Com. v. White, D. ( 2022 )


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  • J-S33025-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee             :
    :
    v.                        :
    :
    DERRICK WHITE                          :
    :
    Appellant            :        No. 875 EDA 2022
    Appeal from the PCRA Order Entered February 25, 2022
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0012991-2010
    BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
    MEMORANDUM BY KING, J.:                       FILED NOVEMBER 29, 2022
    Appellant, Derrick White, appeals from the order entered in the
    Philadelphia County Court of Common Pleas, which dismissed his second
    petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42
    Pa.C.S.A. §§ 9541-9546. We affirm.
    The relevant facts and procedural history of this case are as follows.
    Abdul Taylor, the victim in this matter, witnessed the killing of another
    individual perpetrated by Marvin Flamer, Nafeas Flamer, and Hakim Bond. Mr.
    Taylor told his sister that the Flamers wanted him to provide a false alibi;
    however, Mr. Taylor refused to do so. After Mr. Taylor cooperated with the
    police, he acquired a reputation in the community as a “snitch.” Appellant
    was friends with the Flamers and visited them in jail on multiple occasions.
    On May 6, 2010, Appellant approached Mr. Taylor while he was walking, and
    J-S33025-22
    shot him in the head.
    On February 29, 2012, a jury convicted Appellant of first-degree
    murder, retaliation against a witness, conspiracy, possession of an instrument
    of crime, and violations of the uniform firearms act. At the conclusion of the
    penalty phase, the jury returned a verdict of death for the first-degree murder
    conviction. That same day, the court sentenced him in accordance with the
    jury’s verdict.   On July 3, 2013, the Pennsylvania Supreme Court granted
    Appellant’s petition for allowance of appeal and remanded the case to the trial
    court concerning counsel’s ineffectiveness during the penalty phase of
    Appellant’s trial. After a new penalty phase hearing, the trial court quashed
    the sole aggravating circumstance and, on March 23, 2015, imposed a
    sentence of life imprisonment for the murder conviction plus an aggregate six
    and a half to thirteen years’ imprisonment for the other offenses.
    This Court affirmed Appellant’s judgment of sentence on February 5,
    2016, and our Supreme Court denied Appellant’s petition for allowance of
    appeal on July 19, 2016.    See Commonwealth v. White, 
    141 A.3d 587
    (Pa.Super. 2016) (unpublished memorandum), appeal denied, 
    636 Pa. 663
    ,
    
    145 A.3d 165
     (2016). Appellant timely filed his first, counseled, PCRA petition
    on June 10, 2017. The PCRA court denied Appellant’s petition on December
    7, 2017. This Court affirmed the denial of Appellant’s petition on March 25,
    2019.      Commonwealth v. White, 
    215 A.3d 676
     (Pa.Super. 2019)
    (unpublished memorandum).
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    J-S33025-22
    Appellant filed the instant PCRA petition pro se on June 1, 2021. The
    court appointed counsel, who filed an amended petition on November 12,
    2021. On January 13, 2022, the court issued notice of its intent to dismiss
    Appellant’s petition without a hearing per Pa.R.Crim.P. 907.           Appellant
    responded to the notice on January 30, 2022.        The PCRA court dismissed
    Appellant’s petition as untimely by order entered February 25, 2022.
    Appellant filed a timely notice of appeal on March 23, 2022. The PCRA court
    did not order, and Appellant did not file, a concise statement of errors
    complained of on appeal pursuant to Pa.R.A.P. 1925(b).
    Appellant raises one issue on appeal.
    Whether the PCRA court erred by denying Appellant’s PCRA
    petition without a hearing when the after-discovered
    evidence raised a genuine issue of material fact?
    (Appellant’s Brief at ix).
