Com. v. Freeman, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES FREEMAN :
:
Appellant : No. 1516 EDA 2022
Appeal from the PCRA Order Entered May 17, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004824-2013
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 28, 2023
Charles Freeman appeals from the order entered May 17, 2022,
dismissing his second petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”) as untimely. We affirm.
On May 5, 2013, Appellant, Rasheed Teel, Ander Collier, and Omar
Miller, robbed, shot, and killed Kareem Borowy in Montgomery County,
Pennsylvania. On May 9, 2013, Teel was interviewed by detectives, at which
time he identified Appellant as the driver of the getaway vehicle. Appellant
was arrested and charged with homicide and related offenses. Teel pled guilty
to third-degree murder and agreed to testify for the Commonwealth against
his co-conspirators.
Appellant, Collier, and Miller proceeded to a joint trial at which the
Commonwealth presented numerous witnesses, including Teel. The jury
convicted Appellant of second-degree murder, robbery, kidnapping,
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conspiracy to commit kidnaping, and conspiracy to commit robbery. The trial
court sentenced Appellant to life imprisonment without the possibility of
parole. Post-sentence motions were denied and Appellant timely appealed.
On December 2, 2015, this Court affirmed his judgment of sentence. See
Commonwealth v. Freeman, 128 A.3d 1231 (Pa.Super. 2015). Appellant
did not seek review with the Pennsylvania Supreme Court.
On July 7, 2016, Appellant filed a timely pro se PCRA petition raising
eight issues. In his seventh and eighth issues, Appellant alleged that the
Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by not
notifying him that Teel had sustained a serious brain injury from a gunshot
wound before Appellant’s trial which allegedly rendered Teel incompetent to
testify, and that his trial counsel was ineffective for failing to investigate Teel’s
competence. The PCRA court appointed counsel, who submitted a no-merit
letter pursuant to Commonwealth v. Turner, 544 A.2d 213 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
Appellant filed a response to counsel’s no-merit letter and counsel filed a
petition to withdraw. After conducting an independent review of the record,
the PCRA court granted PCRA counsel’s petition to withdraw, but appointed
new counsel, finding that Appellant was entitled to a court-appointed attorney
to investigate the factual questions raised in his seventh and eighth issues.
New counsel filed an amended petition, reiterating claims seven and
eight from Appellant’s pro se petition. In the amended petition, Appellant
asserted that he had discussed Teel’s gunshot wound with trial counsel before
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trial, therefore, counsel should have been aware that an investigation into
Teel’s competence was needed. See Amended PCRA Petition, 7/18/17, at
unnumbered ¶¶ 17(a), (b). The Commonwealth subsequently filed its answer.
After providing Pa.R.Crim.P. 907 notice, the PCRA court denied Appellant’s
petition without a hearing. On appeal, this Court affirmed the PCRA court’s
denial of Appellant’s petition. See Commonwealth v. Freeman, 200 A.3d
587 (Pa.Super. 2018) (unpublished memorandum). Specifically, this Court
found that Appellant had waived his Brady claim due to a failure to raise the
claim previously, despite his pre-trial awareness that Teel had sustained a
gunshot wound to his head. This Court also concluded that Appellant’s
attorney was not ineffective because, even if the jury had believed Teel’s
testimony to be unreliable, the evidence of Appellant’s guilt was
overwhelming. Id. at *7-8. Appellant filed a petition of allowance of appeal,
which the Pennsylvania Supreme Court denied. See Commonwealth v.
Freeman, 210 A.3d 943 (Pa. 2019).
On February 2, 2022, Appellant pro se filed a second PCRA petition,
which is the subject of this appeal. Therein, Appellant repeated his earlier
arguments that the Commonwealth committed a Brady violation when it
failed to disclose Teel’s medical history, and his counsel was ineffective for
failing to investigate the same. Appellant again admitted that he was aware
of the gunshot wound pre-trial but claimed that he had newly discovered
evidence in the form of Teel’s sentencing transcript, which revealed that the
gunshot wound had impacted Teel’s competence and the Commonwealth was
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aware of that fact at Teel’s sentencing hearing.1 See PCRA Petition, 2/2/22,
at unnumbered 5-6. Appellant explained that he learned these facts after the
attorney representing him on a federal habeas corpus matter received a copy
of Teel’s sentencing transcript on October 21, 2021. Id. After issuing Rule
907 notice and allowing Appellant to amend his petition, the PCRA court found
the petition did not meet any of the statutory exceptions to the time bar and
dismissed the petition. This appeal followed.
Appellant raises the following issues for our review:
1. Did the PCRA court err when it ruled that [Appellant’s]
claims were not predicated on newly[-]discovered facts?
