Com. v. Hall, J. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHN HALL,
Appellant No. 2698 EDA 2013
Appeal from the PCRA Order entered August 20, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0227961-1988.
BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.:
MEMORANDUM BY ALLEN, J.: FILED NOVEMBER 10, 2014
John Hall (“Appellant”) appeals pro se from the order denying his
second petition for relief under the Post-Conviction Relief Act (PCRA), 42
Pa.C.S.A. sections 9541-46. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
On February 28, 1989, [Appellant] was sentenced to life
imprisonment after a jury found him guilty of first degree
murder and robbery for the July 13, 1986 shooting death
of Derrick Jones (Jones). Appellant’s post sentence
motions were litigated, and denied on June 26, 1990. On
November 13, 1991, the Superior Court affirmed the
judgment of sentence, but remanded for [an] evidentiary
hearing on [Appellant’s] Batson claim. On May 27, 1993,
following the hearing and further briefing and oral
argument, the court denied [Appellant’s] Batson claim.
The Superior Court affirmed the denial on December 28,
1993. Allocatur was denied on January 21, 1994. On
January 16, 1997, [Appellant] filed his first petition for
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PCRA relief which was dismissed without a hearing on
August 14, 1998. On September 29, 2011, [Appellant]
filed a second pro se petition for PCRA relief asserting that
he was legally and factually innocent of the crimes for
which he was convicted. On February 24, 2012, the
petition was dismissed as untimely filed and [Appellant]
appealed. [This appeal was later discontinued.]
On March 12, 2012, pursuant to a motion filed with
retained counsel, [Appellant’s] dismissal was vacated and
he was permitted to file a fully developed amended PCRA
petition. On May 2, 2012, [Appellant] filed an amended
petition for relief claiming that his petition was timely
based upon the after-discovered evidence exception to the
PCRA timeliness requirement, evidence which was
unavailable at the time of trial and would have changed
the outcome of the trial. Attached to the petition was the
affidavit of Darryl Goodman (Goodman), a non-testifying
co-defendant whose trial had been severed from
[Appellant’s] trial, indicating that [Appellant] had been
falsely accused and wrongfully convicted for the crime that
he, Goodman, and now deceased Jerome Leggatt (Leggatt)
committed, namely the murder of [] Jones. [In his own
trial, Goodman was found guilty of third-degree murder
and criminal conspiracy.] In his affidavit, Goodman
claimed that, prior to [Appellant’s] trial, Leggatt killed
himself because of what he and Goodman had done in
robbing and killing Jones and [Appellant] being arrested
for a crime he did not commit. [Goodman] stated that he
saw [Appellant] during a hearing prior to [Appellant’s] trial
and told [Appellant] that he knew [Appellant] was innocent
because it was him and Leggatt who had committed the
crime, and would come forward to tell authorities but his
attorney advised [him] to invoke his 5th Amendment
privilege if he was called to testify at [Appellant’s] trial.
Goodman claimed that he was coming forward now
because it was weighing heavy on his conscious. Also
attached to [Appellant’s] petition was a certification from
Craig Hill (Hill), [Appellant’s] brother, indicating on August
31, 2011, he was contacted by Darryl Goodman who
provided him with the affidavit attached to [Appellant’s]
petition.
A hearing on [Appellant’s] after discovered evidence
claim was conducted on February 6, 2013. At the hearing,
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Hill testified that he was contacted by Goodman, met him
in West Philadelphia and picked up the affidavit which he
fowarded to [Appellant] approximately 19 days later. He
also testified that a family friend, Jeff Hart, contacted him
and gave him Goodman’s contact information and he set
up a meeting to pick up the affidavit. In addition, Hill
testified that [Appellant] told him maybe as early as 1996
that Goodman had information that could get him out of
jail, namely that [Goodman] knew that [Appellant] was
innocent because he had lied and had wrongly implicated
[Appellant] in the murder. Despite that he knew
Goodman’s family members and had actually spoken with
Goodman in the early 2000’s, Hill testified that he never
attempted to contact Goodman to see if he would come
forward with the information that could get [Appellant] out
of jail.
