Com. v. Holmes, J.

Opinion

J-S02011-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA HOLMES : : Appellant : No. 497 EDA 2023

Appeal from the PCRA Order Entered February 22, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003018-2010

BEFORE: LAZARUS, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, P.J.: FILED AUGUST 1, 2024

Joshua Holmes appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, denying his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. In addition,

Holmes’ counsel, George S. Yacoubian, Jr., Esquire, filed a petition to withdraw

and an Anders brief.1 After review, we grant counsel’s petition to withdraw

and affirm the order of the PCRA court. ____________________________________________

* Former Justice specially assigned to the Superior Court.

1 A brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), is proper where counsel seeks to withdraw his or her representation in a direct appeal. A Turner/Finley no-merit letter is the appropriate filing in an application to withdraw on collateral review. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en banc). However, “[b]ecause an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter.” Commonwealth v. Widgins, 29 A.3d 816, (Footnote Continued Next Page) J-S02011-24

The PCRA court set forth the relevant facts of this matter as follows:

[Holmes] was convicted of third-degree murder in the death of Donovan Raheem Weary, also known as “Double.” [Holmes’] brother, Joseph Holmes [(Joseph)], (collectively “Holmes brothers”) was convicted of first-degree murder of Weary. [] Weary was a street-level drug dealer [who] used Joseph [] as one of his suppliers. Joseph “fronted” Weary crack cocaine once or twice a week in January and February of 2008, which Weary sold in the area of 7000 Forrest Avenue and 7100 Ogontz Avenue. On February 14, 2008, Weary called Joseph [] at his home and they arranged to meet regarding money that Weary owed Joseph for drugs that Joseph had advanced to Weary. Joseph’s girlfriend, Niamah Fisher [] and [] Holmes were present when Joseph received the call. Joseph then told Holmes to go down to the basement to get a gun. After Holmes came back up, the three left the Holmes brothers’ home. Fisher walked north on Forrest Avenue toward Homer Street and the Holmes brothers walked south on Forrest Avenue toward Middleton Street. After joining up with Weary, Holmes and Joseph walked down an alley that runs parallel to Forrest Avenue, between Forrest and Ogontz Avenues ____________________________________________

817 n.2 (Pa. Super. 2011) (citation omitted).

On March 22, 2024, after review of counsel’s first Anders brief, this Court entered an order directing counsel to comply with the substantive requirements of Turner/Finley, and provide an explanation as to why counsel believed Holmes’ issues were meritless. See Judgment Order, 3/22/24. Although counsel’s second filing, received on March 26, 2024, is once again titled as an “Anders” brief, he has substantially complied with this Court’s order and the Turner/Finley requirements. Upon review, counsel has satisfied the requirements of Turner/Finley. Attorney Yacoubian (1) set forth the issues Holmes wished to raise; (2) stated he has conducted a thorough review of the record and applicable law; (3) determined there are no non-frivolous claims Holmes can raise; and (4) explained why Holmes’ claims lack merit. Attorney Yacoubian has notified Holmes by letter of his intention to seek permission to withdraw from representation, and Holmes’ rights in lieu of representation. See Application to Withdraw, 7/17/23; Letter, 11/19/23, filed 3/25/24; Letter, 7/16/23, filed 3/26/24. See Widgins, supra. See also Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (stating Anders brief which complies substantially with the requirements of Turner/Finley is sufficient to permit withdrawal of counsel); Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (same).

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and between Middleton and Homer Streets. Fisher saw the three men walking towards Homer Street and then saw Joseph and Weary exchange something. She then saw Joseph push Weary up against a garage and shoot him twice in the head. Joseph saw Fisher on Homer Street and followed her home. Holmes arrived at Fisher’s home while Joseph was talking to Fisher and held her arms while Joseph told Fisher that she should be quiet or she would be next.

The crime remained unsolved until November 2009, when Fisher, believing that she was about to be replaced in Joseph’s affections, called the police and told them about the murder and gave the police a signed statement with details of the murder. Fisher later reconciled with Joseph. At trial, she repudiated her statement, which was then admitted into evidence. Based on Fisher’s statement[,] the police located another witness, Raymond Johnson, who gave a statement indicating that[,] after hearing shots[,] he saw Holmes and Joseph running from the crime scene. Johnson also repudiated his statement at trial and it was also admitted into evidence.

