Com. v. Davis, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
EDWARD L. DAVIS, :
:
Appellant : No. 2547 EDA 2014
Appeal from the PCRA Order entered on July 31, 2014
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No. CP-51-CR-0524311-1987
BEFORE: STABILE, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 09, 2015
Edward L. Davis (“Davis”) appeals from the Order dismissing his first
Petition filed pursuant to the Post Conviction Relief Act (“PCRA”),1 and
denying his Motion for Post-Conviction DNA Testing (hereinafter “the DNA
Motion”). We affirm.
The PCRA court set forth the relevant procedural history underlying
this appeal as follows:
In October 1988, following [a non-jury trial, the trial court]
…, found [Davis] guilty of murder in the first-degree, possession
of [an] instrument of crime, two counts of kidnapping, and four
counts of simple assault …. [The murder victim was the mother
of two of Davis’s children. Seven weeks before the murder,
Davis had kidnapped two of the victim’s acquaintances at
gunpoint and forced them to tell him where the victim was
located. When Davis was released on bail concerning the
kidnapping charges, he murdered the victim in her home, while
her children were present.] Davis was subsequently sentenced
to the mandatory term of life imprisonment. Davis appealed to
1
See 42 Pa.C.S.A. §§ 9541-9546.
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the Superior Court of Pennsylvania and the Court affirmed his
convictions and judgment of sentence on June 13, 1990. [See
Commonwealth v. Davis, 576 A.2d 1005 (Pa. Super. 1990).]
The Supreme Court of Pennsylvania granted allocat[u]r review
and, on January 7, 1993, the Court vacated the judgment of
sentence and remanded the case for a new trial. [See
Commonwealth v. Davis, 615 A.2d 732 (Pa. 1992) (reversing
based on the Supreme Court’s decision in Commonwealth v.
Ludwig, 594 A.2d 281 (Pa. 1991) (holding that trial testimony
given by a child witness via closed circuit television violates an
accused’s right, under the Pennsylvania Constitution, to “face to
face” confrontation)).2]
In May 1997, … Davis elected to exercise his right to a jury
trial and pled not guilty to all charges …. On May 12, 1997, the
jury found Davis guilty of murder in the first[-]degree,
possession of [an] instrument of crime, kidnapping, and multiple
counts of simple assault. At the conclusion of the trial, the [trial
court] sentenced Davis to the mandatory term of life
imprisonment on the homicide charge and 6-10 years of
imprisonment on the kidnapping charge, to run consecutively.
He received no further penalty on the remaining charges. Davis
filed post-sentence [M]otions, which were denied by operation of
law. … [T]he Superior Court of Pennsylvania … affirmed his
convictions and judgment of sentence on May 11, 1998. [See
Commonwealth v. Davis, 718 A.2d 855 (Pa. Super. 1998)
(unpublished memorandum).]
On December 9, 2013, Davis filed the instant PCRA
[P]etition. In response, the Commonwealth filed a Motion to
Dismiss on March 10, 2014. Davis filed a Response to the
Commonwealth’s [Motion] on March 18, 2014. … On June 6,
2014, following a review of the record, Davis’[s] [P]etition, and
the Commonwealth’s submission, th[e PCRA c]ourt sent Davis a
[] Notice, pursuant to Pa.R.Crim.P. 907(1)[, stating the court’s
intention to dismiss the PCRA Petition as being untimely filed].
Davis filed a response to the 907 Notice on June 25, 2014.
Davis also filed [the DNA] Motion … on July 9, 2014[, pursuant
to 42 Pa.C.S.A. § 9543.1 (hereinafter “the PCRA DNA statute”).
Therein, Davis asserted that he was innocent of the murder,
pointing out that the medical examiner, Paul Hoyer, M.D. (“Dr.
2
At Davis’s original trial, the court had permitted the minor child of the
victim to testify against Davis, her father, via two-way closed circuit
television.
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Hoyer”), had discovered semen on the victim’s body during the
autopsy, which the parties had stipulated at trial did not belong
to Davis. Davis argued in the DNA Motion that DNA testing of
certain males with whom the victim purportedly had a romantic
relationship might reveal the identity of the perpetrator]. On
July 31, 2014 th[e PCRA c]ourt dismissed the PCRA [P]etition
and denied the [DNA M]otion.
