Com. v. Parks, P. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PAUL PARKS
Appellant No. 1840 EDA 2018
Appeal from the PCRA Order entered June 1, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0703321-2004
BEFORE: GANTMAN, P.J.E, STABILE, and COLINS,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 16, 2019
Appellant, Paul Parks, appeals pro se from the June 1, 2018 order
entered in the Court of Common Pleas of Philadelphia County, dismissing as
untimely his third petition for collateral relief pursuant to the Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541-46. Appellant claims the Commonwealth
failed to disclose, in violation of Brady v. Maryland, 373 U.S. 83 (1963), that
charges against a prosecution witness had been nolle prossed prior to
Appellant’s 2005 trial. He contends he was unaware that the charges were
nolle prossed until January 17, 2018. Following review, we affirm.
The PCRA judge, who presided over Appellant’s 2005 trials as well as
his first two PCRA proceedings, provided the following procedural history:
On December 19, 2005, following a jury trial1 before this court,
[Appellant] was found guilty of first-degree murder [18 Pa.C.S.A.
* Retired Senior Judge assigned to the Superior Court.
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§ 2502(a)] and criminal conspiracy [18 Pa.C.S.A. § 903]. Post-
sentence motions were filed on March 13, 2006, and denied by
operation of law on July 12, 2006. Superior Court affirmed
[Appellant’s] judgment of sentence on September 10, 2007. On
July 10, 2008, our Supreme Court denied [Appellant’s] petition for
allowance of appeal. [Appellant] filed a timely pro se [PCRA]
petition on June 19, 2009. After counsel was appointed to
represent [Appellant] for his PCRA proceedings, [Appellant]
requested to proceed pro se on December 9, 2009. On February
8, 2010, this court held a Grazier[1] hearing and determined that
[Appellant] was knowingly, intelligently, and voluntarily waiving
his right to counsel. That same date, this court ordered
[Appellant] to file an amended pro se PCRA petition[.]
1
Appellant was originally tried in June 2005, but this court
declared a mistrial by agreement of both parties when the jury
was unable to reach a verdict as to the two charges for which
[Appellant] was ultimately convicted. [Appellant’s] sole claim in
the instant petition concerned the testimony of a witness, Malik
Mustafa, whose testimony differed between [Appellant’s] first
and second trials.
PCRA Court Opinion, 8/2/18, at 1-2 (additional footnotes and some
capitalization omitted). Appellant filed an amended pro se petition as ordered
and the Commonwealth responded with a motion to dismiss. Ultimately, the
PCRA court conducted an evidentiary hearing on a single claim of trial counsel
ineffectiveness relating to failure to call a witness to testify as to Appellant’s
non-violent character. In accordance with Pa.R.Crim.P. 904(D),2 counsel was
appointed to represent Appellant solely for that evidentiary hearing.
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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
2 Pa.R.Crim.P. 904(D) provides: “On a second or subsequent petition, when
an unrepresented defendant satisfies the judge that the defendant is unable
to afford or otherwise procure counsel, and an evidentiary hearing is required
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Following the evidentiary hearing, the PCRA court advised Appellant that
the litigated issue was without merit. Upon consideration of the remaining
claims, the court determined they were likewise without merit and issued a
Rule 907 notice of intention to dismiss and, subsequently, an order dismissing
the petition. Appellant filed an appeal to this Court and we affirmed. On
November 5, 2014, our Supreme Court denied Appellant’s petition for
allowance of appeal.
On December 19, 2014, Appellant filed a second PCRA petition based on
alleged newly-discovered facts relating to an eyewitness to the shooting for
which Appellant was convicted. The PCRA court granted Appellant a hearing
on the petition and again appointed counsel in accordance with Pa.R.Crim.P.
904(D) for purposes of the hearing only. Following the filing of an amended
petition and the Commonwealth’s response, Appellant communicated to the
court that he was displeased with counsel. The court ordered removal of
counsel and appointment of new counsel. On the date of the hearing,
Appellant’s witness failed to appear. The court granted a continuance based
on appointed counsel’s representation that Appellant would present other
witnesses. Appellant sought to withdraw his petition based on lack of witness
cooperation and his conclusion that other witnesses would not provide helpful
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as provided in Rule 908, the judge shall appoint counsel to represent the
defendant.”
