J-S67010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARNELL LAMONT MCLEAN                      :
                                               :
                       Appellant               :   No. 879 MDA 2019

               Appeal from the PCRA Order Entered May 2, 2019
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0001342-2016


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 24, 2020

        Appellant, Darnell Lamont McLean, appeals from an order entered May

2, 2019, which dismissed his petition for collateral relief filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The facts and procedural history of this case are as follows. On July 21,

2016 and into the early morning hours of July 22, 2016, Appellant and Marvin

Trotter, the victim, were at Dara and Jack’s Place, a bar in Chambersburg,

Pennsylvania. PCRA Court Opinion, 5/2/19, at 3. The pair interacted while

there. Id. At approximately 1:10 a.m., Trotter, his brother, and two friends

left the bar. Commonwealth v. McLean, 194 A.3d 683 (Pa. Super. 2018)

(unpublished memorandum), at 1 (citation omitted). Appellant exited shortly

thereafter and approached Trotter outside the bar.         PCRA Court Opinion,

____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S67010-19



5/2/19, at 4. “An altercation ensued, during which Appellant slashed [Trotter]

multiple times with a box cutter, inflicting head wounds and cutting seven

tendons in [Trotter’s] left hand.” Commonwealth v. McLean, 194 A.3d 683

(Pa. Super. 2018) (unpublished memorandum), at 2 (citation omitted).

“Appellant [then] left [Trotter] lying in the street” where he was “bleeding

profusely and [] going in and out of consciousness.” Id.

        Thereafter, the Commonwealth charged Appellant with attempted

murder and aggravated assault.     Appellant’s jury trial commenced June 5,

2017, during which both Trotter and Appellant testified and recounted the

events of the night. PCRA Court Opinion, 5/2/19, at 3. First, Trotter testified

and explained that he and Appellant interacted “briefly” while at Dara and

Jack’s Place. Id. After leaving the bar, Trotter claimed that he was walking

to his brother’s home when someone yelled for him, causing him to turn

around. Id. at 3. Appellant then “advanced toward [] Trotter until they were

‘almost touching noses.’” Id. at 4. When Trotter tried to push Appellant away,

“his arm went limp” and then he “stepped into a hole,” fell to the ground, and

“could not remember what happened next.” Id.

        Appellant, however, provided a different version of events and

attempted to prove that he acted in self-defense.      Id. at 1.   Specifically,

Appellant alleged that Trotter engaged in hostile behavior throughout the

night which made Appellant believe that Trotter planned to “jump him.” Id.

at 4.    This caused Appellant to confront Trotter and “try to diffuse the

situation” after he saw Trotter outside of the bar. Id. Appellant claimed that

                                     -2-
J-S67010-19



once he approached Trotter, Trotter “sw[ung] at [him,]” “hit [Appellant’s]

glasses” and “struck [Appellant’s friend, Gershawn Samuels].” Id. at 4. After

Trotter hit Samuels, Appellant alleged that he saw “the glint of [a] blade”

which caused Appellant to “pull[] out a box cutter and swing[] it at [] Trotter

five or six times” because Appellant believed that “Trotter was going to kill

him even if he turned and ran.” Id. at 4-5. Appellant then “watched [] Trotter

fall to the ground, turned, and walked away.” Id. at 5.

      Appellant’s trial concluded on June 7, 2016. The jury ultimately found

Appellant guilty of aggravated assault, but not guilty of attempted murder.

Id. at 1. On August 30, 2017, the trial court sentenced Appellant to 120 to

240 months’ incarceration. Id. This Court affirmed Appellant’s judgment of

sentence on July 17, 2018. Commonwealth v. McLean, 194 A.3d 683 (Pa.

Super. 2018) (unpublished memorandum), at 1-16 (citation omitted). Our

Supreme Court subsequently denied allocatur on November 27, 2018.

Commonwealth v. McLean, 198 A.3d 329 (Pa. 2018).

      Appellant filed a timely pro se PCRA petition on December 18, 2018.

Appellant’s PCRA Petition, 12/18/18, at 1-4. In his petition, Appellant claimed

that he was entitled to a new trial because he recently met an eyewitness to

the July 2016 altercation, a fellow inmate, Joshua Fink, whose prospective

testimony constituted after-discovered evidence, which would likely compel a

different verdict. Id.   Counsel was subsequently appointed and filed an

amended PCRA petition on Appellant’s behalf.      Appellant’s Amended PCRA

Petition, 1/31/19, at 1-3.   The PCRA court held an evidentiary hearing on

                                     -3-
J-S67010-19



March 14, 2019, during which Appellant presented the testimony of Joshua

Fink. The PCRA court summarized Fink’s testimony as follows.

     In July [] 2016, [] Fink [lived] in Mont Alto, Pennsylvania. Before
     midnight on July 21, 2016, he traveled from Mont Alto to
     Chambersburg to meet his friend . . . and exchange something for
     heroin and [x]anax. After obtaining the drugs, [] Fink parked his
     car on South Street, near Honeywell Avenue, in Chambersburg
     and prepared to intravenously inject the heroin. [] Fink estimated
     that he arrived at the spot at some point between midnight and
     2[:00] a.m.

