Com. v. Fulton, I. ( 2022 )

J-S33025-21
J-S33026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
I. DEAN FULTON :
:
Appellant : No. 78 EDA 2021
Appeal from the PCRA Order Entered December 21, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007870-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
I. DEAN FULTON :
:
Appellant : No. 79 EDA 2021
Appeal from the PCRA Order Entered December 21, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007871-2013
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 29, 2022
Appellant I. Dean Fulton appeals from the orders dismissing his second
Post Conviction Relief Act1 (PCRA) petitions in the above-captioned cases as
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
J-S33025-21
J-S33026-21
meritless.2 Appellant argues that the PCRA court erred in concluding that he
was not entitled to credit for time served in an unrelated case which ended in
acquittal, and that he is entitled to new sentencing hearings because the trial
court referred to Appellant’s criminal conduct in the unrelated case during
sentencing. We affirm.
We summarize the relevant history of arrests and convictions from the
PCRA court’s opinion and the record. See PCRA Ct. Op., 3/9/21, at 6-7. On
June 17, 2010, Appellant was arrested for illegally possessing a firearm and
taken into custody. Id. On June 21, 2010, Appellant was arrested for the
homicide of Michael Toll (the Toll homicide). Id. On February 18, 2013, while
in custody awaiting trial for the Toll homicide, Appellant was arrested for
smuggling a weapon into the prison. Id. For clarity, we note that all of these
cases appeared at trial court docket numbers separate from the trial court
dockets involved in the instant appeals.
On March 29, 2013, while in custody for the Toll homicide, Appellant
was arrested for the crimes at issue in the instant appeal. Id. at 3-6. At
Docket No. 7870-2013, the Commonwealth charged Appellant with the
murder of Dominque Jenkins, conspiracy to commit murder, and related
firearms offenses.3 Id. At Docket No. 7871-2013, the Commonwealth
____________________________________________
2 We address both of Appellant’s appeals because they are identical and
implicate facts and procedural histories that are closely related.
3 18 Pa.C.S. §§ 2502(c), 903, 6106(a)(1), 6108, and 907(a), respectively.
-2-
J-S33025-21
J-S33026-21
charged Appellant with aggravated assault4 of Lamar Henderson. Id. Both
cases arose from a January 24, 2010 shooting near 62nd Street and
Chelwynde Avenue in Philadelphia. Id.
On August 29, 2013, a jury convicted Appellant of third-degree murder
and other offenses in relation to the Toll homicide. Id. at 6-7. On January
17, 2014, the trial court sentenced Appellant to fifteen to thirty years of
incarceration for third-degree murder and no further penalty for possessing
an instrument of crime. Id.
On October 17, 2014, Appellant was convicted by a jury at Docket No.
7871-2013 of the aggravated assault on Henderson. At Docket No. 7870-
2013, the jury convicted Appellant of firearms not to be carried without a
license, carrying a firearm on the streets and public property of Philadelphia,
and possession of an instrument of crime, but acquitted Appellant of
conspiracy and the murder of Jenkins. Id. On February 11, 2015, Appellant
received an aggregate sentence of nine to eighteen years of incarceration.5
Id.
Appellant filed timely notices of appeal at both dockets. Appellant fully
litigated his direct appeal and timely first PCRA petition. Commonwealth v.
Fulton, 768 EDA 2015, 2016 WL 2349178 (Pa. Super. filed May 4, 2016)
____________________________________________
4 18 Pa.C.S. § 2702(a)(1).
5The trial court imposed standard-guideline range sentences for aggravated
assault and firearms not to be carried without a license based on Appellant’s
prior record score (PRS) of zero. N.T. Sentencing Hr’g, 2/11/15, at 3, 45.
-3-
J-S33025-21
J-S33026-21
(unpublished mem.), appeal denied, 160 A.3d 761 (Pa. 2016);
Commonwealth v. Fulton, 3614 EDA 2017, 2018 WL 4140907 (Pa. Super.
filed Aug. 30, 2018) (unpublished mem.), appeal denied, 207 A.3d 904 (Pa.
