Com. v. Harris, L. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LORENZO HARRIS,
Appellant No. 782 WDA 2017
Appeal from the PCRA Order Entered April 27, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009422-1998
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 21, 2019
Appellant, Lorenzo Harris, appeals pro se from the post-conviction
court’s April 27, 2017 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we vacate the court’s order and remand for further proceedings.
On February 16, 2000, a jury convicted Appellant of rape, 18 Pa.C.S. §
3121; terroristic threats, 18 Pa.C.S. § 2706; unlawful restraint, 18 Pa.C.S. §
2902; and possessing an instrument of crime, 18 Pa.C.S. § 907. The trial
court also convicted Appellant of persons not to possess a firearm, 18 Pa.C.S.
§ 6105. Appellant’s convictions stemmed from his sexual assault of a female
guest at his residence in Pittsburgh on May 4, 1998. The victim testified at
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* Retired Senior Judge assigned to the Superior Court.
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trial that Appellant, whom she had met one time before this incident, pointed
a gun at her and forced her to engage in sexual intercourse with him. See
N.T. Trial, 2/14-2/16/00, at 126-33. The Commonwealth also presented the
testimony of Walter Lorenz, a criminalist for the Allegheny County Coroner’s
Office. Lorenz testified that he compared semen samples taken from the
victim’s clothing to DNA from a blood sample provided by Appellant. Id. at
224-25. Lorenz opined “that the DNA profile found in [the semen] stains
matches the DNA profile of [Appellant] and that because of that, he cannot be
excluded as a potential donor of that DNA.” Id. at 228. Lorenz further
explained:
[Lorenz:] [I]n this case we found a match of DNA between
[Appellant] and the sperm fractions of the stains. This means that
either it could be from [Appellant] or it could be from an individual
with the same DNA profile. We cannot exclude that particular
possibility.
Now, I can give you about how many people might be
expected to have that same kind of DNA profile from our analysis
of the populations and from what we’ve seen in Allegheny County.
…
In Caucasians in the white population, you would expect to
see that DNA profile in one in about three million individuals; and
in the African-American population, you would expect to see this
in about 1 in 1,690 individuals. It’s [a] relatively common DNA
profile.[1]
[The Commonwealth:] However, [Appellant] cannot be excluded
in the DNA analysis of his DNA?
[Lorenz:] That is correct.
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1 The certified record indicates Appellant is a black male.
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Id. at 230-31.
Based on this evidence, the jury and the court convicted Appellant of
the above-stated crimes. On August 7, 2000, the court sentenced Appellant
to 18½ to 37 years’ imprisonment. This Court affirmed his judgment of
sentence on February 17, 2004. See Commonwealth v. Harris, 849 A.2d
605 (Pa. Super. 2004) (unpublished memorandum). Appellant did not appeal
to our Supreme Court.
On March 2, 2004, Appellant filed his first PCRA petition, which was
ultimately denied. He did not appeal. On January 3, 2005, he filed a second
petition, which was denied on August 8, 2005. This Court affirmed on appeal,
and our Supreme Court denied Appellant’s petition for allowance of appeal.
See Commonwealth v. Harris, 913 A.2d 941 (Pa. Super. 2006)
(unpublished memorandum), appeal denied, 921 A.2d 495 (Pa. 2007).
Appellant filed a third PCRA petition on May 3, 2007, which the PCRA court
denied on December 19, 2007. Appellant did not appeal.
On September 13, 2016, Appellant filed the pro se PCRA petition
underlying the present appeal. Therein, he alleged that in August of 2016, he
had blood work done, which revealed he has sickle cell disease. Appellant
claimed that this new fact of his disease demonstrates that it was not his DNA
on the victim’s clothing. He further alleged that the Commonwealth’s DNA
expert, Walter Lorenz, must have known about Appellant’s disease and that
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the Commonwealth committed a Brady2 violation by withholding this evidence
from Appellant.
