Com. v. Burton, K. ( 2016 )

J-S32027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN BURTON
Appellant No. 2196 EDA 2015
Appeal from the PCRA Order July 7, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0406851-2002
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED MAY 03, 2016
Appellant, Kevin Burton, appeals pro se from the July 7, 2015 order
denying his third petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we
affirm.1
The PCRA court summarized the pertinent factual and procedural
background as follows.
On October 23, 2003, Appellant was convicted
by a jury of First Degree Murder, Conspiracy,
Possession of an Instrument of Crime (PIC) and
firearms violations for the shooting death of Curtis
Cannon. Appellant was sentenced to an aggregate
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*
Retired Senior Judge assigned to the Superior Court.
1
The Commonwealth has not filed a brief in this matter.
J-S32027-16
sentence of life imprisonment on the same day. On
November 18, 2003, Appellant filed a direct appeal
and the judgment of sentence was affirmed on May
3, 2005. Allocatur was denied on December 21,
2005. Appellant filed his first PCRA petition on May
23, 2006, which was dismissed on August 17, 2007.
The dismissal was affirmed on March 27, 2009 and
allocatur was denied on December 30, 2009. On
November 5, 2010, Appellant filed his second PCRA
petition which was dismissed on July 8, 2011. The
dismissal was affirmed on July 12, 2012.
Appellant then filed this third PCRA petition pro
se on August 3, 2012, alleging that he had two new
witnesses, Antonio Jones and Edward Glen, who
would testify that Appellant did not kill the decedent.
Appellant then amended his petition on June 13,
2014. In his amended petition, Appellant essentially
argued that he could only be convicted of first
degree murder if the death penalty was a sentencing
option. He claimed that counsel was ineffective for
not objecting, and the [trial c]ourt erred when the
[trial c]ourt informed the jury that this case was not
a capital case. As this third petition was facially
untimely, Appellant also argued that he met the
newly discovered evidence exception because he was
not legally trained and only recently learned of the
cases and statutes he cited. Attached to his petition,
yet not referenced therein, was a page stating that
Appellant would like to subpoena Savoy Robinson so
he could testify that his sister, Beatrice Robinson,
wrongfully convinced her nieces, Alfreda Daise and
Tuere Rogers, to accuse the Appellant of murder.
On May 26, 2015, following a thorough review of the
submissions and the applicable case law, the [PCRA
c]ourt gave notice of its intent to dismiss the petition
as untimely. Appellant then filed a response on June
12, 2015. In his response, Appellant radically
altered his argument to one solely addressing newly
found witnesses. Appellant again listed Mr. Savoy
Robinson as having information about a plot to frame
Appellant, but in that iteration the plot included only
Alfreda Daise and not Tuere Rogers. Appellant also
identified Mrs. Denise Parker, who would testify that
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her older brother told her that Appellant was
incarcerated and she should come forward with
information that Samuel Burke forced her niece,
Alfreda Daise, to accuse Appellant of murder.
Finally, Appellant identified Alfreda Daise, who would
testify that Samuel Burke forced her to accuse
Appellant of the murder because Mr. Burke was
threatening her family. After reviewing the
additional submission and reviewing the applicable
case law, the [PCRA c]ourt dismissed the petition as
untimely on July 7, 2015. This appeal followed.
PCRA Court Opinion, 10/1/15, at 1-2 (footnotes omitted).2
On appeal, Appellant frames his issue for our review as follows.
Whether the PCRA court erred in dismissing
Appellant’s pro se PCRA petition filed pursuant to
Title 42 Pa.C.S. §9545(b)(1)(ii), §9545(b)(1)(iii),
§9545(b)(2), and §9543(a)(2)(ii). Whereas the
Appellant made a strong prima facie showing that a
miscarriage of justice occurred?
Appellant’s Brief at 5.