2019).6
While Appellant’s appeal from the denial of his first PCRA petition in this
matter was pending, the Pennsylvania Supreme Court vacated Appellant’s
conviction in the Toll homicide, holding that it had been based on an unlawful
cell phone search. Commonwealth v. Fulton, 179 A.3d 475, 496 (Pa. 2018)
(vacating Appellant’s convictions in the Toll case and remanding for a new
trial). On December 19, 2019, following a re-trial, a jury acquitted Appellant
of all charges in the Toll case.
On December 20, 2019, Appellant filed the instant PCRA petition, his
second, which he styled as a motion for modification of sentence. See
Amended Mot. for Modification of Sentence, 12/20/19, at 1-3. Therein,
Appellant argued that his sentence should be reduced because it was based
on a prior record score that was no longer applicable due to the reversal of
Appellant’s conviction in the Toll homicide. See id. at 3-4; see also
Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018). Therefore, Appellant
____________________________________________
6In addition to Appellant’s prior PCRA petition, he also unsuccessfully litigated
a petition for writ of habeas corpus in federal court. See also Fulton v. Supt.
SCI-Frackville, CV 19-2295, 2019 WL 6690069, at *1 (E.D. Pa. filed Nov.
13, 2019) (report and recommendation concluding that Appellant’s habeas
petition should be denied), report and recommendation adopted, CV 19-2295,
2019 WL 6682139 (E.D. Pa. filed Dec. 6, 2019), certificate of appealability
denied, 19-3864, 2020 WL 3066350 (3d Cir. filed June 5, 2020), cert. denied
sub nom. Fulton v. Brittain, 141 S.Ct. 963, 208 L.Ed.2d 499 (2020).
-4-
J-S33025-21
J-S33026-21
contended that his sentence was illegally enhanced. See Amended Mot. at 3.
The PCRA court treated the petition as a second PCRA petition and, on January
8, 2020, ordered counsel to file an amended petition incorporating the
sentence modification claim. See Order, 1/8/20, at 1. Appellant filed an
amended petition on January 29, 2020.
On November 19, 2020, the PCRA court conducted a hearing to address
the timeliness of Appellant’s petition. The PCRA court concluded that although
the PCRA petition was facially untimely, Appellant had successfully pled the
newly discovered facts exception to the PCRA time bar, as he could not have
known that a jury would acquit him in the re-trial of the Toll homicide. N.T.
PCRA Hr’g, 11/19/20, at 8. However, the PCRA court ultimately concluded
that Appellant’s underlying claims were meritless. Therefore, the PCRA court
issued a Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition
without an evidentiary hearing. On December 6, 2020, Appellant filed a
response to the notice, restating the points from his prior petitions. See Resp.
to Rule 907 Notice, 12/6/20, at 4-8. On December 21, 2020, the PCRA court
formally dismissed the petitions.7
____________________________________________
7 Although the dismissal orders are not included in the certified record, both
the PCRA court opinion and the dockets reflect that the PCRA petition was
formally dismissed on December 21, 2020. Further, we note that neither party
takes issue with the fact that the orders are not contained within the certified
record.
-5-
J-S33025-21
J-S33026-21
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) statement. The PCRA court issued a Rule 1925(a) opinion addressing
Appellant’s claims.
On appeal, Appellant raises the following issues for review:
1. Whether the PCRA court erred in finding that it was not
required to award jail credit for Appellant’s time in continuous
state custody when jail credit was not awarded in any other
case?
2. Whether the PCRA court erred and denied due process in
relying on inaccurate information and false assumptions in
imposing the sentence?
Appellant’s Brief at 2 (some formatting changed).
Our review of the denial of a PCRA petition is limited to the examination
of “whether the PCRA court’s determination is supported by the record and
free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.
Super. 2014) (citation and quotation marks omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.
2014) (citation omitted). Further, we are bound by the “PCRA court’s
credibility determinations, when supported by the record . . . .”
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).
We review “the PCRA court’s legal conclusions de novo.” Miller, 102 A.3d at
992 (citation omitted).
It is well settled that “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)
-6-
J-S33025-21
J-S33026-21
(citation omitted). “A PCRA petition, including a second or subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final.” Id. (citing 42 Pa.C.S. § 9545(b)(1)). A judgment is final “at
the conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” Id. (quoting 42 Pa.C.S. §
9545(b)(3)); see also Commonwealth v. Feliciano, 69 A.3d 1270, 1275
(Pa. Super. 2013) (stating that where a defendant does not seek review in the
United States Supreme Court, his or her judgment of sentence is final ninety
days after the Pennsylvania Supreme Court denied his or her petition for
allowance of appeal).