    Appellant argues that he is entitled to relief based on “after-discovered
    evidence” of signed affidavits from two witnesses, Jalil Uqdah and Tyree
    Branch, who both stated they were willing to testify that Appellant did not see
    Marvin Flamer in prison on the day Mr. Taylor was killed. Appellant claims
    that these affidavits satisfy the “new facts” exception to the PCRA’s time-bar,
    and that Appellant timely filed the instant petition within one year of receiving
    the affidavits. Appellant concludes the court erred by dismissing his PCRA
    petition as untimely, and this Court must grant relief. We disagree.
    The timeliness of a PCRA petition is a jurisdictional prerequisite.
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    J-S33025-22
    Commonwealth v. Zeigler, 
    148 A.3d 849
     (Pa.Super. 2016). Pennsylvania
    law makes clear that no court has jurisdiction to hear an untimely PCRA
    petition. Commonwealth v. Robinson, 
    575 Pa. 500
    , 
    837 A.2d 1157
     (2003).
    A PCRA petition shall be filed within one year of the date the underlying
    judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment
    of sentence is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3).
    To obtain merits review of a PCRA petition filed more than one year after
    the judgment of sentence became final, the petitioner must allege and prove
    at least one of the three timeliness 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.
    42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must file his
    petition within one year of the date the claim could have been presented. See
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    42 Pa.C.S.A. § 9545(b)(2).
    To meet the “newly-discovered facts” timeliness exception set forth in
    Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the
    facts upon which he based his petition and could not have learned those facts
    earlier by the exercise of due diligence.” Commonwealth v. Brown, 
    111 A.3d 171
    , 176 (Pa.Super. 2015). “The focus of the exception is on [the] newly
    discovered facts, not on a newly discovered or newly willing source for
    previously known facts.” Commonwealth v. Burton, 
    638 Pa. 687
    , 704, 
    158 A.3d 618
    , 629 (2017) (internal citation and quotation marks omitted).              In
    other words, the fact that a petitioner has “discovered yet another conduit”
    for the same claim previously presented “does not transform his latest source
    into   evidence     falling   within    the    ambit   of   section   9545(b)(1)(ii).”
    Commonwealth v. Maxwell, 
    232 A.3d 739
    , 745, (Pa.Super. 2020) (en
    banc), appeal denied, ___ Pa. ___, 
    242 A.3d 1290
     (2020) (quoting
    Commonwealth v. Marshall, 
    596 Pa. 587
    , 597, 
    947 A.2d 714
    , 720 (2008)).1
    ____________________________________________
    1 The substantive claim of after-discovered evidence and the newly-discovered
    facts exception to the PCRA timeliness requirements are often conflated and
    referred to as the same theory of relief. Under the newly-discovered facts
    exception, a petitioner must establish “the facts upon which the claim was
    predicated were unknown and…could not have been ascertained by the
    exercise of due diligence. If the petitioner alleges and proves these two
    components, then the PCRA court has jurisdiction over the claim under this
    subsection.” Commonwealth v. Bennett, 
    593 Pa. 382
    , 395, 
    930 A.2d 1264
    ,
    1272 (2007) (emphasis omitted). Only if a petitioner meets the statutory
    jurisdictional requirements by satisfying this exception to the PCRA time-bar,
    can he then argue for relief on a substantive after-discovered-evidence claim,
    (Footnote Continued Next Page)
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    J-S33025-22
    Instantly, the trial court sentenced Appellant on March 23, 2015. This
    Court affirmed the judgment of sentence on February 5, 2016, and our
    Supreme Court denied Appellant’s petition for allowance of appeal on July 19,
    2016. Accordingly, Appellant’s judgment of sentence became final 90 days
    later, on October 17, 2016. See U.S.Sup.Ct.R. 13 (stating appellant must file
    petition for writ of certiorari with United States Supreme Court within 90 days
    after entry of judgment by state court of last resort). Thus, Appellant had
    until October 17, 2017 to file a timely PCRA petition.      Appellant filed the
    current PCRA petition on June 1, 2021, which is facially untimely. See 42
    Pa.C.S.A. § 9545(b)(1).
    Appellant now attempts to invoke the “newly-discovered facts”
    exception to the PCRA time-bar, relying on the affidavits submitted by Mr.
