J-S48020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEWIS E. BENTLEY                           :
                                               :
                       Appellant               :   No. 3970 EDA 2017

                Appeal from the PCRA Order November 30, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
           No(s): CP-51-CR-0408841-2006, CP-51-CR-0807031-2006


BEFORE:      DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 28, 2018

        Lewis E. Bentley (Appellant) appeals pro se from the order dismissing

his second Post Conviction Relief Act (PCRA) petition as untimely.1 We affirm.

        Appellant, who relies on a wheelchair, was charged with the July 10,

2005 non-fatal shooting of Anthony Fitzsimmons, and the July 21, 2005 fatal

shooting of Vernon Purnell.         A jury trial was held in December of 2007.2

Because Appellant invokes the newly-discovered evidence exception to the

PCRA’s time bar, we recount the facts adduced at trial below.

        Fitzsimmons testified that on the morning he was shot, he encountered


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* Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546. The Commonwealth has not filed a brief.

2   The trial judge also presided over both of Appellant’s PCRA proceedings.
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Appellant near Upland and Greenway Streets in Philadelphia, used Appellant’s

cell phone for five minutes, and returned it to him.         Fitzsimmons further

testified that later that day, he was at a friend’s house. This Court, in our

disposition of Appellant’s direct appeal, explained:

      [A] male banged on the door and told Fitzsimmons that
      [A]ppellant wanted to see him on Upland Street. . . . When
      [Fitzsimmons arrived, A]ppellant was not there. Appellant’s
      brother told Fitzsimmons to wait for [A]ppellant to return because
      they had something to discuss. [T]hree other males were present
      at the time. Fitzsimmons knew [them] through his participation
      in drug sales in the neighborhood. [Fitzsimmons and A]ppellant’s
      brother began arguing about [whether] Fitzsimmons stole
      [Appellant’s] cell phone[. Fitzsimmons was] worried about being
      attacked by the other males [and thus] walk[ed] out into the
      street where it was more open . . . . He walked up towards
      Greenway Avenue and the males followed, threatening [and
      arguing with] him. . . . By the time he reached the corner of 66th
      and Greenway, the argument between Fitzsimmons and
      [A]ppellant’s brother had intensified. The three males were
      standing on the corner and [A]ppellant was a short distance away
      from them in his wheelchair, against the wall, next to a payphone.
      Fitzsimmons heard [A]ppellant say “fuck that,” then heard a pop
      and saw flashes coming from where [A]ppellant was sitting in his
      wheelchair. The males then fled. Fitzsimmons tried to take
      cover[, but was shot and] called for an ambulance[.] Fitzsimmons
      suffered three gunshot wounds. . . .

      . . . Fitzsimmons did not immediately tell police that he knew who
      had shot him. However, he later identified a photograph of
      [A]ppellant as his assailant. . . .

Commonwealth v. Bentley, 2127 EDA 2008 (unpublished memorandum at

2-3) (Pa. Super. Oct. 2, 2009).      Police recovered three .32 fired cartridge

casings (FCCs) from the crime scene.            At trial, Fitzsimmons identified

Appellant as the shooter.

      With respect to the other victim, Purnell’s girlfriend, April Floyd, testified

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that she previously dated Appellant. “On one occasion, [A]ppellant attempted

to break into her house at 5416 Thomas Avenue [in Philadelphia] while she

and Purnell were sleeping inside. Floyd called police.” Id. at 8. In the early

morning hours of July 21, 2005, Purnell was fatally shot outside of Floyd’s

house. He was found “hanging out of the passenger side door” of a car, and

the driver side window was “shot out.” Id. at 4. There were no eyewitnesses

to the shooting. The police recovered, inter alia, two .32 caliber FCCs and ten

.40 caliber FCCs from this crime scene.

      Additionally, Appellant’s fiancée, Aisha Patton, testified that on March 4,

2005 (four months before the above shootings), she and Appellant were

arguing and tussled over a gun. The gun discharged and shot Patton in the

leg. See Bentley, 2127 EDA 2008 at 1-2, 6-7. A .40 caliber projectile was

recovered, and forensic testing showed that this projectile and the .40 caliber

FCCs from Purnell’s shooting were fired from the same gun. Appellant did not

testify or call any witnesses at trial. Trial Court Opinion, 12/31/08, at 11.

      The jury found Appellant guilty of first-degree murder (the shooting of

Purnell), aggravated assault (the shooting of Fitzsimmons), and two counts of

carrying a firearm without a license.       On February 15, 2007, the court

sentenced Appellant to an aggregate term of life imprisonment and a

consecutive 5 to 10 years’ imprisonment.

      Appellant appealed, challenging the sufficiency and weight of the

evidence. On October 2, 2009, this Court affirmed the judgment of sentence.