At the outset, we note that when reviewing the propriety of the PCRA
court’s order denying relief, we consider the record “in the light most
favorable to the prevailing party at the PCRA level.” Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc). We are limited to
determining whether the evidence of record supports the conclusions of the
PCRA court and whether the ruling is free of legal error. Commonwealth v.
Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal denied, 64 A.3d 631____________________________________________
2
Although the PCRA court did not order Appellant to comply with
Pennsylvania Rule of Appellate Procedure 1925(b), it filed an opinion on
October 1, 2015.
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(Pa. 2013). This Court grants great deference to the PCRA court’s findings
that are supported by the record and will not disturb them unless they have
no support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014). Further, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that petitioner’s claim is
patently frivolous and is without a trace of support in either the record or
from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 1104
(Pa. Super. 2001).
Instantly, because this is Appellant’s third petition for post-conviction
relief, he must meet a more stringent standard. “A second or any
subsequent post-conviction request for relief will not be entertained unless a
strong prima facie showing is offered to demonstrate that a miscarriage of
justice may have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233,
236 (Pa. Super. 2003) (en banc) (citations omitted), appeal denied, 847
A.2d 127 (Pa. 2004). “A petitioner makes a prima facie showing if he
demonstrates that either the proceedings which resulted in his conviction
were so unfair that a miscarriage of justice occurred which no civilized
society could tolerate, or that he was innocent of the crimes for which he
was charged.” Id.Additionally, the timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000).
Generally, a petition for relief under the PCRA, including a second or
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subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.3 See Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545. A PCRA
petition invoking one of these statutory exceptions must “be filed within 60
days of the date the claims could have been presented.” Id. at 783. See
also 42 Pa.C.S.A. § 9545(b)(2).
It is uncontroverted that Appellant’s PCRA petition is facially untimely.
Trial Court Opinion, 10/1/15, at 3 (stating, “Appellant’s sentence became
final on March 21, 2006, which was when his time to seek leave to appeal to
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3
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the
result of interference of 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.
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the U.S. Supreme Court ended. See 42 Pa.C.S.A. § 9545(b)(3);
U.S.Sup.Ct.R. 13”). Appellant had to file the PCRA at issue by March 21,
2007 for it to be timely. Appellant filed the instant petition on August 3,
2012, such that it is untimely unless he has satisfied his burden of pleading
and proving that one of the enumerated exceptions applies.
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
Instantly, Appellant argues that his third petition is timely pursuant to
Section 9545(b)(1)(ii). Appellant’s Brief at 7-13. This Court recently
summarized this exception as follows.
The timeliness exception set forth in Section
9545(b)(1)(ii) requires a petitioner to demonstrate
he did not know the facts upon which he based his
petition and could not have learned those facts by
the exercise of due diligence. Due diligence
demands that the petitioner take reasonable steps to
protect his own interests. A petitioner must explain
why he could not have learned the new fact(s)
earlier with the exercise of due diligence. This rule is
strictly enforced. Additionally, the focus of the
exception is focused on the newly discovered facts,
not a newly discovered or newly willing source for
previously known facts.
The timeliness exception set forth at Section
9545(b)(1)(ii) has often mistakenly been referred to
as the “after-discovered evidence” exception. This
shorthand reference was a misnomer, since the plain
language of subsection (b)(1)(ii) does not require
the petitioner to allege and prove a claim of “after
discovered evidence.” Rather, as an initial
jurisdictional threshold, Section 9545(b)(1)(ii)
requires a petitioner to allege and prove that there
were facts unknown to him and that he exercised
due diligence in discovering those facts. See 42
Pa.C.S.A. § 9545(b)(1)(ii). Once jurisdiction is
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established, a PCRA petitioner can present a
substantive after-discovered-evidence claim. See
Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
eligible for relief under PCRA, petitioner must plead
and prove by a preponderance of the evidence that
his conviction or sentence resulted from, inter alia,
unavailability at the time of trial of exculpatory
evidence that has subsequently become available
and would have changed the outcome of the trial if it
had been introduced). In other words, the “new
facts” exception at Subsection (b)(1)(ii) has two
components, which must be alleged and proved.
