Com. v. Stubbs, H., III ( 2017 )

J-S73003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HENRY CHRISTOPHER STUBBS, III :
:
Appellant : No. 766 MDA 2017
Appeal from the PCRA Order March 29, 2017
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000844-2002
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 15, 2017
Appellant, Henry Christopher Stubbs, III, appeals pro se from the
order entered on March 29, 2017, dismissing as untimely his third petition
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§
9541-9546. Upon review, we affirm.
We briefly set forth the facts and procedural history of this case as
follows. Appellant is currently serving two consecutive life sentences
imposed after a jury convicted him of the first-degree murders of a woman
and her six-year-old daughter. The jury also convicted Appellant of rape,
burglary, two counts of theft by unlawful taking or disposition, robbery,
persons not to possess, use, manufacture, control, sell or transfer firearms,
and two counts of access device fraud. On April 4, 2005, this Court affirmed
Appellant’s judgment of sentence and our Supreme Court subsequently
denied further review. On May 22, 2006, the United States Supreme Court
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* Retired Senior Judge assigned to the Superior Court.
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denied Appellant’s petition for writ of certiorari. Appellant filed his first PCRA
petition in May of 2007. The PCRA court denied relief. After remanding for
additional proceedings, this Court eventually affirmed the denial of relief in
an unpublished memorandum filed on March 24, 2010. Appellant filed a
second PCRA petition in 2011, but later withdrew it. On April 12, 2016,
Appellant filed the pro se PCRA petition currently at issue. The PCRA court
held an evidentiary hearing and denied relief by order entered on March 30,
2017. This timely appeal resulted.1
Appellant presents the following issues, pro se, for our review:
1. Whether the exception clause of Title 42 Pa.C.S.A.
§ 9545(b)(1)(i) (interference by government officials) and
Pa.R.Crim.P. 720(c) (after-discovered evidence), supersede the
provisions set forth in Title 42 Pa.C.S.A. § 9543(A)(3) and
§ 9544, et seq. (previous litigation and wavier), where during []
Appellant’s previous state and federal appeals, attorneys on
behalf of the Commonwealth withheld Brady v. Maryland, 373
U.S. 83 [(1963)] material (the bench warrant of Angela M.
Mayfield) and asserted [] that Brady was not violated at trial
and that no agreement was made and no warrant exist[ed] for
Mayfield; and whether such assertions (if not true) that were
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1 Appellant filed his notice of appeal on May 1, 2017. Because the 30-day
appeal period fell on a Saturday, filing the notice of appeal on the following
Monday was timely. See Pa.R.A.P. 903; 1 Pa.C.S.A. § 1908. Moreover,
because Appellant is incarcerated, the prisoner mailbox rule applies. See
Commonwealth v. Patterson, 931 A.2d 710 (Pa. Super. 2007) (where the
date of filing indicates an incarcerated appellant likely placed the notice of
appeal in the hands of prison authorities before the expiration of the 30-day
appeal period, the notice is deemed timely). Here, the notice of appeal was
filed on Monday, May 1, 2017. Thus, it follows that Appellant placed the
notice of appeal in the hands of prison authorities prior to the expiration of
the appeal period on Saturday, April 30, 2017.
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made by the [Commonwealth] in judicial proceedings amount to
perjury in violation of Title 18 Pa.C.S.A. § 4902(A), and in
violation of [] Appellant’s right to due process of law under the
14th Amendment to the United States Constitution?
2. Whether the exception clause of Title 42 Pa.C.S.A.
§ 9545(b)(1)(i)(interference by government officials), supersede
the provisions set forth in Title 42 Pa.C.S.A. § 9543(A)(3); and
§ 9544. et seq. (previous litigation and waiver), where the
Luzerne County Office of the Clerk of Courts unlawfully
destroyed [] Appellant’s [Pa.R.A.P. 1926(b)] motion and exhibits
during [] Appellant’s first PCRA and habeas corpus proceedings,
and whether [] Appellant is entitled to equitable tolling of his
current appeal due to that interference by government officials
where such interference undermined [] Appellant’s hearings in
violation of [] Appellant’s right to due process of law under the
14th Amendment to the United States Constitution?