However, this Court may consider a PCRA petition filed more than one
year after the judgment of sentence becomes final if the petitioner pleads and
proves one of the following three statutory exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
-7-
J-S33025-21
J-S33026-21
42 Pa.C.S. § 9545(b)(1)(i)-(iii). It is the PCRA petitioner’s “burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citation omitted and some
formatting altered).
Initially, we must address the timeliness of Appellant’s PCRA petition.
The record reflects that Appellant’s judgment of sentence became final on
January 23, 2017, ninety days after the Pennsylvania Supreme Court denied
his petition for allowance of appeal. Therefore, the instant PCRA petition, filed
on December 20, 2019, was facially untimely.
As noted previously, the PCRA court concluded that Appellant met the
newly discovered fact exception to the PCRA time-bar. See N.T. PCRA Hr’g,
11/19/20, at 8. The Commonwealth argues that Appellant’s PCRA petition
should be considered untimely filed because the predicate to his claim was the
reversal of his conviction and vacation of his judgment of sentence for the Toll
homicide. Commonwealth’s Brief at 11. The Commonwealth claims that it is
irrelevant that Appellant was not re-tried until December 2019 because it was
not the acquittal that gave rise to his claim, but the vacation of his original
sentence and its interplay with the sentence in the instant matter. Id.Based on our review of the record, we find no support for the
Commonwealth’s argument. Indeed, had Appellant been convicted at his re-
trial in the Toll homicide, he would have been awarded credit for time served
at his re-sentencing. Therefore, Appellant had no way of knowing that this
claim would arise until his acquittal in December 2019. Accordingly, the PCRA
-8-
J-S33025-21
J-S33026-21
court appropriately determined that Appellant satisfied the newly discovered
facts exception, despite ultimately finding that the issues raised in the petition
were without merit. See 42 Pa.C.S. § 9545(b)(1)(ii). Therefore, we will
address Appellant’s substantive claims.
Time Credit
In his first claim, Appellant argues that the time he spent in custody on
the unrelated Toll homicide should be credited towards his sentence in the
instant matter. Appellant’s Brief at 8-11. In support, Appellant argues that
this remedy is required by 42 Pa.C.S. § 9760, and that because of the PCRA
court’s refusal to award him credit for time, his sentence is illegal. Id. In
addition to his statutory claim, Appellant contends that the PCRA court’s denial
of his motion for modification of sentence violated constitutional due process
guarantees of the Fifth and Fourteenth Amendments8 and that, as a result of
his overturned conviction in the Toll homicide, his sentence in the instant case
was based upon “misinformation and false assumptions.” Id. at 12-14.
It is well settled that “the PCRA provides the sole means for obtaining
collateral review, and that any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.” Commonwealth v.
Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) (citation omitted).
“Requests for relief with respect to the discretionary aspects of sentence are
____________________________________________
8 Appellant does not clarify whether he is referring to the Pennsylvania or
United States Constitutions, or both. Nor does he clarify whether his
arguments implicate substantive or procedural due process violations.
-9-
J-S33025-21
J-S33026-21
not cognizable in PCRA proceedings.” Commonwealth v. Wrecks, 934 A.2d
1287, 1289 (Pa. 2007). However, a collateral challenge to the legality of
sentence for failure to award credit for time served must be brought under
the PCRA. See, e.g., Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.
Super. 2007).
The Sentencing Code provides, in relevant part, as follows:
§ 9760. Credit for time served
After reviewing the information submitted under section 9737
(relating to report of outstanding charges and sentences) the
court shall give credit as follows:
(1) Credit against the maximum term and any minimum
term shall be given to the defendant for all time spent in
custody as a result of the criminal charge for which a prison
sentence is imposed or as a result of the conduct on which
such a charge is based. Credit shall include credit for time
spent in custody prior to trial, during trial, pending
sentence, and pending the resolution of an appeal.
