Com. v. Amoop, J. ( 2022 )

J-S19029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH AMOOP :
:
Appellant : No. 1902 EDA 2021
Appeal from the PCRA Order Entered August 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014293-2007
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH AMOOP :
:
Appellant : No. 1903 EDA 2021
Appeal from the PCRA Order Entered August 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014308-2007
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED AUGUST 30, 2022
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant, Joseph Amoop,1 appeals from the order entered August 19,
2021, dismissing his second petition filed pursuant to the Post-Conviction
Relief Act (“PCRA”)2 as untimely. We affirm.
The facts of Appellant’s underlying convictions are not relevant to the
current appeal. Briefly, on June 28, 2010, the trial court, sitting as fact finder,
found Appellant guilty of two counts of murder in the first degree,3 criminal
conspiracy to commit murder,4 robbery,5 and other related charges,6 and
sentenced him to life imprisonment. Appellant’s convictions were based, in
part, on the testimony of co-defendant, Desmond McMoore, and forensic
evidence presented by the Commonwealth. Appellant’s judgment of sentence
was affirmed by this Court on August 2, 2012, and our Supreme Court denied
allowance of appeal on February 13, 2013. See Commonwealth v. Amoop,
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1 We amended the captions to correct Appellant’s name and to conform our
caption with the certified record and the caption employed before the PCRA
court. See Pa.R.A.P. 907(a) (directing the prothonotary of the appellate court
to docket an appeal under the caption given in the trial court).
2 42 Pa.C.S.A. §§ 9541-9546.
3 18 Pa.C.S.A. § 2502(a).
4 18 Pa.C.S.A. § 903(a).
5 18 Pa.C.S.A. § 3701(a)(11).
6 Appellant’s other charges involved various firearms violations and the
possession of an instrument of crime.
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60 A.3d 555 (Pa. Super. 2012) (unpublished memorandum), appeal denied,
63 A.3d 772 (Pa. 2013).
On April 9, 2014, Appellant filed a timely pro se PCRA petition, which
was subsequently dismissed by the PCRA court; we affirmed, and our Supreme
Court denied allowance of appeal. See Commonwealth v. Amoop, 198 A.3d
460 (Pa. Super. 2018) (unpublished memorandum), appeal denied, 205 A.3d
312 (Pa. 2019). While Appellant’s claims were still proceeding within our state
courts, Appellant simultaneously filed a habeas corpus petition in the federal
court, which was denied on January 28, 2020. See Amoop v. Garman, 2020
WL 433369 (E.D.Pa. 2020) (unpublished memorandum). Within both his state
and federal petitions, Appellant asserted, inter alia, that his trial counsel was
ineffective for failing to investigate the forensic evidence and failing to retain
a ballistics expert to cross-examine the Commonwealth’s witnesses because
such evidence would have contradicted Mr. McMoore’s allegedly perjurious
testimony. In both cases, Appellant was denied relief, in part, for failing to
secure a ballistics expert to support his conclusions.
Appellant filed the instant pro se PCRA petition, his second, on
December 17, 2019. Therein, Appellant contended that he obtained “newly
discovered evidence” in the form of an “opinion drafted by forensic ballistics
expert Carl A. Leisinger, III[,] based on trial testimony, medical evidence[,]
and crime scene investigation,” which showed that the scientific evidence
“clearly contradicts” Mr. McMoore’s “perjured testimony.” Pro Se PCRA
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Petition, 12/17/19, at 3, 4, and 8. After issuing a Rule 907 notice of intent to
dismiss without evidentiary hearing and receiving Appellant’s response, the
PCRA court dismissed Appellant’s second PCRA petition as untimely on August
19, 2021. This appeal followed.7
Appellant raises the following issues for our review:
I. Did the PCRA [c]ourt commit an error of law and fact when it
held that [Appellant’s PCRA petition] was untimely?
II. Did the PCRA [c]ourt commit an error of law and fact when it
held without an evidentiary hearing[ that Appellant’s second PCRA
petition failed to meet the newly discovered facts] exception
provided under subsection 9545(b)(1)(ii)?
Appellant’s Pro Se Brief at 4 (reordered for ease of disposition). At the outset,
we must analyze the timeliness of Appellant’s second PCRA petition, which
implicates our jurisdiction over Appellant’s instant claims. Commonwealth
v. Elliott, 249 A.3d 1190, 1193 (Pa. Super. 2021).
