J-S64008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEMETRIUS D. GIBSON                        :
                                               :
                       Appellant               :   No. 117 WDA 2019

            Appeal from the PCRA Order Entered December 21, 2018
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0001873-2013


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                               FILED JANUARY 7, 2020

        Demetrius D. Gibson appeals from the order that dismissed his petition

filed pursuant to the Post-Conviction Relief Act (“PCRA”). Also before us is

Gary F. Vito, Esquire’s application to withdraw as counsel.1 We affirm.

        The trial court summarized the factual history of this case as follows:

        . . . [Appellant] was involved in a relationship with Elizabeth
        [Miller] that was marred by incidents of mutual domestic violence.
        On the evening of August 5, 2013, [Appellant] and Elizabeth were
        at their residence at 1157 Catherine Street, Apartment 7 in Tire
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967).
However, a Turner/Finley no-merit letter is the appropriate filing where
counsel seeks to withdraw on appeal from the denial of PCRA relief.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v
Finley, 550 A.2d 927 (Pa.Super. 1988) (en banc). Since an Anders brief
provides greater protection to a defendant, we may accept an Anders brief in
lieu of a Turner/Finley letter. Commonwealth v. Widgins, 29 A.3d 816,
817 n. 2 (Pa.Super. 2011). We do so here.
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     Hill, with Elizabeth’s brother Quinn Miller (Quinn).       Around
     midnight Quinn heard Elizabeth screaming and upon going to the
     upstairs bedroom he found that [Appellant] had Elizabeth on a bed
     and was choking her. Quinn intervened at which time [Appellant]
     threatened both Elizabeth and Quinn with a hammer he picked up
     from beside the bed. While holding the hammer [Appellant] asked
     Quinn if he wanted to die. Following this incident Elizabeth and
     [Appellant] began a series of verbal and physical assaults on one
     another ending up downstairs.        At some point during this
     altercation [Appellant] obtained a kitchen knife and threatened
     Elizabeth and Quinn with it again asking Quinn if he wanted to die.

     Eventually Elizabeth and Quinn left the apartment and started
     driving around in her car intending to return to the house Quinn
     shared with other family members. Elizabeth discovered that she
     left her cell phone in the apartment and called [Appellant] using
     Quinn’s cell phone several times to arrange to get her phone back.
     She agree[d] to meet [Appellant] at a car wash in the Moxham
     section of Johnstown to return her phone. Elizabeth and Quinn
     arrived at the car wash first around 4:30 a.m. and [Appellant]
     arrived shortly after in his red Chevrolet [B]lazer and parked in
     one of the car wash stalls. Elizabeth exited her car and got into
     the front passenger seat of [Appellant]’s car where she remained
     for sometime. Elizabeth and [Appellant] eventually began arguing
     loudly and Quinn exited Elizabeth’s car and walk[ed] towards the
     Blazer to see if his sister was all right.

     Quinn observed [Appellant] and Elizabeth arguing and fighting in
     the vehicle. Elizabeth told Quinn that [Appellant] had a knife and
     [Appellant] admitted to Quinn that he did. Quinn walked to the
     passenger side of the Blazer and tried to pull Elizabeth from the
     vehicle while she was fighting with [Appellant]. While engaged in
     this effort Quinn saw a large knife in [Appellant’s] hand and saw
     [Appellant] stab Elizabeth in the back. [Appellant] then threw the
     knife out of the driver’s side window. As [Appellant] drove off
     Elizabeth partially fell and was partially pulled by Quinn out of the
     Blazer.

           ....

     Police and emergency [personnel] arrived and Elizabeth was
     transported to Conemaugh Memorial Hospital. Elizabeth suffered
     massive blood loss due to the knife puncturing her inferior vena


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      cava. She died as a result of her wounds at the hospital as doctors
      attempted to stop the bleeding.

            ....

      Efforts to locate [Appellant] continued for ten days and involved
      both state and federal authorities. [Appellant] eventually turned
      himself in to Johnstown Police. The knife and other evidence
      w[ere] recovered from the crime scene with additional evidence
      being recovered after searches of the Blazer and apartment were
      conducted after search warrants had been obtained. Elizabeth’s
      cell phone was eventually recovered from the apartment.
      [Appellant] did not testify but argued, inter alia, that Quinn[,] the
      only eyewitness, did not see the entire incident that occurred
      inside the Blazer, that it was Elizabeth who was the initial
      aggressor with the knife, and that [Appellant] was acting in self-
      defense when they struggled. [Appellant] argued he had taken
      the knife from Elizabeth and that the stabbing was accidental and
      resulted when Elizabeth fell backwards into the Blazer when Quinn
      was trying to pull her out of the vehicle which resulted in her
      falling onto the knife and impaling herself. By nature of the
      verdicts the jury rejected [Appellant’s] theory and found Quinn’s
      testimony credible as the only eyewitness to these events.

Trial Court Opinion, 9/11/15, at 4-7.

