J-S10017-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DARIAN PERSON Appellant No. 265 EDA 2018

Appeal from the PCRA Order Entered December 18, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0013496-2014

BEFORE: GANTMAN, P.J.E., STABILE, and COLINS,* JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 19, 2019 Appellant, Darian Person, appeals from the December 18, 2017 order denying his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

The PCRA court recited the pertinent facts on the record at the PCRA hearing: On 9/22, 2014, [Appellant] was with a group of individuals, including [Q.D.], [S.M.], [R.F.], and [A.T.], that this group was looking for another group of young people, who had been in an altercation with some of their friends a few days prior, that this group was walking around, that they came into contact with another group of teenagers and that they began fighting, that that fight was broken up by the SEPTA police, that, thereafter, the fight sparked up again as the other group followed [Appellant] and his group from the area.

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* Retired Senior Judge assigned to the Superior Court.

J-S10017-19

At the point in which the fight started up again, [Q.G.] yelled to [Appellant] get the gat, get the gat and at that point, [Appellant] took a .22 caliber weapon from the backpack of one of the others and fired four or five shots into the crowd of individuals that were fighting. [D.B.] was struck twice and survived, [A.A-B.], a fifteen-year-old bystander, was struck in the left side of the back and was killed. At least five witnesses identified [Appellant] as the shooter. All were his friends who had been there with him except a woman, who attempted to grab [Appellant] after the shooting, and identified him in a photo array.

N.T. Hearing, 12/18/17, at 114-16.

On December 2, 2015, Appellant entered a negotiated guilty plea to third degree murder, aggravated assault, and conspiracy. The Commonwealth reduced the murder charge from first to third degree in exchange for the plea. The trial court imposed an aggregate 25 to 50 years of incarceration, and Appellant did not file a direct appeal. On September 8, 2016, Appellant filed this timely first PCRA petition seeking, among other things, reinstatement of the right to file a direct appeal. The PCRA court conducted a hearing on December 18, 2017. The PCRA court found, among other things, that Appellant received a favorable plea bargain and that he never asked plea counsel to file a direct appeal on his behalf. The PCRA court therefore denied relief. This timely appeal followed.

Appellant raises a single issue for our review: Was the PCRA court correct in denying reinstatement of [Appellant’s] rights nunc pro tunc when, after an evidentiary hearing, the court credited trial counsel’s testimony that [Appellant] never communicated to counsel his interest in appealing after entering his negotiated guilty plea?

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Appellant’s Brief at 1.1 On review, we must determine whether the PCRA court’s findings are supported by the record and free of legal error. Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). Appellant claims counsel was ineffective for failing to file a requested appeal and/or failing to consult Appellant about the possibility of an appeal. To overcome the presumption of counsel’s effectiveness, a PCRA petitioner must plead and prove that the underlying issue has arguable merit; that counsel had no reasonable strategic basis for the disputed action or inaction; and that the result of the proceeding would have been different but for counsel’s error. Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012).

“[W]hen a lawyer fails to file a direct appeal requested by the defendant, the defendant is automatically entitled to reinstatement of his direct appeal rights.” Commonwealth v. Markowitz, 32 A.3d 706, 714 (Pa. Super. 2011), appeal denied, 40 A.3d 1235 (Pa. 2012). Instantly, Appellant testified that he requested a direct appeal, and counsel testified that Appellant did not do so. Appellant produced a letter he claims he sent to counsel, but

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1 During the proceedings before the PCRA court, counsel filed a petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The PCRA court never ruled on the petition and never permitted counsel to withdraw. At the conclusion of the PCRA hearing, counsel agreed to file a notice of appeal on Appellant’s behalf. N.T. Hearing, 12/18/17, at 132-33.

Counsel has remained on the case and filed a brief on Appellant’s behalf.

-3- J-S10017-19

there was no evidence the letter was mailed and the PCRA court disbelieved its authenticity. Appellant also claims he asked several family members to contact counsel about filing a direct appeal, but he produced no evidence to support that claim. The PCRA court found counsel credible and Appellant not credible. “The PCRA court’s credibility determinations, when supported by the record, are binding on this Court.” Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014) (en banc), appeal dismissed, 140 A.3d 675 (Pa. 2016). For the reasons explained in the PCRA court’s April 18, 2018 opinion, we agree that this issue lacks merit.

Next, we consider Appellant’s argument that counsel was ineffective for failing to consult with him about filing a direct appeal. The United States Supreme Court has held as follows: [C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.

Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000).

Instantly, the PCRA court found that Appellant’s plea bargain was very favorable, given the overwhelming evidence of his guilt and the high likelihood of a conviction for first-degree murder if Appellant proceeded to trial. And, as we have already explained, the PCRA court credited counsel’s testimony that Appellant did not demonstrate interest in taking a direct appeal. For the -4- J-S10017-19

reasons explained in the PCRA court’s April 18, 2018 opinion, we agree that this issue lacks merit. We direct that a copy of that opinion be filed along with this memorandum.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/19/19

-5- Circulated 05/29/2019 04:34 PM

F�LED 2018 APR I B PM �: d� THE COURT OJ.' COMMON PLEAS OF PHILADELPHIA OFFICE Or .JIJOlCl,':.\. RECORDS CRIMINAL TRIAL DIVISlON Cf:!Hli�AL. OlVlSIU� i-l!�J.'f ·G0.MM0N�\J£ALTH OF PENNSYLVANJA ut t;r..r��\ J f Lt:H�H"\ CP-51-CR-0013496-2014 v, 265 EDA 2018 DARIAN PERSON Cl>,51.CR-0013"-9(>-,0U Cotnnl, v. f'c,.OP, r.:anao L Cf'trnvn

OPINION 1111111111111111111111111 8097649551 Rose Marie Defino-Nastasi, J.