On April 29, 2009, the police executed a search warrant of [the] Holmes residence and found two firearms in the basement that were similar to the firearm used in the murder. Neither firearm was the murder weapon.

PCRA Court Opinion, 6/6/23, at 1-2 (citations omitted).

At trial, the Commonwealth established that Holmes heard that Joseph

was going to meet with the victim, went to the basement to get a gun at

Joseph’s direction, accompanied Joseph to meet with the victim, was with

Joseph when he shot the victim twice in the head, fled the crime scene, and

met up with Joseph and helped to threaten Fisher, the only witness to the

crime. Trial Court Opinion, 1/27/12, at 4. The medical examiner testified that

the victim died of two gunshot wounds to his head. The gun was in contact

with the victim's head for one shot, and the other shot was fired at close

range. Id. at 3.

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On June 13, 2011, a jury convicted Holmes of third-degree murder.2

The trial court sentenced Holmes to serve a term of 15 to 35 years’

imprisonment. On direct appeal, this Court affirmed. See Commonwealth

v. Holmes, 2704 EDA 2011 (Pa. Super. filed Feb. 2, 2013) (unpublished

memorandum decision). Holmes filed a petition for allowance of appeal, which

the Pennsylvania Supreme Court denied on August 19, 2013. See

Commonwealth v. Holmes, 74 A.3d 125 (Pa. 2013) (Table). On June 9,

2014, Holmes filed a pro se PCRA petition. On July 6, 2019, Attorney

Yacoubian filed an amended PCRA petition; he filed a second amended PCRA

petition on June 29, 2021. Both petitions alleged after-discovered evidence.

In his PCRA petition, “[Holmes] submitted an affidavit from Brandon Jackson,

who indicated that he saw [Holmes] within minutes of the shooting in

[Holmes’] home, and he neither saw [Holmes] with a firearm nor observed

[Holmes] acting nervous or agitated.” PCRA Opinion, 6/6/23, at 3.

On February 22, 2023, the PCRA court dismissed Holmes’ petition. This

timely appeal and motion to withdraw followed. Counsel has identified the

following issues for our review: (1) whether the PCRA court erred in denying

an evidentiary hearing on Holmes’ after-discovered evidence claim involving ____________________________________________

2 Holmes’ co-defendant, his brother Joseph, was found guilty of murder of the

first degree, and possession of an instrument of crime (PIC). Joseph also filed an appeal from his judgment of sentence, and this Court remanded for an evidentiary hearing after which the trial court denied a new trial. On appeal, this Court affirmed. Commonwealth v. Holmes, 2082 EDA 2013 (Pa. Super. filed June 16, 2014) (unpublished memorandum decision). The Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Holmes, 316 EAL 2014, (Pa. filed Oct. 8 2014).

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Brandon Jackson; and (2) whether the PCRA court erred in denying Holmes’

after-discovered evidence claims involving Raymond Johnson and Naimah

Fisher, both of whom recanted their trial testimony.

In reviewing an order denying PCRA relief, our well-settled standard of

review is “whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error. The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(internal quotations and citations omitted).

Under the PCRA, a petitioner is eligible for relief if he can plead and

prove by a preponderance of the evidence that his conviction 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.” 42 Pa.C.S.A. § 9543(a)(2)(vi). An after-

discovered evidence claim requires a petitioner to establish that “(1) the

evidence has been discovered after trial and it could not have been obtained

at or prior to trial through reasonable diligence; (2) the evidence is not

cumulative; (3) it is not being used solely to impeach credibility; and (4) it

would likely compel a different verdict[ ]” if a new trial were granted.

Commonwealth v. Cox, 146 A.3d 221, 228 (citation and quotation marks

omitted). “The test is conjunctive; the defendant must show by a

preponderance of the evidence that each of these factors has been met in

order for a new trial to be warranted.” Commonwealth v. Padillas, 997

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A.2d 356, 363 (Pa. Super. 2010) (citations omitted). We have stated, prior

to granting a new trial based on after-discovered evidence, “a court must

assess whether the alleged after-discovered evidence is of such a nature and

character that it would likely compel a different verdict if a new trial is

granted.” Id. at 365. In making this assessment, “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. (citations omitted).

Further, it is well settled that

[t]here is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.

Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019) (citations

and quotation marks omitted).