3. Whether [Appellant] was denied a fair trial and due process of
law where police investigators tampered with physical evidence
and documents in violation of Title 18 Pa.C.S.A. § 4910(1) and
(2), and committed perjury at trial in violation of Title 18
Pa.C.S.A. § 4902(A), in support of tainted evidence; and
whether such violations amount to the prosecution committing
fraud upon the court to procure conviction in violation of []
Appellant’s rights under the 6th and 14th Amendments to the
United States Constitution?
4. Whether the PCRA court’s refusal to assert jurisdiction over this
matter or enforce its inherent power to proceed further on []
Appellant’s above claims is an abuse of discretion where []
Appellant submitted argument and reliable evidence to show and
prove that (1) the prosecution knowingly committed fraud upon
the court at trial to procure conviction; (2) the prosecution
knowingly (in bad faith) withheld Brady [] material in violation
of a court order to produce such evidence; (3) the Luzerne
County Office of the Clerk of Courts destroyed Appellant’s
documents to undermine court proceedings; and (4) the
[Commonwealth] on appeal committed perjury by lying to both
state and federal courts?
Appellant’s Brief at iii-iv (suggested answers omitted).
On appeal from the denial of PCRA relief,
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our standard and scope of review is limited to determining
whether the PCRA court's findings are supported by the record
and without legal error. [… Our] scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in
the light most favorable to the prevailing party at the PCRA court
level. [T]his Court applies a de novo standard of review to
the PCRA court's legal conclusions. Additionally, courts will not
entertain a second or subsequent request for PCRA relief unless
the petitioner makes a strong prima facie showing that a
miscarriage of justice may have occurred. Appellant makes a
prima facie showing of entitlement to relief only if he
demonstrates either that 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.
[…T]he timeliness of a PCRA petition implicates the jurisdiction of
this Court and the PCRA court. Pennsylvania law makes clear no
court has jurisdiction to hear an untimely PCRA petition.
The PCRA confers no authority upon this Court to fashion ad
hoc equitable exceptions to the PCRA time-bar. This is to accord
finality to the collateral review process. A petition for relief
under the PCRA, including a second or subsequent petition, must
be filed within one year of the date the judgment becomes 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. § 9545(b)(1)(i), (ii), and (iii), is met.
Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014).
Moreover, Appellant must show that his allegations of error have not
been previously litigated. See 42 Pa.C.S.A. § 9543(a)(3). A claim is
previously litigated under the PCRA if the highest appellate court in which
the petitioner could have had review as a matter of right has ruled on the
merits of the issue. See 42 Pa.C.S.A. § 9544(a)(2).
Initially, we note that Appellant’s conviction became final on May 22,
2006, when the United States Supreme Court denied Appellant’s petition for
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writ of certiorari. Thus, Appellant’s current PCRA petition, filed on April 12,
2016, is patently untimely. Appellant attempts to invoke the governmental
interference and unknown facts exceptions to the PCRA under 42 Pa.C.S.A.
§ 9545(b)(1)(i) and (ii) to support his first and fourth claims as presented
above. Appellant claims that on March 22, 2017, he received evidence that,
at the time of trial, there was an active bench warrant in New Jersey against
witness, Angela M. Mayfield, who is Appellant’s step-sister. See Appellant’s
Brief at viii-ix. Appellant attached the warrant to his current PCRA petition.
Appellant claims that the Commonwealth withheld Mayfield’s warrant from
him in violation of Brady.
