J-S46004-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TRIMELL LEEMOND DUNBAR, : : Appellant : No. 1343 MDA 2013
Appeal from the PCRA Order Entered June 10, 2013, In the Court of Common Pleas of Luzerne County, Criminal Division, at Nos. CP-40-CR-0003976-2007 and CP-40-CR-0003978-2007.
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 26, 2014
Appellant, Trimell Leemond Dunbar, appeals from the order denying
his petition for relief filed pursuant to the Post Conviction Relief Act
-9546. In addition, counsel has filed a
affirm the order of the PCRA court.
In a previous memorandum decision, issued by this Court disposing of
follows:
On July 18, 2007, officers from the Kingston Police Department met with a confidential informant (CI) to make controlled purchases of heroin and cocaine from [Appellant].
heroin. [Appellant] told the CI to come to his house to buy the J-S46004-14
heroin. The police searched the CI prior to the transaction and found no drugs or money on his person. The police then provided the CI with $100 in marked money and dropped him off
The substance in the bags was later tested and found to be heroin.
At approximately 11:09 p.m., the CI again called [Appellant] on his cell phone, seeking cocaine. [Appellant] told the CI to come to his house to get the cocaine. The police searched the CI and found no contraband or money. The police then gave the
backyard and gave [Appellant] the money and received one ck to the police officer at the scene and handed over the purported cocaine. Later testing revealed the substance to be flour.
[Appellant] was subsequently arrested during a sweep for several individuals and charged with a host of crimes under two separate criminal complaints, 3976 of 2007 (charges arising out of delivery of substance purported to be cocaine) and 3978 of 2007 (charges arising out of delivery of heroin). A jury trial was held, after which the jury found [Appellant] guilty of [one count each of possession of a controlled substance and delivery of a noncontrolled substance, and two counts each of delivery of a controlled substance, possession of drug paraphernalia and criminal use of a communication facility]. Thereafter, the Commonwealth provided oral notice to [Appellant] that it was seeking a mandatory minimum sentence under 18 Pa.C.S.A. § 6317 because the sale of heroin occurred within one thousand feet of a school. At the sentencing hearing on July 1, 2008, the Commonwealth presented the testimony of Officer Edward Palka, who stated that the controlled buy of heroin occurred within 763.34 feet of the Jenny Lynn Academy (a certified pre-school day care center). Based upon this evidence, the trial court concluded that section 6317(a) was applicable in this case. The trial court imposed an aggregate sentence of 87 to 178 months in prison and an additional two years of probation. [Appellant] filed a post-sentence Motion, which the trial court denied.
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Commonwealth v. Dunbar, 1396 MDA 2008, unpublished memorandum at
1-3, 988 A.2d 718 (Pa. Super. filed November 9, 2009). On November 9,
part, reversed in part, and remanded for resentencing. Appellant took no
further appeal.
On August 3, 2010, Appellant filed a pro se PCRA petition, and the
PCRA court appointed counsel. The PCRA court held an evidentiary hearing
and heard oral argument. At the outset of the PCRA hearing, the
tence should be modified to an
aggregate of 63 to 126 months of incarceration,1 to be followed by one year
petition with regard to the sentencing modification, and denied and
dismissed all other claims. Appellant filed this timely appeal.
On July 16, 2013, the PCRA court appointed new counsel for Appellant.
Also on that date, the PCRA court entered an order directing Appellant to file
a Pa.R.A.P. 1925(b) statement. Thereafter, Appellant filed his Pa.R.A.P.
1925(b) statement2 and the PCRA court authored an opinion.
5/3/13, at 5-7. 2 Appellant presented the following issues in his Pa.R.A.P. 1925(b) statement:
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On April 29, 2014, PCRA counsel filed a motion to withdraw as
counsel; he also filed with this Court a sufficient Turner/Finley
document.3,4 When counsel seeks to withdraw representation in a collateral
appeal, the following conditions must be met:
1) As part of an application to withdraw as counsel, PCRA -
2) - claim the petitioner wishes to have reviewed, and detail the nature
claims[;]
1. claim that the Commonwealth violated the tenets of Maryland v. Brady, by failing to provide to Defendant a written statement from the [CI] until the Day of trial?
2. claim that the Commonwealth violated the tenets of Maryland v. Brady, by failing to disclose prior to trial evidence of favorable treatment of the [CI] in exchange for his trial testimony?