Darryl Goodman, who appeared at the evidentiary
hearing pursuant to [Appellant’s] subpoena, testified that,
on July 13, 1986, he and [Appellant] had planned to rob
Leggatt, however Leggatt reached in his pocket as if he
had a gun so they fled. He further testified that he was
arrested for the murder on December 28, 1988, and
extradited to Philadelphia from North Carolina, where he
had fled after the crime, on January 4, 1989. On that
date, he gave police an allegedly false statement that he
and [Appellant] conspired to rob and shoot Jones.
Goodman testified that he gave the statement implicating
[Appellant] as the shooter in the murder that he
committed with Leggatt because he regarded Leggatt as a
threat. Around the time of his arrest, [Goodman] learned
that Leggatt had killed himself. Goodman acknowledged
that he asserted in his affidavit that Leggatt killed himself
because [Appellant] had been arrested for what he and
Goodman had done in robbing and killing Jones.
Notwithstanding, Goodman testified that Leggatt had killed
himself because [Leggatt] owed Jones money and feared
that Jones [sic] would come after him. Goodman also
testified that in 1989, prior to [Appellant’s] trial, he saw
[Appellant] and told [Appellant] that it was he and Leggatt
who committed the crime. He conceded that, despite
having been released from prison in 2002, he made no
attempts to provide information that could have
exonerated [Appellant] until 2011. Additionally, Goodman
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testified that he used an alias as well as fake social
security numbers and birth dates in the past.
The Commonwealth presented Leggatt’s death
certificate indicating that Leggatt’s death occurred April 3,
1987, approximately eight months before Goodman was
arrested, when he jumped from a window while being
pursued by the police. Additionally, the Commonwealth
introduced evidence that, in 1991, Goodman filed for PCRA
relief alleging that his trial counsel was ineffective for
failing to call [Appellant] to testify as an alibi witness.
Following presentation of all the evidence, the arguments
of counsel and review of both counsels’ post-hearing
submissions, the Court determined that Goodman’s
testimony was incredible and that [Appellant] failed to
meet his burden in showing that his petition met the after-
discovered evidence exception to the PCRA timeliness
requirement. After proper notice, [Appellant’s] petition for
relief was formally dismissed on August 20, 2013.
PCRA Court Opinion, 1/8/14, at 1-5 (footnote omitted). This timely pro se
appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.
Appellant raises five issues on appeal. He states his first issue on
appeal as follows:
1. Did the PCRA Court [err] in finding the testimony of
Darryl Goodman, not credible and untimely while failing to
[apply] the appropriate statute of 42.Pa.C.S.A. [sic]
§9543(a)(2)(vi), after hearing Mr. Goodman, exonerate
Appellant during the evidentiary hearing?
Appellant’s Brief at 1 (underline in original).
This Court’s standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the evidence of
record and is free of legal error. Commonwealth v. Reaves, 923 A.2d
1119, 1124 (Pa. 2007). The PCRA court’s findings will not be disturbed
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unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Moreover, “[a] second or any subsequent post-conviction request for relief
will not be entertained unless a strong prime 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). “A petitioner makes a prime 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.
Generally, 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, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
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the date the claim first could have been presented.” Id. See also 42
Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the
PCRA must be pled in the petition, and may not be raised for the first time
on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
2007); see also Pa.R.A.P. 302(a) (“Issues not raised before the lower court
are waived and cannot be raised for the first time on appeal.”).
Appellant acknowledges that his PCRA petition is untimely, but asserts
that he timely filed the petition once he obtained new evidence. When
considering a PCRA petitioner’s claim that he or she has established an
exception to the PCRA’s time bar under section 9545(b)(1)(ii), the petitioner
must establish only that the facts upon which the claim was predicated were
unknown to him, and that he could not have ascertained the facts earlier
despite the exercise of due diligence. Commonwealth v. Bennett, 930
A.2d 1264, 1270-72 (Pa. 2007). The determination of timeliness does not
require a merits analysis. Commonwealth v. Abu-Jamal, 941 A.2d 1263,
1268 (Pa. 2008).