PROCEDURJ\L HISTORY On December 2, 2015, Petitioner entered into a negotiated guilty plea before this court to murder of the third degree, 18 Pa. C.S. §2502 (c), as a felony of the first degree; conspiracy to commit murder, 18 Pa. C.S. §903, as a felony of the first degree; and aggravated assault, l 8 Pa. C.S. §2702 (a)(l), as a felony of the first degree. On that same date Petitioner was sentenced to twenty (20) to forty (40) years imprisonment for third degree murder; five (5) to ten (l 0) years imprisonment, to nm consecutively, for the conspiracy conviction; and five (5) to ten (10) years, run concurrently, for the aggravated assault conviction.

No post-sentence motion to withdraw the plea was tiled. No appeal to the Pennsylvania Superior Court was filed. Therefore, judgment of sentence became final on January I, 2016.

On September 8, 20 l 6, Petitioner filed the instant, timely PCRA petition.

On November 16, 2016, Petitioner filed an amended petition.

On August 2, 2017, PCRA counsel filed a Finley letter of no merit.

On September 21, 2017, the Court rejected PCRA counsel's Finley letter and ordered a hearing.

On December 18, 2017, a PCRA hearing was held, after which the Court denied PCRA relief.

On January 12, 2018, Petitioner filed the instant appeal to the Pennsylvania Superior Court.

On April 13, 2018, Petitioner filed a l 925(b) Statement of Matters Complained of on Appeal, pursuant to an order of the Court, claiming: I. The PCRA court erred in denying Petitioner's requested relief to reinstate appellate rights nunc pro tune.

FACTS On September 22, 2014, Petitioner and his friends were in search of a group of teenagers who had engaged in an altercation with their friends a few days before. They encountered the group and a fracas ensued which was broken up by Septa police officers. The group dispersed; however, the confrontation resumed nearby and Petitioner took a .22 caliber firearm from the back-pack of one of his friends and fired four (4) to five (5) shots into the crowd his group was fighting. Bystanders, Donald Boseman and fifteen (15) year-old Aisha-Abdur Rahman, were struck by the gunfire. Donald Boseman was struck two (2) times and survived. Aisha-Abdur Rahman was struck one (1) time on her left side and was killed. Five (5) witnesses identified Petitioner as the shooter (four of which knew him as a friend).

ANALYSIS The PCRA Court set out its analysis and findings.of fact and law in full, on the record, after the hearing. See N.T. 12/18/17 at pp. 114-133 (attached hereto as 'Exhibit A') Therefore, the PCRA court did not err in denying Petitioner PCRA relief.

CONCLUSION Based on the foregoing, the Court's denial of the PCRA petition should be affirmed.

By the Court:

EXHIBIT 'A' CROO 134962014 Hearing Volume I Dartan Person Deccm!Jcr 18, 2017 Page 113 Page 114 Cornmonwea,th vs. Person Commonwealth vs. Person [1J Should Mr. Bowe have filed a motion to I [11 colloquy. There: was a written colloquy. [ZJ withdraw the guilty pica? He had no I [2] Mr. Person is not someone who is ] l31 duty to consult with his client after a (3) struggling under some sot! of mental [4) full colloquy. You don't then [ {4l infirmity or incapacity. This was a [51 immediately consult with your client. i [5) knowing and intelligent guilty plea. [6) There is no such duty. Oh, by the way, j [6] The standard for granting (71 did you change your mind? How many l [7] leave to withdraw the guilty plea after [8] times do you <lo that? Did you call him I [8} sentence is a very high hurdle and that [9] later that day? Do you call him every j [91 would not have been met in this case, [10) day? Did you change your mind yet'? Did f 1101 Your Honor. [11) you change your mind yet? i1111 So I submit that the Defendant [12l No, there rs no reason Lo i[12J has not shown that he would be entitled (13) assume that there was a duty on l[13J to withdraw his guilty plea. He hasn't 1[1<1] {14/ Mr. Bowe's part to continue Lo consult shown that his attorney did anything [15] (t6j with him once the colloquy was over.

Everything before the colloquy was done t 1[16] SJ wrong or that the colloquy was inadequate and he has not shown that he [HJ in accordance with the law and, . '1 [ 11] made a timely request to have a direct -,,.• (18! therefore, there wasn't an error but if \\i�f��J appeal to the Superior Court.