Statement of Matters Complained of on Appeal, 8/23/13, at 1-2. 3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 4 Counsel has requested leave to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), apparently in the mistaken belief that an appeal from the denial of a PCRA petition required that filing. However, because counsel is requesting leave to withdraw from his position as PCRA counsel, the
less stringent requirements set forth in Turner and Finley. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004) (noting that because an Anders brief provides greater protection to the defendant, we may accept an Anders brief in lieu of a Turner/Finley letter).
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3) - [;]
4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must - statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel;
5) The court must conduct its own independent review of the record in light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and
6) The court must agree with counsel that the petition is meritless.
Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal
punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d
607, 615 (Pa. Super. 2006)).
In the present case, counsel has complied with the requirements for
withdrawal from a collateral appeal. In the motion filed with this Court,
counsel alleged that he has reviewed the case, evaluated the issues, and
concluded that the appeal is frivolous. Counsel has also listed the issue
relevant to this appeal, and explained why, in his opinion, it is without merit.
In addition, counsel has included a letter sent to Appellant containing a copy
of his motion to withdraw and a statement advising Appellant of his right to
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J-S46004-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TRIMELL LEEMOND DUNBAR, : : Appellant : No. 1343 MDA 2013
Appeal from the PCRA Order Entered June 10, 2013, In the Court of Common Pleas of Luzerne County, Criminal Division, at Nos. CP-40-CR-0003976-2007 and CP-40-CR-0003978-2007.
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 26, 2014
Appellant, Trimell Leemond Dunbar, appeals from the order denying
his petition for relief filed pursuant to the Post Conviction Relief Act
-9546. In addition, counsel has filed a
affirm the order of the PCRA court.
In a previous memorandum decision, issued by this Court disposing of
follows:
On July 18, 2007, officers from the Kingston Police Department met with a confidential informant (CI) to make controlled purchases of heroin and cocaine from [Appellant].
heroin. [Appellant] told the CI to come to his house to buy the J-S46004-14
heroin. The police searched the CI prior to the transaction and found no drugs or money on his person. The police then provided the CI with $100 in marked money and dropped him off
The substance in the bags was later tested and found to be heroin.
At approximately 11:09 p.m., the CI again called [Appellant] on his cell phone, seeking cocaine. [Appellant] told the CI to come to his house to get the cocaine. The police searched the CI and found no contraband or money. The police then gave the
backyard and gave [Appellant] the money and received one ck to the police officer at the scene and handed over the purported cocaine. Later testing revealed the substance to be flour.
[Appellant] was subsequently arrested during a sweep for several individuals and charged with a host of crimes under two separate criminal complaints, 3976 of 2007 (charges arising out of delivery of substance purported to be cocaine) and 3978 of 2007 (charges arising out of delivery of heroin). A jury trial was held, after which the jury found [Appellant] guilty of [one count each of possession of a controlled substance and delivery of a noncontrolled substance, and two counts each of delivery of a controlled substance, possession of drug paraphernalia and criminal use of a communication facility]. Thereafter, the Commonwealth provided oral notice to [Appellant] that it was seeking a mandatory minimum sentence under 18 Pa.C.S.A. § 6317 because the sale of heroin occurred within one thousand feet of a school. At the sentencing hearing on July 1, 2008, the Commonwealth presented the testimony of Officer Edward Palka, who stated that the controlled buy of heroin occurred within 763.34 feet of the Jenny Lynn Academy (a certified pre-school day care center). Based upon this evidence, the trial court concluded that section 6317(a) was applicable in this case. The trial court imposed an aggregate sentence of 87 to 178 months in prison and an additional two years of probation. [Appellant] filed a post-sentence Motion, which the trial court denied.
-2- J-S46004-14
Commonwealth v. Dunbar, 1396 MDA 2008, unpublished memorandum at
1-3, 988 A.2d 718 (Pa. Super. filed November 9, 2009). On November 9,
part, reversed in part, and remanded for resentencing. Appellant took no
further appeal.
On August 3, 2010, Appellant filed a pro se PCRA petition, and the
PCRA court appointed counsel. The PCRA court held an evidentiary hearing
and heard oral argument. At the outset of the PCRA hearing, the
tence should be modified to an
aggregate of 63 to 126 months of incarceration,1 to be followed by one year
petition with regard to the sentencing modification, and denied and
dismissed all other claims. Appellant filed this timely appeal.
On July 16, 2013, the PCRA court appointed new counsel for Appellant.
Also on that date, the PCRA court entered an order directing Appellant to file
a Pa.R.A.P. 1925(b) statement. Thereafter, Appellant filed his Pa.R.A.P.