42 Pa.C.S. § 9760(1). “The principle underlying [Section 9760] is that a
defendant should be given credit for time spent in custody prior to sentencing
for a particular offense.” Commonwealth v. Hollawell, 604 A.2d 723, 725
(Pa. Super. 1992) (citation omitted and emphasis added).
This Court “has explained that the principle behind statutory credit is
that the defendant should be given credit for time spent in custody before
being sentenced for a given offense.” Commonwealth v. Merigris, 681 A.2d
194, 194 (Pa. Super. 1996) (citation omitted). Further,
Section 9760(1) [of the Sentencing Code] contains two general
elements for credit for time served: (1) the time must be ‘spent
- 10 -
J-S33025-21
J-S33026-21
in custody’ and (2) the time must be ‘as a result of the criminal
charge for which a prison sentence is imposed or as a result of the
conduct on which such a charge is based.’ See 42 Pa.C.S. §
9760(1). If both conditions are met, then the defendant is entitled
to credit.
Commonwealth v. Vidal, 198 A.3d 1097, 1100 (Pa. Super. 2018). “[A]
defendant shall be given credit for any days spent in custody prior to the
imposition of sentence, but only if such commitment is on the offense for
which sentence is imposed. Credit is not given, however, for a commitment
by reason of a separate and distinct offense.” Commonwealth v. Richard,
150 A.3d 504, 520-21 (Pa. Super. 2016).
Here, the PCRA court addressed Appellant’s request for time credit as
follows:
[Appellant’s] version of events is baffling, and this [c]ourt cannot
begin to fathom the absurd Pandora’s box of legal confusion and
wrangling [Appellant’s] version of the law would create.
[Appellant] was taken into custody on June 17, 2010, for illegally
possessing a firearm and then subsequently arrested for an
unrelated homicide on June 21, 2010. [Appellant] remained a
suspect in the instant [matter] throughout that time, but was not
arrested for the instant matter until three years later.
In support of his version of events, [Appellant] points to an
Affidavit of Probable Cause for a Search Warrant for the instant
matter, dated June 24, 2010, in which homicide detectives
requested a warrant to search [Appellant’s] cellphone to “further
investigate the shooting death of Dominique Jenkins.” (emphasis
added). It appears to this [c]ourt that if detectives needed to
further investigate the death of Dominique Jenkins, then they did
not have sufficient evidence to make an arrest. An arrest is a
formal process which begins legal proceedings. The legal
proceedings in the instant matter began March 29, 2013, when
[Appellant] was actually arrested for the instant murder. The fact
that [Appellant] was already in custody for unrelated charges does
not, somehow, make the date of [Appellant’s] arrest in this matter
- 11 -
J-S33025-21
J-S33026-21
“arbitrary, capricious and whimsical” or “just a matter of record
keeping.”
See PCRA Ct. Op. at 8-9.
After a careful review of the record and relevant authority, we agree
with the PCRA court’s conclusions. Because the time Appellant spent in
custody from June 17, 2010 to May 29, 2013 was for an unrelated crime, it
cannot be credited towards the instant sentence. See PCRA Ct. Op. at 10;
see also Richard, 150 A.3d at 520-21. Therefore, Appellant is not entitled
to relief.
Sentencing Claim
Appellant’s second issue is also couched as a challenge to the legality of
his sentence. Appellant’s Brief at 11-12. Specifically, Appellant alleges that
“the PCRA court erred in not correcting the illegal sentence based on
inaccurate information and false assumptions in violation of the due process
clause of the Fifth and Fourteenth Amendments.” See id. at 11.
However, Appellant’s argument is difficult to parse. He begins by listing
several United States Supreme Court cases, cases from the Second Circuit,
one case from this Court, and extensively quotes from an unpublished
memorandum of this Court. Id. His brief makes no connection between his
arguments regarding the legality of his sentence and the cases he cites. See
id. at 12-14. Rather, Appellant argues that his due process rights were
violated because the trial court considered inaccurate or unreliable information
when imposing its sentence, namely, the Toll homicide. Id. at 12. Appellant
- 12 -
J-S33025-21
J-S33026-21
argues that even though his prior record score was zero, the prosecutor
specifically referenced the Toll homicide, and the court factored those
references into its sentence. Id. at 13. In support of this contention,
Appellant points to the length of his sentence for aggravated assault and the
comment the court made that Appellant had left “two bodies in the street.”