,�f {19J Mr. Bowe had somehow communicated with l ';. !!19k THE COURT: Thank you. , t, l\ ,_." I''- "' Mr. Person and gon_c ahead _and witlun teR_)...·<.'·, \.'J(2?1 -, . Th�{'��:�lying facts of this

«/�; (20] [21] clays brought a motion to withdraw the ·' ·- · �<:.;(21]·, part,cular.._��se.ai:c, as follows: On • '$ ,..t' ' "T ,.,. I #' 1', ,. -� ',·'.._,'.;.� ... -;:·,;'.�,; � l[22]s�9122, 2014f,petitioner was with a group guilty pica before the Court, I submit (�i[ .�.,bJ1?�l [22] 1 [23] that there could be no prejudice in the ', .. .4. i;1dH,'i�)�1�/incl,1ding Quadir Gibson, �.'Jr''V �' � ·,, �.�s case because the Court would have �e"fii�·'� i ·:\,;;;Ji2:iJ:;/J,:'?.·l') �\'h'.ivtirriwe;uher, §ii'(ni Kahn ea Freeman . t"�j (7.d) . ·"'• .� ..... ,,. ""' ··t·> ·;. �.?L��L. ·-.:�\1�� '1�·· �� .....-, -�2�!.... that mollOn. __ The Counhcard a rup·._:_=, .. ��d Ar,1��:1�r:,\hal this group_was·····---·-···· .. , ·····-··--· ····· 't!f .: n . '·.'i'"��:\Page·, 1:is{.t.L;_J), :� .< ••. ,-:•:11 •·• H \�,::· : 1\'"}'°1·•,.,;,f1 � Page 116 . .\i �, :,• l, -� \��-�:."' · ·:..·1!•,�t, �� ,!, ,': Commonwealth t I · • .-,:,.� .·,t. . . : :-�t""'· - ."'11 . ' Commonwealth vs. Person 1 vs. Person \ '-C '· \. --�--: -,;,LA _ -�- • \. �_-:. '. ·.: .,t\�j:m::: �wh� ."• �J �.. "J • •t • } .... l.

rad_ geftrt!1�rc with him except a lll looking for another group of young people, who had been in an altercation , : :\ •.· .- . � y· 12i ,.·r2f:··\vainal)/wn.��Fmrted to grab the [3l with some of their friends a few days · c-:::.11·[3] Defendarit aficr the shooting, and [4) prior, that this group was walking I (4} identified him in a photo array. [SJ around, that they came into contact with I [51 · The Defendant's claim in this [6] another group of teenagers and that they I [61 PCRA, which the Court ordered a hearing : !71 began fighting, that that fight was [71 on, was that Trial Counsel abandoned the [8] broken up by the SEPTA police, that, . (SJ Defendant by foiling lo file an appeal. {Ill thereafter, the tight sparked 11p again ! (9) That was the claim and so that is the [101 «� the other group followed the h,01 ! claim that was heard by this Court. . [11) Defendant and his group from the area. j[11] Pursuant to Flores-Ortega and 112) At the point in which the j(12] Commonwealth versus Touw, the Defendant (13] fight sparked up again, Quadir Gibson j(13] has a Constitutional right for Counsel {14) yelled to the Defendant get the gar, get !114) to consult with the Defendant about an [15] the gal and at that point, the Defendant !(15) appeal where Counsel has reason to [16) took a .22 caliber weapon from the 1[ 16] believe either, one. that a rational (17] backpack of one of the others and fired lr111 I Defendant would want to appeal because paJ four or five shots into the crowd of i[1Bl there are nonfrivolous grounds for [IQ] individuals Iha! were lighting. Donald 1( 19) appeal or, two, that this particular [20] Boseman was struck twice and survived, 1120] Defendant reasonably demonstrated to [2l] Aisha Abdur-Rahman, a 15-year-old 11211 Counsel that he was interested in [22) bystander, was struck in the left side 1r221 appealing. (23) of the back and was kilted. At least 1(2J] Now there has been lots of [241 five witnesses identified the Defendant j[24] testimony here today about this case and [25) as the shooter. A II were his friends j!25] about what the Defendant did and did not Kevin Flanagan, O.C.R Court Reporting System (page 113 -116) S1CROOl34962014 H�aring Volume I Darlan Person December 18, 2017 ·-------- ···--·--- Page 117 Page 118 Commonwealth vs. Person Commonwealth vs. Person 111 want to do. The colloquy speaks for degree murder, as well as murder [2] itself. lhis Court advised the generally? The District Attorney, yes, {31 Defendant i11 very clear terms, by the Your Honor. Mr. Bowe, yes. The Court, (4) way, about the sentence, that it was 25 if you were to go lo trial and evidence [51 to 50 more than one time, I believe. came out during the course of the trial [6l In particular, on page 24, the which could tend to prove that the [71 Court. on the conspiracy charge, the murder was a first degree murder, then I (81 sentence will be 5 to l O years to run would have to give the jury the law on [91 consecutively, that means it starts when first degree murder and if they found (101 tin; 20 ends. Making that sentence, 1(10] you guilty of tirsl degree murder, that [11) total sentence 25 to 50 and the lf11l sentence is life without parole. l [121 aggravated assault sentence will be 5 10 !1121 cannot change that as a Judge, and it [131 10 years to nm concurrently. So that !L13J just goes on. [ 111) just starts with the 20 to 40 and runs ![141 So going back to the issue [ 15) at the same time. Do you understand :[15] here, this case was a first degree that? The Defendant, yes. The Court, 1['16] murder case by all accounts. Mr. Bowe, {16] [HJ the total sentence being 25 to 50 years :-}171 an Attorney with 40 years experience, [18] slate incarceration. Do you understand �\J/f;�.�l hundreds of trials, 50 capital cases, \

