J-S17043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
            v.                             :
                                           :
CHRISTOPHER FLENOURY,                      :
                                           :
                  Appellant                :          No. 1237 EDA 2016

                 Appeal from the PCRA Order April 5, 2016
           in the Court of Common Pleas of Philadelphia County,
             Criminal Division, No(s): CP-51-CR-1301989-2006

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 19, 2017

      Christopher Flenoury (“Flenoury”) appeals from the Order dismissing

his first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the relevant underlying facts in its

Opinion, which we incorporate herein by reference.          See PCRA Court

Opinion, 5/24/16, at 2.

      In June 2010, a jury convicted Flenoury of first-degree murder and

related firearms offenses, for which he received an aggregate sentence of

life in prison.   This Court affirmed the judgment of sentence.           See

Commonwealth       v.     Flenoury,   37   A.3d   1240   (Pa.   Super.   2011)

(unpublished memorandum).        Flenoury did not seek allowance of appeal

with the Supreme Court of Pennsylvania.
J-S17043-17


      On January 19, 2012, Flenoury filed the instant, timely, first PCRA

Petition, pro se. The PCRA court appointed Flenoury counsel, who thereafter

filed an Amended PCRA Petition in July 2015. The PCRA court then issued a

Pennsylvania Rule of Criminal Procedure 907 Notice of Intent to Dismiss the

Petition without an evidentiary hearing. On April 5, 2016, the PCRA court

dismissed Flenoury’s Petition, after which Flenoury timely filed a Notice of

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors

complained of on appeal.

      Flenoury now presents the following issue for our review:      “Did the

Honorable PCRA court err when it failed to grant [Flenoury] relief on his

PCRA Petition[,] even though he pled and proved that he was entitled to

relief?” Brief for Appellant at 3.

      We begin by noting our well-settled standard of review: “In reviewing

the [dismissal] of PCRA relief, we examine whether the PCRA court’s

determination is supported by the record and free of legal error.”

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

omitted). “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.” Id. (citation omitted).

      Flenoury bases his claim of PCRA court error on newly-discovered

facts, in the form of an Affidavit executed by Nicodemo DiPietro (“DiPietro”).

Brief for Appellant at 8-9.      DiPietro’s Affidavit stated that one of the



                                     -2-
J-S17043-17


Commonwealth’s     key   witnesses   at    Flenoury’s   trial,   Antonio   Lindsay

(“Lindsay”), gave false testimony in an attempt to curry favor with the

Commonwealth. Id. at 9 (asserting that “[i]n essence, [the Affidavit states

that DiPietro, a prisoner,] had spoken to [] Lindsay in the prison[,] and

[Lindsay] conceded that he had come into possession of [Flenoury’s]

discovery materials and was going to use those discovery materials to lie on

[sic] [Flenoury] and win himself … concessions regarding his prison stay.”).

Flenoury avers that this evidence could not have been discovered earlier;

would not be used solely to impeach the credibility of Lindsay; and would

likely compel a different verdict. Id. at 10. Finally, Flenoury argues that the

PCRA court improperly dismissed his PCRA Petition without conducting an

evidentiary hearing. Id. at 8.

      In its Opinion, the PCRA court summarized the law concerning claims

of newly-discovered evidence, thoroughly addressed Flenoury’s claim, and

determined that it lacks merit. See PCRA Court Opinion, 5/24/16, at 3-7.

We agree with the reasoning and determination of the PCRA court, and

affirm on this basis as to Flenoury’s sole issue on appeal. See id.

      Order affirmed.

      Judge Stabile joins the memorandum.

      Judge Olson concurs in the result.




                                  -3-
J-S17043-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/2017




                          -4-
                                                                                  Circulated 03/24/2017 11:17 AM




           IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                            CRIMINAL TRIAL DIVISION


COMMONWEALTH            OF PENNSYLVANIA                   NO. CP-51-CR-1301989-2006


                       vs.                                                            FILED
CHISTOPHER FLENOUR Y                                                                MAY 2 4 2016
                                             OPINION                               Ap~els/Post Trlal
                                                                                Office of Judlc\alRecords
PROCEDURAL HISTORY

        On June 2, 2010, following a jury trial before this Court the above-named defendant was

convicted of first-degree murder, firearms not to be carried without a license, and possession of

instruments of the crime for whi~h defendant received an aggregate sentence of life

imprisonment. Defendant then filed a notice of appeal and on October 24, 2011, the Superior

Court affirmed the judgment of sentence. (1837 EDA 2010). Defendant, who did not file a

petition for allowance of appeal, thereafter filed a timely petition pursuant to the Post-Conviction

Relief Act, 42 Pa.C.S. § 9541 et seq., on January 19, 2012. Counsel was appointed to represent

him and on July 9, 2015, counsel filed an amended petition.

