Com. v. Williams, G. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GEORGE WILLIAMS
Appellant No. 2523 EDA 2014
Appeal from the PCRA Order August 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0419612-1990
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 14, 2015
George Williams appeals pro se from the order entered in the Court of
Common Pleas of Philadelphia County, dated August 18, 2014, dismissing
his petition and supplemental petition filed pursuant to the Post Conviction
Relief Act (“PCRA”)1 as untimely. We affirm.
The PCRA court set forth the factual and procedural history of the
matter as follows:
[Williams] was found guilty after a jury trial of second degree
murder, robbery, and possession of an instrument of crime on
December 27, 1991, before the Honorable Judge John J.
Poserina, Jr. On April 8, 1994, [Williams] was sentenced by
Judge Poserina to serve a life sentence. After [Williams] filed his
timely appeal, the Superior Court affirmed the judgment of
sentence on December 21, 1994. No further appeal was filed.
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1
42 Pa. C.S. §§ 9541-9546.
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[Williams] filed his first pro se post conviction relief petition on
March 4, 1995. Thereafter counsel was appointed, and the
petition was dismissed after his appointed counsel filed a “no
merit” letter pursuant to [Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988).] The Superior Court affirmed the dismissal
on November 24, 1997, and the Supreme Court denied allocatur
on August 17, 1998.
[Williams] filed his second post conviction petition on March 28,
2006, and the petition was dismissed as untimely on June 21,
2007. [Williams] then filed his third post conviction petition on
May 5, 2008, and the petition was dismissed as untimely on
February 17, 2009. The Superior Court affirmed the dismissal
on October 8, 2009 and the Supreme Court denied allocatur on
May 19, 2010.
Prior to the denial of allocatur, [Williams] filed a petition for re-
argument in the Superior Court, which denied the petition on
December 10, 2009. Subsequent thereto, on July 30, 2010,
[Williams] filed a Writ of Certiorari to the United States Supreme
Court which denied it on October 4, 2010. [Williams] filed his
fourth post conviction petition on August 24, 2010, which was
denied. The Superior Court affirmed the dismissal on December
14, 2012, and the Supreme Court denied allocatur on September
24, 2013.
[Williams] filed his current post conviction petition on August 15,
2012, and a supplemental petition on July 16, 2013. After
conducting an extensive and exhaustive review of the record and
applicable case law, this [c]ourt determined that [Williams’]
petition and supplemental petition seeking post conviction
collateral relief were untimely field. Therefore, this [c]ourt did
not have jurisdiction to consider Williams’ PCRA petition.
PCRA Court Opinion, 11/24/14, at 1-2.
On March 26, 2014, the PCRA court issued a notice of its intention to
dismiss Williams’ August 15, 2012 petition and July 16, 2013 supplemental
petition (collectively the “PCRA petition”) without a hearing. See
Pa.R.Crim.P. 907(1). Williams filed a pro se response on April 4, 2014. On
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August 18, 2014, the PCRA court entered an order dismissing the PCRA
petition.2 The PCRA court subsequently filed a supporting opinion on
November 24, 2014.
In his timely pro se appeal, Williams raises the following issues for our
review, verbatim:
I. Whether the PCRA court erred in finding that [Williams’]
8/15/12 and 7/16/13 PCRA petitions are untimely filed
when both petitions were: a) filed within 60 days of their
discovery; b) predicated on information previously
unknown and couldn’t be discovered any earlier by the use
of due diligence; c) 8/15/12 petition was based upon
recent rulings rendered in Miller v. Alabama3 and
Commonwealth v. Knox;4 and d) properly pled
exceptions as required by the filing statute?
II. Whether the PCRA court erred in not holding a hearing on
[Williams’] 7/16/13 petition that was based upon an
affidavit of Commonwealth witness Kevin M. Lewis and the
after-discovered evidence[, consisting of several 75-48
police reports, including one by Coroner Block,] which
shows that [Williams] did not search the pockets of Mr.
Fleming for money after the shooting and killing of Mr.
Fleming by an alleged codefendant and that [Williams] is
therefore convicted of a crime that he did not commit?
Appellant’s Brief, at v.
