Com. v. Harvin, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LAURENN HARVIN, :
:
Appellant : No. 3140 EDA 2018
Appeal from the Order Dated September 14, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1107261-2004
BEFORE: OLSON, J., STABILE, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 10, 2019
Laurenn Harvin (Appellant) appeals from the order dated September 14,
2018, dismissing his petition filed under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
On October 7, 2005, a jury found Appellant guilty of attempted murder,
aggravated assault, burglary, a violation of the Uniform Firearms Act,
possession of an instrument of crime, and criminal conspiracy.
Appellant’s convictions arose from an incident that occurred on
June 14, 2004. At that time, Appellant, along with two co-
conspirators, entered a residence in Philadelphia and demanded
money from one of its occupants. Before the occupant could
respond to the demand, one of the attackers shot the occupant in
his leg. The noise from the gunshot awakened a second male
occupant of the residence and he approached the bedroom of the
shooting victim. As the second occupant approached, Appellant
* Retired Senior Judge assigned to the Superior Court.
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shot him four or five times. The second occupant eventually
succeeded in stripping the gun away from Appellant; however,
another assailant moved forward and shot the second occupant
multiple times. At trial, both victims testified that they knew their
attackers, including Appellant, from the neighborhood and both
victims identified Appellant as one of the assailants in the attack.
Commonwealth v. Harvin, 64 A.3d 283 (Pa. Super. 2013) (unpublished
memorandum at 2). On January 31, 2006, Appellant was sentenced to an
aggregate term of 33 ½ to 67 years of incarceration. Appellant filed a direct
appeal to this Court, and his judgment of sentence was affirmed on November
27, 2007. Commonwealth v. Harvin, 944 A.2d 793 (Pa. Super. 2007)
(unpublished memorandum).
On May 23, 2008, Appellant filed his first pro se PCRA petition, and on
June 12, 2009, Appellant’s right to file a petition for allowance of appeal to
our Supreme Court was reinstated. Appellant’s petition for allowance of
appeal was denied on November 24, 2009. Commonwealth v. Harvin, 983
A.2d 1247 (Pa. 2009).
Thereafter, on December 2, 2009, Appellant filed a supplemental
counseled PCRA petition, alleging his trial counsel was ineffective in failing to
call an alibi witness to testify at trial. The PCRA court dismissed the petition
on April 18, 2011, and Appellant timely filed a notice of appeal with this Court.
On January 23, 2013, this Court remanded the case for an evidentiary hearing
to resolve “outstanding issues concerning competing factual contentions
regarding the availability of Appellant’s alibi witness at the time of trial.”
Harvin, 64 A.3d 283 (unpublished memorandum at 8). Following an
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evidentiary hearing, the PCRA court dismissed Appellant’s PCRA petition. This
Court affirmed on appeal, Commonwealth v. Harvin, 106 A.3d 152 (Pa.
Super. 2014) (unpublished memorandum), and our Supreme Court denied
Appellant’s petition for allowance of appeal on December 4, 2014,
Commonwealth v. Harvin, 104 A.3d 524 (Pa. 2014).
On November 30, 2017, Appellant filed the instant counseled PCRA
petition, claiming he met the newly-discovered facts exception to the PCRA’s
time bar set forth in 42 Pa.C.S. § 9545(b)(1)(ii) (“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 … 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[.]”). PCRA Petition, 11/30/2017, at 7 (pagination
supplied). Specifically, Appellant claimed that on October 4, 2017, he received
a letter from a friend, Anwar Morris, wherein Morris explained that he ran into
Marlo Robinson on the street and Robinson told Morris that Appellant was “not
one of the guys [Robinson] saw that night.” PCRA Petition, 11/30/2017, at 8
(pagination supplied). According to Appellant, at the time of the incident,
Robinson lived in the house next door to where the June 14, 2004 incident
occurred. Id. Appellant obtained an affidavit from Robinson. Id. at
Attach. P1. According to Robinson’s affidavit, Appellant was not present
before, during, or after the crime on that date. Id. Her affidavit states that
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she witnessed several individuals, all of whom she knew, hanging out next
door just before the shooting. Id. Robinson avers that two of these
individuals had a disagreement, some of them entered the house next door,
and others “c[a]me running out [of the house next door] like they stole
something [and] jumped into a black car” driven by another individual. Id.