PCRA Court Opinion, 7/31/14, at 1-2 (unnumbered, some capitalization
omitted, footnote added). Davis timely filed a Notice of Appeal from the July
31, 2014 Order.
On appeal, Davis presents the following issues for our review:
1. Whether the Statutory Construction Act makes it facially
unconstitutional to apply the PCRA’s timeliness provisions
to a claim that a constitutional violation led to the
conviction of an innocent person?
2. Whether the PCRA court abused its discretion when it
denied the [DNA M]otion []?
3. Whether the conviction was obtained in violation of the
right to effective assistance of counsel guaranteed by the
Sixth Amendment to the Constitution of the United
States?
4. Whether the conviction was obtained in violation of the
Fourteenth Amendment right to a fair trial untainted by
false testimony elicited from a member of the prosecution
team?
Brief for Appellant at 2 (issues numbered, capitalization omitted).
As a preliminary matter, we observe that Davis has filed with this
Court a Motion to Strike the Commonwealth’s appellate brief as being
untimely (hereinafter “Motion to Strike Brief”). Davis points out that
although this Court gave the Commonwealth one extension of time in which
to file its brief, the Commonwealth filed the brief twenty days after the due
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date. Motion to Strike Brief, 2/19/15, at 1-2. We deny Davis’s Motion to
Strike Brief, as he was not prejudiced by the Commonwealth’s late filing of
its brief.
We begin by noting our well-settled standard of review: “In reviewing
the [dismissal] of PCRA relief, we examine 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
omitted).
Under the PCRA, any PCRA petition, “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition that is not filed
within one year of the date the judgment becomes final is time-barred,
unless the petitioner has pled and proven one of the three exceptions to the
PCRA’s time limitation set forth in 42 Pa.C.S.A. § 9545(b)(1)(i-iii) (providing
that an untimely PCRA petition may be considered timely if a petitioner
alleges and proves (1) governmental interference with the presentation of
his claims; (2) discovery of previously unknown facts which could not have
been discovered with due diligence; or (3) an after-recognized constitutional
right given retroactive application). The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
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Here, Davis’s PCRA Petition, filed in December 2014, is facially
untimely because his judgment of sentence became final more than sixteen
years prior, in June 1998. Moreover, Davis did not plead any of the
exceptions to the PCRA’s jurisdictional time bar in the PCRA Petition, his Rule
907 Response, or in his appellate brief. Rather, Davis challenges the
constitutionality of the PCRA’s time bar itself, and claims that his trial
counsel rendered ineffective assistance.
In his first issue, Davis argues that the PCRA is unconstitutional on its
face to the extent that its time bar can unlawfully preclude a “gateway claim
of actual innocence[,]” which, according to Davis, violates the Constitution of
the United States and Pennsylvania’s Statutory Construction Act (“SCA”).3
Brief for Appellant at 12; see also id. at 14 (arguing that “[t]he General
Assembly[, in the SCA,] has taken the position that its actions must not be
interpreted to lead to results that are absurd or unreasonable or that its
actions be interpreted to violate the Constitution[s] of the United States or
Pennsylvania.”). According to Davis, his claim of “actual innocence”4 is
sufficient to overcome the PCRA’s time-bar, pursuant to the United States
3
See 1 Pa.C.S.A. § 1501 et seq.
4
Davis bases his claim of actual innocence upon the fact that the semen
discovered on the victim’s body did not belong to Davis. Brief for Appellant
at 16; see also id. at 19 (asserting that “[a] presumptively positive [DNA]
match [concerning the semen in question] with one of the victim’s known
associates would establish a prima facie case that [] Davis is actually
innocent of the murder.”).
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Supreme Court’s decision in McQuiggin v. Perkins, 133 S. Ct. 1924(2013). Brief for Appellant at 14-16.
