the newly-discovered evidence exception. See 42 Pa.C.S.A. §
9545(b)(1)(ii). To properly plead this exception, Appellant was required to
show that newly-discovered “facts were unknown to him and that he exercised
due diligence in discovering those facts.” See Cox, 146 A.3d at 227. We hold
that Appellant properly invoked the exception by averring that on June 30,
2017, he received the letter, which sets forth facts previously unknown to him.
See id. However, no relief is due on the merits of Appellant’s claim.
We agree with the PCRA court that Appellant has not established that
he is entitled to relief. See PCRA Court Opinion, 2/5/18, at 4-5. As both the
PCRA court and this Court previously stated, Fitzsimmons testified to the
circumstances surrounding his encounter with Appellant on July 10, 2005 —
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both involve consideration of whether the facts or evidence upon which the
claim is based were previously unknown to the petitioner and whether that
information could have been discovered earlier, through the exercise of due
diligence.” Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016).
Nevertheless, the Court has “cautioned against the conclusion that there is an
overlap between these provisions and reiterated that they remain distinct
inquiries.” Id.
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that he heard Appellant say “fuck that” and then heard a pop and saw flashes
coming from Appellant’s direction. See Bentley, 2127 EDA 2008 at 3, 12;
PCRA Court Opinion, 2/5/18, at 4. Appellant’s present attempt to challenge
the weight of Fitzsimmons’ trial testimony is meritless, because any question
as to credibility of the witnesses was resolved by the jury at trial. Appellant’s
newly-discovered evidence (Maureese’s letter) cannot be used to impeach
Fitzsimmon’s testimony or the ballistics evidence, and 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 . . . trial.” See Cox, 146
A.3d at 227; Miller, 102 A.3d at 992; Commonwealth v. Kinney, 157 A.3d
968, 972 n.3 (Pa. Super. 2017) (“The weight of the evidence is exclusively for
the finder of fact, which is free to believe all, part, or none of the evidence,
and to assess the credibility of the witnesses.”). Accordingly, we agree with
the PCRA court that Appellant has not established a basis for relief, and affirm
the order denying dismissing Appellant’s second PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/18
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