[ 191 that? The Defendant, yes. The Court, • , .:: 'l1�h you might find one other attorney in {20) page 25. line I 3, the Commonwealth has(;;;\--,. : ._.Ji�r.� Philadclpl;ifw\o has done SO capital ,:z1J agreed, m exchange for your pica, not 1; \ /'-:_,;· • ,•;;-��-J[21], cases, one;cif 1h�1top attorneys in the ',2· 21 onlvJ do thevJ agree to a sentence of25 ·:·, ..:'·\}"-.-··:... .:.�:,:·-�·: i122i,f7-cihr�thatty�u\{.;ere lucky enough to have ... ! 'f !. , ,, \ '-.J, .... , 1,.; � ., .. �•• ,,, N. n ·.

1. ·,. "" � to 50 years. but they also agree that -.; ·J, ',:·. ·�·0:fl23] tbeeil appointed. That is whv the Judge [23) ,�,. .., '""C."r\.•-· -�-·--'\. . . ·n---· ,'\-';. "' [24] they would not proceed, and then the:;:.,.· I ·;.t;.;.;,:.I" \ \�. ·,:r--::.:\E�l;;}d1�n't·1·e,1_1\�v�.ytr..Bowe. . 1 fi lr·', I .. ' ,.._, � ,,'>) ·,. '· ... ' ., .. ,,fl, ·���-�-f?U7��'.3:;l� 'il,.' d ���}·,'.· ��1-,,:.. hi _c_a_ ;,,t- \.

T1h(e,-�n�.c�zc.1� l_i_s [251 __ Court says_�as he charge__ :;·r · es _ ·-·v .tt'·�rJ" '--<--.;\ .-+.,.!· ra 9el1:1'§'-<l_!..'.!,��- � ,· -: •,' '.� ,.l.-.�'f .,,�i·} �:�r;., ��� /;"'/'., - \' [ ;�.�. -. -.£' r, Page 120 -�:Jt �-+!�·�·)::.,.· r Commonwealth vs. Person 1\ ..: ., • ·{ 'Ur_Commonwealth vs. Person . i: ; •\ /�I' .,I; /:. �T J � ��- • .f:f;...,i '• , .. � 1l.t, �I \ '\ [1 J would be overwhelm mg because the · .: -;· ."'°, -•... ·.- . .. ' HW� .... ", · ,The;qest d�al that could have -' .. •. ·�:,. :fm:·· · becu_had QY..t�is Defendant was worked '- ' "\ .. ""' '"' .- • � •I I _. - .._ "" ',., � �...,, • •

(21 people. who witnessed the crime, knew F�l the Defendant. They knew him. They -. -, :l:[3] out for hiin by-Mr. Dl)WC. That was a [4] pointed him out. [4] ! long explanation to go back lo the case i5J The deal struck for 15 lo 50 l [5) law, that why would Mr. Bowe believe [6] years, basically, saved the Defendant 1 [6] that a rational Defendant would want to (7] from a life imprisonment sentence (7} ! appeal? There were no non frivolous (8] because there was a high likelihood had I (BJ grounds for an appeal. There were only (91 he gone trial, which any seasoned f [9j frivolous grounds for an appeal in this (tO] attorney would know. that he would be jc10J particular case. (111 found guilty of first degree murder 11110 i[11l The Defendant received the [12l even if he weren't found guilty of first !(121 benefit of the bargain. This was a {131 degree murder by some stretch, maybe the ([1JJ guilty plea and during the course of the [1<;) jllry -· I don't know-· ignored the i[14J I guilty plea, the Defendant was given 115] evidence, four to five eyewitnesses who 1[15) multiple opportunities to abort the fl6] saw him shoo! the gun mid the fact lluu 1(16] guilty plea and so in the end, once he's he hit a 15 old and killed her and ![17] spoken to by the attorney maybe two [17] year '.16] hi! another 19 year old, there arc still '[18) times, by the Judge throughout the 1[H)J ( 19} two shooringshere, one is a death and course of the guilty plea and given the [20] then one is the aggravated assault where ([201 option by the Judge on more: uian one 121] someone is shot two times. There is no '.[211 occasion during the guilty plea to not [22] way you would get a 25 year sentence jl22J go forward with the pica, that, in (23) even if you were found guilty of third i[2:JJ essence, is the Defendant saying he: docs [24] degree murder, which is 20 to 40 year i[24J not want lo appeal. [25] maximum, and aggravated assault. 1(251 So any rational attorney would Kevin Flanagnn, 0.C.R Court Reporting System (page 117 • 120) 51CR00134962014 Hearing Volume l December 18, 2017 Durian Person ---------------------·------� ���������� Page 121 I Page 122 Commonwealth vs. Person i Commonwealth vs. Person [1j think that he was satisfied with his ! [1) March 21, 20 l 6. the Defendant makes no I [21 deal at the end of the day or-· not : (2) mention of the fact that he ever wanted [3J exactly satisfied. The Defendant : 13) to withdraw his pica, that he ever [41 wouldn't have been satisfied with I [4) wanted an appeal, that he ever !51 anything and the reason we know that is corresponded with Mr. Bowe and Mr. Bowe l \ (51 [6] because of the kinds of complaints he [6] ignored him. [7] was making, which l will gel to later i 17] A II the Defendant said is l f8J on, and the Court finds chat all the tai believed I my sentence was 20 to 40, not {91 letters, by the way, written to the I {01 :i.s [Q �o and you need to fix this.