On March 8, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of
its intent to dismiss that petition, stating (without any elaboration) that it
“lacks jurisdiction in regard to the above-captioned case[].” Rule 907 Notice,
3/8/18 (single page). Appellant did not respond. On April 27, 2017, the PCRA
court issued an order denying Appellant’s petition without any explanation of
the basis for that decision. The order informed Appellant that he had 30 days
to file a notice of appeal. Because 30 days from April 27, 2017, was Saturday,
May 27, 2017, and Memorial Day was Monday, May 29, 2017, Appellant’s
notice of appeal was due on Tuesday, May 30, 2017. See 1 Pa.C.S. § 1908;
see also Pa.R.A.P. 903(a) (stating that a notice of appeal must be filed within
thirty days after the order appealed from is entered). Appellant’s notice of
appeal was time-stamped and docketed on June 1, 2017.
On June 6, 2017, the PCRA court issued an order directing Appellant to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
by June 30, 2017. Appellant’s Rule 1925(b) statement was time-stamped and
docketed on July 10, 2017. On November 21, 2017, the PCRA court issued a
Rule 1925(a) opinion concluding that Appellant’s notice of appeal was
untimely and his appeal should be quashed. The PCRA court offered no
discussion as to why it denied Appellant’s petition.
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2 Brady v. Maryland, 373 U.S. 83 (1963).
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On August 22, 2018, this Court issued a memorandum decision
remanding Appellant’s case for the PCRA court to conduct a hearing to
determine if Appellant’s pro se notice of appeal and Rule 1925(b) statement
were timely-filed pursuant to the ‘prisoner mailbox rule.’ 3 On August 30,
2018, the PCRA court entered an order stating that those documents were
timely filed under the prisoner mailbox rule, and that no hearing was
necessary. The order also declared that a Rule 1925(a) opinion would “be
forthcoming.” PCRA Court Order, 8/30/18 (single page).
Unfortunately, the PCRA court failed to file any such opinion. On
January 4, 2019, this Court issued a per curiam order again directing the PCRA
court to file an opinion, and stating that the court must do so within 30 days.
Again, the PCRA court did not adhere to our order and, to date, it has not filed
a Rule 1925(a) opinion. Consequently, we decline to delay the disposition of
Appellant’s case any longer, and we will proceed to address Appellant’s claims
without the court’s input.4
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3 See Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011)
(“Under the prisoner mailbox rule, we deem a pro se document filed on the
date it is placed in the hands of prison authorities for mailing.”).
4 We also observe that in its brief, the Commonwealth only argues that
Appellant’s appeal should be quashed as untimely. The Commonwealth
provides no discussion of the merits of Appellant’s challenge to the PCRA
court’s dismissal of his petition.
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In Appellant’s pro se brief to this Court, he sets forth five issues for our
review in the Statement of the Questions Involved section of his brief. See
Appellant’s Brief at 4 (unnumbered).5 However, Appellant’s Argument section
does not include issues that align with those set forth in his Statement of the
Questions Involved. Instead, Appellant’s Argument section contains the
following, single issue, and multiple subparts thereto:
I. Appellant … is entitled to post-conviction relief based upon
the new fact of his secretor status, DNA Sickle Cell Trait,
Discease [sic][.]
A. Appellant[’s] … claims are timely[.]
B. These facts were unknown to Appellant[.]
C. The Commonwealth failed to disclose favorable evidence
in violation of Brady and Giglio[.6]
D. The [Commonwealth] suppressed exculpatory
evidence[.]
E. The Commonwealth failed to correct misleading trial
testimony in violation of Giglio[.]
F. Appellant exercised due diligence[.]
G. The PCRA court failed to ensure compliance with its order
commanding a thorough search for DNA evidence[.]
Appellant’s Brief at 15-25 (unnecessary capitalization omitted)
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
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5Appellant drafted his brief such that each page sets forth two, smaller pages.
When referring to page numbers, we count each smaller page individually.
6 Giglio v. U.S., 405 U.S. 150 (1972).
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by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007). Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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:
(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on March 18, 2004
at the expiration of the thirty-day time period for seeking review of his
judgment of sentence with the Pennsylvania Supreme Court. See 42 Pa.C.S.
