Commonwealth v. Lynch

1

COMMONWEALTH OF PENNSYLVANIA v. LANDO L. LYNCH Appellant

No. 319 WDA 2022

No. J-S09020-23

Superior Court of Pennsylvania

April 25, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered February 22, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s) CP-02-CR-0004697-2002, CP-02-CR-0005402-2002

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM

BOWES J.

Lando L. Lynch appeals from the order that dismissed his petition filed pursuant to the Post Conviction Relief Act ("PCRA").^[1] We affirm.

Appellant is serving a sentence of life imprisonment for first-degree murder and other crimes. This Court summarized the facts underlying Appellant's convictions as follows:

On the evening of March 16, 2002, Officer James Payne of the City of Pittsburgh Housing Authority Police Department was dispatched to respond to a report of a shooting at the Whiteside Road housing complex in the Hill District section of Pittsburgh. Upon arrival at the scene, Officer Payne discovered the victim, 16-year-old D.J., clutching the side of his stomach near the back door of 892 Whiteside Road. The victim subsequently died later that evening.

That same evening, Pittsburgh homicide detective Timothy Nutter spoke with Tracy Johnson, who lived on the second floor of the building located at 805 Whiteside Road. Johnson informed Detective Nutter that while she did not directly observe the shooting, she heard three or four gunshots and a female scream, after which she called 911.¹ Detective Nutter also interviewed Darcell Boyd, a friend and former classmate of the victim, who had seen the victim talking with Appellant on the night of the murder. According to Boyd, he observed the victim and Appellant engaging in a conversation in the courtyard of the housing complex, during which, Appellant accused the victim of stealing his tennis shoes. Thereafter, Boyd stated that Appellant then held a "rusty brown .32 gun" in his right hand, pointed it at the victim's stomach from a distance of no more than three or four feet away, and shot him.

¹ We note that at trial, Tracy Johnson testified that she actually witnessed Appellant shoot the victim. Johnson

claimed that she was initially afraid to report this to police because Appellant's brother had previously threatened her with a firearm and accused her of "snitching" on him to police for selling drugs.

Subsequent thereto, Appellant was charged with one count of criminal homicide, with a violation of the Uniform Firearms Act ("VUFA") for carrying a firearm without a license, and with one count of possessing an instrument of crime. Following a jury trial, Appellant was convicted of [all] counts.

Commonwealth v. Lynch ("Lynch II"), 62 A.3d 465 (Pa.Super. 2012) (unpublished memorandum at 1-2) (cleaned up).

Appellant's direct appeal yielded no relief. In particular, this Court held that the Commonwealth's failure to timely disclose that it had conducted an interview with Ms. Johnson the week before trial did not warrant a mistrial because, inter alia, trial counsel "effectively impeached [Ms.] Johnson regarding the inconsistencies, conflicts, and omissions between her past statements and trial testimony during cross examination." Commonwealth v. Lynch ("Lynch I"), 898 A.2d 1130 (Pa.Super. 2006) (unpublished memorandum at 7), appeal denied, 909 A.2d 303 (Pa. 2006).

Appellant's first, timely PCRA petition also resulted in no relief. In addition to affirming the denial of claims related to witnesses whom trial counsel had not called, we agreed with the PCRA court that Appellant's claim that the Commonwealth committed a violation of Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose its pretrial interview with Ms. Johnson was previously litigated. See Lynch II, supra (unpublished memorandum at 12), appeal denied, 70 A.3d 810 (Pa. 2013).

Appellant filed a second PCRA petition in 2016, claiming that his sentence was unconstitutional pursuant to Miller v. Alabama, 567 U.S. 460 (2012) (holding unconstitutional mandatory minimum sentences of life imprisonment without possibility of parole imposed upon juvenile murderers), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that Miller applied retroactively). The PCRA court denied the petition on the basis that those cases did not pertain to Appellant, who was twenty-one years old when he murdered D.J. Appellant did not appeal.