      Appellant was arrested and charged with criminal homicide, aggravated

assault, two counts of aggravated assault with a deadly weapon, and

recklessly endangering another person. Appellant proceeded to a jury trial

and was found guilty of third-degree murder, as well as aggravated assault,

aggravated assault with a deadly weapon, and recklessly endangering another

person. Appellant was found not guilty of one of the charges of aggravated

assault with a deadly weapon. On January 15, 2015, the trial court imposed

an aggregate sentence of sixteen to forty years of incarceration.




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       Appellant filed timely appeal pursuing three issues, which pertained to

various evidentiary rulings made by the trial court. We affirmed Appellant’s

judgment of sentence. Commonwealth v. Gibson, 156 A.3d 349 (Pa.Super.

2016) (unpublished memoandum). On February 15, 2017, our Supreme Court

denied Appellant’s petition for allowance of appeal.       Commonwealth v.

Gibson, 166 A.3d 1222 (Pa. 2017). He did not petition for a writ of certiorari

to the United States Supreme Court.

       On April 30, 2018, Appellant filed a timely2 pro se PCRA petition, counsel

was appointed, and counsel filed a Turner/Finley letter asserting that

Appellant’s PCRA petition lacked merit and requesting permission to withdraw

from the case. The PCRA court issued an order permitting counsel to withdraw

and providing Appellant with notice of its intent to dismiss the petition

pursuant to Pa.R.Crim.P. 907. Appellant did not respond to the notice. On

September 5, 2018, the PCRA court appointed a second attorney to conduct

a review of Appellant’s case in order to make sure that no meritorious issues

existed. New counsel conducted his own review and, ultimately, agreed with




____________________________________________


2 To the extent the Commonwealth suggests Appellant’s judgment of sentence
became final thirty days after February 15, 2017, we disagree. Appellant’s
judgment of sentence became final on May 16, 2017, ninety days following
our Supreme Court’s denial of his petition and when the time for Appellant to
file a petition for writ of certiorari with the United States Supreme Court
expired. See 42 Pa.C.S. § 9543(b)(3); U.S. Sup.Ct.R. 13. Appellant had one
year from May 16, 2017, to file his PCRA petition. See 42 Pa.C.S. § 9545(b).
Therefore, his petition was timely filed.

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prior counsel’s Turner/Finley letter that no meritorious issues existed. The

PCRA court dismissed Appellant’s PCRA petition on December 21, 2018.

       A timely pro se notice of appeal followed. Appellant timely filed a pro

se concise statement pursuant to Pa.R.A.P. 1925(b) raising three issues. On

March 19, 2019, the PCRA court filed an opinion pursuant to Pa.R.A.P.

1925(a), discussing the issues raised by Appellant and concluding that all of

Appellant’s claims were either waived or meritless. See PCRA Court Opinion,

3/19/19, at 5-11. On May 5, 2019, we remanded the case to the lower court

so that it could hold a Grazier hearing.3 At the conclusion of hearing counsel

was appointed to represent Appellant.

       In this Court, in lieu of an advocate’s brief, counsel filed a petition to

withdraw and no-merit letter pursuant to Turner and Finley.              Before we

consider the merits of the issues raised on appeal, we must first determine

whether counsel followed the required procedure, which we have summarized

as follows.

       Turner/Finley counsel 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 the petitioner wants to have reviewed, explaining
       why and how those issues lack merit, and requesting permission
       to withdraw.
____________________________________________


3 As it was unclear whether Appellant was proceeding pro se or was
represented by second-appointed PCRA counsel, we remanded the case so
that a hearing could be convened in order to determine whether Appellant
wished to represent himself or continue with appointed counsel for his appeal.
See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).

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             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.

             If counsel fails to satisfy the foregoing technical
       prerequisites of Turner/Finley, the court will not reach the merits
       of the underlying claims but, rather, will merely deny counsel’s
       request to withdraw. Upon doing so, the court will then take
       appropriate steps, such as directing counsel to file a proper
       Turner/Finley request or an advocate’s brief.

              However, where counsel submits a petition and no-merit
       letter that do 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. By contrast, if the claims appear to
       have merit, the court will deny counsel’s request and grant relief,
       or at least instruct counsel to file an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (cleaned

up).

       We are satisfied from the review of counsel’s application and no-merit

letter that counsel has substantially complied with the technical requirements

of Turner and Finley. Counsel has detailed his review of the case and the

issues Appellant wishes to raise, and explained why those issues lack merit

with citation to authority where appropriate. Counsel has also sent a copy to

Appellant and advised him of his immediate right to proceed pro se or with




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hired counsel.4     Accordingly, we proceed to consider the substance of the

appeal.

        We begin with a review of the applicable law. “This Court’s standard of

review regarding an order denying a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of record and is

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super.

2017). Further, “[i]t is an appellant’s burden to persuade us that the PCRA

court erred and that relief is due.” Commonwealth v. Miner, 44 A.3d 684,

688 (Pa.Super. 2012).