§ 9545(b)(3) (stating that a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review); Pa.R.A.P. 1113(a) (directing that “a petition for allowance of appeal
shall be filed with the Prothonotary of the Supreme Court within 30 days of
the entry of the order of the Superior Court sought to be reviewed”).
Consequently, his present petition is patently untimely and, for this Court to
have jurisdiction to review the merits thereof, Appellant must prove that he
meets one of the exceptions to the timeliness requirements set forth in 42
Pa.C.S. § 9545(b).
Instantly, Appellant argues that he meets both the after-discovered fact
and the governmental interference exceptions based on his discovery, in
August of 2016, that he has sickle cell disease. Appellant claims that the fact
that he has this disease proves that he could not have been the contributor of
semen samples found on the victim’s clothing. Appellant also argues that
Lorenz must have known about Appellant’s sickle cell disease based on the
DNA tests he conducted in this case, and that Lorenz and the Commonwealth
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committed a Brady violation by withholding this exculpatory information from
the defense.
Appellant further asserts that after Lorenz testified at trial, he
“requested an investigation into his DNA report[,]” but his trial counsel failed
to “request [that] any test[ing be] done” or “seek to have an expert [testify
in] favor of [Appellant’s] defense….” Appellant’s Brief at 13. Appellant argues
that his efforts to obtain further testing of his blood demonstrate his due
diligence in discovering his sickle cell disease. He further explains that it was
not until August of 2016, when he began having weakness in his legs, as well
as dizziness and headaches, that his doctor ordered blood tests that revealed
his disease. Appellant insists that he could not have discovered this fact
earlier, as he had no symptoms that indicated his blood should be tested.
Therefore, Appellant concludes that he has met the newly-discovered fact
exception to the PCRA’s time-bar, and that a hearing to review the merits of
his claim is warranted. Additionally, Appellant alleges that Lorenz (and, thus,
the Commonwealth) must have known - based on Lorenz’s DNA testing - that
Appellant has sickle cell disease, yet they failed to disclose that fact to
Appellant prior to trial. Consequently, Appellant concludes that the
Commonwealth committed a Brady violation and, thus, he has also satisfied
the governmental interference exception.
We agree with Appellant that he has satisfied the newly-discovered fact
exception. Appellant asserted in his petition that he had blood tests done on
August 8, 2016, which first revealed that he suffers from sickle cell disease.
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On September 13, 2016, he filed the present, pro se petition premised on his
discovery of this new fact. Therein, Appellant averred that he acted with due
diligence in raising this claim as soon as he received this diagnosis, which
arose from blood tests conducted after he exhibited physical symptoms of
muscle weakness, dizziness, and headaches. On appeal, Appellant adds that
he asked his trial counsel to seek further testing of his blood sample, but
counsel did not comply with that request. In light of this record, we conclude
that Appellant has demonstrated that he exercised due diligence in discovering
a new fact that was previously unknown to him.
Therefore, we vacate the PCRA court’s order denying Appellant’s petition
as untimely. We remand for the court to appoint Appellant counsel, and to
conduct a hearing on the merits of his after-discovered evidence claim, as well
as his related allegation that the Commonwealth committed a Brady
violation.7 At that proceeding, Appellant must present evidence regarding
why the presence of his sickle cell disease affected (or may have affected) the
DNA results that were admitted at his trial.
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7 On December 24, 2018, Appellant filed a document entitled, “Ruquest [sic]
to Submit Ciations [sic] Opinions Above.” It is unclear what relief Appellant
seeks in that petition. Thus, we deny it.
Additionally, on February 28, 2019, Appellant filed an “Application for
Remand and for the Appointment of a Substitute Judge,” and on March 11,
2019, he filed an “Application for Relief.” In both petitions, Appellant
essentially complains about the PCRA court’s failure to comply with this Court’s
orders directing it to file a Rule 1925(a) opinion, and he asks that we vacate
the court’s order, remand, and appoint a new judge to this case. In light of
our disposition, we deny these petitions as moot, without prejudice to
Appellant’s right to seek the recusal of the current judge on remand.
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Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2019
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