Com. v. Rouse, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RICKY ROUSE
Appellant No. 1735 WDA 2017
Appeal from the PCRA Order entered October 6, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0004190-2009
BEFORE: BOWES, STABILE, AND STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 21, 2018
Appellant, Ricky Rouse, appeals from an order dismissing his third
petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546, as untimely. We affirm.
In the afternoon of February 24, 2009, Antoine Cooper (“the victim”)
was shot and killed in Northview Heights, a neighborhood in Pittsburgh.
Appellant was seen leaving the crime scene in a vehicle rented by his co-
defendant, Damone Porter. The Commonwealth alleged that Appellant fired
the fatal bullet in retaliation for an earlier shooting.
Appellant and Porter were charged with criminal homicide. In
September 2010, a jury found Appellant guilty of first-degree murder1 and
other offenses, and in December 2010, the trial court sentenced him to life
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(a).
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imprisonment. Appellant filed a timely direct appeal. On August 6, 2012, this
Court affirmed his judgment of sentence, and on February 13, 2013, the
Supreme Court denied his petition for allowance of appeal. He did not appeal
to the United States Supreme Court.
In 2014, Appellant filed a timely PCRA petition pro se, and the PCRA
court appointed counsel to represent him. On October 20, 2014, counsel filed
a letter stating that none of the issues in Appellant’s petition had merit. On
October 22, 2014, the PCRA court directed counsel to review the issues
contained in co-defendant Porter’s PCRA petition and determine whether
Porter’s issues applied to Appellant. On January 5, 2015, counsel determined
that Porter’s PCRA claims did not apply to Appellant. On January 14, 2015,
the PCRA court directed Appellant to file a pro se response to counsel’s no-
merit letters. On March 3, 2015, Appellant submitted a pro se response raising
additional claims. On March 11, 2015, the PCRA court issued a notice of intent
to dismiss the claims in Appellant’s 2014 petition and directed counsel to file
a letter addressing Appellant’s additional claims. On March 30, 2015, counsel
submitted a letter stating that Appellant’s additional claims had no merit. On
April 8, 2015, the PCRA court dismissed Appellant’s PCRA petition without a
hearing and granted counsel leave to withdraw. Appellant filed a timely notice
of appeal to this Court, and on September 19, 2016, this Court affirmed.
Commonwealth v. Rouse, 682 WDA 2015 (Pa. Super., Sep. 19, 2016). On
March 29, 2017, the Supreme Court denied Appellant’s petition for allowance
of appeal. Appellant did not appeal to the United States Supreme Court.
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On March 9, 2015, while Appellant’s appeal at 682 WDA 2016 was
pending in this Court, Appellant filed a second pro se PCRA petition arguing
that Miller v. Alabama, 567 U.S. 460 (2012), applied to him. On March 16,
2016, the PCRA court issued a notice of intent to dismiss this petition. On
May 16, 2016, Appellant filed a supplemental PCRA Petition arguing that
Miller applied to him. On May 19, 2016, the PCRA court ruled that it would
not act on Appellant’s second PCRA petition until the conclusion of appellate
proceedings in his first PCRA petition.
On April 19, 2017, Appellant filed a third pro se PCRA petition. Appellant
claimed that he had recently learned that Porter had been willing to exonerate
him during trial, but Porter’s counsel prevented Porter from testifying.
Attached to Appellant’s petition was a December 8, 2016 affidavit from Porter
indicating that Appellant did not shoot the decedent and had nothing to do
with his death. Appellant also alleged his prior PCRA counsel was ineffective
for failing to interview Porter in 2014-15, because counsel would have learned
during the interview that Porter had been willing to exonerate Appellant.
On June 6, 2017, Appellant moved to dismiss his second PCRA petition
for lack of merit. On June 7, 2017, the PCRA court dismissed this petition.
On June 17, 2017, Appellant filed an amendment to his third PCRA
petition. On June 28, 2017, the Commonwealth filed an answer to the
amended third petition. The PCRA court issued an order that it was
contemplating dismissal of the third amended petition and provided Appellant
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an opportunity to respond. On August 31, 2017, the PCRA court issued a
notice of intent to dismiss the amended third petition. On October 6, 2017,
the PCRA court dismissed the amended third petition. On November 13, 2017,
Appellant appealed the order of dismissal to this Court, the appeal presently
before us.2
Appellant raises two issues in this appeal:
1. Whether the PCRA Court erred by denying Appellant’s
subsequent PCRA petition that included a properly layered claim
of ineffective assistance of PCRA/trial Counsel?
2. Whether the PCRA Court erred by denying Appellant’s
subsequent PCRA Petition alleging newly-discovered evidence
without an evidentiary hearing, where Appellant has met the
“prima facie” [test] needed to be granted an evidentiary hearing,
with the claim of ineffective assistance of trial counsel in
conjunction with the claim of newly-discovered evidence?