PO) Court by this Defendani were in !POI Actually, quote, J am asking that upon (111 handwriting, This letter. D-3, is :r111 receiving this letter, that this issue l [l2l typed. h i� dated 1114/16. 1t is :(12l be resolved the way possible and as soon (13) titled to Mr. Bowe. There is no address l[13) as possible, please, end quote. (14) on it. There is no indication that this !i111i So this Defendant did not i [151 was ever sent out co Mr. Bowe and even 1 [15) reasonably demonstrate to Counsel that f16] if it were, which the Court doesn't j[161 he was interested in appealing. (17J believe thnt this letter ever went to ·i!._j[HJ Therefore, Trial Counsel did not abandon [18) Mr. Bowe, this could have been typed at i: _: j[1_0J petitioner by foiling to file an appeal. [19) any particular time, even if it were, , : 1(19]. The second claim by the [20] I {14/16 was well beyond the thirty-day ,. �·\ -. ·.,. _3[�Q/ -, · Dcfendantt,at.�e was induced by Counsel (21] deadline that the Defendant had, which {(, :'":\i?,_. .·� .. ,. 1' 1.- · 'f",:;i{2�\-� to plcacl;��1; o�cause Counsel failed (22] he was dearly told about, from 12/2, \'{• ;, 1 \:: J1;.)..._(i�(' -:-• ;;:/: .., .. r... �..� 1221," • � x " " -. :. . ",. . .,and ·, to:investig prepare his defense. ate ';/ :.�.;:�_ /'} .. �:1.. {?3} . ·Y,hc pe.fencfa11t musl show that his plea \1"' 1i 2015. -�J�L{:· {23] Also, the Court notes that in /;·:\_.(}t<·;r· _�;.;..,,124j}�J��s'·u�\��£ui_lY. induced and that he is �t-.,_..:·;_:· . . �:. ., [24] the Defendant's letter to the Court oi('';: ."-', ·,, · -': ;:�'F,'i[25J ,:..;;.°iii'i1ocent-. Thc;�t'ca'im1s1 be involuntary 125) ,._._.!_ ........'; • .,,:.T"O';�·�·- ·"--!�, • '/. ..,.-'-',, ....•:_·,�"'-c'- • 1 . �-; ' � ·-=�: ··.-, Page·.12:' I I' ,• _ .i'.··r' .;;:··- • ._�,. .· -�·...···,.l ( \,1;' -••·--·-·•·4··-- ' Page 124 >:··s ';�?:�}_;-:-'.//<,:;'C(_)lnmot'iw�alth vs. Person -.-\ .. i . __ ,., • .... •• .:, .... , l '\" Commonwealth vs. Person '. j ,..,.-<. :�- 111 or unknowing. We went through on the',l,;_\ ,,x,. , --: .r:-. ,. ' �T1t:�·will-notcl1cet!he!p)ca unless he wants (21 record. the Defendant did indicate at • .�,-;.�;"!, •• '..'• ;,:,f;·,��.._\.;:it21Z;-to?°g� rof;;}'d·;;S'\tii the plea. - . • ,,./?.: .... �_ ... " (/ • :"!...-- ·�·)'-·�-,,......: In [31 vanous points during this plea that he ',;IFi3J response.TheDefendant says that he (4] was not satisfied with the advice of ! [41 wants to proceed. [SJ Counsel. He then spoke to Counsel. ! [Sl After the plea, the Defendant i6J The Court then asked him ifhe ! (6) exercised his right of allocution and (71 wished to continue with the plea. The i (7) said, quote, lo the family of the [BJ Defendant indicated thal he did. The [ (81 decedent, I would like to say that l [9] Court explained to the Defendant that he J (9] truly apologize for taking Aisha's life, (iO] can go 10 trial, that the Cou11 was iPOJ that my intention was never to hurt {ii) ready for trial, that the trial was 1111] Aisha in any kind of way. I made a very [12] going to start on Monday. So obviously ll121 poor decision and I will be held (13] 11 sounds I ike the plea was the week j(13] accountable for my actions, end quote. [14] before maybe or the Friday of the week j(14] The Defendant claims he was (151 before. iP5l forced to plead guilty because Counset it16] did not investigate his case and that (16) The Defendant's complaint was I (171 that Mr. Bowe did not come up with some 1(17) had Counsel investigated his case, he I (18] kind of defense. The Court tel Is the !,[18] would have come up with a defense. [19) Defendant, again, that he has the right (f19) The Defendant mentions today (20] to go to trinl but that the Court will \(201 in his testimony that he wanted certain I \21] not remove Counsel because he is an jl21] motions filed. Those motions, the Court {22) excellent auorncy, The Defendant talks 11221 asked him about, were, one, a motion to {23) lo the attorney off the record and then \!23] suppress statements by other witnesses. (24] says he is satisfied. The Court, again, ll24) There was no such thing and I understand (25) says to the Defendant that the Court ![25] the Defendant doesn't know the law.