Upon review of the record, we conclude that this issue was previously
raised and litigated on his first PCRA petition. The PCRA court, in denying
Appellant relief on his first PCRA petition, stated:
During the [first] PCRA hearing stand-by counsel represented he
discerned no Brady violation[.] “The question is, does [the]
Commonwealth have a deal with Ms. Mayfield. I’m not aware of
anything that I’ve read through the trial transcript, any
documents that I have received that there was any proof or
evidence that show there may have been a deal for her
testimony which would have been a Brady violation. Unless
[defense counsel at trial] has anything to add to that, I would
say I didn’t recognize a Brady violation.” [Defense counsel at
trial] added[,] “I can tell you that our mitigation specialist []
spent considerable time with the family and there was never an
indication that a deal was cut with this woman.” [Defense
counsel at trial] also provided a lengthy response outlining why,
even if an outstanding warrant existed, he would not have
attempted impeach[ment of Mayfield]. First[,] the referenced
witness provided positive testimony for the defense. Second,
and more importantly, the defense planned to use this witness
during the penalty phase[.] [He stated,] “I surely didn’t want to
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get into a situation in the guilt phase of the trial where I’m
telling the jury, don’t believe [Mayfield]. And God forbid if we
got to the sentencing phase, then I have to tell the jury to
believe her. That would be pretty contradictory and pretty
hypocritical on my part.” [The PCRA court] noted [Mayfield] did
in fact testify on [Appellant’s] behalf during the penalty phase.
PCRA Court Opinion, 11/16/2009, at 19-20. Thus, the PCRA court
previously determined that Appellant failed to prove trial counsel was
ineffective.2 We adopted the PCRA court’s reasoning and affirmed on the
basis of the PCRA’s court’s opinion. See Commonwealth v. Stubbs, 981
A.2d 322 (Pa. Super. 2009) (unpublished memorandum) at *9.
While Appellant currently claims that he is entitled to relief because he
just recently uncovered Mayfield’s New Jersey bench warrant, the PCRA
court had already analyzed the claim in 2009 on two distinct bases. First, it
determined that there was no evidence of a bench warrant against Mayfield
(which obviously Appellant currently refutes). However, the PCRA court also
determined, in the alternative, that counsel had a reasonable strategy in
purposefully not impeaching Mayfield, because she was a positive witness for
Appellant at trial and her credibility was important to Appellant during the
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2 In analyzing a claim of ineffective assistance of counsel, we begin with the
presumption that counsel is effective. See Commonwealth v. Domek, 167
A.3d 761, 764 (Pa. Super. 2017) (citation omitted). In order to succeed on
such a claim, an appellant must establish, by a preponderance of the
evidence: (1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel's actions or failure to act; and (3) appellant
suffered prejudice as a result of counsel's error, with prejudice measured by
whether there is a reasonable probability that the result of the proceeding
would have been different. Id.-6-
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penalty phase. Thus, even though Appellant currently has a physical copy of
Mayfield’s New Jersey bench warrant, the PCRA court already determined
that trial counsel was effective because he had a reasonable basis for not
impeaching Mayfield. Hence, the issue was previously litigated.
Appellant claims that he has uncovered newly discovered evidence
when he obtained a copy of the Mayfield warrant. This Court has
consistently determined that a petitioner must allege and prove previously
unknown “facts,” not merely a “newly discovered or newly willing source for
previously known facts.” Commonwealth v. Smallwood, 155 A.3d 1054,
1067 (Pa. Super. 2017) (citation omitted). Here, the Mayfield warrant was
not a new fact, because this claim was previously litigated. Accordingly,
Appellant is not entitled to relief on his first claim.
Next, in his second issue presented, Appellant claims that when he
filed his first PCRA petition in 2007, he also filed a motion pursuant to
Pa.R.A.P. 1926(b) to correct the record with attached exhibits. Appellant’s
Brief at 11. He currently claims, in sum, that:
Appellant’s [Rule] 1926(b) motion and exhibits were never filed
or docketed by the Luzerne County Office of the Clerk of Courts,
and records reflect that the [Rule] 1926(b) motion or exhibits
were not returned to Appellant to date. The exhibits held the
merits to the claims raised on appeal and due to the obvious
destruction of [] Appellant’s motion and exhibits, the reviewing
courts including the PCRA court; the Superior Court at 871 MDA
2008; and the U.S. District Court at No. 1:10-CV-1849, could
not reach the merits of [] Appellant’s claims throughout the
course of the first appellate proceedings.