Appellant filed his third PCRA petition pro se on October 6, 2018, raising claims of after-discovered evidence in connection with new statements obtained from witnesses who had testified in prior proceedings. The PCRA court issued notice of its intent to dismiss but retired from the bench before actually dismissing the petition. In 2021, with the 2018 petition still pending but not yet reassigned to a new judge, Appellant filed another pro se PCRA petition raising the claim at issue in this appeal. Therein, Appellant asserted that in July 2021, Ja'Vonna Miller, the daughter of Tracey Johnson, contacted Appellant's family to advise that Ms. Johnson had recently died and that Ms. Miller "may have some information that may be helpful to [Appellant's] case." PCRA Petition, 9/16/21, at 4. Appellant attached to the petition a notarized statement from Ms. Miller dated July 20, 2021, and the envelope in which it was sent to Appellant, postmarked August 5, 2021. Ms. Miller's statement indicated that Ms. Johnson told her that she had lied about witnessing a murder, that Ms. Johnson was convinced by police to change her story, and that Ms. Johnson had been "working on making it right" when she died on May 1st, presumably of 2021. Id. at Exhibit 1.

The case was reassigned to the present PCRA court, which appointed counsel to file an amended petition. Instead, counsel filed a motion to withdraw and an extensive no-merit 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), addressing the claims raised in both the 2018 and 2021 petitions.^[2]

Relevant to this appeal, counsel observed that Appellant knew in October 2017 that Ms. Johnson told Appellant's friend Derrick Lawrence that she "was never sure about who or what she witnessed. But detectives coerced her to testify that it was [Appellant] who committed the murder." See

Turner/Finley brief, 11/10/21, at 36 (quoting a letter Appellant had written on October 23, 2017). Appellant indicated that, as of October 2017, Ms. Johnson was "now willing to tell the truth." Id. (quoting the October 23, 2017 letter). Yet, it was not until 2021 that Appellant came forward with Ms. Miller's statement, which was also signed by Derrick Lawrence. Counsel asserted that Appellant had no plausible explanation why he could not have discovered Ms. Johnson's recantation earlier through the exercise of due diligence. Id. at 39-40. Accordingly, counsel opined that Appellant did not timely raise his after-discovered evidence claim and, in any event, Ms. Miller's statement was wholly inadmissible and, thus, did not amount to after-discovered evidence. Id. at 70-76.

On January 12, 2022, the PCRA court issued notice of its intent to dismiss Appellant's PCRA petitions without a hearing pursuant to Pa.R.Crim.P. 907. Therein, the PCRA court indicated that Appellant's claims were untimely filed and no timeliness exception applied to any of them, and that, even if they were timely filed, there was no material dispute of fact and they lacked merit as a matter of law. See Notice of Intention to Dismiss, 1/12/22, at ¶¶ 1-2, 4. Appellant filed a motion for an extension of time, asking for an additional sixty days to respond to the Rule 907 notice. By order of February 22, 2022, the PCRA court denied Appellant's request for an extension and denied his PCRA petitions for the reasons stated in the Rule 907 notice. See Order, 2/22/22, at ¶¶ 1-2.

Appellant filed a timely pro se notice of appeal on March 16, 2022, and both he and the PCRA court complied with Pa.R.A.P. 1925. This Court directed the PCRA court to address some irregularities in the docketing of filings in Appellant's cases, as well as the fact that Appellant appealed pro se despite counsel's request to withdraw never having been granted. The PCRA court filed orders confirming that counsel was granted leave to withdraw and directing the correction of the docket entries. The parties thereafter filed their briefs in this Court, and this appeal is ripe for disposition.

Appellant presents us with the following questions:

[1.] Did the PCRA court err in failing to consider Appellant's PCRA petition as timely filed?

[2.] Did the PCRA court err in denying Appellant's after discovered claim?

[3.] Did the PCRA court err in not considering the affidavit of Jo'Vanna Miller (biological daughter), as after discovered evidence of a dying declaration of her mother, Tracey Johnson?

Appellant's brief at 7 (cleaned up, some spelling corrected).

We begin with a review of the pertinent legal precepts. "In general, we review an order dismissing or denying a PCRA petition as to whether the findings of the PCRA court are supported by the record and are free from legal error." Commonwealth v. Howard, 285 A.3d 652, 657 (Pa.Super. 2022) (cleaned up).

As to legal questions, we apply a de novo standard of review to the PCRA court's legal conclusions, and this Court may affirm a PCRA court's order on any legal basis. As to factual questions, 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 in the lower court. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed

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