In McQuiggin, the Supreme Court held that a claim of actual
innocence, if proved, can serve as a gateway through which a petitioner may
pass the one-year time bar for filing an otherwise untimely first federal
habeas corpus petition when the claim of actual innocence is supported by
newly-discovered evidence. McQuiggin, 133 S. Ct. at 1926. This ruling
concerns federal habeas corpus petitions and the time limitations applicable
thereto, and is not applicable to petitions filed in state court seeking relief
under the PCRA.5 Thus, McQuiggin is inapplicable to Davis’s case and
provides no relief from the PCRA’s time bar.
Moreover, we reject Davis’s claim that the PCRA violates the SCA and
is unconstitutional. It is well established that “the time restrictions for filing
PCRA petitions are constitutional[.]” Commonwealth v. Fahy, 737 A.2d
214, 223 (Pa. 1999); Commonwealth v. Peterkin, 722 A.2d 638, 643 (Pa.
1998) (same); see also Commonwealth v. Edmiston, 65 A.3d 339, 349
(Pa. 2013) (stating that “[a]s we have explained, the nature of the
constitutional violations alleged has no effect on the application of the PCRA
time bar. … Rather, the only cognizable exceptions are set forth at Section
9545(b)(1).” (internal citations omitted)).
5
We additionally observe that the Supreme Court did not expressly
pronounce that McQuiggin applies retroactively, and it does not represent a
watershed change in procedural law.
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Next, Davis argues that the PCRA court abused its discretion by
denying the DNA Motion, and determining that it did not entitle Davis to
relief because the parties had stipulated that the semen found on the
victim’s body did not belong to him. See Brief for Appellant at 17.6
According to Davis, the PCRA court’s ruling is contrary to this Court’s
decision in Commonwealth v. Conway, 14 A.3d 101 (Pa. Super. 2011)
(where the defendant was convicted of murder based solely on
circumstantial evidence, and the Commonwealth did not introduce any DNA
or other scientific evidence tying him to the victim’s body, holding that the
PCRA court improperly denied the defendant’s motion for DNA testing
because the defendant had established that there is a “reasonable
possibility” that favorable results of the requested DNA testing would
establish his actual innocence). See Brief for Appellant at 17-18.
“Post[-]conviction DNA testing falls under the aegis of the [PCRA,] and
thus, our standard of review permits us to consider only whether the PCRA
court’s determination is supported by the evidence of record and whether it
is free from legal error.” Conway, 14 A.3d at 108 (footnote, citation,
brackets and quotation marks omitted). To obtain post-conviction DNA
testing under the PCRA DNA statute, a petitioner must prove the following:
If the evidence was discovered prior to the applicant’s
conviction, the evidence shall not have been subject to the DNA
testing requested because the technology for testing was not in
6
We observe that “a motion for post-conviction DNA testing does not
constitute a direct exception to the one year time limit for filing a PCRA
petition.” Commonwealth v. Williams, 35 A.3d 44, 50 (Pa. Super. 2011).
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existence at the time of the trial or the applicant’s counsel did
not seek testing at the time of the trial in a case where a verdict
was rendered on or before January 1, 1995, or the applicant’s
counsel sought funds from the court to pay for the testing
because his client was indigent and the court refused the request
despite the client’s indigency.
42 Pa.C.S.A. § 9543.1(a)(2). In other words, “[a] petitioner [] does not
meet the requirements of [section] 9543.1(a)(2) if the technology existed at
the time of his trial, the verdict was rendered after January 1, 1995, and the
court never refused funds for the testing.” Commonwealth v. Perry, 959
A.2d 932, 939 (Pa. Super. 2008) (citation, quotation marks and brackets
omitted). In the instant case, all of the conditions stated in Perry are
satisfied, and Davis makes no attempt to prove otherwise.
Nevertheless, the PCRA court cogently reasoned that it properly denied
the DNA Motion under the PCRA DNA statute for the following reasons:
In Conway, the Court explained that “the prima facie
requirement set forth in [42 Pa.C.S.A.] § 9543.1(c)(3) and
reinforced in [section] 9543.1(d)(2) requires that [the petitioner]
demonstrate that there is a ‘reasonable possibility,’ that
‘favorable results of the requested DNA testing would establish
the [petitioner’s] actual innocence of the crime of conviction.’”