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information. The PCRA court granted his motion to withdraw and provided
Appellant the opportunity to notify the court within 30 days in the event he
reconsidered. Appellant did not provide any such notice to the court.
On January 29, 2018, Appellant filed the instant pro se PCRA petition,
his third. Following review, the court determined the petition did not satisfy
any exception to the PCRA’s timeliness requirements and, on May 2, 2018,
issued a Rule 907 notice. The court noted:
[A]s the information indicating that the Commonwealth declined
to pursue charges against Mustafa was ascertainable to
[Appellant] by the application of due diligence at the time of his
December 2005 trial, this claim fails to satisfy the timeliness
exception for newly-discovered facts and is thus untimely.
Therefore, this court lacks jurisdiction over [Appellant’s] petition.
PCRA Court Rule 907 Notice, 5/1/18, at 5 (capitalization omitted).
In response to the notice, Appellant submitted a letter suggesting that
Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), applied to him as an
incarcerated pro se prisoner and, in essence, defeated any due diligence
argument with respect to “public record” information. Letter in Response to
Rule 907 Notice, 5/21/18, at 1.3 The court considered Appellant’s response
and determined it failed to cure the timeliness defect. Therefore, on June 1,
2018, the court issued its order dismissing the petition as untimely. This
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3 In Burton, our Supreme Court held that “the presumption that information
which is of public record cannot be deemed ‘unknown’ for purposes of
subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners.” Id.
at 638 (emphasis in original).
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timely appeal followed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant asks us to consider one issue in this appeal:
I. Whether the PCRA court erred by denying Appellant’s Brady
claim concluding that Appellant’s PCRA petition was
untimely on the premise that Appellant did not exercise due
diligence to discover that Malik Mustafa had charges nolle
prosse[d] prior to Appellant’s second trial and Burton
specifically, precluded the public record rule to apply to
incarcerated pro se defendants?
Appellant’s Brief at 5.
Our standard of review from the denial of PCRA relief is well settled. “In
PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
As this Court explained in Commonwealth v. Johnston, 42 A.3d 1120(Pa. Super. 2012),
As a threshold jurisdictional matter, however, the timeliness of
the PCRA petition must be addressed. 42 Pa.C.S. § 9545(b) sets
forth the time limitations for filing of a PCRA petition as follows:
(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:
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(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.
42 Pa.C.S. § 9545(b)(1)-(2).
Petitioners must plead and prove the applicability of one of the
three exceptions to the PCRA timing requirements.
Commonwealth v. Perrin, 947 A.2d 1284 (Pa. Super. 2008);
Commonwealth v. Geer, 936 A.2d 1075, 1078–1079 (Pa.
Super. 2007). “If the petition is determined to be untimely, and
no exception has been pled and proven, the petition must be
dismissed without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the petition.” Perrin,
947 A.2d at 1285.
Id. at 1126. See also Commonwealth v. Abu-Jamal, 941 A.2d 1263,
1267-68 (Pa. 2008) (“The PCRA’s timeliness requirements are jurisdictional in
nature and must be strictly construed; courts may not address the merits of
the issues raised in a petition if it is not timely filed.”).
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As reflected in the procedural history, our Supreme Court denied
Appellant’s petition for allowance of appeal on direct appeal on July 10, 2008.
He did not seek a writ of certiorari from the United States Supreme Court.
Therefore, his judgment of sentence was final 90 days later, on October 9,
2008. See U.S.Sup.Ct.R. 13. In accordance with the PCRA, Appellant was
required to file any PCRA petition on or before October 9, 2009, unless his
petition alleged and proved an exception to the PCRA’s timeliness
requirements. Appellant’s instant petition was filed on January 29, 2018,
more than eight years after his judgment of sentence became final. Therefore,
Appellant’s petition is facially untimely and we may not consider the merits, if
any, of the petition unless he has presented and proved an exception to the
PCRA’s timeliness requirement. 42 Pa.C.S.A. § 9545(b)(1).
Here, Appellant suggests his claim is saved from the PCRA’s time bar
based on the newly-discovered fact exception of Section 9545(b)(1)(ii).
Appellant maintains that “[o]n January 17, 2018, [he] received a court
summary from his sister (Keisha Parks) that depict [sic] that Malik Mustafa
had charges nolle prossed on August 12, 2005 that was not disclosed during
[Appellant’s] trial in December 2005.” Appellant’s Third PCRA Petition,
1/29/18, at ¶ 12.4
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4It is not disputed that Appellant’s petition was filed within 60 days of January
17, 2018. See 42 Pa.C.S.A. § 9545(b)(2).