Kevin Flnnagnn, O.C.R Court Reporting System (page 121 · 124} SICR00134962014 Hearing Volum« I Da r ia n Person December 18, 2017 Page 125 ' Pago 126 Commonwealth vs. Person I Commonwealth vs. Person Two, motion 10 sever, that would not i (1l he was prepared for, which this Coun (21 have been granted in this case anyway I 121 I credits that testimony that Mr. Flowe was (:;) Just from the Court knowing the facts l [3J prepared for and prepared to do a trial. [4) but. secondly, that would not have an '(4} Sometimes there is no (5] issue. It was a non-issue. The I ISJ a ffirmativc defense, that is just the codefendam was sent back to juvcni le ! (6) I [6J way it is and although the Defendant may (7] court. i (7) be unhappy with the situation he is [81 The other claims that the I (OJ placed in, that four or five (9) Defendant makes arc that I (9] eyewitnesses can directly testify that (10} Miss Merriweather stated that part of !(101 they saw him commit the murder ancl that ll 1] her statement was made up by the police. lr11J the District Attorney's Office, knowing (12) Another witness denied her statement in 1(121 that he killed one person and shot (1JJ its entirety. A witness failed to pick !(131 another, would not go below 25 years, (14] petitioner out in a lineup, that Counsel i(1'1] but that is the reality of the 1[1!i) (151 failed to investigate the inconsistent situation. (16] statements of Deborah Scon and that 1(161 So, wilh regard to prejudice, [17] Counsel failed to subpoena phone records . 1(17) to succeed in showing prejudice, the . 'I of the codefendant who claimed he had �\.. :. 1.\!ll Defendant must show that it is ri\., (18] l.;(1t_i (19) phone contact with the Defendant prior reasonably probable that, hut for _,.

120) 10 commission of the crime. which was /.' .,'� \. ·,: _ .11_?0}." Counsel's ;'!Or�: he would not have {21J not true: '.' · . . . .,,:., ·:�12·1). pleaded gu!\tyiand would have gone to r�J:i.on:�ole -1(22)�� (221 These were all impeachment, \;_', ;> .:·,,�:·,.11· �);.J'.,, tri:.i!:·, t:,.. probebitity is a the .\ ;""'- .:...:. -r· i-: ,,. , .,..� .., .... '-' ...... \.."'..... -il, (23] basical!Y· �vidcnce, which would be .·.J-:-{:\ },;:: � ?V.Jr. ��� !lb.i)i!r;, �ymcient to undermine l24J typ� o t ev1_t.lence '.hat would come �t�\:"· .'(: .. ··.:,.. r \.�·:·, ,·�t.-::. (2f!t=i]f.orfidc{����!��·!�-o��corne .. .::,-�.. t;:--:-�(25)··:PJ Cnor!-!�1;tto·s.at1sfy th1� � ,�· . . --��·}\ "<;:_.-·---·-·. -·-··----··--·-···-----. during a trial, which Mr. Bowe 1cs11ticdl,..';+ , · ?

128 .. (251 "···--··-·-···-·····-···· --··----·--·" ·.i(- . .'j_.;; .. �. ..,,.�. . ::� � P�g�f?tffs;: :tl.:.::,ti;-�z,-�,�, ,;fl!"' ...\.. " .i-.J."'t4 :··�;l !.._ Page . ": , t ·,-;.:..;-:1f'.� ::· •:; • • Commonwealth vs. Person