2. Did the PCRA court err when it ruled that [Appellant] failed
to plead interference by government officials?
Appellant’s brief at 1.
Our standard of review of a PCRA court’s dismissal of a PCRA petition
“is limited to ascertaining whether the evidence supports the determination of
the PCRA court and whether the ruling is free of legal error.” Commonwealth
v. Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). “It is an appellant’s
burden to persuade us that the PCRA court erred and that relief is due.”
Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)
(cleaned up). Instantly, the PCRA court dismissed Appellant’s petition on the
grounds that it was untimely filed. As neither the PCRA court nor this Court
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1 Teel was sentenced on June 27, 2014, three days after Appellant was
sentenced.
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has jurisdiction to entertain an untimely petition, we begin by addressing this
threshold issue. See Commonwealth v. Ballance, 203 A.3d 1027, 1030-31
(Pa.Super. 2019).
All PCRA petitions, including second or subsequent petitions, must be
filed within one year of the date that the underlying judgment of sentence
becomes final. See 42 Pa.C.S. § 9545(b)(1). The PCRA statute provides that
“a judgment becomes final at the conclusion of direct review, . . . or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
Appellant’s petition, filed more than five years after his judgment of
sentence became final, is patently untimely. Consequently, Appellant had the
burden to plead and prove one of the three enumerated exceptions to the
PCRA time-bar outlined in 42 Pa.C.S. § 9545(b)(1)(i-iii), before the PCRA
court had jurisdiction to consider the merits of any of his claims. In this
respect, the PCRA statute provides as follows:
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
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(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). A petitioner invoking one of these exceptions must
file a petition “within one year of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2). In the case sub judice, Appellant
invoked the newly-discovered facts and governmental interference
exceptions. See Appellant’s brief at 15; see also Amended PCRA Petition,
3/23/22, at 8-9.
The newly-discovered fact exception set forth at § 9545(b)(1)(ii) has
two components which must be alleged and proven as an initial jurisdictional
threshold. See Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa.Super.
2019). Namely, the petitioner must establish that: (1) the facts upon which
the claim was predicated were unknown; and (2) they could not have been
ascertained by the exercise of due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii);
see also Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).
“Due diligence demands that the petitioner take reasonable steps to protect
his own interests” and explain why he could not have learned the new facts
earlier with the exercise of due diligence. Commonwealth v. Burton, 121
A.3d 1063, 1069 (Pa.Super. 2015).
The governmental interference exception permits adjudication of the
substance of an otherwise untimely PCRA petition if the petitioner pleads and
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proves that “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[.]” 42 Pa.C.S. § 9545(b)(1)(i). In other words,
Appellant was required to show that but for the interference of a government
actor “he could not have filed his claim earlier.” Commonwealth v. Stokes,
959 A.2d 306, 310 (Pa. 2008).
Appellant invoked these exceptions based on his receipt of the transcript
from Teel’s 2014 sentencing hearing. Regarding the newly discovered facts
exception, Appellant averred that the transcript revealed that the
Commonwealth possessed Teel’s medical records, which showed that he
suffered cognitive impairments from the gunshot wound to the head and failed
to disclose them to him. See Appellant’s brief at 14-15, 19. Appellant was
previously aware of the gunshot wound and litigated a claim of trial counsel
ineffectiveness regarding this medical issue in his first, timely PCRA petition.
See First Pro Se PCRA petition, 7/7/16, at 4. However, Appellant argued that
he should not be foreclosed from litigating this claim a second time because,
at the time of his first petition, he suspected, but did not have evidence to
prove, that the Commonwealth withheld Teel’s medical records. See
Appellant’s Brief at 18. As to the governmental interference exception,
Appellant contended that the Commonwealth interfered with his ability to raise
his claim sooner by repeatedly denying possession while simultaneously
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withholding Teel’s medical records. See PCRA Petition, 2/2/22, at 10-11.
Finally, Appellant avers that he filed the petition within one year of his
discovery that the Commonwealth had received the medical records at Teel’s
sentencing hearing. Id.The PCRA Court disagreed and, with regard to the newly discovered
facts exception, explained that:
Appellant did not prove the exception established by 42
Pa.C.S. § 9545(b)(l)(ii), that the facts upon which his claim is
predicated were previously unknown to him and could not have
been ascertained by the exercise of due diligence. This conclusion
is not based on an evaluation of appellant’s diligence, but on the
fact that he knew prior to trial that Teel had sustained a gunshot
wound to the head.
Appellant averred in his first, pro se, PCRA petition that he
told his trial lawyer about Teel’s brain injury prior to trial. In the
same petition, he alleged that trial and appellate counsel failed to
provide effective assistance by failing to investigate whether
Teel’s medical history of a gunshot wound to the head rendered
him incompetent to testify or affected the accuracy of his memory.