    Uqdah and Mr. Branch. Nevertheless, Appellant cannot demonstrate any new
    facts that were unknown to him and could not have been ascertained through
    the exercise of due diligence. As the PCRA court explained:
    According to Uqdah’s affidavit dated March 15, 2021,
    [Appellant] drove Uqdah, Jalil Harris (“Harris”), and another
    friend to Curran-Fromhold Correctional Facility (“CFCF”) on
    May 6, 2010. Uqdah and Harris visited with Branch, while
    [Appellant] deposited money in someone’s account at the
    ____________________________________________
    which requires the petitioner to demonstrate: (1) the evidence has been
    discovered after trial and it could not have been obtained at or prior to trial
    through reasonable diligence; (2) the evidence is not cumulative; (3) it is not
    being used solely to impeach credibility; and (4) it would likely compel a
    different verdict. See, e.g., Commonwealth v. Washington, 
    592 Pa. 698
    ,
    
    927 A.2d 586
     (2007); Commonwealth v. D’Amato, 
    579 Pa. 490
    , 
    856 A.2d 806
     (2004).
    -6-
    J-S33025-22
    inmate deposit machine, but [Appellant] did not visit with
    Marvin Flamer or anyone else that day. Uqdah states that
    he was asked to testify at trial, but refused to do so at the
    time because, among other reasons, he knew the [victim
    Mr. Taylor] and his family and attended [the victim’s]
    funeral.
    According to Branch’s affidavit dated April 14, 2021, Uqdah
    and Harris visited him for about a half hour on May 6, 2010,
    while he was incarcerated at CFCF. They told Branch that
    [Appellant] had driven them to CFCF that day. Branch
    states that [Appellant] did not visit with anyone that day,
    and Marvin Flamer did not come into the visitor’s room or
    have a visit from anyone. Branch also states that he was
    asked about these facts before, but was unwilling to testify
    at trial.
    *    *    *
    The facts presented by Uqdah and Branch cannot be
    considered newly-discovered facts because [Appellant]
    cannot establish that the facts upon which his claim is based
    were unknown to him. The fact that [Appellant] drove
    Uqdah to visit Branch at CFCF on May 6, 2010 clearly
    establishes that he had knowledge of these facts that day.
    In their affidavits, both Uqdah and Branch acknowledge that
    they were approached about providing testimony previously
    in this case, but refused to do so. The fact that they were
    previously unwilling to testify, but are now willing to testify
    does not make their testimony newly-discovered facts. A
    newly willing source for previously known facts does not
    meet the requirements of the newly-discovered fact
    exception.
    [Appellant] raised the instant claim on June 1, 2021, which
    is over eleven years after he first discovered these facts.
    Accordingly, the newly-discovered fact exception does not
    apply, and [Appellant’s] claim is untimely.
    (PCRA Court Opinion, filed 2/24/22, at 7-8) (internal citation omitted).
    We agree with the court’s analysis.       The newly-discovered fact upon
    which Appellant is attempting to rely is that he allegedly did not meet with
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    J-S33025-22
    Marvin Flamer in prison on the day he killed Mr. Taylor; this is a fact that
    Appellant has known since that day. Further, we agree with the PCRA court
    that the fact that both Mr. Uqdah and Mr. Branch were previously unwilling to
    testify, but are now willing to, does not make their testimony newly-
    discovered facts. See Burton, supra. Therefore, Appellant’s claim does not
    satisfy the newly-discovered fact exception to the PCRA time bar.         See
    Brown, supra. Consequently, Appellant’s current PCRA petition remains time
    barred. See Zeigler, supra. Accordingly, we affirm.2
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/29/2022
    ____________________________________________
    2 As Appellant has not met the jurisdictional requirements by satisfying the
    newly discovered facts exception to the PCRA time bar, the PCRA court lacked
    jurisdiction to consider his substantive “after-discovered evidence” claim. See
    Bennett, supra.
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