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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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