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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DENNIS FULTON
Appellant : No. 2913 EDA 2018
Appeal from the PCRA Order Entered September 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003414-2014
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY NICHOLS, J.: FILED JULY 23, 2019
Appellant Dennis Fulton appeals from the order dismissing his timely
first Post Conviction Relief Act' (PCRA) petition. On appeal, Appellant
contends the PCRA court erred by denying his request for an extension of time
to file an amended PCRA petition. Appellant also claims the PCRA court should
have held an evidentiary hearing on his claim that trial counsel was ineffective
by failing to interview and call six witnesses. We affirm.
We adopt the facts as quoted in a prior decision of this Court:
On February 7, 2008, Aisha Evans purchased a Smith & Wesson
Model 10 .38 Special revolver, serial number D424759, for the
father of her children, [Appellant]. Evans purchased the revolver
for [Appellant] because he could not buy the gun himself.
Prior to the murder, the decedent Rudolph Wilkerson, a 61 year -
old neighborhood "hack driver," provided several unlicensed taxi
1- 42 Pa.C.S. §§ 9541-9546.
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rides to [Appellant], Evans, and several others living in the
neighborhood. During one hack ride, the decedent allegedly
flirted with Evans, which greatly upset [Appellant].
On June 17, 2010, the decedent purchased thirty bundles of
heroin from Frank Johnson, Jr., a drug dealer who occasionally
employed the decedent. Edwin Castro, the decedent's neighbor,
later observed the decedent transport the heroin in his green 1993
Ford Explorer.
On June 18, 2010, the evening of the murder, the decedent and
Roger Aye, the decedent's close friend, socialized and smoked
crack cocaine in the decedent's home. While using a "star 67"
prefix to conceal his phone number, [Appellant] called the
decedent three times between 11 p.m. and 11:34 p.m. and
received no response. Once [Appellant] called the decedent from
his unconcealed number, the decedent immediately returned
[Appellant's] call and arranged to pick up [Appellant]. As he was
leaving his home, the decedent told Aye that he needed to pick
up a "young boy," referring to [Appellant], near Sixth Street and
Emily Street. The decedent never returned home.
At 12:33 a.m. on June 19, 2010, Officers Brian Egrie and James
Bragg responded to a radio call for an unresponsive male lying on
the highway near 16 E. Wolf Street and discovered the decedent
lying in a pool of blood. At 12:51 a.m., medics pronounced the
decedent dead at the scene.
At approximately 1 a.m. on June 19, auto mechanic John Pilotti
observed the decedent's vehicle illegally parked near the
intersection of Seventh and Morris Streets, and called a towing
service the next morning. That morning, Sergeant Kevin Cannon
and Officer Melissa Curcio secured the vehicle and observed
interior and exterior bloodstains.
At trial, Dr. Gary Collins, [then the] Philadelphia Deputy Medical
Examiner and an expert in forensic pathology, testified that the
decedent suffered fatal, penetrating gunshot wounds to the back
left of the head and the right shoulder. The decedent further
suffered a fatal perforating gunshot wound to the central chest, a
non -fatal, perforating gunshot wound to the mouth, and graze
wound behind the right ear. The gunshot wound to the decedent's
central chest exhibited a dense stipple pattern indicative of a
contact wound. The trajectory of the decedent's back left head
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and right shoulder gunshot wounds were consistent with shots
fired from above and in front of a kneeling decedent. Dr. Collins
concluded, to a reasonable degree of scientific certainty, that the
cause of death was homicide by multiple gunshot wounds. Two
bullets were recovered from the decedent and turned over to the
Philadelphia Police Department Homicide Unit.
On July 8, 2010, Officer Jacqueline Davis of the Philadelphia Crime
Scene Unit searched the decedent's vehicle and observed a bullet
hole in the driver's seat and recovered projectiles from the rear
driver's side door and the driver's side seat belt column. Officer
Brian Stark, an expert in blood splatter analysis, examined the
bloodstains the vehicle and observed downward flowing
in
bloodstains on the passenger side front door that exhibited
significant blood smear. Blood stains on the dashboard and center
console indicated that the decedent crawled across the front
passenger seat before opening the door. Officer Stark further
observed heavier volume drops on the interior panel between the
front and rear passenger door, which flowed downward towards
the street below.
Officer Stark examined two bloodstains on the highway outside of
16 E. Wolf Street, marked bloodstains A and B. Bloodstain A
exhibited a passive droplet pattern and indicated no movement
from the blood source, consistent with blood flow from the
passenger side door. Bloodstain B, located eleven feet east of
bloodstain A, indicated heavy blood flow from the decedent's
mouth and demonstrated that the decedent crawled west to east
along Wolf Street after escaping the truck, smearing blood across
the pavement. Blood accumulation on the decedent's shoes, legs
and shirt exhibit a pattern consistent to wiping or smearing
bloodstain B. The decedent's body laid in a pool of blood six feet
away from Bloodstain B.