A petitioner is eligible for relief under the PCRA if he can establish the
“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.” 42 Pa.C.S.A. § 9543(a)(2)(vi). This Court
has explained the test to be applied to such a claim as follows:
To obtain relief based on after-discovered evidence, an
appellant must demonstrate that the evidence: (1) could
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not have been obtained prior to the conclusion of the trial
by the exercise of reasonable due diligence; (2) is not
merely corroborative or cumulative; (3) will not be used
solely to impeach the credibility of a witness; and (4)
would likely result in a different verdict if a new trial were
granted.
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (citation
omitted). “The test is conjunctive; the appellant must show by a
preponderance of the evidence that each of these factors has been met in
order for a new trial to be warranted.” Id. Moreover, “when reviewing the
decision to grant or deny a new trial on the basis of after-discovered
evidence, an appellate court is to determine whether the PCRA court
committed an abuse of discretion or error of law that controlled the outcome
of the case.” Id.
Here, the PCRA court dismissed Appellant’s PCRA on two bases.
Initially, the PCRA court found that Appellant did not establish the “after-
discovered evidence” exception to the PCRA’s time bar. According to the
PCRA court, Appellant did not establish that “the facts upon which the claim
is predicated were unknown to [him] and could not have been ascertained
by the exercise of due diligence[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii). The
PCRA court explained:
Appellant claims that the affidavit submitted by co-
conspirator Darryl Goodman indicating that [Appellant] is
innocent because he, and now deceased [] Leggatt,
actually committed the robbery and murder, is newly
discovered evidence sufficient to overcome the PCRA
requirement that a petition must be filed within one year of
the date the judgment became final. However, Goodman
testified that he told [Appellant] before [Appellant’s] trial,
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around 1989, that he knew [Appellant] was innocent
because he and Leggatt had committed the crime. He also
testified that, after he was released from jail in 2002, he
spoke with [Appellant’s] brother, but did not [inform him
of Appellant’s] innocence. Appellant’s brother testified that
he knew that Goodman had lied about [Appellant’s]
involvement in the crimes because [Appellant] told him
and that he had seen Goodman around 2005, but did not
ask him to come forward with the information.
PCRA Court Opinion, 1/8/14, at 6-7 (citations omitted). Secondly, the PCRA
Court found that the testimony from Hill and Goodman “lacked credibility.”
Id. at 7.
Our review of the record supports the trial court’s conclusions. We
agree with the PCRA court that Appellant failed to establish due diligence by
a preponderance of the evidence. See, generally, Commonwealth v.
Johnson, 945 A.2d 185 (Pa. Super. 1998). At best, Goodman’s affidavit
constituted “a newly discovered or newly willing source for previously known
facts.” Commonwealth v. Marshall, 947 A.2d 714, 721 (Pa. 2008).
Additionally, when, as here, the PCRA court’s determination of credibility is
supported by the record, it cannot be disturbed on appeal. Commonwealth
v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999).
In his remaining issues, Appellant asserts PCRA counsel’s
ineffectiveness. Unfortunately for Appellant, he inappropriately has raised
these claims for the first time on appeal. See Commonwealth v. Ford, 44
A.3d 1190, 1200 (Pa. Super. 2012) (noting that a majority of the
Pennsylvania Supreme Court agrees that issues of PCRA counsel
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ineffectiveness must be raised in a serial PCRA petition or in response to a
Pa.R.Crim.P. 907 notice of dismissal before the PCRA court). Appellant has
therefore failed to preserve his remaining issues.
In sum, the record supports the PCRA court’s conclusion that Appellant
failed to establish his claim of after-discovered evidence, and his claims of
ineffectiveness of PCRA counsel are not preserved. We thus affirm the PCRA
court’s order denying Appellant’s PCRA petition as untimely filed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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