After our review, we conclude that no relief is due. Jackson’s signed

statement, which indicated that he was with Holmes minutes after the

shooting and that Holmes did not appear agitated and did not have a firearm,

does not constitute after-discovered evidence. Jackson’s statement clearly

was not discovered after trial. In his statement, Jackson asserts he spoke

with Holmes shortly after the shooting. Because Holmes was present for and

allegedly took part in this interaction, he cannot now claim that he was

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unaware of Jackson’s possible testimony. See Cox, supra. Further, this

evidence would be “merely corroborative or cumulative” of other alibi evidence

Holmes introduced at trial. Holmes’ brother, his brother’s girlfriend, and his

mother testified that they were with Holmes at the time of the shooting and

that he did not have a firearm. See N.T. Jury Trial, 6/10/2011, at 25-26, 39-

42, 55-58. Jackson’s possible alibi testimony merely supports other similar

alibi evidence presented at trial. See Cox, supra; Padillas, supra.

Next, Holmes alleges after-discovered evidence in the form of

recantations of Fisher and Johnson and the pattern and practice of former

Philadelphia Police Detective James Pitts in the course of obtaining statements

from witnesses. Holmes refers to various newspaper articles and legal

documents with respect to Detective Pitts.3

On November 11, 2009, Fisher gave a statement to Detective Robert

Hesser that Holmes shot and killed the victim. Because Fisher was becoming

agitated with Detective Hesser’s questioning, Detective Pitts and Detective

Glenn Jenkins continued the interview. Fisher signed the written statement

and gave police letters from Joseph that showed his efforts to control and

intimidate her. At trial, the letters were read to the jury and Fisher

acknowledged that Holmes sent those letters to her. See N.T. Jury Trial,

6/8/11, at 8-12. ____________________________________________

3 See Commonwealth v. Thorpe, No. CP-51-CR-0011433-2008 (Phila. Cty. filed Nov. 3, 2017) (PCRA court granted relief after finding that Detective Pitts had engaged in coercive conduct when interviewing witnesses in that case and other cases).

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One month later, Fisher contacted counsel for Holmes and reported that

she only gave her statement because she was angry with Joseph for cheating

on her. Her recantation statement of December 23, 2009, however, made no

reference to improper conduct by Detective Pitts. It was only at the

preliminary hearing, in March of 2010, that Fisher claimed her statement was

coerced by Detective Pitts.

As an initial matter, Fisher’s recantation statement is not after-

discovered evidence as it was made prior to trial. Clearly, this evidence could

have been obtained prior to the conclusion of trial by the exercise of

reasonable diligence. See Padillas, supra. Further, even though Detective

Pitts took the statement from Fisher, Fisher first reported the shooting to

Detective Hesser. Moreover, at trial, the Commonwealth read into evidence

the threatening letters from co-defendant Joseph to Fisher and played

recorded phone calls from Joseph to Fisher where he attempted to discourage

Fisher from testifying at trial. Another Holmes brother, Abraham Holmes,

admitted at trial that Joseph told him to prevent Fisher from attending the

preliminary hearing. See N.T. Jury Trial, 6/10/2011, at 19-22.

We also point out that Detective Pitts’ misconduct in other cases does

not prove he coerced Fisher to falsely implicate Holmes in this case. To the

contrary, as stated above, the evidence presented at trial established that co-

defendant Joseph intimidated Fisher into recanting her statement and

illustrated his hold over Fisher. As required by the holding in Padillas, the

PCRA court considered the integrity of the alleged after discovered evidence,

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the motive of those offering said evidence, and the overall strength of the

evidence supporting the underlying conviction. The PCRA court determined,

and we agree, that it is more likely Fisher recanted her testimony out of fear

of Joseph rather than because her statement was coerced by Detective Pitts.4

With respect to Johnson’s recantation statement, we find this, too, does

not qualify as after-discovered evidence. At trial, Johnson testified that he did

not make the statements attributed to him. Holmes cannot claim that

Johnson’s recantation statement, which was consistent with his testimony at

trial, is after-discovered evidence.

We conclude that the PCRA court’s decision is supported by the evidence

of record and free from legal error. See Barndt, supra. Accordingly, Holmes’

claims merit no relief. We affirm the PCRA court’s order and grant counsel’s

application to withdraw.

Order affirmed. Application to withdraw as counsel granted.

Date: 8/01/2024

____________________________________________

4 We note that Holmes does not include in his petition any statement made by

Fisher with respect to alleged coercion by Detective Pitts.

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