        In his Turner/Finley letter, counsel addresses the following three

issues, which Appellant wished to raise:

        I.     [Whether] the lower court erred when dismissing his PCRA
               petition by failing to provide notice required by Pennsylvania
               Rule of Criminal Procedure 907.

        II.    [Whether Appellant] did not receive a fair trial because he
               did not have a jury of his own race and therefore was subject
               to racial bias.

        III.   [Whether Appellant] was denied a fair trial based on the jury
               possessing prejudicial information prior to trial.

Turner/Finley Letter at 4. The PCRA court concluded that the first claim was

meritless and the other two claims were waived. The record supports the

PCRA court’s findings for the reasons that follow.




____________________________________________


4   Appellant did not file a response to Appellant’s petition.

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       First, counsel conducted research into the issue of whether the PCRA

court erred when it did not issue a second Pa.R.Crim.P. 907 notice after a

second appointed attorney filed a letter agreeing with the conclusions of

Appellant’s initial PCRA counsel. Turner/Finley Letter at 7. Since the PCRA

court did issue proper Rule 907 notice, Appellant failed to respond to it, and

the Rule does not require the PCRA court to issue multiple notices, counsel

found the issue to be meritless. Id. While the PCRA court’s procedure was

somewhat unorthodox, Appellant had from August 29, 2018 until December

21, 2018, to file a response to the Rule 907 notice, yet he failed to do so. We

discern no error in the PCRA court’s conclusion that this allegation was

meritless.5

       Next, counsel reviewed Appellant’s allegation that the racial composition

of the pool of jurors available for potential selection violated Batson v.

Kentucky, 476 U.S. 79 (1986),6 when it did not include any African American

jurors.   Counsel and the PCRA court found this issue to be waived, since

Appellant did not raise it in his direct appeal. We agree that Appellant’s failure

to raise this issue sooner results in its waiver here. See 42 Pa.C.S. § 9544(b)


____________________________________________


5Even if it was PCRA court error, the mistake was harmless as we are still
going to consider the claims Appellant wishes to raise. Also, none of
Appellant’s claims was waived due to his failure to file a response to the Rule
907 notice.

6 In Batson, the Supreme Court held that purposefully excluding jury
members on the basis of their race violated the Equal Protection Clause of the
United States Constitution.

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(providing for waiver if a petitioner could have raised an issue at an earlier

stage in the process, i.e. direct appeal, and failed to do so).

      However, even if the issue were not waived, Appellant would not be

entitled to relief. In order to establish a Batson violation, Appellant must

establish by prima facie evidence that “purposeful discrimination” pervaded

the selection process. Batson, supra at 100. Appellant fell far short of this

requirement.   At pre-trial, hearing Appellant unsuccessfully challenged the

racial makeup of the jury selection panel. At the hearing, the district court

administrator of Cambria County explained the random jury pool selection

process utilized by the State of Pennsylvania that is based on voter

registration, driver’s license, and income tax return records. N.T. Pre-Trial

Motion, 8/25/14, at 5-12. Also, the executive director of the Cambria County

Planning Commission testified that, based on 2010 census data, only 3.6% of

the population of Cambria County is African American. Id. at 15. Since there

was no evidence uncovered of purposeful discrimination in the jury pool

selection process and an innocent explanation for the absence of African

Americans on the jury panel existed, we discern no abuse of discretion in the

PCRA court’s finding that Appellant’s Batson challenge is devoid of merit.

PCRA Court Opinion, 3/19/19, at 8-11.

      Finally, PCRA counsel investigated Appellant’s challenge that he was

denied a fair trial based on the jury possessing knowledge of his case from

media coverage prior to trial. Turner/Finley Letter at 8. Again, counsel and


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the PCRA court agreed that this issue was waived because it was not raised

at trial or on direct appeal. The certified record supports this conclusion.

      Further, even if this issue were not waived, we would agree with the

PCRA court’s alternative finding that the claim was meritless. The PCRA court,

which was also the trial court, explained that during jury selection, a few of

the jury members were aware of the case as “the stabbing at a car wash”

based on media reports, but none expressed a detailed knowledge of the case.

PCRA Court Opinion, 3/19/19, at 11.       It is well-established that the mere

existence of pretrial publicity does not create a presumption of prejudice and

that jurors are not required to be totally ignorant of the facts of a case. See

Commonwealth        v.   Counterman,     719   A.2d   284,   293   (Pa.   1998);

Commonwealth v. Chambers, 685 A.2d 96, 103 (Pa. 1996). Since there is

no evidence that any pretrial publicity was inherently prejudicial to Appellant,

Appellant has failed to prove that the PCRA court erred when it found his issue

to be meritless.

      As we agree with counsel that the claims Appellant wishes to raise are

without merit, we permit counsel to withdraw and deny relief. The petition of

Gary F. Vito, Esquire, for leave to withdraw is granted.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2020




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