Id. at 13; N.T. Sentencing Hr’g, 2/11/15, at 44.
It is well settled that the failure to appropriately develop an adequate
argument in an appellate brief may result in waiver of the claim under
Pa.R.A.P. 2119. See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.
Super. 2007) (en banc); Pa.R.A.P. 2119(a). “When issues are not properly
raised and developed in briefs, when the briefs are wholly inadequate to
present specific issues for review, [this Court] will not consider the merits
thereof.” Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998)
(citation omitted). “We shall not develop an argument for [an appellant], nor
shall we scour the record to find evidence to support an argument;
consequently, we will deem [the] issue waived.” Beshore, 916 A.2d at 1140.
In the instant case, Appellant has failed to adequately develop his
sentencing claim for review. In his brief, Appellant’s argument jumps between
claims concerning due process, legality, and the discretionary aspects of his
sentence. Appellant’s Brief at 12-15. Although Appellant cites to the
reproduced record and the comments made by the trial court and counsel, he
makes no effort to connect those portions of the record with his argument or
the case law cited in his brief. See id. Under these circumstances, it is difficult
- 13 -
J-S33025-21
J-S33026-21
to decipher whether Appellant is attempting to raise a constitutional claim, a
challenge to the legality of his sentence,9 or an issue concerning the
discretionary aspects of his sentence. See id. Accordingly, we find that
Appellant has waived his second sentencing claim for purposes of appellate
review. Miller, 721 A.2d 1121, 1124; Beshore, 916 A.2d at 1140.
In any event, even if Appellant properly developed a claim concerning
the sentencing factors relied on by trial court, no relief is due. In addressing
this issue, the PCRA court explained:
[T]he vacated conviction [in the Toll homicide] did not trigger a
mandatory minimum or enhance the maximum. It did not
constitute a second or third strike. It was not used to calculate
[Appellant’s] prior record score since it was not a conviction prior
to the commission of the instant offense. As such, the legality of
the sentence is not an issue in this claim.
PCRA Ct. Op. at 10-11.
We agree with the PCRA court that Appellant’s claim implicates the
discretionary aspects of his sentence. See Commonwealth v. Spenny, 128
A.3d 234, 243 (Pa. Super. 2015) (stating that a trial court’s miscalculation of
a defendant’s PRS implicates the discretionary aspects of a sentence); see
____________________________________________
9 We acknowledge that we may address the legality of a sentence sua sponte.
See Commonwealth v. Rivera, 238 A.3d 482, 503 (Pa. Super. 2020)
(stating that the legality of a sentence cannot be waived and may be reviewed
sua sponte by this Court). Likewise, it is well settled that “if no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction.” Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.
Super. 2014) (citation omitted). Here, Appellant’s sentence does not exceed
the statutory maximum for third-degree murder. See 18 Pa.C.S. § 1102(d).
Therefore, we conclude that Appellant’s sentence was legal for purposes of
this appeal. See Wolfe, 106 A.3d at 801.
- 14 -
J-S33025-21
J-S33026-21
also Commonwealth v. Anderson, 830 A.2d 1013, 1016 (Pa. Super. 2003)
(noting that an allegation that the sentencing court considered improper
sentencing factors is a challenge to the discretionary aspects of a sentence).
As such, Appellant’s claim is not cognizable under the PCRA.10 See Wrecks,
934 A.2d at 1289 (stating that discretionary sentencing claims are not
cognizable in PCRA proceedings).
For these reasons, we conclude that the PCRA court’s determinations
were supported by the record and that there was no error of law in the PCRA
court dismissing Appellant’s PCRA petitions. See Miller, 102 A.3d at 992.
Accordingly, we affirm.
Orders affirmed.
Judge Bowes joins the memorandum.
Judge McLaughlin concurs in the result.
____________________________________________
10 In any event, our review of the record confirms that the trial court
determined that Appellant’s prior record score was a zero for purposes of
sentencing in the instant case and that the Toll homicide was not a factor that
the sentencing court considered. See PCRA Ct. Op. at 10-11. Therefore,
Appellant’s claim is meritless.
- 15 -
J-S33025-21
J-S33026-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2022
- 16 -