1925(b) statement2 and the PCRA court authored an opinion.
5/3/13, at 5-7. 2 Appellant presented the following issues in his Pa.R.A.P. 1925(b) statement:
-3- J-S46004-14
On April 29, 2014, PCRA counsel filed a motion to withdraw as
counsel; he also filed with this Court a sufficient Turner/Finley
document.3,4 When counsel seeks to withdraw representation in a collateral
appeal, the following conditions must be met:
1) As part of an application to withdraw as counsel, PCRA -
2) - claim the petitioner wishes to have reviewed, and detail the nature
claims[;]
1. claim that the Commonwealth violated the tenets of Maryland v. Brady, by failing to provide to Defendant a written statement from the [CI] until the Day of trial?
2. claim that the Commonwealth violated the tenets of Maryland v. Brady, by failing to disclose prior to trial evidence of favorable treatment of the [CI] in exchange for his trial testimony?
Statement of Matters Complained of on Appeal, 8/23/13, at 1-2. 3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 4 Counsel has requested leave to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), apparently in the mistaken belief that an appeal from the denial of a PCRA petition required that filing. However, because counsel is requesting leave to withdraw from his position as PCRA counsel, the
less stringent requirements set forth in Turner and Finley. See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004) (noting that because an Anders brief provides greater protection to the defendant, we may accept an Anders brief in lieu of a Turner/Finley letter).
-4- J-S46004-14
3) - [;]
4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must - statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel;
5) The court must conduct its own independent review of the record in light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and
6) The court must agree with counsel that the petition is meritless.
Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal
punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d
607, 615 (Pa. Super. 2006)).
In the present case, counsel has complied with the requirements for
withdrawal from a collateral appeal. In the motion filed with this Court,
counsel alleged that he has reviewed the case, evaluated the issues, and
concluded that the appeal is frivolous. Counsel has also listed the issue
relevant to this appeal, and explained why, in his opinion, it is without merit.
In addition, counsel has included a letter sent to Appellant containing a copy
of his motion to withdraw and a statement advising Appellant of his right to
proceed pro se or through privately retained counsel. Thus, we will allow
-5- J-S46004-14
counsel to withdraw if, after our review, we conclude that the issue relevant
to this appeal lacks merit.
We have discerned the following issue, which is presented by PCRA
counsel on behalf of Appellant:
Commonwealth violated the tenets of Brady v. Maryland[5] by failing to timely produce a witness statement and by not disclosing favorable treatment by the Commonwealth to the witness in exchange for his testimony?
.6
Our standard of review of an order denying PCRA relief is whether the
Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
In his issue, Appellant argues that the PCRA court erred in concluding
that he failed to prove his Brady claim. Appellant contends that the
5 Brady v. Maryland, 373 U.S. 83 (1963). 6 We observe that Pa.R.A.P. 1925(b) statement, but combined the issues in the brief filed with this Court.
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Commonwealth violated the provisions of Brady by failing to produce the
statement of the CI, and by failing to disclose favorable treatment offered to
the CI on pending criminal charges.
This Court has summarized the law pertaining to Brady as follows:
In Brady, the United States Supreme Court held
favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or Brady supra at 87, 83 S.Ct. 1194.
Brady violation, the defendant must show that: (1) the prosecutor has suppressed evidence; (2) the evidence, whether exculpatory or impeaching, is helpful to the defendant; and (3) the suppression prejudiced the Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270, 291 (2008) (citing Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 245 (2006)).
Commonwealth v. Busanet, 54 A.3d 35, 48 (Pa. 2012). mandate is not limited to pure exculpatory evidence; impeachment evidence also falls within parameters and therefore must be disclosed by prosecutors. U.S. v. Bagley,
Commonwealth v. Haskins, 2012 PA Super 223, 60 A.3d 538,
prove, by reference to the record,
Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898 Commonwealth v. Sneed assumption that he will benefit from cooperating in the prosecution of the defendant, without more, is insufficient to establish that an agreement existed, and does not trigger Brady
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Busanet, supra at 49 (citation omitted).
Commonwealth v. Nero, 58 A.3d 802, 809-810 (Pa. Super. 2012).
