Com. v. Lewis, J. ( 2022 )

J-S31026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JIBRELL LEWIS :
:
Appellant : No. 2349 EDA 2020
Appeal from the PCRA Order Entered November 19, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005100-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JIBRELL LEWIS :
:
Appellant : No. 2350 EDA 2020
Appeal from the PCRA Order Entered November 19, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005101-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JIBRELL LEWIS :
:
Appellant : No. 2351 EDA 2020
Appeal from the PCRA Order Entered November 19, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005102-2013
J-S31026-21
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED FEBRUARY 4, 2022
Appellant, Jibrell Lewis, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§
9541-9546. We affirm and grant counsel’s petition to withdraw.
The PCRA court set forth the relevant facts and procedural history of
this case as follows:
On October 7, 2012, at or around 9:00 p.m., police officers
responded to 711 N. 3rd Street and inside found two gunshot
victims. Stephanie Freeman was pronounced dead at the
scene from a gunshot wound to her head. Dr. Edwin
Lieberman, the Commonwealth’s expert in forensic
pathology, concluded to a reasonable degree of medical
certainty that the cause of her death was one gunshot
wound to her head, and that the manner of death was
homicide.
Her daughter, Chrissy Johnson, was found suffering from a
gunshot wound to the left side of the face, and was
transported to Hahnemann Hospital for treatment and
surgery. Ms. Johnson survived her gunshot wound, but
suffered nerve damage to the left side of her face.
Appellant had first called Ms. Johnson in response to an
advertisement for an escort service that she placed on the
internet. They met at Ms. Johnson’s home where her
mother also resided. Appellant was found guilty of shooting
Ms. Johnson as she hid from Appellant behind the closed
door of her bathroom. Appellant shot through the closed
door, wounding Ms. Johnson, and while fleeing the home,
Appellant encountered Ms. Johnson’s mother in the living
room and fatally shot her. He then fled the scene.
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* Retired Senior Judge assigned to the Superior Court.
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Ms. Johnson gave two statements and provided a
description of Appellant as the man who shot her and her
mother, she gave police his phone number, and at trial Ms.
Johnson identified Appellant as the man who shot her and
her mother.
Appellant’s cell phone records showed that he used his cell
phone near Ms. Johnson’s home on the 400 block of North
41st Street, and as a result the police conducted surveillance
of that area. Appellant was identified and when arrested,
recovered from Appellant was a black semiautomatic
handgun, and a bag containing a mask with two eye holes
cut out, a soft body armor vest and a laptop computer. In
addition, the Commonwealth presented DNA evidence on
Appellant’s scarf and Septa video-tape evidence of Appellant
traveling to and from the crime scene. Appellant was
arrested and tried by a jury and found guilty of [first-degree
murder, aggravated assault, and two counts of firearms not
to be carried without a license] on July 8, 2015. Appellant
was sentenced to life imprisonment without the possibility
of parole [for] the 1st Degree Murder charge and [lesser
terms of imprisonment for the remaining offenses].
After Post-sentence motions were filed and denied by
operation of law, Appellant timely appealed his matter to
[the] Superior Court of Pennsylvania on November 25,
2015. [Appellant] was represented by J. Michael Farrell,
Esquire through trial and the filing of the Appellant’s brief
before [the] Superior Court. [The] Superior Court [later]
entered an Order directing that J. Michael Farrell’s
appearance be withdrawn and that new counsel be
appointed. James Anthony Lammendola was court-
appointed to represent Appellant throughout the direct
appeal. [The] Superior Court of Pennsylvania affirmed the
[judgment of sentence] on December 18, 2017. Appellant
filed a Petition for Allowance of Appeal to the Supreme Court
of Pennsylvania, which was denied on June 5, 2018. [See
Commonwealth v. Lewis, 181 A.3d 1210 (Pa.Super.
2017) (unpublished memorandum), appeal denied, 646 Pa.
733, 187 A.3d 209 (2018)]. On March 13, 2019[,] Appellant
filed a timely pro se [PCRA petition]. Dennis Turner, Esquire
was appointed and filed a [motion to withdraw and
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Turner/Finely1] no-merit letter on February 14, 2020. [On
September 30, 2020, the court issued notice of its intent to
dismiss the petition without a hearing per Pa.R.Crim.P. 907.
Appellant did not respond.] After independent review of the
matter, the PCRA court dismissed Appellant’s PCRA petition
as meritless on [November 19, 2020 and let counsel
withdraw. Additionally, the court appointed new appellate
counsel2]. The matter encompassed three docket numbers
and on December 7, 2020[,] Appellant timely filed [a notice
of appeal at each underlying docket]. On January 1[5],
2021[, the] Superior Court consolidated the three appeals
[sua sponte].
(PCRA Court Opinion, filed May 6, 2021, at 2-4).
Preliminarily, current appellate counsel has filed a motion to withdraw
and Turner/Finley brief in this Court. Before counsel can be permitted to
withdraw from representing a petitioner under the PCRA, Pennsylvania law
requires counsel to file a “no-merit” brief or letter pursuant to Turner and
Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
[C]ounsel must…submit a “no-merit” letter to the [PCRA]
____________________________________________
1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2 “Generally, once the court permits PCRA counsel to withdraw after filing a
Turner/Finley “no-merit” letter, an appellant is no longer entitled to the
appointment of counsel on appeal.” Commonwealth v. Shaw, 217 A.3d
265, 268 n.3 (Pa.Super. 2019). See also Commonwealth v. Rykard, 55
A.3d 1177 (Pa.Super. 2012), appeal denied, 619 Pa. 714, 64 A.3d 631 (2013)
(explaining that when counsel has been appointed to represent PCRA
petitioner and that right has been fully vindicated following grant of counsel’s
petition to withdraw under Turner/Finley, court shall not appoint new
counsel and appellant must look to his own resources for future proceedings).