Commonwealth vs. Person : .· .• •••

ti. ,1 .&...• J ._ .\ ...,. ·· - I· (1l "� Catinsel-is a fa1h,rc lo advise the . ' • ....• • ¥ ·;·,. e ,,, a./-. • ,, {1J prejudice requirement, the Defendant" ·-:·:::�·., ': [21 must show that there is a reasonable •: > ·�., •'.' :.· r· ··:l::. � :.:t/21�-"i.Def;�?an1Jt�}�tcntia1 affirmative [3] probability that, but for Counsel's · ·.'e.:J;.[Jj' defense ti:i the crime charged, the [4) errors, he would not have pleaded guilty I (4) resolution of the prejudice inquiry will !SJ and would have insisted on going to J [SJ depend largely on whether the (6] trial. ! (6) nffirmative defense likelv would have 17] When you look at this inquiry, ] (7) succeeded at trial. - !8) basically, the Court is reviewing. it's j (81 There was no affirmative (9) almosr as if it is an ineffective 1 (9) defense m this particular case, You (10) assistance challenge. Where the alleged 1(10] have four to five eyewitnesses. They (11] error of Counsel L� a failure to 11111 saw you there, So you didn't have I (1?.J investigate or discover potentially 11121 alibi. You didn't have self-defense 113] exculpatory evidence, the determination 1(13] because the other side, there is no {14J whether the error prejudiced the 111'1) claim that anybody was armed and coming [15) Defendant by causing him to plead guilty ![1s) after you at the time you pulled out a [16] rather than go to trial will depend on :11s1 gun and shot two people. {HJ the likelihood that the Discovery of the 1(17] So the only thing would be 1,(18] (18] evidence would have led Counsel to that Counsel would try to have impeached (19] change his rccormnendauon as to the ,(19J all of the witnesses against you. fl is (20} pica. jr:!OJ really, really hard to impeach four (21J This assessment, in turn, will 1(21) witnesses, who know you and identify you 1221 depend. in large part. on a prediction, 11221 as being with them and on the scene. (23J whether the evidence likely would have 1(23) shooting a gun. So there is no [241 changed the outcome of a trial. 1124] information thn1 this Defendant had [25) Similarly. where the alleged error of ll25] brought out that Counsel failed to Kevin Flanagan, O.C.H Court Reporting System (page 125 -128) JCUOO 134962014 Hearing Volume I Darian Person December 18, 2017 Page 129 Page 130 Commonwealth vs. Person Commonwealth vs. Person j f1 l investigate that would have led to this !Pl codefendant called the petitioner on a ('l) Defendant choosing not to plead guilty. : (2) recorded prison call and stated chat he I 131 In the end. that is why this ; [3! falsely implicated the petitioner. [4] Defendant did plead guilty because the l {4) for this evidence to qualify [51 reality of the situation was thal this ' (5] as newly discovered evidence, it would (6) lawyer's advice was solid and good I I {61 have to be discovered ajlcr trial, could {7) advice and that had the Defendant gone i (7) 1101 have been discovered earlier rhrougb [8] 10 trial. he most likely would be I 1s1 reasonable diligence. The Defendant [9) serving a life sentence right now. ! [9] would have that one. Assuming it is \101 There is another claim j(10) even true, we do11'1 even have it in here [11) outstanding. So, therefore, this Co1111 1(1') in front ofus, but ii is a recantation {12) finds that as to the second claim, that lc121 by a code fondant; is not cumulative ··· {131 Counsel induced the Defendant to plead !t13J it's cumulative but ii is by the f14) guilty, that claim has no merit. 1 am ![14] codefendaru, so even if the De fondant (15J not even going to get to the prejudice jc1s1 could get passed that, it is not being [l61 part. It doesn't 1:vc11 have merit to l(16] used solely to impeach credibility, strut off with. \1111 which it would be, and would likely [ 171 • [18} Lastly, the l)cfcndant raised i\;�J!!-�1 compel a different result, which it (\91 the claim of newly discovered evidence l T,:J(!Jt,·, absolutely would not in this particular [20} in his petition. There was no hearing ,: '.' .: . \. ''i- 'i[20] . : case because-there arc four [211 on that but it needs to be decided on ,;, • : -�-� .;1 · · .· " - .. ·}r':;;Ji2:fj, I / . ""'J · identiticati�n-)i�nesscs who know the ··'""'° .. s· (22] the record. ,.., , · · .: :.r:•°'.. ·'.· � �;. :-/ 1 ·11221·�':. Defendant' wlio place him at the scene. �,, • r • ·, I :!' i " >, '· ' ., . . '•i.-.., r·,' ·�"/- � �,.· 123) The Defendant claims that the • --..1 / • • J' 'l•r:··ll23) \1° '-:.,·Furthermore , recantations arc ,. ····•·'-.i1.•J.� ···� ·t··-a-�'). .· , -:- 12") codcfendant recanted his statement on'a ,.'"' _ ". ·. · /' --. } .·. ,- ·. !12�}� ·,'�otorici�-�i�.-unseli�blc, especially those . (251 prison call on 10/2/16. that the /-:/:· \��� ; ; :�:-��-. �.;_-:·:i[25.h}�y. friends •. c:sp�l;i�liy one by .I • •••••-••--------�-----·-- ------·�--· -. "�... �---·:' \ • �'.: .:- 4. ••• : . • :>�'.......)71:·. -:,:·;--:,t----• !.-�.i.�# �·: / ·::,.�. ---·-..-------·---. . -·- --··-••-•• � .,_l1'� H .. •-•--<oo .. ): 1 "-'\�:.. ,·� """i:,.Page1131' �· Y ..�-,:1..-... Page 132 ·,r ,-{ .� • t � . F,.'1' .,,.;;,- .-�- j \ \,.1 ..."t;,-: :�·!:.a·r \ " J ;.;�. :'. . ...,/.' ;' 1, � ·-\�:>�� �;;t /t: {. C<:HJ?mo!'weallh vs. Person ...- .... , • • Commonwealth vs. Person (1] codefcndanl who was sent back to ··..·:: .... .,,. • f·'\.i;.� '.�� '; 7:,::.. rr�r.:·,'.':,: . \•Jf.HE:pEfENOANT: . . ._.,r�- ':*I,�. ;,,'<- � - 2 ,"'+ -tt.·'"'"'�-� Yes. (2) juvenile court and at the age of 21 is ; ·'> -. r-/·, "�'/)�t(.2iJ;;:--< 's:_�JH�!£�URT: I denied ii here.

Pl going to he out and no longer subject to ·.,,..fi3f So you have to go to the higher Court IO (4) any kind of jurisdiction of the Court, l [4} say she is wrong, that Court shouldn't [5] so who would lose! nothing hy recanting I (5) have denied it.