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2
It appears that the PCRA court issued two identical orders dismissing the
PCRA petition, one dated August 18, 2014, and one dated August 25, 2014.
Williams’ notice of appeal was filed August 26, 2014, and references the
order of August 18, 2014.
3
Miller v. Alabama, 132 S.Ct. 2455 (2012).
4
Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012).
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Our standard and scope of review for the denial of a PCRA petition is
well-settled. We review the PCRA court’s findings of fact to determine
whether they are supported by the record, and review its conclusions of law
to determine whether they are free from legal error. Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our 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 trial level. Id.Before we may consider the merits of Williams’ claims, we must
consider whether this appeal is properly before us.
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S. § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by
[the Pennsylvania Supreme] Court or the United States Supreme
Court, or at the expiration of the time for seeking such review.
42 Pa.C.S. § 9545(b)(3). The PCRA's timeliness requirements
are jurisdictional; therefore, a court may not address the merits
of the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. The PCRA
squarely places upon the petitioner the burden of proving an
untimely petition fits within one of the three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and
footnote omitted).
Williams was sentenced to serve a life sentence on April 8, 1994. This
Court affirmed the judgment of sentence on December 21, 1994, and
Williams did not seek allowance of appeal. Thus, Williams’ judgment of
sentence became final on January 20, 1995, when his time to seek
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allowance of appeal expired. See Pa.R.A.P. 1113. Williams had one year
from that date to file a PCRA petition, specifically, until January 20, 1996.
However, Williams filed the instant PCRA petition on August 15, 2012, and
filed a supplemental petition on July 16, 2013, such that the PCRA petition is
untimely on its face. Thus, the PCRA court lacked jurisdiction to review the
PCRA petition unless Williams pleaded and proved one of the statutory
exceptions to the time-bar.
The three statutory exceptions for an untimely petition under the PCRA
consist of the following:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, a petition invoking a timeliness
exception pursuant to the statute must “be filed within 60 days of the date
the claim could have been presented.” Id. at § 9545(b)(2).
Williams’ first PCRA claim invokes the newly-recognized constitutional
right exception in section 9545(b)(1)(iii); Williams bases his claim upon the
holding in Miller v. Alabama, 132 S.Ct. 3455, decided on June 25, 2012.
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Williams filed his PCRA petition on August 15, 2012, within sixty days of the
Miller decision. The holding in Miller provides that a sentence of life
imprisonment without the possibility of parole is an unconstitutional
sentence when imposed upon juveniles convicted of murder. Id. See
Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. 2012) (applying the
Miller holding in a Pennsylvania case). However, despite providing a new
constitutional right with respect to sentencing, Miller does not apply
retroactively. See Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
cert. denied sub nom. Cunningham v. Pennsylvania, 134 S.Ct. 2724(2014).
Moreover, the Miller holding is specifically limited to juveniles under
eighteen years of age at the time they committed murder. See Miller, 132
S.Ct. at 2460; Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super.
2013) (refusing to extend Miller to individuals eighteen years of age or
older at time murder committed). In the instant matter, Williams was over
the age of eighteen at the time he committed the crimes for which he was
convicted of murder. Thus, the holding in Miller is wholly inapplicable to
Williams’ case, and Williams has failed to plead and prove a timeliness
exception with respect to this claim.
Williams’ second PCRA claim is asserted in his supplemental petition,
filed July 16, 2013. Williams invokes the newly-discovered evidence
exception in section 9545(b)(1)(ii). Williams provides two separate types of
newly-discovered evidence. First, Williams asserts that three police reports,
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including one completed by Coroner Block, were withheld at earlier stages of
the proceedings and contain exculpatory information. However, the police
reports Williams mentions were provided to Williams on February 3, 2006,
and he filed a PCRA petition based on the contents of the police reports on
March 28, 2006. That petition was Williams’ second, and it ultimately was
dismissed as untimely on June 21, 2007. As the police reports have been in
Williams’ possession for nearly a decade and have already been considered
within the context of a PCRA petition, the police reports do not constitute
newly-discovered evidence and Williams’ claims regarding the police reports
are not timely.