Officer Ronald Weitman of the Firearms Investigation Unit, a
ballistics expert, concluded that all four bullets recovered in this
matter were .38/.357 caliber and exhibited "five right twist" rifling
markings. Officer Weitman concluded that each bullet was fired
from the same weapon. At trial, Officer Weitman testified that all
Smith & Wesson Model 10 .38 Special revolvers left "five right"
markings on their respective bullets. In 2013, Officer Weitman
examined the Smith & Wesson Model 10 revolver belonging to
[Appellant] and determined that the weapon fired .38 caliber
bullets exhibiting "five right" rifling characteristics. Due to
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corrosion and wear on the weapon's barrel, test firing the weapon
produced insufficient microscopic bullet markings to determine
whether the recovered projectiles were fired from [Appellant's]
gun.
On August 7, 2010, Detective Kenneth Rossiter interviewed Aye,
who stated that he left the decedent's home at approximately 7
a.m. the morning after the murder. As he travelled home, Frank
Johnson Sr., a neighborhood drug dealer and Johnson Jr.'s father,
told Aye that the decedent was murdered over 30 bundles of
heroin. Aye said that, the day before the shooting, Castro saw
the decedent transport the heroin in his green Ford Explorer.
Detective Rossiter recovered the decedent's cell phone and
discovered that [Appellant's] 267-271-6664 number was the last
call to the decedent's phone. In the hour prior to the shooting,
three calls were made from [Appellant's] phone to the decedent's
phone using a "star 67" prefix to conceal the number's identity.
The records further revealed that an unconcealed fourth call was
made from [Appellant's] phone at 11:34 p.m., and that a return
call was made two minutes later.
On August 13, 2010, Detectives Rossiter and Nordo interviewed
[Appellant], who confirmed that the 267-271-6664 number
belonged to him. [Appellant] claimed that his cousin, Shaku
Maven, called the decedent from his phone on the night of the
murder. At trial, Maven testified that he did not use [Appellant's]
phone on the night of the murder, as he was in Darby at that time.
Two days after his interview with detectives, [Appellant] told his
cousin Norman Whitest that police knew that he was the last one
to call the decedent and the last person in the decedent's car.
[Appellant] told Whitest that he called the decedent for a ride to
Evans' home and that he was worried that Maven gave detectives
his name. At around the same time period, [Appellant] told Evans
that he killed the decedent because he needed the money and
stole cash from him.
Tazmin Willis, [Appellant's] close friend, was incarcerated at the
time of the decedent's murder. Upon his release in the summer
of 2010, Willis moved into [Appellant's] home at 604 Emily Street.
There, [Appellant] told Willis that he murdered the decedent
because the decedent had disrespected Evans earlier that
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summer. [Appellant] implored Willis not to tell the decedent's son
that [Appellant] murdered his father.
On January 8, 2013, Willis provided a statement about the instant
matter to state and federal authorities in exchange for a
downward departure on his pending federal robbery and firearms
charges. During the interview, Willis repeated [Appellant's]
confession and stated that [Appellant] habitually carried a silver
Smith & Wesson revolver.
On March 6, 2013, Special Agent Mangold of the Pennsylvania
Attorney General's Office interviewed [Appellant], whereupon
[Appellant] stated that Evans purchased a Smith & Wesson Model
10 revolver, serial number D424759 on his behalf. [Appellant]
told Special Agent Mangold that someone stole the weapon prior
to the interview.
On November 17, 2013, Philadelphia police arrested Carlton
Wright and recovered the silver Smith & Wesson Model 10
revolver, serial number D424759, which previously belonged to
[Appellant].
Commonwealth v. Fulton, 3791 EDA 2015, 2016 WL 7219708, *4 -*7 (Pa.
Super. filed Dec. 13, 2016) (unpublished mem.) (footnotes and citations
omitted).
Appellant was arrested and tried by a jury.
At Appellant's trial, significant circumstantial evidence was
presented, including telephone records revealing several
telephone calls from Appellant's cell phone to [the decedent's] cell
phone shortly before the murder, and testimony indicating that in
2008 Aisha Evans, the mother of Appellant's two children,
purchased a Smith and Wesson revolver-consistent with the
murder weapon-for Appellant and did so in his name because he
was ineligible to be licensed. Evans and [Willis] indicated that
Appellant confessed to the murder, telling Evans he needed
money and telling another witness that he was angry because
Wilkerson "disrespected" Evans.
