J-S17019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
  OMEGA PEOPLES                            :
                                           :
                      Appellant            :   No. 341 EDA 2018

               Appeal from the PCRA Order December 13, 2017
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0004185-2011


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 29, 2019

         Appellant, Omega Peoples, appeals from the order entered on December

13, 2017, denying him relief on his petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. In this appeal from the denial

of PCRA relief, Appellant’s court-appointed counsel filed a petition to withdraw

as counsel and a 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). As we conclude that counsel fulfilled the procedural

requirements of Turner/Finley and that this appeal is without merit, we grant

counsel’s petition to withdraw and affirm the PCRA court’s order denying

Appellant post-conviction relief.

         In Appellant’s direct appeal from his judgment of sentence, we quoted

the trial court’s thorough summary of the evidence presented at Appellant’s

trial:
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       The evidence showed that[,] . . . on May 22, 2006, the victim,
       Odell Cannon [(“Cannon”)], was approached by two
       assailants as he exited a house located at 712 East Chestnut
       Street in the City of Coatesville, Chester County,
       [Pennsylvania]. The assailants approached from two
       directions,    Teron     Lewis     [(“Lewis”),   Appellant’s]
       co-conspirator, from the front of that property, and
       [Appellant], from Diamond Alley, which abuts the rear of that
       property. The Commonwealth's evidence proved Lewis shot
       Cannon six times as Cannon walked through the side and
       backyard toward Diamond Alley. Lewis then fled the scene.

       Within minutes after the shooting, [Appellant] was found
       nearby, wounded and hiding under a minivan parked next to
       Diamond Alley, the alley that bordered the back yard of the
       712 East Chestnut Street property, where the shooting
       occurred in a side yard. The victim, Cannon, a convicted
       felon, was wearing body armor, and was armed with a Sturm
       Ruger     .357    Magnum     revolver,   from    which    the
       Commonwealth's evidence proved he fired six rounds at his
       assailants. From the evidence, the jury could properly infer
       that [Appellant], who was shot three times during the
       encounter [with] Cannon, and unable to flee, was purposely
       trying to hide nearby from police, who had descended in force
       upon the shooting scene and the surrounding area.

       Within arm's reach of [Appellant,] in front of the minivan[,]
       police found a loaded and fully operable Bryco Arms 9mm
       semi-automatic handgun, a glove, and a hunting mask, not
       typically found in one's possession on a May evening. Testing
       revealed [Appellant’s] DNA was located on the mask, around
       the nose and mouth openings. Admittedly, the 9mm handgun
       belonged to [Appellant], but had not been discharged. On the
       night of the shooting, police also recovered from under the
       minivan one electric-blue, slip-on type sneaker, which they
       found lying next to [Appellant]. The matching sneaker was
       not under the van. However, the matching electric-blue
       sneaker was found by police that same night at the scene of
       the shooting in the backyard of 712 East Chestnut Street.

       From testimony supplied by an FBI agent involved on
       [Appellant’s] federal prosecution, the matching pair of
       electric blue sneaker-shoes belonged to [Appellant]. Lewis,

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       [Appellant’s] co-conspirator, was subsequently convicted
       following a separate trial of attempting to murder Cannon and
       conspiring with [Appellant] to do so, as Cannon walked
       through the backyard of 712 East Chestnut Street,
       accompanied by a female companion, Mona Perez, who ran
       from the scene, but was later that morning identified by
       police and testified at trial against both [Appellant] and
       Lewis. [Appellant’s] matching blue sneaker was found in the
       yard in immediate proximity to where Cannon was found
       wounded, placing [Appellant] within feet of Cannon during
       the attempted murder.

       Adding to this evidence were several proven facts: (1) that
       Cannon, wearing body armor and armed with a Sturm Ruger
       .357 Magnum revolver, engaged in gunfire with his
       assailants, discharging all six rounds in his weapon; (2) the
       victim, Cannon, was shot six times, resulting in severe
       injuries, including the complete fracture of his left femur
       immediately proximate to the pelvic socket, which required
       mechanical repair, another bullet narrowly missed Cannon's
       left femoral artery, another bullet was lodged just above
       Cannon's bladder, and he suffered several bullet wounds to
       his thighs. Cannon was flown to the University of
       Pennsylvania for immediate surgery following the shooting;
       (3) when [Appellant] was found by police hiding under the
       minivan, police observed he had just been shot three times
       in the upper chest, sustaining three linear wounds that
       extended from his left nipple to his right shoulder, the angle
       of the wounds suggesting they were fired from Mr. Cannon's
       .357 Magnum revolver as Cannon lay wounded on the
       ground; (4) an hour before the shooting, [Appellant] and
       Lewis, his [co-conspirator], allegedly his “young boy” (a
       street name for a protégé) spoke by phone when Lewis,
       having just encountered Cannon at the 712 East Chestnut
       Street residence, called [Appellant] to inform him that
       Cannon was there. The shooting took place about an hour
       later; (5) the Commonwealth presented evidence as to the
       motive for the shooting, which was retaliation for an attempt
       made on [Appellant’s] life a few days earlier by an associate
       of Mr. Cannon, identified by the prosecuting attorney as Mr.
       Cannon's “young boy,” . . . stemming from a continuing feud
       among two rival Coatesville factions.




