Commonwealth v. Demora

1

COMMONWEALTH OF PENNSYLVANIA v. LOUIS GENE DEMORA Appellant

No. 2972 EDA 2022

No. J-S36018-23

Superior Court of Pennsylvania

January 23, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered October 26, 2022 In the Court of Common Pleas of Bucks County Criminal Division at No(s) CP-09-CR-0003841-2017

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

MEMORANDUM

NICHOLS, J.

Appellant Louis Gene Demora appeals from the order denying his first Post Conviction Relief Act^[1] (PCRA) petition. Appellant's counsel (Current Counsel) has filed a petition to withdraw and a Turner/Finley brief^2] For the reasons that follow, we affirm the PCRA court's order and grant Current Counsel's petition to withdraw.

A previous panel of this Court summarized the facts of this case as follows:

[On December 20, 2016, Appellant] was driving a minimum [speed] of 88 MPH on River Road, in Bucks County Pennsylvania, which was posted with a 25 MPH speed limit. At the time, [Appellant] was under the influence of heroin, cocaine, and Xanax, with thoughts of suicide. Meanwhile, Jenna Richards, 22 years old, was on her way to the gym, driving [at a speed of] approximately 15 MPH, when she made a left hand turn into [Appellant's] lane of travel; [Appellant] struck the passenger side of Richards' car. The force from the impact catapulted Richards' car into the air. Richards' car landed on top of a parked car some distance away, which was pushed into another parked vehicle. Richards was killed instantly. When the police arrived on the scene, [Appellant] was walking around, unsteady on his feet, saying "I was just trying to kill myself." [A few months later, a]fter an investigation, [Appellant] was arrested and charged [with murder of the third degree and related offenses].

Commonwealth v. Demora, 1466 EDA 2018, 2019 WL 3064871, at *1 (Pa. Super. filed July 12, 2019) (unpublished mem.).

We add that at trial, both Appellant and the Commonwealth presented testimony from experts in the field of accident reconstruction. Officer Charles Winik of the Bristol Township Police Department testified that Appellant's high rate of speed and driving under the influence were "direct and substantial causes" of the crash. See N.T. Trial, 11/1/17, at 42. Appellant presented testimony from James Halikman, who opined that if Richards had not started her left turn when she did, the collision would not have occurred. See id. at 99-100, 114, 118-21.

The prior panel summarized the ensuing procedural history of this case:

Following a four-day trial, a jury convicted [Appellant] of [third-degree murder, homicide by vehicle while driving under the influence, homicide by vehicle, and driving under the influence of a controlled substance^[3] (DUI)]. For third degree murder, the trial court sentenced [Appellant] to 17 ½ to 40 years of incarceration; the trial court imposed sentences on the other convictions to run concurrently with this sentence.

[Appellant] filed a post-sentence motion and a motion for reconsideration of his sentence. The trial court denied both.

Demora, 2019 WL 3064871, at *1.

This Court affirmed the judgment of sentence, and our Supreme Court denied Appellant's petition for allowance of appeal on February 11, 2020. See id. at *8, appeal denied, 224 A.3d 1260 (Pa. 2020). Michael Lascon, Esq. (Trial Counsel) represented Appellant at trial and on direct appeal.

On May 10, 2021, Lonny Fish, Esq. (Prior PCRA Counsel) filed a timely PCRA petition on Appellant's behalf. Appellant raised multiple claims of ineffective assistance of counsel related to both his trial and his direct appeal. Prior PCRA Counsel filed an amended PCRA petition on July 2, 2022.

The PCRA court held an evidentiary hearing on July 20, 2022. Trial Counsel was the only witness who testified. On October 26, 2022, the PCRA court denied Appellant's petition. Appellant filed a timely notice of appeal. Prior PCRA Counsel also filed a motion to withdraw as counsel.

On December 9, 2022, the PCRA court granted Prior PCRA Counsel's motion to withdraw and appointed Stuart Wilder, Esq. (Current Counsel) to represent Appellant on appeal. Current Counsel filed a timely court-ordered Rule 1925(b) statement, in which he raised, for the first time, three claims of ineffective assistance of Prior PCRA Counsel. The PCRA court issued a Rule 1925(a) opinion addressing the claims raised in Appellant's Rule 1925(b) statement.

