Commonwealth v. Dixon

1

COMMONWEALTH OF PENNSYLVANIA v. COLBY RICHARD DIXON Appellant

No. 1397 MDA 2022

No. J-S06033-23

Superior Court of Pennsylvania

March 8, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered August 30, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s) CP-36-CR-0003407-2007

BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

STEVENS, P.J.E.

Appellant Colby Richard Dixon appeals from the order of the Court of Common Pleas of Lancaster County denying his petition pursuant to the Post-Conviction Relief Act (PCRA).^[1] PCRA counsel filed a petition to withdraw his representation as well as an accompanying brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). After careful review, we affirm the PCRA court's order and grant counsel's petition to withdraw.

The PCRA court summarized the factual background of this case:

The events surrounding [Appellant's] conviction and sentence occurred on May 25, 2007, at Rookies Bar & Grill in Manheim Township, Pennsylvania. [Appellant] arrived at Rookies dressed in a white shirt, jeans, and large diamond earrings. Upon entering Rookies, [Appellant] was observed to be arguing with [a] female, later identified as "Jayla." Sometime thereafter, Keith Pitt, Jr. and Rashad Watts also arrived at Rookies. Inside the bar, Jayla approached Keith Pitt, Jr. and struck up a conversation. During the midst of their conversation, [Appellant] approached and began making comments about Keith Pitt, Jr. and Rashad Watts; [Appellant] continually walked back and forth behind Jayla and Keith Pitt, Jr., only stopping when Jayla walked away from Keith Pitt, Jr.

Approximately twenty minutes after Jayla walked away, [Appellant], while still inside Rookies, began firing a handgun at Keith Pitt, Jr., striking him numerous times. Dale Cook, a bystander standing three feet from [Appellant] when he was firing at Keith Pitt, Jr., later identified [Appellant] as the shooter. Rashad Watts, an associate of Keith Pitt, Jr., also identified [Appellant] as the shooter. Additional witnesses, while unable to specifically identify [Appellant] as the shooter, described the shooter as wearing the same clothing that [Appellant] was observed to have been wearing on the night of the shooting. A New York Yankees baseball hat recovered at the scene of the shooting was found to have [Appellant's] DNA on it.

PCRA opinion, 8/30/22, at 1-2 (citations omitted).

After Appellant was charged in connection with this shooting, a jury convicted Appellant of criminal attempt - homicide, aggravated assault, and recklessly endangering another person. The trial court sentenced Appellant to an aggregate term of twenty-one (21) to forty-two (42) years' imprisonment.

On April 7, 2010, this Court affirmed the judgment of sentence and on September 28, 2010, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Dixon, 317 MAL 2010 (Pa. 2010); Commonwealth v. Dixon, 1426 MDA 2009 (Pa.Super. April 7, 2010) (unpublished memorandum).

On September 12, 2011, Appellant filed his first PCRA petition. After an evidentiary hearing, the PCRA court denied Appellant's petition on December 7, 2012. This Court affirmed the denial of Appellant's first PCRA petition. See Commonwealth v. Dixon, 533 MDA 2013 (Pa.Super. January 7, 2014) (unpublished memorandum).

On July 26, 2020, Appellant filed a "Motion for Remand/Newly Discovered Evidence" in which he attached an affidavit from a fellow inmate who claimed to have witnessed the shooting in question and identified the shooter as an individual named DeShawn White. The lower court denied this motion without holding a hearing.

On March 4, 2021, this Court found the lower court had erred in failing to treat the July 26, 2020 motion as a PCRA petition and in failing to issue notice pursuant to Pa.R.Crim.P. 907. This Court remanded for an evidentiary hearing or the proper issuance of Rule 907 notice. See Commonwealth v. Dixon, 1135 MDA 2020 (Pa.Super. March 4, 2021) (unpublished memorandum).