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Commonwealth v. Peoples, 93 A.3d 507 (Pa. Super. 2013) (unpublished

memorandum) at 1-4, appeal denied, 95 A.3d 277 (Pa. 2014), quoting, Trial

Court Opinion, 3/27/13, at 7–10 (some corrections omitted).

       The jury found Appellant guilty of attempted murder, aggravated assault

(serious bodily injury), aggravated assault (use of a deadly weapon),

conspiracy to commit murder, conspiracy to commit aggravated assault, and

recklessly endangering another person.1 On June 21, 2012, the trial court

sentenced Appellant to serve an aggregate term of 18 to 36 years in prison

for his convictions.       We affirmed Appellant’s judgment of sentence on

December 11, 2013 and the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal on July 8, 2014.        Commonwealth v.

Peoples, 93 A.3d 507 (Pa. Super. 2013) (unpublished memorandum) at 1-20,

appeal denied, 95 A.3d 277 (Pa. 2014).

       On December 22, 2014, Appellant filed a timely, pro se PCRA petition.

Within the petition, Appellant claimed that he was entitled to relief because

exculpatory evidence, that was unavailable at the time of trial, had recently

become available and would have changed the outcome of his trial if it had

been introduced. See 42 Pa.C.S.A. § 9543(a)(2)(vi); Appellant’s Pro Se PCRA

Petition, 12/22/14, at 4-15. Specifically, Appellant claimed that his brother,

Duron Peoples, recently admitted that he – and not Appellant – had committed

____________________________________________


1 18 Pa.C.S.A. §§ 901 (and 2502(a)), 2702(a)(1), 2702(a)(4), 903 (and
2502(a)), 903 (and 2702(a)), and 2705, respectively.


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the crimes for which Appellant was convicted.         Appellant’s Pro Se PCRA

Petition, 12/22/14, at 4-15.

      Appellant attached a newspaper article to his petition, where Duron

Peoples was quoted as declaring:

        After Keith Brown got shot I pretty much took things into my
        own hands, with [Cannon] and [Appellant]. . . . Before, I was
        about money. But it just got to be that way, and when blood
        got shed and [Keith Brown] died then the gloves was off.

        . . . Truth be told, I basically lured [Appellant] down there as
        a setup. I had called him and told him that I was under
        attack, which was a fabricated statement. When he came
        down I was already in the process of setting up [Cannon],
        basically going to kill him. [Appellant] was going to get
        caught up in that too.

        I’m the one who had [Cannon] shot. . . . Even though
        probably my family will be mad at me but I had [Appellant]
        shot too. The gun that he had I knew was a faulty gun. It
        was a faulty gun. It was the same one that shot Sonny on
        April 1, the same gun. It’s nothing to be proud of.

Michael P. Rellahan, Coatesville Murderer Duron Peoples Speaks From Prison

of Past and Coming Life, DAILY LOCAL NEWS, Oct. 23, 2014, available at

https://www.dailylocal.com/news/national/coatesville-murderer-duron-

peoples-speaks-from-prison-of-past-and/article_18c4fc8b-608c-5782-b2ec-

f8b88a5e1f17.html (quotations omitted).

      At the time Duron Peoples allegedly made the above statements, he was

serving a term of life in prison without the possibility of parole for the October

21, 2006, first-degree murder of Jonas Suber.         Id.; see also N.T. PCRA




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Hearing, 4/28/17, at 25 and 36; Commonwealth v. Peoples, 134 A.3d 110

(Pa. Super. 2015) (unpublished memorandum) at 1-11.

      The PCRA court appointed counsel to represent Appellant; counsel later

filed an amended petition on Appellant’s behalf.        The amended petition

reiterated Appellant’s claim of after-discovered evidence. See Amended PCRA

Petition, 9/7/16, at 1-7.

      On April 28, 2017, the PCRA court held a hearing on Appellant’s petition,

where Duron Peoples was the sole witness. The PCRA court ably summarized

Duron Peoples’ testimony:

        Duron Peoples testified under oath to the following: that he
        hired two individuals, whom he refused to identify, to kill both
        [Appellant], who is his older brother, and Odell Cannon.
        According to Duron’s rendition of events, the killings were
        attempted on the night of May 22, 2006.           Duron first
        disclosed these events to the reporter, Michael Rellahan. . . .