Next, Williams provides an affidavit of Kevin M. Lewis, an eye-witness
to the killing. Williams asserts that the affidavit indicates that he, the
appellant, did not search the victim’s pockets for money after a codefendant
shot the victim, despite the testimony of another codefendant, Alvin Morgan,
indicating that Williams had searched the victim’s pockets. Williams claims
that the Commonwealth used his alleged search of the victim’s pockets as
“the overt act that sustained [his] conviction for second degree murder and
robbery as an accomplice.” Appellant’s Brief, at 16. Accordingly, Williams
claims that he was wrongly convicted and that the instant PCRA is timely
filed because Lewis did not prepare his exculpatory affidavit until May 28,
2013.
As to the contents of Lewis’ affidavit, Williams has the burden of
demonstrating that he could not have previously discovered the information
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in Lewis’ affidavit through the exercise of due diligence. 42 Pa.C.S. §
9545(b)(1)(ii). “Due diligence demands that the petitioner take reasonable
steps to protect his own interests. A petitioner must explain why he could
not have obtained the new fact(s) earlier with the exercise of due diligence.
This rule is strictly enforced.” Commonwealth v. Monaco, 996 A.2d 1076,
1080 (Pa. Super. 2010) (citations omitted). Moreover, the focus of the
exception is “on the newly discovered facts, not on a newly discovered or
newly willing source for previously known facts.” Commonwealth v.
Johnson, 863 A.2d 423, 427 (Pa. 2004).
Lewis testified on behalf of the Commonwealth at trial. In his affidavit,
however, he seems to indicate that he was pressured into this testimony by
the prosecutor and that his testimony changed from his original recollection
to become more favorable to the Commonwealth.5 Lewis indicates that he
provided his testimony at trial because he was concerned that if he did not,
he would be arrested and would lose a college basketball scholarship. Lewis
seems to indicate that his trial testimony merely placed Williams at the
crime scene; the affidavit, however, expands upon this to indicate that
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5
Lewis’ affidavit is difficult to comprehend and what Lewis attempts to
express is not entirely clear in places. Additionally, as the PCRA court noted,
Lewis “was recently convicted of first-degree murder and sentenced to life
imprisonment thereby giving him nothing to lose by fabricating the
information in his affidavit.” PCRA Court Opinion, 11/24/14, at 6.
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though Williams was present, he did not say anything, did not touch the
victim or search the victim’s pockets, and did not have a weapon.
Williams obtained Lewis’ affidavit more than twenty years after
Williams was convicted. Williams was aware the entire time that Lewis had
been present at the crime scene. Williams nevertheless asserts that he
could not have obtained Lewis’ observations sooner, though he provides no
concrete reason why this is so. In fact, Williams did nothing regarding
Lewis’ observations until Lewis provided Williams with his affidavit.
Accordingly, Williams fails to show due diligence or that he took reasonable
steps to protect his interests. Monaco, supra. See also, e.g.,
Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013) (holding PCRA claim
regarding new evidence untimely since defendant failed to articulate reasons
for failing to interview witnesses and obtain information sooner).
However, in support of his claim that he could not have determined
the information sooner, Williams cites to a recent en banc decision by this
Court, Commonwealth v. Medina, 92 A.3d 1210 (Pa. Super. 2014) (en
banc), appeal granted, Commonwealth v. Medina, 105 A.3d 658 (Pa.
2014).6
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6
Among other things, the issues raised on appeal include whether the Court
erred in deeming a PCRA petitioner duly diligent in pursuing his claim despite
failing to speak with the recanting witness for fourteen years, and whether
the Court erred in determining that the recantation evidence would have
changed the verdict in the matter.
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Medina specifically considered recantation testimony in the context of
a PCRA petition. This Court held that Medina’s PCRA petition was timely
based upon the newly-discovered fact exception to the time-bar even though
the petition was filed years beyond the deadline to file a timely petition. The
facts involved a witness relied upon by the Commonwealth at trial, who later
recanted and indicated that the Commonwealth had coerced him into
testifying against Medina. This Court determined that the record supported
the PCRA court’s determination that petitioner could not have previously
discovered the source of prosecution witness’ recantation, or the recantation
itself, through the exercise of due diligence. Id. at 1217-18 (noting that
witness “testified consistently and unequivocally at trial that [Medina]
wielded a knife shortly before the murder and stated that he was going to
kill someone. As such, it was highly unlikely that defense counsel, without
any supporting factual basis, could have compelled [the witness] to change
his testimony during cross-examination, by engaging in a fishing expedition
as to why [the witness] was lying.”).
