Com. v. McKinney, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN MCKINNEY :
:
Appellant : No. 1533 EDA 2017
Appeal from the PCRA Order April 6, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006444-2002
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 16, 2018
Shawn McKinney appeals from the April 6, 2017 order denying his
third PCRA petition as untimely. We affirm.
Appellant was charged with first-degree murder and possessing an
instrument of crime in the shooting death of Ronald Anderson on April 11,
2002. On May 11, 2004, following a five-day bench trial, Appellant was
found guilty on both counts. On June 15, 2004, trial counsel filed a post-
trial motion alleging that Appellant had obtained exculpatory “after-
discovered” evidence provided in a written statement by Valerie Tucker.
That motion was denied.
Subsequently, Appellant was sentenced to a mandatory sentence of
life imprisonment without parole for murder and a consecutive sentence of
six to twenty-three months incarceration for possessing an instrument of
crime. Appellant filed a notice of appeal, however, that appeal was
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dismissed due to an untimely filed Rule 1925(b) statement.
Commonwealth v. McKinney, 902 A.2d 979 (Pa.Super. 2006)
(unpublished memorandum). Thereafter, Appellant’s direct appeal rights
were reinstated following a successful PCRA petition.
On direct appeal, we affirmed Appellant’s judgment of sentence,
including a specific finding that Ms. Tucker’s proposed testimony did not
constitute “after-discovered” evidence since Appellant was aware of the
existence of the witness prior to trial. Commonwealth v. McKinney, 928
A.2d 1125 (Pa.Super. 2007) (unpublished memorandum). Appellant filed a
petition for allowance of appeal to our Supreme Court, which was denied on
March 12, 2008. Commonwealth v. McKinney, 945 A.2d 168 (Pa. 2008).
On July 8, 2008, Appellant filed a timely pro se PCRA petition.
Appointed counsel filed an amended PCRA petition, and following Rule 907
notice, Appellant’s petition was dismissed without a hearing on April 21,
2009. Appellant appealed the denial of his PCRA petition, and we affirmed.
Commonwealth v. McKinney, 24 A.3d 454 (Pa.Super. 2011). Our
Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. McKinney, 24 A.3d 362 (Pa. 2011).
On August 22, 2012, Appellant filed his second pro se PCRA petition.
The PCRA court appointed counsel, but, rather than filing an amended PCRA
petition, counsel moved to withdraw his appearance. The court granted
counsel’s motion to withdraw, and concomitantly filed a Rule 907 notice of
its intent to dismiss. On December 31, 2012, the court denied Appellant’s
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second PCRA petition. Appellant did not appeal that decision. Instead, on
February 23, 2017, Appellant filed the instant PCRA petition, his third,
alleging that he obtained “newly-discovered” evidence purporting to
establish his actual innocence of the crime charged, which was not presented
to the jury. After providing the requisite notice, the PCRA court dismissed
Appellant’s petition on April 6, 2017. Appellant filed a timely notice of
appeal to this Court as well as a Rule 1925(b) concise statement of errors
complained of on appeal. The PCRA court authored its Rule 1925(a) opinion,
and this matter is now ready for our review.
Appellant raises three claims for our consideration:
1). Whether, the PCRA Court erred in dismissing [Appellant’s]
PCRA, where [Appellant] was denied and/or violated his
rights under the 5th, 6th, 8th & 14th amendment’s. (a) Given
the recent interpretations of actual innocence claims;
through “Layered” ineffectiveness of trial, direct appeal,
and appointed PCRA counsels; where [Appellant’s] due
process was violated, his right to a fair trial was denied,
and procedural default “do not” apply to a “gateway” claim
of actual innocence nor does it apply to a “Free Standing”
claim of actual innocence.
2). Did the PCRA court err when it determined that [t]he
petition was without merit; where the after-discovered
evidence entitles [Appellant] to a new trial based on (a)
Pennsylvania after-discovered evidence standard, (b) Sixth
and Fourteenth amendments; right to effective assistance
of counsel and (c) Fifth, Eighth, and Fourteenth
amendment; right to due process and a verdict based on
reliable evidence.
3). Whether the adjudication of law; was contrary to, or
involved an unreasonable application of standard/principle
of clearly established Federal Law and/or if the decision is
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based on an “unreasonable determination of facts” i.e., as
determined by the United States Supreme Court.
Appellant’s brief at v.
At the outset, we must determine whether we have jurisdiction over
this appeal. A PCRA petition, including a subsequent or serial petition, must
be filed within one year of the date that a defendant’s judgment of sentence
becomes final, unless an exception to the one-year time restriction applies.
42 Pa.C.S. § 9545(b)(1). The statutory time bar is jurisdictional in nature.
If a PCRA petition is untimely, “neither this Court nor the trial court has
jurisdiction over the petition.” Commonwealth v. Miller, 102 A.3d 988,
992 (Pa.Super. 2014) (citation omitted). Whether a petition is timely is a
matter of law, and thus, our standard of review is de novo, and our scope of
review is plenary. Commonwealth v. Hudson, 156 A.3d 1194, 1197
(Pa.Super. 2017).
When a PCRA petition is facially untimely, the petitioner must plead
and prove that one of the statutory exceptions applies. Id. If no exception
applies, then the petition must be dismissed, as we cannot consider the
merits of the appeal. Id. The PCRA reads, in pertinent part:
(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 of sentence 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 the government officials
with the presentation of the claim in violation of the
Constitution or law 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) and (2).
Here, Appellant’s judgment of sentence became final on June 10,
2008, when the ninety-day period to seek review with the United States
Supreme Court expired. Therefore, Appellant had until June 10, 2009, to file
a timely PCRA petition. Appellant filed the instant petition on February 23,
2017, rendering this petition facially untimely. In order for this Court to
exercise its jurisdiction, Appellant must plead and prove one of the three
statutory exceptions delineated above.
Appellant appears to invoke the newly-discovered facts exception. He
contends that, following trial, defense counsel located an eyewitness, Valerie
Tucker, who would have provided exculpatory evidence during his trial. He
concedes that he located Ms. Tucker nine days after his trial, but maintains
that, since her purported testimony established his actual innocence, her
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affidavit creates sufficient doubt about his guilt to overcome any procedural
defects to his PCRA petition. Further, he alleges that our prior
determination, on direct appeal, that Ms. Tucker’s likely testimony was
known to Appellant prior to trial, see McKinney, 928 A.2d 1125, supra at
*20-22, was erroneous since neither the Commonwealth nor Appellant was
able to contact Ms. Tucker prior to trial. As such, Appellant claims, he was
unaware of the substance of Ms. Tucker’s testimony until after trial.
Even assuming Appellant’s position is correct that our prior
adjudication of his claim on direct appeal was erroneous, we find that
Appellant has not pled and proven sufficient facts to overcome the PCRA’s
statutory time-bar. It is well-established that, in order to utilize an
exception to the PCRA’s time requirement, a petitioner must invoke that
exception “within 60 days of the date the claim could have been presented.”
42 Pa.C.S. § 9545(b)(2). Appellant first raised the claim that Ms. Tucker’s
testimony allegedly established his innocence on June 24, 2004, in his post-
sentence motion. As the instant PCRA petition was filed on February 23,
2017, well in excess of the sixty-day time limitation to invoke the newly-
discovered facts exception, the PCRA court properly concluded that his
petition was untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/18
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