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Id. at *1. The jury convicted Appellant, and the trial court sentenced him to
"an aggregate sentence of life imprisonment without parole plus eight to
sixteen years." Id. This Court affirmed on direct appeal, see id., and the
Pennsylvania Supreme Court denied Appellant's petition for allowance of
appeal on May 15, 2017. Commonwealth v. Fulton, 169 A.3d 523 (Pa.
2017).
On January 29, 2018, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed James Berardinelli, Esq., as PCRA counsel. Attorney
Berardinelli filed an amended PCRA petition claiming that Appellant's trial
counsel was ineffective by failing to object to the admission of the cell phone
records. Am. PCRA Pet., 5/8/18, at ¶ 14. Appellant's petition did not request
an evidentiary hearing or include any witness certifications. The
Commonwealth filed a motion to dismiss.
On June 21, 2018, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss indicating that Appellant's issue lacked merit. Appellant filed
a pro se response to the Rule 907 notice requesting a Grazier2 hearing. The
PCRA court held a Grazier hearing on July 30, 2018, at which time Appellant
requested that Attorney Berardinelli file an amended PCRA petition alleging
trial counsel was ineffective by failing to call six witnesses: Marcia Fulton
(Appellant's mother), Derrick Whitest, Norman Whitest, Aisha Evans, Edwin
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Castro, and Tasha James. Suppl. to Appellant's PCRA Pet., 9/19/18, at 1-2.
Attorney Berardinelli requested, and was granted, an extension of time to file
a supplement to the PCRA petition. Order, 8/30/18.
On September 19, 2018, Attorney Berardinelli filed a supplement to the
PCRA petition, stating as follows:
4. First, [Appellant's] trial counsel, Daniel Conner, has indicated
that he was not provided with the names of any witnesses before
trial. (See Exhibit A). This is consistent with [Appellant's] own
testimony under oath at trial. (N.T. 11/2/15, p. 13, 11/5/15, p.
130).
5. [Appellant's] mother, Marcia Fulton, indicates that Aisha Evans
did purchase the murder weapon in question, but that she was
forced to say that it was purchased for [Appellant]. She further
relates that [Appellant] possessed a similar weapon that was
stolen before the murder. (See Exhibit B). This testimony,
however, would have been irrelevant since it in no way refuted
[Appellant's] potential access to the murder weapon in question.
6. [Appellant's] investigator has made repeated efforts to
interview Norman Whitest, Derrick Whitest, Aisha Evans, Edwin
Castro and Tasha James but has received no response from any
of those individuals (See Exhibit C). Further, Norman Whitest and
Aisha Evans actually testified as a witnesses at trial. (N.T.
11/3/15, pgs. 165-187; 11/4/15, pgs. 151-219).
Suppl. to Appellant's PCRA Pet., 9/19/18, at 1-2. Attorney Berardinelli's
supplement to the PCRA petition essentially stated that Appellant's additional
claims lacked merit.
At some point-the record does not specify when-Attorney Berardinelli
advised the PCRA court that Appellant wished to proceed pro se on appeal,
which prompted the court to schedule a hearing for the morning of September
27, 2018. On September 26, 2018, Lauren Wimmer, Esq., entered her
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appearance as Appellant's counsel, but Attorney Berardinelli had not yet
requested permission to withdraw.
On September 27, 2018, shortly after 9:53 a.m., the PCRA court granted
the Commonwealth's previously filed motion to dismiss Appellant's PCRA
petition. Order, 9/27/18. The order also formally dismissed Attorney
Berardinelli as PCRA counsel and appointed Attorney Wimmer as Appellant's
appellate counsel.3 Id.
Later that morning, the PCRA court held a hearing to address Appellant's
request to proceed pro se on appeal.
THE COURT: . Now, it is my understanding that counsel, who
. .
will identify herself in a moment, has appeared this morning
seeking -- well, I'll make certain that that's right -- to enter her
appearance. So, first of all, Counsel, can you identify yourself for
the record.
MS. WIMMER: Good morning, Your [H]onor. Lauren Wimmer. So
the record is clear, I received a call from [Appellant's] mother last
night, Marcia Fulton, seeking to retain my law firm for the filing of
a, I suppose, a supplemental amended petition. In my speaking
with her before I officially confirm that I've been retained, I did
enter my appearance, just so there was no confusion. But it's my
hope to be granted at least 45 days, so that I could thoroughly
review the file, speak with Mr. Fulton in an attorney -client call,
and then determine whether further filings need to be made.