       After the Commonwealth filed a response and a Motion to Dismiss and following this

Court's assiduous review of all of the parties' filings and the record, this Court sent defendant a

Pa.R.Crim.P. 907 Notice to Dismiss. On April 5, 2016, this Court issued an Order dismissing

defendant's PCRA petition without a hearing. Defendant thereafter filed a Notice of Appeal and

a Pa.R.A.P. 1925(b) statement.




                                                 1
FACTUAL HISTORY

        Around 10: 15 p.m., on January 2, 2006, the body of Keyon Harvey was found lying in

the street on the 1300 block of West Jerome Street. Mr. Harvey, who had been shot in the back,

was taken to a nearby hospital where he was pronounced dead. A . 9 mm casing was found at the

scene of the crime. Although police found no witnesses that night, on January 13, 2006, Belinda

Perkins, an eye witness to the shooting, came forward and revealed that the shooting occurred as

part of a conspiracy between the defendant and two other individuals the object of which was to

rob Mr. Harvey. Defendant had apparently been involved in a physical altercation with Mr.

Harvey the day prior to the murder.

        On the day of the murder, two individuals started an argument with Mr. Harvey as he was

standing out on the street. During that argument defendant came up from behind and joined in

the argument. When Mr. Harvey turned around and began to walk away defendant shot him in

the back. After Mr. Harvey fell to the ground, the two other individuals that took part in the

scheme proceeded to go through the victim's pockets while defendant fled from the scene. No

money or other personal belongings were found in Mr. Harvey's possession after his body was

recovered by the police except for his cellphone.

       Defendant was arrested on March 24, 2006 after an arrest warrant was issued for the

murder of Mr. Harvey. While being held pending trial, defendant proceeded to tell a fellow

inmate, Antonio Lindsay, about how he shot Mr. Harvey in the back as the victim walked away

from an argument. Defendant also bragged about his plans to kill Ms. Perkins as part of a

celebration after he was released. Mr. Lindsaywrote     a letter to the District Attorney's office

detailing this conversation with the defendant and testified against the defendant at trial.



                                                    2
    DISCUSSION

           In his l 925(b) statement, defendant raises two issues that assert that this Court abused its

    discretion by denying him a hearing and then relief on his claim alleging that he was entitled to a

    new trial on account of newly discovered             evidence consisting of an affidavit signed by

    Nicodemo DiPietro wherein DiPietro avers that Antonio Lindsay admitted to him that he lied

    during defendant's   trial in an effort to obtain an earlier release from prison.' Defendant also

    claims that there is additional evidence that Lindsay received defendant's discovery materials

    and learned the facts of the case from those materials.             According to defendant, a different

    outcome would have resulted at the conclusion of his trial had the jury been presented with this

    evidence.

           To succeed on a claim of newly discovered evidence under the PCRA, a defendant must

    demonstrateby   a preponderance of the evidence that the evidence is exculpatory. 42 Pa.C.S. §

    9543(a) (petitioner must plead and prove by preponderance                of evidence that conviction or

sentence resulted from "[t]he 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'') (emphasis added). In addition, the defendant must prove that the evidence was

discovered after the trial and it could not have been obtained at or prior to trial through

reasonable diligence, is not merely cumulative of evidence presented at trial, will not be used

solely to impeach the credibility of a witness, and is of such a nature and character that a



I
  The standard of review applied by appellate courts to an order denying PCRA relief is well settled. The appellate
court must determine whether the evidence of record supports the PCRA court's factual determinations and whether
the PCRA court's legal conclusions are free of legal error. Commonwealth v. Bomar. I 04 A.3d 1179, 1188 (Pa.
2014); Commonwealth v. Morrison, 878 A.2d I 02 (Pa. Super. 2005). When the PCRA court's findings of fact and its
credibility determinations are supported by the record, the appellate court must accept those findings.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005); Commonwealth v. Hart, 911 A.2d 939 (Pa. Super.
2006); Commonwealth v. Mavnard, 900 A.2d 395, 397 n.4 (Pa. Super. 2006).
                                                        3
different verdict will likely result if a new trial is granted. Commonwealth               v. Randolph, 873

A.2d 1277, 1283 (Pa. 2005); Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004).

        The alleged after-discovered evidence in the present case did not justify the granting of

an evidentiary hearing or a new trial because the only purpose it would have served is to impeach

the credibility of Antonio Lindsay. The defendant would only proffer the testimony of the new

witnesses at a new trial in order to cast doubt on the testimony of Antonio Lindsay and to

persuade the jury that he is not worthy of belief. This use of that testimony for that purpose

manifests the very definition of impeachment of credibility. Because the evidence that was

allegedly   after-discovered      would    be   used       solely   to   impeach   the   credibility   of the

Commonwealth's chief witness, the after-discovered evidence here was properly determined not

to provide a basis for the grant of post-conviction collateral relief.