This Court's standard of review regarding an order denying a
petition under the PCRA 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. Vinson, 249 A.3d 1197, 1203 (Pa. Super. 2021) (citation
omitted). Any PCRA petition, including a second or subsequent petition, must
be filed within one year of the date the judgment becomes final, or else invoke
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7The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Moreover, the PCRA
court did not author a Rule 1925(a) opinion, as the assigned judge retired
during the pendency of this appeal. See No-Opinion Letter, 3/14/22.
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one of the statutorily enumerated exceptions. 42 Pa.C.S.A. § 9545(b)(1).
The judgment becomes 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
review.” 42 Pa.C.S.A. § 9545(b)(3). “This one-year limitation is jurisdictional
and therefore, courts are prohibited from considering an untimely PCRA
petition.” Commonwealth v. Lopez, 249 A.3d 993, 999 (Pa. 2021).
Here, our Supreme Court denied further review of Appellant’s judgment
of sentence on February 13, 2013. Therefore, Appellant’s judgment of
sentence became final on May 14, 2013, upon expiration of the time in which
to seek discretionary review with the Supreme Court of the United States.
See U.S. Sup. Ct. R. 13(1); 42 Pa.C.S.A. § 9545(b)(3). Consequently,
Appellant’s instant PCRA petition, filed on December 17, 2019, more than six
years after his judgment of sentence became final, is manifestly untimely. As
such, Appellant bore the burden of pleading and proving the applicability of
one of the three statutorily enumerated timeliness exceptions to establish
jurisdiction over his claims. Commonwealth v. Smallwood, 155 A.3d 1054,
1060 (Pa. Super. 2017).
To invoke an exception, a petitioner must allege and prove, within the
petition itself, one of the following:
(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;
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(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). If a petition is untimely and no exception
has been pled or proven, “the petition must be dismissed without a hearing.”
Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa. Super. 2008).
Here, Appellant purports to invoke the newly-discovered fact exception
under § 9545(b)(1)(ii).8 Appellant claims that the new ballistics opinion
issued by Mr. Leisinger constituted a newly-discovered fact: Mr. Leisinger’s
opinion, based on his review of the evidence, that it was “[m]ore than likely
the driver of the car [who] shot” one of the victims, “proves for the first time
that [Mr.] McMoore was the actual shooter because he stated that he was the
driver on the night of question.” Appellant’s Brief at 16.
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8 We reject Appellant’s alternative argument that his petition should be
considered timely, and all previous petitions deemed premature, because he
allegedly never received notice that his petition for allowance of appeal to our
Supreme Court was denied on February 13, 2013. See Appellant’s Brief at
18-19. The very fact that Appellant previously filed a timely pro se petition
for collateral relief, including both handwritten and typed references to the
date of our Supreme Court’s denial, is compelling evidence that Appellant
knew of the finality of his judgment of sentence within the timeframe required
to comply with the PCRA.
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Under the newly-discovered fact exception to the PCRA’s timeliness
requirement, a petitioner must establish that (1) the facts upon which the
claim was predicated were unknown and (2) they could not have been
ascertained by the exercise of due diligence.” Commonwealth v. Cox, 146
A.3d 221, 227 (Pa. 2016). Under the first prong, the focus “is on the newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts.” Commonwealth v. Lopez, 249 A.3d 993, 999
(Pa. 2021) (citation, quotation, and footnote omitted; emphasis in original).
Discovering “yet another conduit for the same claim” does not “transform
[the] latest source” into a “new fact” for purposes of the timeliness exception.
Commonwealth v. Johnston, 42 A.3d 1120, 1127-1128 (Pa. Super. 2012),
citing Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008).
Regarding the second prong of the newly-discovered fact analysis, due
diligence “requires neither perfect vigilance nor punctilious care, but rather it
requires reasonable efforts by a petitioner, based on the particular
circumstances, to uncover facts that may support a claim for collateral relief.”