Upon remand, the PCRA court held an evidentiary hearing and summarized the testimony of Appellant's proposed witness, La'Quanta Chapman as follows:

[La'Quanta Chapman] testified that he had met [Appellant] at SCI Greene, and that the two of them had conversed while playing chess together, eventually realizing that they shared a mutual acquaintance - Jayla. [Appellant] revealed Jayla to be the mother of his child, and La'Quanta Chapman admitted that he had dated Jayla, and that the last time he spoke to her, "something crazy happened."

La'Quanta Chapman testified that Jayla had asked him to meet her at Rookies, and that he arrived after midnight with a friend, DeShawn White, entered Rookies, and saw Jayla speaking with a group of men. Upon seeing the men, DeShawn White told La'Quanta Chapman that they were being set up to be robbed. After Jayla left the group of men she was with, she began conversing with La'Quanta Chapman, and DeShawn White approached the group of men. La'Quanta Chapman testified that he heard gunshots ring out within Rookies, and that he saw DeShawn White shooting at the group of men that Jayla had previously been speaking with.

La'Quanta Chapman continued that he ran out of Rookies, only to see DeShawn White across the street at a gas station. He indicated that he only spent "a couple of minutes" in Rookies before the shooting occurred, and that the only people he knew in Rookies were Jayla and DeShawn White. He then stated that he jumped in his truck, pulled up to the gas station, told DeShawn White to throw the gun used in the immediate shooting into some bushes, and then the two of them left the area together in La'Quanta Chapman's truck. During the evidentiary hearing, La'Quanta Chapman testified that DeShawn White was wearing dark colored shorts, a white shirt, and a baseball hat. He further testified that he remembered the date of the shooting being May 26, 2007.

On cross-examination, he testified that he had smoked marijuana on the night of the shooting, and that he was standing on the opposite side of the bar from the location in which the shooting took place. La'Quanta Chapman admitted that he could not recall if the alleged true shooter, DeShawn White, was wearing a Yankees or Mets hat, what the lighting was like in the bar, or if anyone else in Rookies was dressed similarly to DeShawn White. Additionally, La'Quanta Chapman testified that he never contacted Jayla again after this incident, nor did he inquire about what happened after that night until he spoke to [Appellant] about it.

PCRA opinion, 8/30/22, at 1-3 (citations omitted). Chapman testified that White is now deceased. PCRA Hearing, 12/9/21, at 19.

At the conclusion of the hearing, the PCRA court denied Appellant's petition as untimely filed and found that Appellant had not pled or proven that he was entitled to a new trial based on the newly discovered fact exception to the PCRA timeliness rules. In the alternative, even assuming that Appellant had met the timeliness exception, the PCRA court concluded that his after-discovered evidence claim was meritless. This timely appeal followed.

On collateral appeal, Appellant's current counsel was appointed to prepare an appellate brief on Appellant's behalf. Thereafter, counsel filed a petition to withdraw and a no-merit Turner-Finley brief.

As an initial matter, we must first review counsel's petition to withdraw.

Counsel petitioning to withdraw from PCRA representation must proceed ... under Turner, supra and Finley, supra 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.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012) (quoting Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (brackets omitted)).

After reviewing the record and counsel's petition to withdraw, we find PCRA counsel has complied with the technical requirements of Turner and Finley, supra. PCRA counsel detailed the nature and extent of his review, listed the issue which Appellant wished to appeal, and explained why he believed the claim was meritless. Counsel indicated that after conscientious review of the record, he could not identify any meritorious issues that he could raise on Appellant's behalf. Moreover, counsel attached the letter he sent to Appellant in which counsel specifically indicated that he believed the appeal was meritless based on the reasons set forth in his brief and notified Appellant of his right to raise additional points for consideration by proceeding pro se or with the assistance of privately retained counsel. See Commonwealth v. Muzzy, 141 A.3d 509, 511 (Pa.Super. 2016).

We now consider the issue PCRA counsel presents in his brief to ascertain whether the claim entitles Appellant to relief. Appellant...