The affidavit states that none of the people Robinson witnessed that night was
Appellant. Id. Robinson further states that one of these individuals texted
her the morning after the shooting “saying you don’t know nothing” and as a
result, Robinson “got rid of the phone.” Id.
The Commonwealth filed a response to this petition, arguing that the
petition is “time-barred because [Appellant] does not explain why it took him
thirteen years to discover that [] Robinson, who lived in the neighborhood,
was a supposed witness.” Commonwealth’s Response, 5/29/2018, at 3.
The PCRA court dismissed the petition without a hearing on September
14, 2018.1 Appellant timely filed a notice of appeal, and both Appellant and
the PCRA court complied with Pa.R.A.P. 1925.
1 Neither the certified docket entries nor the record reveals that the PCRA
court issued notice of its intent to dismiss the petition without a hearing
pursuant to Pa.R.Crim.P. 907. Appellant waived this issue by failing to raise
it on appeal. Commonwealth v. Zeigler, 148 A.3d 849, 851 n.2 (Pa. Super.
2016) (finding Zeigler’s failure to raise on appeal PCRA court’s failure to
provide Rule 907 notice results in wavier of the claim, and stating that “failure
to issue Rule 907 notice is not reversible error where the record is clear that
the petition is untimely.”) (citation omitted). Further, we are unable to locate
in the record the PCRA court’s September 14, 2018 order dismissing the PCRA
petition, but its entry appears on the docket. We note that correspondence
from the lower court indicates that the record is located in federal court due
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On appeal, Appellant contends the PCRA court erred by dismissing his
petition as untimely filed. Appellant’s Brief at 8-17. We review this issue
mindful of the fact that “[t]he question of whether a [PCRA] petition is timely
[filed] raises a question of law. Where the petitioner raises questions of law,
our standard of review is de novo and our scope of review [is] plenary.”
Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016).
Because Appellant’s judgment of sentence became final in 2010, his
petition is facially untimely.2 As discussed supra, Appellant attempted to plead
the newly-discovered facts exception. PCRA Petition, 11/30/2017, at 7
(pagination supplied).
The timeliness exception set forth in [subs]ection 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence. Due diligence
demands that the petitioner take reasonable steps to protect his
to Appellant’s pending federal litigation. While the lower court indicated it
requested a temporary return of the record, it does not appear that a
supplemental record has been transmitted to this Court.
2 Appellant’s judgment of sentence became final after the expiration of time
for seeking review of our Supreme Court’s denial of his petition for allowance
of appeal on November 24, 2009. See U.S. Sup. Ct. R. 13 (requiring petition
for writ of certiorari to be filed within 90 days after entry of the order denying
discretionary review by state court of last resort); 42 Pa.C.S. § 9545(b)(3)
(“For purposes of [the PCRA], a judgment [of sentence] becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.”) Any PCRA petition, including
second and subsequent petitions, must either (1) be filed within one year of
the judgment of sentence becoming final, or (2) plead and prove a timeliness
exception. 42 Pa.C.S. § 9545(b). Thus, Appellant’s PCRA petition filed on
November 30, 2017, nearly eight years later, is facially untimely, and he was
required to plead and prove an exception to the timeliness requirement.
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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). “Additionally, the focus of this exception is on the newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.
Super. 2015) (internal quotation marks omitted). Furthermore, Appellant had
to file his petition within 60 days “of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).3
Instantly, the PCRA court concluded that Robinson “is merely a new
witness [who] has come forward to testify regarding a previously raised claim,
and thus does not qualify as a newly discovered fact….” PCRA Court Opinion,
12/10/2018, at 8. Further, the PCRA court determined that even if Robinson’s
“affidavit was enough to constitute a newly discovered fact, Appellant’s claim
would still fail because he has not established that he could not have learned
those facts earlier by the exercise of due diligence.” Id.