Commonwealth v. Smith, 194 A.3d 126, 134 (Pa. Super. 2018), appeal
denied, 208 A.3d 64 (2019) (citation and quotation omitted). A petitioner
fails to establish due diligence where the current claim is predicated on the
same facts that formed the basis of prior post-conviction petitions for collateral
relief in federal or state court. See Lopez, 249 A.3d at 999-1000; Cox, 146
A.3d at 230 (rejecting claim where petitioner’s “initial attempt to obtain the
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ballistics evidence was made in his first PCRA petition, in connection with his
claim that trial counsel was ineffective for failing to seek independent ballistics
testing”); Commonwealth v. Maxwell, 232 A.3d 739, 746 (Pa. Super. 2020)
(en banc) (rejecting claim where petitioner raised claims on a similar factual
basis in three prior post-conviction filings within federal and state court).
Upon review, we conclude Appellant failed to demonstrate that his claim
fell within the newly-discovered fact exception. Further, we find that Appellant
failed to establish either of the two prongs necessary to sustain his burden.
Appellant failed to show that the underlying facts supporting his claim were
unknown to him. Mr. Leisinger’s opinion relied upon evidence adduced at
Appellant’s 2007 trial: trial testimony, medical and ballistics evidence, and
crime scene investigation reports. Mr. Leisinger did not utilize a new scientific
process and did not include evidence outside the trial record in forming his
opinion. Therefore, Appellant failed to demonstrate that there were any new
“facts” brought forth through Mr. Leisinger’s analysis or report. Mr. Leisinger’s
opinion was merely a “newly willing source for previously known facts.”
Lopez, supra; see also Johnston, 42 A.3d at 1128 (rejecting claim which
“is directed at discrediting the same witness, under the same theory, and with
the same facts as had occurred during the course of trial[.]”).
Additionally, Appellant failed to act with due diligence in bringing his
claim. Within his first PCRA petition, filed on April 9, 2014, Appellant asserted
that his trial counsel was ineffective for improperly cross-examining the
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medical examiner regarding ballistic evidence. In support, he asserted that
the “physical facts” of the case contradicted Mr. McMoore’s account and the
medical examiner’s analysis of the evidence. See Pro Se PCRA Petition,
4/9/14. Both of Appellant’s prior attempts at collateral relief were rejected
for failure to proffer a ballistics expert witness or expert report to support his
conclusions. See Amoop, 198 A.3d 460 at *6; Amoop, 2020 WL 433369.
Instantly, Appellant does not adequately explain why he did not employ the
service of a ballistics expert at any of these prior junctures.9 Moreover, the
fact that his original PCRA petition alleged trial counsel’s failure to do so during
trial demonstrates his acknowledgement that such a service should have been
retained as early as his June 2007 trial. See Cox, 146 A.3d at 231 (explaining
that the petitioner first attempted to obtain ballistics evidence in a prior PCRA
petition “in connection with his claim that trial counsel was ineffective for
failing to seek independent testing thereof. By raising this claim in his first
PCRA petition, [he] has effectively conceded that the testing could have been
done at the time of trial”). Consequently, Appellant’s “lengthy, unexplained
delay [] defeats the possibility of a conclusion” that he “acted with reasonable
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9 Appellant’s brief makes a passing reference to “numerous attempts to have
the courts pay for an expert to substantiate petitioner’s claim due to [his]
indigent status[.]” Appellant’s Brief at 15. The certified record contains no
such requests. Appellant sought and was granted $1,000.00 to pursue the
claims within his first PCRA petition, but apparently he did not utilize those
funds to secure a ballistics expert. See Amoop, 198 A.3d 460 at *6 n.2
(panel noting that Appellant failed to provide evidence that a ballistics expert
would support his conclusions despite receiving $1,000.00).
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effort to obtain ballistics testing” and “precludes a finding of due diligence.”
Id.; accord Smith, 194 A.3d at 134 (affirming PCRA court’s finding of a lack
of due diligence where petitioner was aware since 2000 that affiant gave a
statement, but petitioner did not obtain affidavit until 2014).
Simply stated, Appellant did no more than “discover[] through [Mr.
Leisinger] yet another confirmatory source for the same claim he raised in
[multiple] prior post-conviction filings,” and as such, his “latest source of
information” falls outside the scope of § 9545(b)(1)(ii). Maxwell, 232 A.3d
at 746. Consequently, Appellant’s petition is untimely, and no court has
jurisdiction to reach the merits of the issue raised therein. Accordingly, we
affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2022
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