[Conway, 14 A.3d at 109 (emphasis, footnote and citations
omitted); see also Williams, 35 A.3d at 50 (stating that “[t]he
statutory standard to obtain testing requires more than
conjecture or speculation; it demands a prima facie case that the
DNA results, if exculpatory, would establish actual innocence.”).]
Conway adopts the standard of actual innocence set forth by
the Supreme Court of the United States in Schlup v. Delo[, 513
U.S. 298 (1995),] that the newly discovered evidence must
make it “more likely than not that no reasonable juror would
have found him guilty beyond a reasonable doubt.” [Conway,
14 A.3d at 109 (quoting Schlup, 513 U.S. at 327).]
In the instant case, Davis seeks to have the semen found
on the victim’s body tested against the CODIS[, i.e., the national
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Combined DNA Index System], the Pennsylvania data banks,
and the two known associates of the victim, Anthony Smith and
Earl Maples. Davis represents that, at trial, the jury heard
testimony from numerous witnesses establishing the victim’s
connection to both Anthony Smith and Earl Maples and that the
sexual encounter leading to the semen may have occurred
shortly before the murder;[FN] however, the jury also heard a
stipulation entered by trial counsel that the semen on the
victim’s body did not belong to Davis. Thus, the jury knew that
Davis was excluded as a source of the semen, thereby showing
that it came from Anthony Smith, Earl Maples, or an unknown
party, and, in light of all of the other evidence presented by the
Commonwealth, found Davis to be guilty of the murder. As
such, th[e PCRA c]ourt has found that Davis has not
demonstrated a reasonable probability that favorable results of
such testing would establish his actual innocence of the murder.
[FN]
Davis represents that [Edwin] Lieberman[, M.D. (“Dr.
Lieberman”), i.e., the county medical examiner at the
time of Davis’s second trial who had reviewed Dr. Hoyer’s
autopsy notes concerning the victim,] testified that he
could not determine when exactly the victim had sex[,]
and that it could have been minutes before her death or
a day and a half before her death. Conversely, Dr.
Hoyer, who conducted the autopsy of the victim and
testified at [Davis’s first] trial, testified that the sex
occurred shortly before her death.
PCRA Court Opinion, 7/31/14, at 5-6 (unnumbered, some footnotes
omitted). The PCRA court’s sound analysis is supported by the record and
the law. Accordingly, we conclude that there is no merit to Davis’s challenge
to the PCRA court’s denial of the DNA Motion.
In his third issue, Davis asserts that the PCRA court erred by
dismissing his PCRA Petition because he had established that his trial
counsel rendered ineffective assistance. See Brief for Appellant at 20-23.
Specifically, Davis challenges trial counsel’s failure to (1) object to the trial
court’s allegedly erroneous alibi instruction; (2) ensure that the DNA
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evidence from the semen found on the victim’s body was checked against
the males with whom the victim was romantically involved; and (3) locate
Dr. Hoyer to testify at Davis’s second trial. Id.“[I]t is well established that the fact that a petitioner’s claims are
couched in terms of ineffectiveness will not save an otherwise untimely
petition from the application of the time restrictions of the PCRA.”
Edmiston, 65 A.3d at 349 (citation omitted). As stated above, Davis’s
PCRA Petition is facially untimely and he has failed to plead and prove any of
the three exceptions to the PCRA’s jurisdictional time bar. Therefore, Davis’s
ineffectiveness claims do not entitle him to relief. Id.
Finally, Davis is not entitled to relief on his last issue, wherein he avers
that he was deprived of a fair trial because the prosecutor allegedly elicited
false testimony from Dr. Lieberman. See Brief for Appellant at 23-25. Such
claim does not meet any of the exceptions to the PCRA’s time limitation.
We conclude that the PCRA court neither abused its discretion nor
committed an error of law by dismissing Davis’s first PCRA Petition as
untimely, and that Davis’s challenge to the constitutionality of the PCRA
lacks merit. Additionally, the PCRA court properly denied the DNA Motion.
Therefore, we affirm the Order on appeal and deny Davis’s Motion to Strike
Brief.
Order affirmed. Motion to Strike Brief denied.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/2015
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