Namely, the petitioner must establish that: 1) the
facts upon which the claim was predicated were
unknown and 2) 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.
Thus the “new facts” exception at Section 9545(b)(1)(ii)
does not require any merits analysis of an underlying
after-discovered-evidence claim.
Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015),
appeal denied, 125 A.3d 1197 (Pa. 2015).
Within his brief, Appellant references “newly discovered information
and/or evidence obtained from Antonio Jones and Edward Glen.” Appellant’s
Brief at 7. He also references unavailable information at trial from “witness
Savoy Robinson … his sister, Mrs. Denise Parker, … and Alfred [sic] Daise, a
former witness for the Commonwealth…” Id. Appellant attaches to his brief
affidavits from Alfreda Daise, Michael Devan, Antonio Jones and Edward
Glen, all of which, inter alia, aver that Appellant did not commit the murder
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which led to his conviction and incarceration. Id. at Appendix C. Appellant
also contends as follows.
On February 15, 2015, witness Savoy Robinson
communicated with his sister, Mrs. Denise Parker,
via institution phone, whereas Mrs. Parker conveyed
to her brother, Savoy Robinson, that the shooter of
the decedent, Curtis Cannon, was a[n] older man
who nearly shot her son on the day in question. This
information was not available to this Appellant.
Alfred[a] Daise, a former witness for the
Commonwealth, conveyed to her uncle during the
month of August or September 2015, via institution
phone, that she was forced to involve this Appellant
in the shooting death of the decedent, Curtis
Cannon. None of this information was available to
this Appellant.
Id. at 8.
The PCRA court summarily and succinctly explained its rejection of
Appellant’s assertion of “newly discovered information and/or evidence” as
follows.
Appellant’s first argument was that he has five newly
found witnesses who either claim he was not the shooter
or had information concerning a plot to frame him for the
murder. Appellant does not meet the newly found
evidence exception with regard to these witnesses. First,
Appellant offers no explanation as to why any of the
witnesses’ testimony was not produced earlier, therefore
he has not shown he was diligent. Second, the majority of
the proposed testimony represents inadmissible hearsay.
Because of these issues, Appellant’s claims regarding his
newly found witnesses fail to meet the requirements of the
newly found evidence exception.
PCRA Court Opinion, 10/1/15, at 4.
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Upon review, we agree with the trial court’s determination that
Appellant has not explained why the witnesses’ testimony was not produced
earlier.4 Accordingly, we conclude that Appellant has not established the
applicability of 42 Pa.C.S.A. § 9545(b)(1)(ii) or any other exception to the
PCRA timeliness requirements. Because Appellant’s efforts to establish
jurisdiction fail, the PCRA court properly dismissed Appellant’s petition as
untimely. Commonwealth v. Taylor, 67 A.3d 1245, 1249 (Pa. 2013)
(noting, “PCRA time requirement mandatory and jurisdictional in nature;
court cannot ignore it and reach merits of petition”); Commonwealth v.
Hernandez, 79 A.3d 649, 655 (Pa. Super. 2013) (holding that Superior
Court lacks jurisdiction to reach the merits of an appeal from an untimely
PCRA petition).
In sum, the PCRA court correctly concluded that Appellant failed to
establish any exception to the PCRA’s time-bar and properly dismissed
Appellant’s third PCRA petition as untimely filed. Accordingly, we affirm the
PCRA court’s July 7, 2015 order.
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4
Appellant was aware of this requirement to “argue that he could not have
obtained this evidence prior to trial,” where in his second PCRA, Appellant
also asserted that he had exculpatory evidence that was unavailable at trial
from two witnesses, and attached statements from the two alleged
witnesses to that petition, but was ultimately unsuccessful before the PCRA
court and this Court because Appellant, inter alia, did not “argue that he
could not have obtained this evidence prior to trial.” Commonwealth v.
Burton, 55 A.2d 133 (Pa. Super. 2012), unpublished memorandum at 5.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
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