Because the Medina Court considered the petition timely, the decision
involved whether a new trial was properly granted based upon after-
discovered evidence. Id. at 1218. In determining whether a new trial
should be granted based on newly-discovered evidence, it is the PCRA
petitioner’s burden to
[d]emonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
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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. Pagan, 950 A.2d 270, 292 (Pa. 2008).
In Medina, the Commonwealth argued that only the fourth prong in
Pagan was not satisfied. The Court, however, held that a different verdict
was likely because the witness’ recantation testimony not only repudiated
his own trial testimony implicating the petitioner in a stabbing death, it
directly contradicted the only eyewitness account which was made by a
witness lacking in credibility. The Court found that if a jury believed the
recantation testimony, “the Commonwealth would be left with shaky
circumstantial proof.” Medina, 92 A.3d at 1220.
Here, however, while Williams attempts to label Lewis’ affidavit as
“recantation,” Williams also states that Lewis did not directly recant his trial
testimony.7 See Brief for Appellant, at 18. Further, even if Lewis’ affidavit
were considered to recant his trial testimony, Medina is distinguishable from
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7
Unfortunately, the notes of testimony Williams’ trial proceedings appear to
have been lost permanently, as they are unable to be located and a
memorandum within the record indicates an attorney who previously
represented Williams had the notes of testimony and refused to return them.
While some citations to the notes of testimony exist in the record, they are
not available in their entirety for us to compare with Lewis’ affidavit. Even
so, Lewis’ affidavit itself seems to indicate that his testimony was used
merely to place Williams at the crime scene. Under these circumstances, it
cannot be said that Lewis’ affidavit contradicts his trial testimony.
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the instant matter because the contents of Lewis’ affidavit would not result
in a different verdict if a new trial were granted.
In the instant matter, the Commonwealth had at least one other
eyewitness, Alvin Morgan, who testified to Williams’ presence and actions at
the crime scene. No argument has been raised demonstrating that Morgan
was not credible in his testimony against Williams. Unlike the circumstances
in Medina, the Commonwealth would not be left with merely “shaky”
circumstantial evidence. Additionally, because Moore testified to Williams’
presence and participation in the crime, Lewis’ testimony was cumulative at
the trial. We also note the PCRA court’s skepticism regarding Lewis’
credibility, and we find that if Lewis’ proffered his testimony at this late date
it would not change the outcome of the matter.
Furthermore, because an apparently credible witness implicated
Williams for his involvement in the crime and Lewis’ affidavit is an inherently
suspect piece of evidence, we find that Williams has not satisfied his burden
of providing a strong prima facie showing that a miscarriage of justice
occurred. See Commonwealth v. Hawkins, 598 Pa. 85, 91, 953 A.2d
1248, 1251 (2006) (holding that second or subsequent request for relief
under the PCRA will not be entertained without strong case for miscarriage
of justice). See Medina, 92 A.3d at 1224 (Gantman, P.J., dissenting).
Thus, Williams is not entitled to a new trial based upon newly-
discovered evidence, and the PCRA court was therefore not required to hold
an evidentiary hearing prior to dismissing the PCRA petition. See
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Commonwealth v. Neal, 713 A.2d 657, 660 (Pa. Super. 1998) (right to
evidentiary hearing in PCRA context is not absolute; where PCRA petitioner
is not entitled to relief, the court may dismiss a PCRA petition without
conducting an evidentiary hearing). Therefore, we affirm the order
dismissing Williams’ PCRA petition, albeit on different grounds than the PCRA
court.8
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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8
“This Court may affirm the trial court’s decision on any basis supported by
the record.” Commonwealth v. Barren, 74 A.3d 250, 254 (Pa. 2013)
(citation omitted).
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