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Appellant argues the Commonwealth failed to disclose that Mustafa’s
charges were nolle prossed and that he should be a granted a new trial
because the jury should have known the maximum penalties Mustafa faced
and “the potential for expectation of leniency.” Id. at ¶ 24 (citing
Commonwealth v. Evans, 512 A.2d 626 (Pa. 1986)).5 However, as the
PCRA court recognized:
[Appellant] provided no evidence, short of his bare assertion, that
the Commonwealth’s decision to drop pending charges against
Mustafa bore any relation to Mustafa’s anticipated testimony at
[Appellant’s] December 2005 retrial. The mere fact alone that the
Commonwealth elected not to pursue the charges against Mustafa
did not support an inference that the Commonwealth had some
unofficial, undisclosed agreement with Mustafa with respect to his
testimony.
PCRA Court Opinion, 8/2/18, at 8-9.
The court cited an exchange between the prosecution and Mustafa at
Appellant’s first trial, noting the prosecution questioned Mustafa about his
criminal history, including the fact he was incarcerated and awaiting trial on
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5 In Evans, our Supreme Court held:
[T]he right guaranteed by Art. I Section 9 of the Pennsylvania
Constitution to confront witnesses against a defendant in a
criminal case entails that a criminal defendant must be permitted
to challenge a witness’s self-interest by questioning him about
possible or actual favored treatment by the prosecuting authority
in the case at bar, or in any other non-final matter involving the
same prosecuting authority.
Id. at 632.
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charges of auto theft. Id. at 10 (citing Notes of Testimony, 6/15/05, at 62-
63). The court then recounted an exchange that took place during Mustafa’s
testimony at Appellant’s second trial:
COMMONWEATLH: Do you have any open cases at this time?
MUSTAFA: No.
COMMONWEALTH: And you’ve had convictions in the past for
dealing drugs; is that correct?
MUSTAFA: Yes.
COMMONWEALTH: Are you being promised anything by the
District Attorney’s Office to testify here today in court?
MUSTAFA: No.
COMMONWEALTH: Did I promise you I would do something about
your sentence or anything like that, try to get you out sooner?
MUSTAFA: No.
COMMONWEATLH: In fact, do you want to be here today?
MUSTAFA: No, I don’t.
Id. at 11 (quoting Notes of Testimony, 12/14/05, at 106-07). As the
testimony revealed, Mustafa was awaiting trial on auto theft charges at the
time of the June 2005 trial but had no open charges pending at the time of
the December 2005 trial. There is no suggestion that trial counsel was
prevented from asking Mustafa about the disposition of the charges or about
any favorable treatment, including nolle prossing of charges, he might have
received in exchange for his testimony at Appellant’s December 2005 trial.
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We further note that Appellant’s petition, which did not mention Burton,
is silent as to why he was unable to ascertain information regarding the nolle
prossed charges through the exercise of due diligence and does not even
suggest that any efforts were untaken to obtain information. Rather, the
petition simply indicates that Appellant was not aware the charges were nolle
prossed until January of 2018. As the PCRA court recognized,
More than a decade has passed since [Appellant’s] trial, yet
[Appellant] failed to establish why he could not have raised a claim
related to Mustafa’s criminal history any sooner, or even prove
that this information was not publicly assessable prior to his
second trial. Therefore, [Appellant’s] claim failed to meet his
burden of proof to satisfy the due diligence requirements of either
the timeliness exception for newly-discovered facts or
governmental interference.
Id. at 9.
The PCRA court also observed that Appellant first offered Burton as a
substitute for the otherwise-applicable due diligence requirement in response
to the court’s Rule 907 notice. “However, the record makes clear that the
facts underlying [Appellant’s] claim were ascertainable with the exercise of
due diligence at the time of [Appellant’s] December 2005 retrial, before
[Appellant] became incarcerated and while [Appellant] was still represented
by counsel.” Id. at 9-10 (emphasis in original).
We find the PCRA court’s findings are supported by the record and free
of legal error. Therefore, we shall not disturb the court’s order dismissing
Appellant’s third PCRA petition as untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/19
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