THE COURT: Well, Counsel, since the petition is dismissed, I think
the question is whether or not you wish to enter your
is,
appearance for appeal. I mean, we reviewed it, I dismissed it. It
was actually filed this morning, and before I came into this
hearing, because court opens early, we of course did not receive
3 The court later filed another order permitting Attorney Berardinelli to
withdraw and appointing Attorney Wimmer as Appellant's appellate counsel.
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any application for a continuance, nor did we receive any entry,
which we wouldn't until at least 24 hours after someone files
something. So I guess the question I have for you is -- well, what
you're telling me is you know nothing about the case. So, you
really can't be prepared to argue that there is a necessity for me
to reconsider the dismissal.
MS. WIMMER: That's correct, Your Honor.
THE COURT: I have counsel that I have given several
continuances, and it was my intent, I think as I already
articulated, just to see whether or not [Appellant] wanted to
represent himself on appeal given the history of the case. And I
did not colloquy or ask Mr. Berardinelli any information.
As soon as he said that he thought it was appropriate, and he is
available, if either side thought there was a need for him to testify
today that I should, in abundance of caution, speak with
[Appellant].
So, you know, Counsel, you always have options available to you,
but at this point, the petition is dismissed. So, let me -- I guess I
should ask [Appellant] some questions to see whether or not he
wishes to retain you -- to continue to retain you, because he is
entitled to counsel of his choice. But at this point I don't see any
reason to vacate my order to dismiss.
N.T. Hr'g, 9/27/18, at 4-6.
The PCRA court then questioned Appellant about whether he wished to
represent himself pro se or have Attorney Wimmer represent him. Appellant
did not object to Attorney Wimmer's representation. The PCRA court then
removed Attorney Berardinelli as counsel and formally appointed Attorney
Wimmer as Appellant's appellate counsel.4 Id. at 11-12. The PCRA court also
4 We add that the PCRA court, Appellant, and Attorney Wimmer discussed the
status of her representation because she had not yet been paid. N.T. Hr'g,
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explained its reasoning for dismissing Appellant's PCRA petition earlier that
morning, including the claims raised in Attorney Berardinelli's supplemental
petition. Id. at 6-7 ("So, after reviewing [the supplemental petition], I made
the decision that there was nothing -- that there was no relevant information
that counsel could present on your behalf; so, dismissed your petition").5
Appellant filed a timely notice of appeal. The PCRA court did not order
Appellant to comply with Pa.R.A.P. 1925(b). Appellant raises two issues on
appeal:
[1.] Whether the PCRA court erred in denying Appellant's request
for an extension of time to file an amended PCRA petition.
[2.] Whether the PCRA court erred in denying Appellant's PCRA
petition without an evidentiary hearing where Appellant raised
genuine issues of material fact concerning trial counsel's failure to
call witnesses.
Appellant's Brief at 3.
Attorney Wimmer first argues that the PCRA court abused its discretion
by denying her request for a forty-five day continuance to speak with
Appellant and file an amended PCRA petition. Id. at 9. Attorney Wimmer
contends that the PCRA court should have given her at least a week to review
9/27/18, at 8-11. As a result of that discussion, because Attorney Wimmer
was on the list of attorneys that could be appointed by the PCRA court, the
PCRA court appointed Attorney Wimmer as Appellant's appellate counsel, and
Appellant agreed. Id. at 11.
5 The PCRA court also noted that Attorney Wimmer should not have entered
her appearance before she was formally retained. N.T. Hr'g, 9/27/18, at 7.
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the record. Id. Based on her subsequent review of the record, Attorney
Wimmer claims she has identified two meritorious ineffective assistance of
counsel claims. Id.
"The decision to grant a continuance is within the sound discretion of
the trial court, and we will reverse only if the court has abused its discretion."
Commonwealth v. Paddy, 15 A.3d 431, 470 (Pa. 2011) (citations omitted).
Initially, the PCRA court had already dismissed Appellant's petition earlier that
morning-before Attorney Wimmer orally requested a forty-five day extension
of time. See N.T. Hr'g, 9/27/18, at 4-6. Regardless, Attorney Wimmer, who
was not formally retained as private counsel, declined to argue that the PCRA
court should reconsider its dismissal. See id. Therefore, under the
circumstances, we cannot hold that the PCRA court abused its discretion by
denying Attorney Wimmer an extension of time to file an amended petition.
See Paddy, 15 A.3d at 470.