I (6) his statement So, therefore, that I [6} Arc you going to continue to [7) issue has no merit. J (7) represent him? \A] This Court, finding that the I ra1 I MR. SCHULTZ: Your Honor, (9] Defendant's issues have no merit, denies i (91 respectfully, I spoke to Mr. Person this (10] the PCRA and formully dismisses it at i( \OJ morning. I explained 10 him the I 1111 this time. i [11) scenario which could happen today and if (12) You have thirty days to tile !1121 Your Honor would like, obviously I did (13] an appeal to the. Superior Court \[13) file a Finley leuer but Your Honor has ( 14] regarding this dismissal and denial of ![14) not granted my motion to withdraw. In psJ your PCRA. i[15J speaking to Mr. Person, he does wish to {16) Do you understand that? I( 16) pursue an appeal in this case. {171 THE DEFENDANT: No. 11111 THE COURT: That's tine. You [1BJ THE COURT: You don't l11SJ understand the issues, Counsel. ff you [19] understand that? !£19] feel you can't do it, that's fine, but (20) THE DEFENDANT: No. ! 1201 you did represent him to the best of {21) THE COURT: I just denied your lt?.1) your ability here and you know the {22) PCRA, so you can file an appeal on my 1(221 ISSUCS. [?.3] denial. That appeal has to be tiled !l23J MR. SCHULTZ: I spoke with Mr. (24] with the Superior Court. 1124] Person and he asked me to continue, if [ [25] Do yuu understand that? 1(25] can. If Your Honor would allow, I will --·------------ Kevin Fhrnagan, 0.C.R Court Reporting System (page 129 ·132) SICH.00134962014 Hearing Volume I Darian Person December 18, 2017 Page 133 Page 134 Commonwealth vs. Person ! Commonwealth vs. Person (1) file a notice of appeal. I [1} proceedings were adjourned, at this [21 THE COURT: I think that that ! [2] I rimc.) [31 is fine. since you sat through this '. (3) 14) hearing, you know what the issues are, ; {4) I yon zealously represent him. i[SJ i [5j (6] MR. SCHULTZ: I am familiar (6J [7] with the case, as well, Your Honor, 1(71 (BJ THE COURT: That's fine. Your j[BJ (91 Counsel wi II file an appeal on your ) (9) (10) behalf. 1(1 OJ [11! Do you understand that? : 111 J [121 THE DEFENDANT: Yes. 11121 THE COURT: All right. 1(13} [13] 1(1<1] (14] MS. LABAR: Thank you, Your [15] Honor. :(15] \161 May I be excused? 1[16J 1(17} THE COURT: Yes. [HJ .. , .I (1SJ MR. SGHU L TZ: May I be ; •. "j[1_8J [19l excused. Your Honor? :· · \(1?J, [20] THE COURT: Yes. =· . · • J'[20J ," ,.,·.. , \.. .� : : - . ..,_; : -..'-. ..4"�!, ;�, � it,,��;· [21) Thank you. ;,,,., -:-:--.. . ..,. , [2·1h. ·-:�! ;ji'l MR. SCHULTZ: Thunk yon Yo�{ A:·-;�),· ,..'!·y '·jr:221 .t �-=-:··'.},._ .d.\('};.'tj:t_,i' (22] "'(V"' ': �· \t• �' �II\..� ··.r �1' \ ·,1::n·,1,-. ·� t' <f' i l

_,,,.,,. J��� [23] Honor. ·�,, !·- :·�-�,,.... ,: i'_-..�, /!'..1][?11 s') �··pi.-;.1�\1,•' ·,{'�f I ", ,,....- ·t..:t .·�:·· \', \ .lo. ·�:� [24]- , ��"'I.·.,.�:''. [24) _,,,h·:.'·,;..;\,. ,·.} ,·,;' h �-:i .L'.!,-�I h-..�/t1y \,, ·-1�!'/l-�-.� [25] [Whereupon, the , '.:' �?���l_ ._,;'·,,_::-�:: �1!�5)�(." i £.:;,t??·....·-,_,__� ., . ;\,,__ _

:�;:J;�I:B;�!J{: . ·-·------------ . .,-". , -, Page·135: Jt �--.\, · · ; _.·· 1 ••• :.'-'

DEFEN::.·::l:::::" Person ' /:2'J: ' ::: < [4) WITNESS: Dr Cr Rctl Rec I (St WILLIAM BOWE. ESQ. 7 7.5 3l [ol RONALD FELDER 42 48 53 [7J DARIAN PERSON .' . :4 64 9J [8] [91 (101 (11 I [12} ['13) (14) [15] j16] [171 [18] (19) (?OJ {21) [221 [?..Jl [241 !25] Court Reporting System (page 133 - 135) Commonwealth v, Darian Person CP-5l-CR-0013496-2014 Opinion Proof of Service I hereby certify that I am this day serving the foregoing Court Order upon the personts), and in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P. 114: Petitioner: Mr. Oarian Person, MG 8776 SCI Fayette P.O. 13ox 9999 LaBelle, PA 15450-1050 Type of Service: ( ) Personal ( ) First Class Mail (x) Other, Please Specify: Certified Counsel: Joseph Schultz, Esquire l 518 Walnut Street, Suite 808 Philadelphia, PA 19102 Type of Service: () Personal (x) First Class Mail () Other, Please Specify: District Attorney: Philadelphia District Attorney's Office PCR.A Unit Widener Rldg.

3 South Penn Square Philadelphia, PA 19107 Type of Service: () Persona! () First Class Mail (x) Inter-Office

( Date: 04/18/20 J 8 Law Clerk to the Honorab tarie Defino-Nastasi