Nevertheless, the court is permitted to appoint counsel to represent a
defendant whenever the interests of justice require it. See Pa.R.Crim.P.
904(E). Here, it is not entirely clear from the record why the court deemed it
necessary to appoint new counsel for this appeal.
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court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must also send to the petitioner a copy of the “no-merit” letter or brief and
motion to withdraw and advise petitioner of his right to proceed pro se or with
privately retained counsel. Id. “Substantial compliance with these
requirements will satisfy the criteria.” Karanicolas, supra at 947.
Instantly, appellate counsel filed a motion to withdraw as counsel and a
Turner/Finley brief detailing the nature of counsel’s review and explaining
why Appellant’s issues lack merit. Counsel’s brief also demonstrates he
reviewed the certified record and found no meritorious issues for appeal.
Counsel notified Appellant of counsel’s request to withdraw and advised
Appellant regarding his rights. Thus, counsel substantially complied with the
Turner/Finley requirements. See Wrecks, supra; Karanicolas, supra.Counsel raises the following issues on Appellant’s behalf:
The trial court lacked subject matter jurisdiction to charge
and try Appellant because the laws underlying the charges
are null and void because they were improperly enacted into
law.
Trial counsel provided ineffective assistance of counsel by
waiving Appellant’s formal arraignment because it rendered
Appellant as having not been charged at all.
Appellant is entitled to PCRA relief because J. Michael
Farrell, Esquire, Appellant’s trial counsel, Seth Williams,
Esquire, former District Attorney of Philadelphia County, and
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Kathleen Kane, Esquire, former Pennsylvania Attorney
General, each were under investigation and then charged,
and convicted of various crimes during the pendency of
Appellant’s case.
The entire PCRA process, from the standard pre-printed
PCRA form to the appointment of counsel who then files a
no-merit letter is predicated on fraud.
(Turner/Finley Brief at 5-6).3
Our standard of review of the denial of a PCRA petition is limited to
examining whether the record evidence supports the court’s determination
and whether the court’s decision is free of legal error. Commonwealth v. H.
Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d
319 (2008). This Court grants great deference to the findings of the PCRA
court if the record contains any support for those findings. Commonwealth
v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932
A.2d 74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. J. Ford, 44 A.3d 1190 (Pa.Super. 2012).
Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the
PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335 (Pa.Super. 2012).
____________________________________________
3 Appellant has not filed a responsive brief pro se or with newly-retained
private counsel.
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After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Tracy
Brandeis-Roman, we conclude Appellant’s issues merit no relief. The PCRA
court opinion comprehensively discusses and properly disposes of the
questions presented. (See PCRA Court Opinion at 5-10).
Specifically, regarding Appellant’s first issue, the PCRA court explained
that trial courts in the Commonwealth of Pennsylvania have jurisdiction over
crimes that occurred within the county of the trial court, and that Courts of
Common Pleas are the trial courts of general jurisdiction in the state. Further,
the crimes for which Appellant was convicted were valid laws in effect at the
time Appellant’s offenses occurred, over which the trial court had subject
matter jurisdiction. Thus, Appellant’s claim that the trial court lacked
jurisdiction and that the laws under which he was convicted were invalid is
meritless.4 (See PCRA Court Opinion at 5-7).
With respect to Appellant’s second issue, the PCRA court explained that
____________________________________________
4 To the extent that Appellant claims the criminal statutes under which he was
convicted are invalid because they did not have “enacting clauses,” this Court
has previously rejected Appellant’s argument. See Commonwealth v.
Stultz, 114 A.3d 865 (Pa.Super. 2015), appeal denied, 633 Pa. 767, 125 A.3d
1201 (2015) (holding criminal statutes have enacting clauses,
notwithstanding decision of private publishing companies to omit them from
their editions of statute books). See also Commonwealth v. Gray, 2021
WL 1054381 at *3 (Pa.Super. March 19, 2021) (unpublished memorandum)
(agreeing with Commonwealth’s reliance on Stultz to debunk this “popular
jailhouse lawyer theory”); Pa.R.A.P. 126(b) (explaining this Court may cite
non-precedential cases from Superior Court decided after May 1, 2019 for
persuasive value).
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Appellant offered no explanation as to any possible connection between the
waiver of his formal arraignment and Appellant’s convictions for the crimes
charged. Thus, Appellant failed to establish prejudice in connection with his
ineffectiveness claim. (See id. at 7).
Concerning Appellant’s third issue, the PCRA court decided that
Appellant’s “broad-brush request for PCRA relief” based on any federal
investigation into Appellant’s trial counsel, former Philadelphia District
Attorney Williams, and former Attorney General Kane, was “overly broad,
undeveloped and waived.” (Id. at 9).
Likewise, the PCRA court deemed Appellant’s fourth issue waived where
Appellant failed to properly develop this claim. (Id. at 10). The record
supports the PCRA court’s denial of relief for the reasons stated. 5 Our
independent review of the record confirms the appeal is frivolous. Thus, we
affirm the denial of PCRA relief and grant counsel’s petition to withdraw.
Order affirmed. Petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2022
____________________________________________
5 We direct the parties to attach a copy of the PCRA court’s opinion to any
future filings involving this appeal.
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