Com. v. Booker, D.

• Court: Superior Court of Pennsylvania
• Decided: December 10, 2021
• Docket: 1068 EDA 2020
• Status: Unpublished

Opinion

J-S36019-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DOMINICK BOOKER : : Appellant : No. 1068 EDA 2020

Appeal from the PCRA Order Entered March 5, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002555-2014

BEFORE: LAZARUS, J., KING, J., and COLINS, J.*

JUDGMENT ORDER BY KING, J.: FILED DECEMBER 10, 2021

Appellant, Dominick Booker, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his first petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§

9541-9546. We vacate and remand for further proceedings.

The relevant facts and procedural history of this case are as follows. On

March 8, 2016, a jury convicted Appellant of conspiracy, aggravated assault,

and other offenses. The court sentenced him on July 15, 2016, to an

aggregate 16 to 50 years’ imprisonment. That day, Appellant filed a motion

for new trial, based on after-discovered evidence. In it, Appellant alleged that

Appellant’s co-conspirator Mr. Warren, who had testified against Appellant at

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* Retired Senior Judge assigned to the Superior Court. J-S36019-21

trial, might have been given a plea deal in exchange for his testimony. Based

on how the claim was presented in the motion, the trial court denied relief on

January 23, 2018, finding that the proposed new evidence would have been

used solely for impeachment purposes. This Court affirmed the sentence on

July 23, 2018, and our Supreme Court denied allowance of appeal on January

28, 2019. See Commonwealth v. Booker, 194 A.3d 699 (Pa.Super. 2018)

(unpublished), appeal denied, 650 Pa. 632, 201 A.3d 148 (2019).

On August 6, 2019, Appellant timely filed a pro se PCRA petition. The

court appointed counsel on August 21, 2019, who subsequently filed a motion

to withdraw and a no-merit letter per Commonwealth v. Turner, 518 Pa.

491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc). On January 16, 2020, the court issued notice

per Pa.R.Crim.P. 907. Appellant filed a pro se response on January 26, 2020,

alleging PCRA counsel’s ineffectiveness for failing to communicate with

Appellant about the claims he wanted to raise. On March 5, 2020, the court

granted counsel’s motion to withdraw and denied PCRA relief. Appellant

timely filed a pro se appeal1 on March 14, 2020.2 On April 30, 2021, the court

ordered Appellant to file a Pa.R.A.P. 1925(b) statement; Appellant complied.

1 Appellant has now retained private counsel for this appeal.

2 The notice of appeal is dated March 14, 2020, so we give Appellant the benefit of the prisoner mailbox rule. See Commonwealth v. DiClaudio, 210 A.3d 1070 (Pa.Super. 2019) (prisoner mailbox rule deems pro se prisoner’s document as filed on date he delivers it to prison authorities for mailing).

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On appeal, Appellant raises two issues: (1) PCRA counsel was ineffective

for failing to communicate with him about the claims he wanted to raise in his

PCRA petition and failing to identify any meritorious claims on Appellant’s

behalf; and (2) trial counsel was ineffective for failing to articulate in the

motion for new trial that there was an undisclosed plea agreement between

the Commonwealth and Mr. Warren in exchange for Mr. Warren’s testimony.

Preliminarily, we note that the Commonwealth indicates that during the

pendency of this appeal, it discovered an internal sentencing memo related to

Mr. Warren dated July 3, 2015. The memo, attached as Exhibit A to the

Commonwealth’s brief, states: “There are no negotiations as to what [Warren]

will get but the mandatory second-strike sentence is off the table.” The

Commonwealth explains that Mr. Warren testified against Appellant at trial

and denied the receipt of any promises in exchange for his testimony.

Notably, Mr. Warren received a sentence of 11½ to 23 months’ imprisonment,

plus 10 years’ probation, for his role in the crimes at issue; Mr. Warren would

have been subject to a 10-year mandatory minimum sentence as a second-

strike offender had the Commonwealth pursued the mandatory minimum. The

Commonwealth maintains that it does not believe the sentencing memo was

ever disclosed to Appellant. Accordingly, the Commonwealth concedes that

remand is appropriate to discern whether the Commonwealth reached an

agreement with Mr. Warren to waive his second-strike status, whether the

memo was ever disclosed to trial counsel, and whether the memo was material

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and its absence prejudiced Appellant. (See Commonwealth’s Brief at 6-8).

Based on the Commonwealth’s representations, we agree remand is

proper. See generally Commonwealth v. Dennis, 597 Pa. 159, 199-200,

950 A.2d 945, 969 (2008) (holding remand was warranted for PCRA court to

review in first instance appellant’s claims that Commonwealth suppressed

material evidence in violation of Brady3). Therefore, we vacate the order

denying PCRA relief and remand for further proceedings.

Order vacated. Case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/10/2021

3 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that suppression by prosecution of evidence favorable to accused violates due process where evidence is material either to guilt or punishment).

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