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Pertinently, we rejected Appellant’s claims that there was insufficient evidence

to establish the identity of the person who shot Fitzsimmons, that Fitzsimmons

“speculated that Appellant was the shooter because he saw flashes coming

from Appellant’s wheelchair,” and “the fact that four other men were [present

during the shooting] was overlooked.” Bentley, 2127 EDA 2008 at 10. We

reasoned:

      Fitzsimmons testified that while he was engaged in an altercation
      with Appellant and three other individuals, he heard Appellant say,
      “[F]uck that[,]” Appellant was sitting in a wheelchair in front of
      him on the right and the other men were standing a few feet
      away[, and] Fitzsimmons then heard several shots . . . and saw
      flashes coming from the direction of Appellant’s wheelchair.

Id. at 12.    Appellant filed a petition for allowance of appeal with the

Pennsylvania Supreme Court, which was denied on March 16, 2010.

Commonwealth v. Bentley, 653 EAL 2009 (Pa. Mar. 16, 2010).

      On March 2, 2011, Appellant filed a counseled, timely PCRA petition, in

which he raised several claims of ineffective assistance of counsel. The PCRA

court denied relief, and on March 14, 2014, this Court affirmed on appeal.

Commonwealth v. Bentley, 831 EDA 2013 (unpublished memorandum)

(Pa. Super. Mar. 14, 2014). Appellant did not file a petition for allowance of

appeal with the Pennsylvania Supreme Court.

      On August 16, 2017, Appellant filed the pro se PCRA petition at issue in

this appeal, invoking the “newly-discovered facts” exception to the one-year




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filing deadline of the PCRA3 on the basis of a letter he received on June 30,

2017. Appellant attached a copy of the letter, which was signed “Maureese

aka Red.”     As the PCRA court pointed out, it appeared that Maureese and

Appellant knew each other.             See PCRA Court Opinion, 2/5/18, at 4.

Maureese’s letter stated that in July of 2005, he was the person firing a .32

caliber gun at the corner of 66th Street and Greenway Avenue, and that his

target was Appellant.        Appellant’s “Motion for Newly Discovered Evidence

PCRA,” 8/16/17, Exhibit at 1. Maureese further stated that a couple days

later, a “Mal Parker” offered him money “to send [Appellant] a message,”

because Mal Parker owed Appellant money for a .40 caliber gun that Mal

Parker had already taken possession of.          Id. at 2.   Mal Parker also told

Maureese that Appellant “had a house on 54th Thomas Ave [sic].” Id. at 2.

“On the day before the shooting,” Mal Parker gave Maureese “half the money

up front” and the .40 caliber gun, telling him to use it against Appellant. Id.

at 3. On the morning of the shooting, Maureese parked his car “on the corner

on 54th Street,” “walk[ed] up the block to the tinted Honda [sic],” and fired

two guns — a .32 caliber gun and the .40 caliber gun that Mal Parker gave

him — at the car window and door. Id. Maureese then ran to his car and

drove away. The letter made no mention of anyone else present in this second

incident. Finally, Maureese stated that he was not willing to go to the police



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3   See 42 Pa.C.S.A. § 9543(b)(1)(ii).

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or the District Attorney’s office, but that he was writing to Appellant because

his conscience was wearing on him.

      On October 24, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of

intent to dismiss the PCRA petition without a hearing, finding that the petition

was untimely filed. Appellant filed a timely pro se response, but the court

dismissed his petition on November 30, 2017.          The court subsequently

explained that it rejected Appellant’s claim that at the time of trial, he was

unaware of Maureese’s involvement in the crimes. The court reasoned that

“Appellant, who is apparently familiar with Maureese[,] does not explain why

he could not have learned earlier of Maureese’s involvement.” PCRA Court

Opinion, 2/5/18, at 4. The court also recounted that Fitzsimmons testified

that he was “moving away from [A]ppellant at the time he was shot” and that

“he saw flashes and heard the shots coming from . . . the wall where

[A]ppellant sat in his wheelchair.” Id. Finally, the court stated that even if

Appellant met the timeliness requirement of the PCRA, he would not be

entitled to relief because: (1) Maureese stated that he was not willing to

disclose his alleged confession to the police or District Attorney’s office; (2)

“Maureese’s alleged confession, if believed, would be used solely to impeach

the credibility of the eyewitness testimony and the testimony of the ballistics

expert;” and (3) the letter would not likely compel a different verdict if a new

trial were granted. Id. at 5.

      Appellant timely appealed. The PCRA court did not order him to comply


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with Pa.R.A.P. 1925(b), but issued an opinion on February 5, 2018. Appellant

presents one issue:

      Was the PCRA Court in violation of Appellant’s rights under Article
      1 Section 9 to The Constitution of the Commonwealth of
      Pennsylvania and The Fourteenth Amendment to Equal Protection
      of the law by finding that Appellant’s Petition for Newly Discovered
      Evidence was untimely and was in violation for not scheduling a
      proper hearing?

Appellant’s Brief at 6.