On appeal, Current Counsel filed a petition to withdraw and a Turner/Finley brief stating that he thoroughly reviewed the case, believed that an appeal would be wholly frivolous, notified Appellant of his intent to withdraw, and provided Appellant with a copy of his brief. Appellant subsequently filed a pro se appellate brief responding to the Turner/Finley brief on August 28, 2023.

Before addressing the merits of the matters raised in PCRA Counsel's Turner/Finley brief, we must first consider whether PCRA Counsel met the technical requirements for withdrawing from representation. Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa. Super. 2016). This Court has explained:

[c]ounsel petitioning to withdraw from PCRA representation must proceed under [Turner and Finley] and must review the case zealously. Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy 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.

Where counsel submits a petition and no-merit letter that 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.

Id. at 510-11 (citations omitted and formatting altered).

Here, PCRA Counsel filed his petition to withdraw indicating that he reviewed the record and determined that there were no meritorious issues to raise on appeal. Pet. to Withdraw, 4/6/23, at 1-2 (unpaginated). Further, PCRA Counsel filed a copy of the letter that he sent to Appellant, which indicates that he sent Appellant a copy of the Turner/Finley brief and advised Appellant that he may immediately proceed pro se or retain private counsel to raise any additional issues he believes should be brought to this Court's attention. Pet. to Withdraw, 4/6/23, at Ex. A. Appellant subsequently filed a pro se appellate brief. On this record, we conclude that PCRA Counsel has met the technical requirements of Turner and Finley, and we now proceed to address the issues PCRA Counsel identified in the Turner/Finley brief. See Muzzy, 141 A.3d at 510-11.

In the Turner/Finley brief, PCRA Counsel identifies the following issues:

1. Appellant is entitled to relief from his conviction and sentence because [Trial] Counsel was ineffective for failing to request an instruction on voluntariness of [Appellant's] confession.

2. [Prior] PCRA Counsel was ineffective for failing to allege [Trial] Counsel's ineffectiveness for not challenging the admission of [Appellant's] prior [DUI] conviction at trial.

3. [Trial] Counsel was ineffective for failing to cross-examine the Commonwealth's witness concerning a misstatement regarding the presence of a road marking at the time of the accident, and [Prior] PCRA Counsel was ineffective for filing to raise the issue in the amended PCRA petition.

4. [Prior] PCRA Counsel was ineffective for failing to allege Trial Counsel's infectiveness for failing to argue his innocence, as Appellant instructed him.

See Turner/Finley Brief at 11, 16-18.^[4]

In his pro se brief, Appellant raises the following issues, which we reorder as follows:

1. Whether the [PCRA] court erred in not finding Trial Counsel ineffective for failing to request an instruction on the voluntariness of Appellant's statements to police, as that failure was neither strategic nor informed, but rather because [Trial] Counsel did not know he could request the instruction?

2. Trial Counsel was ineffective and denied Appellant for failing to preserve for appeal his objection to the admission of Appellant's prior conviction for [DUI] as in the circumstances of this case, the admission of the conviction was unfairly prejudicial and unduly inflammatory, and the object of its admission to show Appellant attended a safe driving course could have been achieved by less inflammatory means and for failing to raise the issue in his amended PCRA petition.

3. Whether Trial Counsel was ineffective for failing to adduce, identify, mark as exhibit, and move into evidence photographic evidence . . . that a white dash at the intersection where the accident occurred was present when the accident occurred, squarely disproving and discrediting the testimony of Commonwealth rebuttal witness [Charles] Winik and bolstering the testimony of defense witness James Halikman, and [Prior] PCRA Counsel was ineffective.

4. Whether Trial Counsel was ineffective for failing to argue Appellant's complete innocence as requested and directed by Appellant . . . and [Prior] PCRA Counsel was ineffective, for failing to raise this issue in his amended PCRA petition?

5. Whether pursuant to Commonwealth v. Bradley, 261 A.3d 381, 405 ([Pa.] 2021) . . . [w]as [Current] Counsel's motion to withdraw pursuant to Turner-Finley premature?

Appellant's Pro Se Brief at iv-v (some citations omitted...