        [According to Duron, Appellant] knew nothing about Duron's
        plan to kill him, and [Appellant] . . . was not involved in the
        shooting of Odell Cannon, except in [Appellant’s] capacity as
        an intended target.        Duron made no disclosures to
        [Appellant] or anyone else about Duron's version of events,
        either prior to, during [Appellant’s] prosecution for
        attempting to kill Odell Cannon, or thereafter, until contacting
        Rellahan. Duron testified that he "masterminded the whole
        operation." . . .

        Prior to the shooting, Duron had not spoken to [Appellant]
        for 11 years. Duron claim[ed] to have never bonded with
        [Appellant] during childhood due to their age difference and
        their later periods of incarceration[.] Duron testified that
        [Appellant] "didn't see things my way."          From Duron's
        perspective, "it's my way or the highway[] . . . you go against
        me, you done." Duron denied that he was testifying on
        [Appellant’s] behalf. [Duron testified:] “I ain't testifying for
        him for nothing. I don't care what happens whether he gets

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J-S17019-19


       any type of relief or anything like that. This is more for my
       family."

       On cross-examination, Duron was questioned about how he
       lured [Appellant] to the scene of the shootings. He testified
       that he called [Appellant] and told him he needed "some
       assistance," and that he was behind their aunt's house that
       backed on Diamond Alley and needed [Appellant] "to come
       out at me." It is noted that Duron did not include the latter
       information in his disclosure to either Rellahan or in his letter
       to [Appellant’s attorney]. . . .

       Duron testified that the [9-millimeter] hand gun recovered
       by police from [Appellant] at the shooting scene was one he
       had stashed in his aunt's garage, that he conjectured
       [Appellant have known] where Duron hid things in his aunt's
       garage and might [have gotten] and [made] use of the gun
       in coming to Duron's aid. Duron testified the gun was the
       one used in the 2006 murder of Jonas Suber, a Coatesville
       barber with whom Duron had a dispute. Duron was convicted
       of Suber's murder on or about October 1, 2014, and was
       sentenced by the jury to life in prison. . . .

       Duron testified that this gun "did not work well," thereby
       inferring it would be of no use to [Appellant] in defending
       himself from Duran's alleged plot to kill [Appellant]. Contrary
       testimony was offered at [Appellant’s] trial to the effect [that]
       the [9-millimeter handgun] recovered from [Appellant] was
       operable and test-fired by police.

       Duron was also questioned closely by the Commonwealth's
       attorney about his propensity to take responsibility for other's
       crimes after the statute of limitations has expired. Duron
       scoffed at the suggestion, saying he had nothing to lose and
       no motive to lie. In his words, "I'm not getting nothing out
       of this. . . . I still have to go back and finish this life sentence
       and get prepared to get buried in the back of the prison that
       I live at."

                                      ...

       [During the hearing, the Commonwealth introduced a]
       transcript of [Appellant’s] testimony at his 2007 federal trial
       for felonious possession of the [9-millimeter] handgun. . . .

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        There, [Appellant] testified that on the night of Odell
        Cannon's shooting, he had been visiting his daughter's
        mother's house on 8th Avenue, near Diamond Alley and was
        headed to a bar from there. He did not testify to receiving a
        phone call from his brother, Duron, seeking his help, and did
        not testify to going to his aunt's house.

PCRA Court Opinion, 12/13/17, at 6-9.

      On   December      13,   2017,    the   PCRA    court   denied    Appellant

post-conviction collateral relief; Appellant then filed a timely notice of appeal.

In this appeal, Appellant’s counsel filed a petition to withdraw as counsel and

a no-merit brief pursuant to Turner/Finley. Counsel presents one issue in

the Turner/Finley brief:

        The PCRA court committed an abuse of discretion by denying
        relief on Appellant’s newly discovered evidence claim.

Turner/Finley Brief at 7 (some capitalization omitted).

      Prior to addressing the merits of the issue raised in the Turner/Finley

brief, we must determine whether counsel met the procedural requirements

necessary to withdraw. Counsel seeking to withdraw in PCRA proceedings

        must review the case zealously. Turner/Finley counsel
        must then submit a “no-merit” letter to the [PCRA] 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 —

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        [the PCRA] 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. Muzzy, 141 A.3d 509, 510–511 (Pa. Super. 2016)

(citations and corrections omitted).

      Here, counsel fulfilled the procedural requirements necessary for

withdrawing as PCRA counsel. We thus turn to the merits of the claim raised

in the Turner/Finley brief and analyze whether “[t]he PCRA court committed

an abuse of discretion by denying relief on Appellant’s newly discovered

evidence claim.” Turner/Finley Brief at 7.