Id. at 11-12.
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Appellant’s claim fails for several reasons. First, Appellant baldly
claims interference by governmental officials without identifying the
substance of the documents allegedly filed as a Rule 1926(b) motion to
correct the record. It is Appellant’s duty to plead and prove entitlement to
relief. Moreover, when invoking an exception to the PCRA’s one-year
jurisdictional timing requirement, a petitioner must file a PCRA petition
“within 60 days of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2). Appellant claims that he filed his motion to correct
the record in 2007. He does not aver when he learned that it was not
docketed or omitted from the certified record. However, Appellant claims
that the omission of record documents precluded this Court from reaching
the merits of his prior PCRA claims in 2009. Appellant has not explained
why he would not have known about the alleged omission before filing his
current PCRA petition in 2016. Thus, Appellant’s claim is wholly
undeveloped and could have been raised earlier. Accordingly, Appellant has
not complied with Section 9545(b)(2) to establishing jurisdiction before the
PCRA court and his second issue fails.
In his third pro se issue presented, Appellant claims he “was denied a
fair trial and due process of law where police investigators tampered with
physical evidence and documents[.]” Id. at 13. Appellant does not identify
the physical evidence and/or documents with which the police allegedly
tampered. We could find this issue waived. See Commonwealth v.
Fears, 86 A.3d 795, 809, 624 Pa. 446, 470 (Pa. 2014) (citation omitted)
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(claims waived for failure to develop). However, we also note that Appellant
raised the following ineffective assistance of counsel claims in his first PCRA
petition:
Appellant [] suggest[ed] [t]rial [c]ounsel was ineffective for
failing “to challenge the Commonwealth’s misrepresentation of
DNA evidence.” Here he essentially argue[d] the adult victim’s
sexual assault evidence collection kit arrived at the State Police
Crime Laboratory “improperly sealed.” Appellant suggest[ed]
[t]rial [c]ounsel should have challenged the admissibility of this
evidence in contrast to that of the six-year-old murder victim
which was “properly sealed.” Appellant additionally argue[d]
that [the] Pennsylvania State Trooper[’s] examination of the
adult victim’s body during the autopsy with a “forensic light
source” [was] inconsistent with multiple deposits of semen
discovered on the adult victim’s clothing.
PCRA Court Opinion, 11/16/2009, at 7. The PCRA court determined that
Appellant did not deny having sexual intercourse with the adult victim and
admitted to ejaculating. Id. at 8-9. Thus, the PCRA court concluded that
trial counsel articulated a reasonable basis for not raising a claim of
tampering. Because the PCRA court already examined issues pertaining to
evidence tampering by the police and Appellant since does not otherwise
develop the issue further, we conclude that Appellant is not entitled to relief
on his third claim.
In his final claim, Appellant argues that trial counsel “aided the
prosecution in obtaining” his convictions and “the current fraud upon the
court” should “invoke the [PCRA] court[’]s inherent power regardless of
lapse of time.” Appellant’s Brief at 14. As previously stated,
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“[t]he PCRA confers no authority upon this Court to fashion ad hoc equitable
exceptions to the PCRA time-bar.” Medina, 92 A.3d at 1215. “The period
for filing a PCRA petition is not subject to the doctrine of equitable tolling[,
i]nstead, the time for filing can be extended only if the PCRA permits it to be
extended, i.e., by operation of one of the statutorily enumerated exceptions
to the PCRA time-bar” listed at 42 Pa.C.S.A. § 9545(b). Smallwood, 155
A.3d at 1059–1060. Having already determined that Appellant’s PCRA was
untimely, and not subject to exception, this claim is meritless.
Finally, on August 2, 2017, Appellant filed a petition for the remission
of the record and remand to the lower court pursuant to Pa.R.A.P. 123.
However, because we have already determined that Appellant’s PCRA
petition is untimely, we deny the petition to remit.
Order affirmed. Petition for remission of the record and remand
denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2017
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