Those allegations imply that [A]ppellant believed, correctly, that
the medical records now at issue existed and that his trial lawyer
could have obtained them prior to trial by subpoena or court order.
In his second PCRA petition, as amended, appellant stated
that he did not learn the facts upon which his claim is predicated
until October 21, 2021, when his lawyer in his federal court case
told him that Teel’s medical records had been received as evidence
at Teel’s sentencing hearing. As shown in the previous paragraph,
that statement is accurate only in a qualified sense. Although
appellant may not have known the records had been received as
evidence at Teel’s sentencing hearing, he correctly believed before
trial that such records existed and could have been obtained by
his trial lawyer.
The exception established by 42 Pa.C.S. § 9545(b)(l)(ii)
requires proof of newly discovered facts, not a newly discovered
or newly willing source for previously known facts. The second
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PCRA petition, as originally filed and as amended, at most proved
only a newly discovered source for facts previously known, or
believed, by [A]ppellant. Appellant cited Commonwealth v.
Davis, 86 A.3d 883 (Pa.Super. 2014), for the proposition that due
diligence does not require a PCRA petitioner, acting pro se, to
discover facts that were unknown to him but available only in the
evidentiary post-trial record in the criminal action against his co-
conspirator. The facts of this case are distinguishable because
[A]ppellant has admitted that he knew of Teel’s injury prior to
trial, and knew, or correctly believed, that medical records existed
and that his trial lawyer could have obtained them by subpoena
or court order, which was an implied basis for [A]ppellant’s own
claim in his first pro se PCRA petition that trial counsel was
ineffective for having failed to investigate Teel’s cognitive ability.
PCRA Court Opinion, 7/11/22, at 10-12 (cleaned up).
The PCRA court also found Appellant’s governmental interference
argument unpersuasive, reasoning:
Appellant has not proven the exception established by 42
Pa.C.S. § 9545(b)(1)(i), that his “failure to raise the claim
previously was the result of interference by government officials.”
Appellant is unable to do so for two reasons: he has raised the
claim previously, and even if he had not, his failure to do so could
not be attributed to interference by the court or the
Commonwealth. Appellant’s first PCRA petition, in its original
form, and as amended by court-appointed counsel, alleged that
his trial lawyer rendered ineffective assistance because he failed
to investigate Teel’s cognitive ability. That claim would have
lacked merit unless it necessarily implied that if counsel had
investigated, he would have obtained Teel’s medical records and
produced them as evidence at trial, and that the evidence would
have changed the outcome of the trial, because “[c]ounsel will not
be deemed ineffective for failing to raise a meritless claim.”
Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006).
Therefore, the claim raised by appellant in his second PCRA
petition was raised previously, hence he cannot satisfy this
exception to the one-year period for filing a PCRA petition.
Second, the phrase “was the result of” necessarily implies a
causative relation between the interference and the failure to raise
the claim previously. The facts of record cannot establish
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causation because the Commonwealth could not have concealed
the information at issue from appellant. He correctly believed that
the medical records at issue existed and that his trial lawyer could
have obtained it prior to trial.
Id. at 12-13. We agree with both aspects of the PCRA court’s rationale.
Our review of the certified record confirms the PCRA court’s findings that
Appellant has not uncovered any new facts. Instead, by Appellant’s own
admission, he was aware that Teel had suffered a gunshot wound to the head
pre-trial. See First Pro Se PCRA petition, 7/7/16, at 4. Thus, the sentencing
transcript relied upon by Appellant amounts only to a new source or
confirmation of facts that were known to Appellant at the time of his trial and
were explored at his first PCRA proceeding. See Commonwealth v. Brown,
111 A.3d 171, 176 (Pa.Super. 2015) (“[T]he focus of [the 42 Pa.C.S.
§ 9545(b)(1)(ii)] exception is on the newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.”) (cleaned up).
Additionally, we agree with the PCRA court that Appellant’s reliance on
the government interference exception was misplaced. Since Appellant was
aware that Teel had suffered a brain injury from gunshot pre-trial, he could
have sought the records himself at that time. See Commonwealth v. Smith,
17 A.3d 873, 902 (Pa. 2011) (observing, in rejecting a Brady claim, that
hospital records are equally available to the defense). Furthermore, Appellant
has never alleged that the Commonwealth barred him or his trial counsel from
subpoenaing or seeking a court order for Teel’s medical records.
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Thus, neither the newly discovered facts nor the governmental
interference exception applies. Accordingly, we find the PCRA court’s
conclusion that Appellant’s petition was untimely to be fully supported by the
record and free of legal error. No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2023
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