Appellant next argues that trial counsel was ineffective by failing to
interview and call Norman Whitest, Derrick Whitest, Aisha Evans, Edwin
Castro, and Tasha James. Appellant acknowledges that a private detective
interviewed Marcia Fulton, Appellant's mother. According to the private
detective, Appellant's mother said she spoke with Appellant's trial counsel
prior to trial and gave counsel a list of names that included at least Edwin
Castro and Tasha James. Appellant adds that the private detective
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interviewed trial counsel who denied that Appellant's mother gave him any
names of witnesses to interview or call for trial.
We briefly state the applicable standard of review before summarizing
Appellant's arguments.
This Court's standard of review regarding an order denying a
petition under the PCRA is whether the determination 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. Grayson, A.3d , 2019 WL 2417016, *3 (Pa.
Super. 2019) (citation omitted). Where, as here, the PCRA court has
dismissed a petition without an evidentiary hearing, we review the PCRA
court's decision for an abuse of discretion. See Commonwealth v. Roney,
79 A.3d 595, 603 (Pa. 2013). Pursuant to Rule 907, a PCRA court has
discretion to dismiss a PCRA petition without a hearing if the court is satisfied
that there are no genuine issues concerning any material fact, that the
defendant is not entitled to post -conviction collateral relief, and that no
legitimate purpose would be served by further proceedings. See Pa.R.Crim.P.
907(1); Roney, 79 A.3d at 604.
We are guided by the following: it is presumed that the petitioner's
counsel was effective, unless the petitioner proves otherwise.
Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). Our
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Supreme Court has adopted the Strickland6 performance and prejudice test
into a three-part inquiry. See Commonwealth v. Pierce, 527 A.2d 973,
975-77 (Pa. 1987). Thus, to succeed on a claim of ineffective assistance of
counsel, a petitioner must demonstrate (1) that the underlying claim is of
arguable merit; (2) that counsel's performance lacked a reasonable basis; and
(3) that the ineffectiveness of counsel caused the appellant prejudice.
Commonwealth v. Washington, 927 A.2d 586,594 (Pa. 2007). A claim of
ineffectiveness will be denied if the petitioner's evidence fails to satisfy any
one of these prongs. Id.
Neglecting to call a witness differs from failing to investigate a
witness in a subtle but important way. The failure to investigate
presents an issue of arguable merit where the record
demonstrates that counsel did not perform an investigation. It
can be unreasonable per se to conduct no investigation into known
witnesses. Importantly, a petitioner still must demonstrate
prejudice. To demonstrate prejudice where the allegation is the
failure to interview a witness, the petitioner must show that there
is a reasonable probability that the testimony the witness would
have provided would have led to a different outcome at trial.
In this respect, a failure to investigate and interview a witness
claim overlaps with declining to call a witness since the petitioner
must prove: (i) the witness existed; (ii) the witness was available
to testify; (iii) counsel knew of, or should have known of, the
existence of the witness; (iv) the witness was willing to testify;
and (v) the absence of the testimony was so prejudicial as to have
denied the defendant a fair trial.
6 Strickland v. Washington, 466 U.S. 668 (1984).
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Commonwealth v. Pander, 100 A.3d 626, 638-39 (Pa. Super. 2014) (en
banc) (citations and quotation marks omitted); accord Commonwealth v.
Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012) (citations omitted).
Initially, Appellant arguably waived this claim. Appellant's supplement
to the PCRA petition essentially stated that Appellant's claim lacked merit.
See Suppl. to Appellant's PCRA Pet., 9/19/18, at 1-2. Regardless, even if
Appellant properly raised and preserved this claim, it lacks merit as to
witnesses Norman Whitest and Evans, as they actually testified at trial. See,
e.g., N.T. Trial, 11/3/15, at 165-87; N.T. Trial, 11/4/15, at 151-219.
Moreover, Appellant failed to establish that trial counsel was aware of
any of the remaining witnesses, let alone that they were available and willing
to testify. See N.T. Trial, 11/2/15, at 13 (Appellant stating at beginning of
trial that he had no witnesses to present on his behalf); N.T. Trial, 11/5/15,
at 130 (Appellant's trial counsel stating at end of trial, that although he called
a police officer as a witness during Appellant's case -in -chief, he had no other
witnesses to present); Pander, 100 A.3d at 638-39.
Similarly, Appellant has not established that Marcia Fulton's testimony
would have led to a different outcome at trial given, among other evidence,
Appellant's confession to Evans and Willis. See Fulton, 2016 WL 7219708 at
*6. Since Appellant has not established trial counsel was ineffective, see
Williams, 732 A.2d at 1177, we discern no error in the PCRA court's denial
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of Appellant's PCRA petition. See Grayson, A.3d at , 2019 WL
2417016 at *3.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 7/23/19
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Com. v. Fulton, D.
Combined Opinion