      As we have stated:

        [t]his Court’s standard of review regarding an order
        dismissing a petition under the PCRA is whether the
        determination of the PCRA court is supported by evidence of
        record and is free of legal error. In evaluating a PCRA court’s
        decision, 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 the [hearing] level.
        We may affirm a PCRA court’s decision on any grounds if it is
        supported by the record.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (citations

omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “unavailability at the time of trial of


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exculpatory evidence that has subsequently become available and would have

changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.A.

§ 9543(a)(2)(vi).

      To obtain relief based on after-discovered evidence, an appellant must

show that the evidence:

        (1) could not have been obtained prior to the conclusion of
        the trial by the exercise of reasonable diligence; (2) is not
        merely corroborative or cumulative; (3) will not be used
        solely to impeach the credibility of a witness; and (4) would
        likely result in a different verdict if a new trial were granted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012), citing

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008). To determine

whether the evidence is “of such nature and character” to compel a different

verdict in a new trial, a court should consider “the integrity of the alleged

after-discovered evidence, the motive of those offering the evidence, and the

overall strength of the evidence supporting the conviction.” Commonwealth

v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010), appeal denied, 14 A.3d

826 (Pa. 2010).

      In the case at bar, the PCRA court held a hearing, heard Duron Peoples

testify, and specifically concluded that his testimony was “totally incredible”

and untrue. PCRA Court Opinion, 12/13/17, at 10. The PCRA court explained:

        As the judge who presided over [Appellant’s] trial, [the PCRA
        court judge was] well acquainted with the facts of the Odell
        Cannon ambush and shooting. The prosecution's evidence
        against [Appellant] at his trial was compelling, and flatly
        discredits the version of events given by Duron Peoples.
        Further, Duron's testimony was both evasive and equivocal.

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        It is wholly uncorroborated by other evidence, and
        contradictory of established evidence of [Appellant’s] guilt.
        For example, Duron conjectured that [Appellant] would have
        used the faulty hand gun stashed by Duron in his aunt's
        garage in coming to Duron's aid[. However,] the weapon
        recovered by police from [Appellant] at the scene of Cannon's
        shooting was both a different gun than the one used to kill
        Jonas Suber, and was fully operable, having been test fired
        by police prior to [Appellant’s] trial. . . .

        [Second,] Duron's alleged phone call to [Appellant] the night
        Cannon was shot was inferentially contradicted by
        [Appellant] in his testimony during his federal trial.
        [Appellant] never acknowledged receiving any call from
        Duron. . . .

        [Third, i]n his testimony, Duron offered no rational
        explanation as to why he would want to have [Appellant]
        killed, other than that the brothers did not see eye-to-eye. .
        ..

        [Fourth, Appellant,] at trial[,] never raised the defense that
        Duron, and not he, was responsible for the attempt on Odell
        Cannon's life. . . .

        [F]inally, it is apparent to the [PCRA] court that, contrary to
        his assertion of indifference to [Appellant’s] criminal
        conviction, Duron, sentenced as he is to life imprisonment,
        has nothing to lose by providing false testimony to free
        [Appellant] from prison. . . .

        [The PCRA court thus] find[s] Duron's testimony fantastical
        and made from whole cloth.

PCRA Court Opinion, 12/13/17, at 10-11.

     As our Supreme Court has held, “[w]e are bound by the PCRA court’s

credibility findings where those determinations are supported by the record.”

Commonwealth v. Small, 980 A.2d 549, 558 (Pa. 2009). Here, the PCRA

court’s credibility determination – finding Duron Peoples’ testimony “totally


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incredible” and untrue – is entirely supported by the record. And, since Duron

Peoples’ testimony is false, it does not satisfy the after-discovered evidence

standard, as it would not “likely result in a different verdict if a new trial were

granted.”    Pagan, 950 A.2d at 292; Padillas, 997 A.2d at 365 (“before

granting a new trial, a court must assess whether the alleged after-discovered

evidence is of such nature and character that it would likely compel a different

verdict if a new trial is granted. In making that determination, a court should

consider the integrity of the alleged after-discovered evidence, the motive of

those offering the evidence, and the overall strength of the evidence

supporting the conviction”) (citations omitted). Appellant’s claim on appeal

thus has no merit.

       Therefore, counsel complied with the procedural requirements for

withdrawing as counsel and, under Turner/Finley, the issue Appellant wished

to pursue in his PCRA petition is without merit.2         Accordingly, we grant

counsel's petition to withdraw and affirm the order denying Appellant

post-conviction collateral relief.

       Petition to withdraw as counsel granted. Order affirmed. Jurisdiction

relinquished.



____________________________________________


2 Appellant filed a pro se response to counsel’s petition to withdraw and
no-merit brief. However, Appellant did not raise any additional claims in this
response. See Appellant’s Response to Counsel’s Withdraw[a]l, 2/26/19, at
1-8.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19




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