      Appellant avers that the PCRA court violated his rights in finding that his

petition was untimely.     He claims that he properly invoked the newly-

discovered facts exception, where the written confession from “Maureese aka

Red[ ]” supported his claim of actual innocence, Appellant “could not have

known or discovered this information without Maureese’s confession because

[Appellant] was not present at” either shooting, and he filed the petition within

60 days of receiving Maureese’s letter. Id. at 13. Appellant further asserts

that the PCRA court erred in relying on “certain sections of . . . inconsistent

[trial] testimony . . . to justify her decision.” Id. at 14. In support, Appellant

extensively reviews Fitzsimmon’s trial testimony, arguing that it was

inconsistent and emphasizing that Fitzsimmons stated that he did not see a

gun in Appellant’s hand during the shooting. See id. at 14-22.

      This Court has stated:

      “In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination is supported by the record and free of
      legal error.” “The 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 at the trial level.”

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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).

       “Before we may address the merits of Appellant’s arguments, we must

first consider the timeliness of Appellant’s PCRA petition because it implicates

the jurisdiction of this Court and the PCRA court.” Id. A PCRA petition “shall

be filed within one year of the date the judgment becomes final, unless the

petition alleges and the petitioner proves” one of the three limited exceptions

set forth at 42 Pa.C.S.A. § 9545(b)(1). 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

With respect to the “newly discovered evidence” at Subsection 9545(b)(1)(ii):

       [T]he petitioner must establish only that (1) the facts upon which
       the claim was predicated were unknown and (2) they could not
       have been ascertained by the exercise of due diligence. We have
       unequivocally explained that “the exception . . . does not require
       any merits analysis of the underlying claim.”          Rather, the
       exception only requires a petitioner to “prove that the facts were
       unknown to him and that he exercised due diligence in discovering
       those facts.”

           Once jurisdiction has been properly invoked . . . the relevant
       inquiry becomes whether the claim is cognizable under the PCRA.
       Section 9543, titled “Eligibility for relief,” governs this inquiry.
       [Pertinently], section 9543 delineates seven classes of allegations
       that are eligible for relief under the PCRA. See 42 Pa.C.S.A. §
       9543(a)(2). Of relevance here is the “after-discovered evidence”
       provision, which states that a claim alleging “the unavailability at
       the time of trial of exculpatory evidence that has subsequently
       become available and would have changed the outcome of the
       trial if it had been introduced” is cognizable under the PCRA.[4] 42
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4 Our Supreme Court has noted that a comparison of Subsections
9543(a)(2)(vi) (after-discovered evidence requirement) and 9545(b)(1)(ii)
(newly-discovered evidence exception) “reveals a superficial resemblance, as



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       Pa.C.S.A. § 9543(a)(2)(vi). To establish such a claim, a petitioner
       must prove that “(1) the evidence has been discovered after trial
       and it 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.”

Commonwealth v. Cox, 146 A.3d 221, 227-228 (Pa. 2016).

       Here, Appellant does not claim that his PCRA petition was filed within

the one-year filing requirement; instead, he maintains that he is entitled to

relief under the newly-discovered evidence exception. See 42 Pa.C.S.A. §

9545(b)(1)(ii). To properly plead this exception, Appellant was required to

show that newly-discovered “facts were unknown to him and that he exercised

due diligence in discovering those facts.” See Cox, 146 A.3d at 227. We hold

that Appellant properly invoked the exception by averring that on June 30,

2017, he received the letter, which sets forth facts previously unknown to him.

See id. However, no relief is due on the merits of Appellant’s claim.

       We agree with the PCRA court that Appellant has not established that

he is entitled to relief. See PCRA Court Opinion, 2/5/18, at 4-5. As both the

PCRA court and this Court previously stated, Fitzsimmons testified to the

circumstances surrounding his encounter with Appellant on July 10, 2005 —


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both involve consideration of whether the facts or evidence upon which the
claim is based were previously unknown to the petitioner and whether that
information could have been discovered earlier, through the exercise of due
diligence.”   Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016).
Nevertheless, the Court has “cautioned against the conclusion that there is an
overlap between these provisions and reiterated that they remain distinct
inquiries.” Id.

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that he heard Appellant say “fuck that” and then heard a pop and saw flashes

coming from Appellant’s direction. See Bentley, 2127 EDA 2008 at 3, 12;

PCRA Court Opinion, 2/5/18, at 4. Appellant’s present attempt to challenge

the weight of Fitzsimmons’ trial testimony is meritless, because any question

as to credibility of the witnesses was resolved by the jury at trial. Appellant’s

newly-discovered evidence (Maureese’s letter) cannot be used to impeach

Fitzsimmon’s testimony or the ballistics evidence, and 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 at . . . trial.” See Cox, 146

A.3d at 227; Miller, 102 A.3d at 992; Commonwealth v. Kinney, 157 A.3d

968, 972 n.3 (Pa. Super. 2017) (“The weight of the evidence is exclusively for

the finder of fact, which is free to believe all, part, or none of the evidence,

and to assess the credibility of the witnesses.”). Accordingly, we agree with

the PCRA court that Appellant has not established a basis for relief, and affirm

the order denying dismissing Appellant’s second PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/18



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