Moreover, we observe that pretrial discovery in criminal cases is
governed by Pennsylvania Rule of Criminal Procedure 573. The rule lists
certain items and information that are subject to mandatory disclosure by
the Commonwealth when they are (1) requested by the defendant, (2)
material to the case, and (3) within the possession or control of the
prosecutor. Pa.R.Crim.P. 573(B). Mandatory discovery includes any
evidence favorable to the accused that is material to either guilt or
is clear that a criminal defendant is entitled to know about any information
Commonwealth v. Copeland, 723 A.2d 1049, 1051 (Pa. Super. 1998)
(citing Commonwealth v. Moose, 602 A.2d 1265 (Pa. 1992)).
demonstrate prejudice . . . . [He] must demonstrate how a more timely
disclosure would have affected his trial strategy or how he was otherwise
Commonwealth v. Causey, 833
A.2d 165, 171 (Pa. Super. 2003).
present and testified. N.T., 4/28/08, at 14-39. During direct examination,
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the CI testified that following the initial purchase of heroin from Appellant,
he returned to the police station, was strip searched, wrote a statement, and
left. Id. at 21. Then, prior to cross-
following transpired at sidebar:
[Defense Counsel]: The witness testified that he had provided a short -- he provided a written statement to police. At this time I would ask for a copy of that statement and ask --
[Assistant District Attorney]: We turned it over in discovery.
Id. at 28.
Subsequently, during cross-examination of the CI, defense counsel
utilized the written statement as follows:
Q. Now, you testified that the transaction was arranged for six bags but you received the seventh bag for free; is that correct?
A. Yes, sir.
***
Q. You testified that you provided a written statement to the police after these transactions; is that correct?
Q.
A. My testimony.
Q. Okay. And let me ask you to read that. Tell me when
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A. It says on 7-18-07 I met with detectives from the Kingston Narcotics Division. I made arrangements to purchase seven heroin bags from --
Q. How many bags?
A. Seven.
Q. So your statement says you made arrangements to purchase seven bags, correct?
A. Yes.
Q. Now, is that statement correct?
A. No, not really, but yeah. I got seven off him so yeah. I wrote this after I did the whole purchasing.
Q. not make arrangements for seven bags?
A. I only made arrangements for six actually.
Q. So the written statement you provided to the police afterwards was not correct; is that true?
A. Otherwise, yeah. I had seven bags so I put down seven.
Q. So the statement you wrote to the police after the transactions was not completely accurate?
A. It is accurate. I got seven bags.
Q. It said you made arrangements for seven bags and now you testified you only made arrangements for six bags, correct?
A. Yeah.
[Defense Counsel]: I move for introduction of
[The Court]: Any objection?
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[Assistant District Attorney]: No.
[The Court]:
Id. at 33-35.
counsel was provided with the written statement of the CI during discovery.
In addition, during cross-examination, defense counsel questioned the CI
regarding discrepancies between the written statement and his trial
ingly, there is no evidence of record to show that
the prosecutor suppressed evidence, or that the alleged suppression
prejudiced the defense. Thus, Appellant has not established a violation of
Brady with regard to the written statement provided by the CI. Therefore,
we discern no error on the part of the PCRA court in reaching its
determination and denying relief.
Brady violation with
in exchange for the dropping of charges. Our review of the certified record
reflects that there is no indication that the Commonwealth withheld any
record reflects the following transpired during cross-examination of the CI
pertaining to pending charges and his motive for cooperating:
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Q. have drug charges pending against you?
Q. Let me ask you this. Is your testimony today in part premised upon some hope for cooperation or some hope for leniency on those charges?
A. Nope.
Q. Let me ask you, why were you cooperating with the police?
A. I gave false identification. To get that dropped I did this.
Q. So you received a benefit, you got charges dropped against you?
A. For false identification, yeah.
Q. Those charges were dropped completely.
A. Probably.
N.T., 4/28/08, at 31-32.
Thus, even if we were to assume for the sake of argument that there
was a lat
are constrained to conclude that the above testimony reflects that defense
counsel adequately questioned the CI with impeachment evidence pertaining
to pending criminal charges. Most notably, defense counsel elicited from the
CI the fact that criminal charges were dropped due to his cooperation. In
light of the above referenced testimony, we are constrained to conclude that
no Brady inal
-12- J-S46004-14
charges. Hence, we discern no error on the part of the PCRA court in so
concluding and denying relief.
In summary, it is our determination that Appellant failed to establish a
Brady e
review of the record in light of the PCRA petition and the issues set forth
therein, as well as of the contents of the petition of PCRA counsel to
withdraw, that the issues raised do not support a grant for relief, we allow
counsel to withdraw.
Motion to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/26/2014
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