Appellant’s Brief at 4. Appellant claims that (1) Porter would have exonerated
Appellant had Porter testified during trial; (2) Porter’s attorney prevented him
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2 Both the PCRA court and the Commonwealth claim that this appeal is
untimely because Appellant filed it more than thirty days after entry of the
October 6, 2017 order of dismissal. The exhibits attached to Appellant’s reply
brief demonstrate that the Clerk of the Court of Common Pleas of Allegheny
County did not mail the order of dismissal to Appellant until October 17, 2017,
and the order was not delivered to Appellant’s correctional facility until
October 19, 2017. We view this delay as a breakdown in the operations of
the court, because it prevented Appellant from receiving the order for almost
half of the appeal period. Commonwealth v. Coolbaugh, 770 A.2d 788,
791 (Pa. Super. 2001) (appellant may file appeal nunc pro tunc when delay
was caused by breakdown in operation of trial court). Accordingly, we deem
Appellant’s appeal period to have begun on the date he received the order,
October 19, 2017, and we will treat his appeal as filed within thirty days after
commencement of the appeal period.
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from testifying; and (3) Appellant’s PCRA attorney during 2014-15 was
ineffective for failing to interview Porter, because counsel would have learned
during the interview that Porter’s attorney prevented Porter from testifying.
Appellant’s claim is untimely. The PCRA contains the following
restrictions governing the timeliness of any PCRA petition.
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could
have been presented.
(3) For purposes of this subchapter, a 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 the
review.
42 Pa.C.S.A. § 9545(b) (emphasis added). The timeliness requirement of
Section 9545(b)(1) is jurisdictional; we cannot address the merits of an
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untimely petition. Commonwealth v. Abu Jamal, 941 A.2d 1263, 1267–68
(Pa. 2008).
Here, Appellant’s judgment of sentence became final on May 14, 2013,
ninety days after our Supreme Court denied his petition for allowance of
appeal in his direct appeal. 42 Pa.C.S.A. § 9545(b)(3). Appellant filed his
present petition on April 19, 2017, almost four years after his judgment of
sentence became final. Thus, it is untimely on its face.
Appellant’s petition fails to satisfy any of the three exceptions to the
PCRA’s timeliness requirements in 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Appellant
attempts to invoke the newly-discovered facts exception, which required him
to prove “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.” 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court has held,
however, that petitioners cannot satisfy the newly-discovered facts exception
by alleging ineffectiveness of PCRA counsel. In Commonwealth v.
Gamboa–Taylor, 753 A.2d 780 (Pa. 2000),
the defendant in a capital case instructed his trial counsel not to
defend against the charges and not to present mitigating evidence
at the penalty stage, but later claimed that his counsel was
ineffective for failing to override the defendant’s decisions. The
PCRA court concluded that counsel was not ineffective. The
defendant subsequently filed a second PCRA petition, in which he
alleged that his first PCRA counsel was ineffective. After the PCRA
court dismissed the second petition as untimely, this Court
affirmed, noting that the defendant’s “attempt to interweave
concepts” of ineffective assistance and newly-discovered facts was
insufficient to establish jurisdiction . . . This Court explained that
“a conclusion that previous counsel was ineffective is not a newly
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discovered ‘fact’ entitling Appellant to the benefit of the exception
for [newly-discovered facts]. In sum, a conclusion that previous
counsel was ineffective is not the type of [newly-discovered fact]
encompassed by the exception.”
Commonwealth v. Mitchell, 141 A.3d 1277, 1284-85 (Pa. 2016) (citing
Gamboa-Taylor, 753 A.2d at 785). Allowing these claims to go forward
would “[cause] the timeliness requirements crafted by the legislature [to]
effectively be eviscerated by any petitioner who was willing to file serial PCRA
petitions alleging ineffective assistance of counsel.” Commonwealth v.
Howard, 788 A.2d 351, 355 (Pa. 2002) (citing Gamboa–Taylor).
Here, Appellant cannot satisfy the due diligence element of the newly-
discovered facts exception. He fails to present a valid reason why he did not
procure Porter’s affidavit until December 2016, well over three years after his
judgment of sentence became final. Perhaps recognizing this fact, he
attributes this delay to ineffectiveness of PCRA counsel. Counsel, he says,
failed to interview Porter in 2014-15 and thus failed to learn at that time that
Porter would have exonerated Appellant during trial had Porter’s counsel not
prevented him from testifying. Through this argument, Appellant attempts to
interweave ineffectiveness and newly-discovered facts concepts, precisely
what our Supreme Court refused to permit in Gamboa-Taylor. Permitting
such claims would encourage endless series of petitions accusing PCRA
counsel of ineffectiveness under the guise of the newly-discovered facts
exception. In accordance with Gamboa-Taylor, we hold that PCRA counsel’s
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alleged ineffectiveness in failing to interview Porter is not a fact encompassed
by the newly-discovered facts exception to the PCRA’s one-year time bar.
In addition, Appellant’s third PCRA petition was untimely because more
than sixty days elapsed between the date of Porter’s affidavit (December 18,
2016) and the date of Appellant’s third PCRA petition (April 19, 2017).
42 Pa.C.S.A. § 9545(b)(2) (petitioner must invoke exception to PCRA’s
timeliness requirements within sixty days after the claim first could have been
presented).
For these reasons, we agree with PCRA court’s determination to dismiss
as untimely Appellant’s third PCRA petition for want of jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2018
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