        The claim of after-discovered evidence presented in this case is very similar to a claim

that the Superior Court rejected in Commonwealth v. Detman, 770 A.2d 359 (Pa Super 2001). In

Detman, the defendant attempted to present a claim of after-discovered evidence alleging that the

Commonwealth's chief witness later recanted his testimony, telling the appellant's brother that he

had lied at trial about appellant's involvement in the crime. The Superior Court found that the

alleged after-discovered       evidence   would, at most, have impeached             the testimony     of the

Commonwealth's witness and, therefore, denied the request for a new trial.

        The present case is, for all practical purposes, identical. Defendant seeks only to present

evidence that Lindsay later recanted his testimony and said that he had lied at defendant's trial.

Such an allegation goes solely to impeachment of the witness and was properly determined not

to support the grant of a new trial.



                                                       4
        Even assuming that Antonio Lindsay did recant and indicate that he implicated defendant

to better his chance of being paroled, defendant's claim failed because the issue whether Lindsay

implicated defendant to facilitate an earlier release from prison was merely cumulative of

evidence presented at trial. At trial, Lindsay's motivation for testifying for the Commonwealth

was extensively explored. Lindsay testified that while he did ask the Commonwealth          for some

consideration in exchange for his testimony, the Commonwealth          indicated that it would only

write a letter to the Parole Board for him and advised him that the ultimate decision concerning

his release rested solely with the Board. (N.T. 5/28/10, 16, 19). Lindsay also stated that he had

been advised by the Parole Board that he was a good candidate for parole even before the

Commonwealth wrote any letter and thus, DiPietro's proposed testimony clearly was cumulative

of testimony presented at trial. (N.T. 5/28/10, 20).

        Testimony that Lindsay had access to defendant's discovery material was also cumulative

of trial testimony.    Defendant testified at trial that he gave Lindsay access to some of the

discovery materials.   (N. T. 6/1/10, 68).   Therefore, it is clear that defendant did not meet this

prong of the newly-discovered evidence test either.

       Finally, it was clear to this Court that the proposed testimony would not result in a

different outcome.     In addition to Lindsay, the Commonwealth        presented the testimony of

Belinda Perkins, who knew defendant, his acquaintances and the victim, and who testified that

she overheard defendant scheming to rob the victim, saw him pull out a gun just prior to the

shooting, and was present when it occurred.          (N.T. 5/27/10, 153-160).   Also, evidence was

presented establishing that defendant had gotten into a fight with the victim the day prior to the

shooting thereby providing a motive for defendant's commission of the crime.         (N.T. 5/28/10,

66, 67). Clearly, there here is no chance that a new trial would result in a different verdict if the

                                                 5
fact-finder heard the testimony proposed by defendant in the instant claim and it is therefore

respectfully suggested that defendant be denied relief with respect to this claim.

         With regard to defendant's contention that this Court committed an abuse of discretion

by finding that he was not entitled to an evidentiary hearing, the law is clear that there is no

absolute right to an evidentiary hearing under the PCRA. Commonwealth            v. Hardcastle, 701

A.2d 541, 542 (Pa. 1997). To justify a hearing, the defendant must prove that there is a genuine

issue of material fact which could entitle him to relief. Commonwealth v. Clark, 961 A.2d 80, 84

(Pa. 2008); D'Amato, 856 A.2d at 820 (Pa. 2004); Pa.R.Crim.P.            908(A)(2). If, as here, a

defendant's petition is "without a trace of support," it may be dismissed without a hearing.

Commonwealth v. Payne, 794 A.2d 902, 906 (Pa. Super. 2002); Pa.R.Crim.P. 907.

        As discussed above, defendant's newly discovered evidence claim lacked even a scintilla

of merit for the reasons proffered herein. Consequently, the dismissal of this matter in the

absence of an evidentiary hearing was appropriate given the circumstances and it is suggested

that the claim be deemed lacking in merit. It is noted that the Superior Court has rejected the

argument that the issue of credibility of recantation evidence is one that is better resolved

following an evidentiary    hearing where the judge who made the determination            regarding

recantation evidence was the "same judge who presided over the trial and observed the now

recanting witness's testimony". See Commonwealth v. McClucas, 548 A.2d 573, 576 n.7 (Pa.

Super. 1988); see also Detman, 770 A.2d at 361 (affirming denial without hearing of post-verdict

motion based on allegation that witness had recanted in statement to defendant's relatives).

       Here, this Court observed Lindsay when he testified at trial and found him credible.

Therefore, this Court saw no need for a hearing especially because Lindsay's alleged recantation



                                                 6
was far outweighed by the other highly inculpatory evidence presented at trial and it is suggested

that this Court's decision not to hold a hearing in this matter be affirmed.

CONCLUSION

       Based on the foregoing, it is respectfully suggested that the Order denying defendant

PCRA relief with out a hearing be affirmed.




DATE:-£klr6




                                                 7