                                     ***

     While sitting in his car, [] Fink saw a group of four men walking
     down the street. He then saw two other men approach. All
     involved were black men. [] Fink explained that they were 20 to
     30 feet away from him, across the street[ and that from] his
     position in the alley, [] Fink was invisible to [them].

     [] Fink then heard someone yell, “Hey!” He looked up and saw
     one man, dressed in red, stop walking and drop back from the
     group of four. The man wearing red was approached by a man
     wearing grey, who was part of [a] group of two. The man in red
     and the man in grey squared off, while the other men backed
     away.

     [] Fink now believes that the man in red was [] Trotter[,] and the
     man in grey was [Appellant].

     [] Fink recounted that he glimpsed something shiny in [] Trotter’s
     hand. He then saw [] Trotter “take a swing” [at] [Appellant],
     knocking [Appellant’s] glasses off. To [] Fink, it appeared that
     [Appellant] responded by slapping [] Trotter multiple times in the
     head.    He thought he saw [Appellant] holding a lighter or
     something plastic in his hand. [] Fink then watched [] Trotter fall
     to the ground. He stated that [Appellant] did not run away but
     instead backpedaled, turned, and exited [] Fink’s view.

     [] Fink then heard someone say, “call 911” or “call an ambulance.”
     Possessing illegal drugs, driving without a license, and realizing
     that the police may be arriving, [] Fink immediately left the scene.




                                    -4-
J-S67010-19


       [] Fink agreed that he would not have been willing to speak to
       police as an eyewitness. He affirmed that he had not learned that
       criminal charges were filed as a result of the altercation and told
       no one [] what he witnessed.

       [] Fink was arrested two weeks after the incident between []
       Trotter and [Appellant] on charges of robbery and other related
       offenses. He was initially held in the Franklin County Jail until he
       was released on bail in May [] 2017. Following his convictions by
       jury for his charged offenses, [] Fink began serving his sentences
       [at] SCI-Forest [where he met Appellant during a softball event.
       Specifically, Fink explained that during this event, he approached
       Appellant because he recognized him from the Franklin County
       Jail. He then learned the reason for Appellant’s incarceration, and
       told Appellant that he had witnessed the incident between him and
       Trotter. Appellant subsequently asked if Fink would write a
       statement].

PCRA Court Opinion, 5/2/19, at 5-7. On May 2, 2019, the trial court entered

an order denying Appellant’s PCRA petition. PCRA Court Order, 5/2/19, at 1.

This timely appeal followed.1

       Appellant raises the following issue on appeal:

       Did the [PCRA] court err and abuse its discretion when it denied
       Appellant’s [PCRA petition] based upon after-discovered evidence
       when Appellant’s petition and [the] evidence presented at the
       [March 14, 2019 evidentiary hearing] met all [the] factors
       required in order to grant a new trial?

Appellant’s Brief at 7.

       As we have stated:

____________________________________________


1 Appellant filed a notice of appeal on May 30, 2019. On May 31, 2019, the
PCRA court entered an order directing Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). Appellant
timely complied. The PCRA court issued an opinion pursuant to Pa.R.A.P.
1925(a) on June 27, 2019, expressly incorporating its opinion dated May 2,
2019.

                                           -5-
J-S67010-19


      [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 trial 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) (internal

citations omitted).

      Herein, Appellant argues that the PCRA court erred in denying his PCRA

petition. Specifically, Appellant contends that Joshua Fink’s testimony “would

directly support [his] self-defense claim and provide the jury with eyewitness

testimony.” Appellant’s Brief at 10. As such, “Fink’s testimony passes the

four-part test to be considered after-discovered evidence [and] warrant[s] a

new trial.” Id. We disagree.

      To be eligible for relief under the PCRA, a 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

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

                                      -6-
J-S67010-19


      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. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citations

omitted).   To determine whether the evidence is “of such a 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.” Id. at 365.

       In this case, the PCRA court concluded that Appellant failed to show

that Fink’s testimony would likely produce a new verdict. PCRA Court Opinion,

5/2/19, at 8. Per the court, Fink’s testimony “d[id] not materially strengthen

the self-defense theory pursued at trial” because, “[b]y all accounts, including

[] Fink’s,” Appellant “provoked the altercation” when he “initiated contact with

[] Trotter by following [Trotter after he] left the bar and then approaching him

in the street.” Id. at 9. As such, even with Fink’s testimony, Appellant cannot

meet the “requirements for self-defense with deadly force as a matter of law.”

Id. The PCRA court also found Fink’s testimony incredible. Id. Indeed, it

determined that the “circumstances under which [his] testimony [came] to

light” were “dubious” and held that Fink’s account of the July 2016 events

“contain[ed] a significant disparity with the recollections of both [] Trotter and

[Appellant].” Id. Upon review, we conclude that the PCRA court’s findings

are supported by the record and devoid of legal error.




                                       -7-
J-S67010-19



      For these reasons, we agree with the PCRA court that Appellant is not

entitled to relief on his after-discovered evidence claim.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/24/2020




                                     -8-