On appeal, Appellant conflates the newly-discovered facts exception to
the PCRA time-bar with an after-discovered evidence claim. Appellant’s Brief
at 8 (stating Appellant’s claims “are based on after[-]discovered evidence from
3 This statute was amended, effective December 24, 2018, to provide that
claims arising after December 24, 2017, were permitted to be filed within one
year, rather than 60 days, of the date the claim could have been presented.
Appellant filed his PCRA petition on November 30, 2017, which was prior to
the effective date of the amendment.
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a newly discovered witness”), 10 (citing case law outlining requirements to
obtain relief on an after-discovered-evidence claim). We have explained the
difference between the two as follows.
The timeliness exception set forth at [subs]ection
9545(b)(1)(ii) has often mistakenly been referred to as the “after-
discovered evidence” exception. This shorthand reference was a
misnomer, since the plain language of subsection (b)(1)(ii) does
not require the petitioner to allege and prove a claim of after-
discovered evidence. Rather, as an initial jurisdictional threshold,
[subs]ection 9545(b)(1)(ii) requires a petitioner to allege and
prove that there were facts unknown to him and that he exercised
due diligence in discovering those facts. Once jurisdiction is
established, a PCRA petitioner can present a substantive after-
discovered-evidence claim. See 42 Pa.C.S.[] § 9543(a)(2)(vi)
(explaining that to be eligible for relief under PCRA, petitioner
must plead and prove by preponderance of evidence that
conviction or sentence resulted from, inter alia, unavailability at
time of trial of exculpatory evidence that has subsequently
become available and would have changed outcome of trial if it
had been introduced).
***
Thus, the “new facts” exception at [subs]ection 9545(b)(1)(ii)
does not require any merits analysis of an underlying after-
discovered-evidence claim.4
______
4 To obtain relief on a substantive after-discovered-evidence
claim under the PCRA, a petitioner must demonstrate: (1)
the evidence has been discovered after trial and it could not
have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not
being used solely to impeach credibility; and (4) it would
likely compel a different verdict. The substantive merits-
based analysis is more stringent than the analysis required
by the “new facts” exception to establish jurisdiction.
Brown, 111 A.3d at 176-77 (quotation marks and some citations omitted).
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Nonetheless, Appellant argues that Robinson’s affidavit establishes the
following new facts: that Robinson “was outside the house where the crime
took place prior to, during and after the crime;” that she “could identify who
was there and who was not;” that she “saw who went inside the house and
who came out;” and that Robinson “had been threatened” when she received
the text message saying “you don’t know nothing.” Appellant’s Brief at 11-
13. Appellant claims these “new facts” could have been used as evidence at
trial to support his defense theory of witness misidentification, i.e., by showing
that the victims had perjured themselves at trial when they identified
Appellant as present at the crime scene. Id. at 13.
However, Robinson’s affidavit does not reflect newly discovered facts;
instead, it constitutes a newly[-]discovered source of previously alleged facts,
i.e. that Appellant was misidentified as being at the scene of the crime. See
Brown, supra. According to Appellant, he “has consistently asserted that he
was at his home with his live[-]in girlfriend … at the time of the crime.”
Appellant’s Brief at 12. Appellant is not arguing that he just recently
discovered the fact that he was not at the scene of the crime. Instead, he is
attempting to support his previous allegation of witness misidentification with
a “newly willing source.” See Commonwealth v. Lambert, 57 A.3d 645,
649 (Pa. Super. 2012). The exception is not satisfied if “the only new aspect
of the claim [is] that a new witness ha[s] come forward to testify regarding
the previously raised claim.” Id. at 648 (quoting Commonwealth v.
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Marshall, 947 A.2d 714, 720 (Pa. 2008)). That Appellant “discovered yet
another conduit for the same claim of perjury [and witness misidentification]
does not transform his latest source into evidence falling within the ambit of
[subsection] 9545(b)(1)(ii).” See Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1269 (Pa. 2008). Accordingly, Appellant has failed to satisfy the newly-
discovered fact requirement of subsection 9545(b)(1)(ii).
Even if Robinson’s affidavit were to constitute a newly-discovered fact,
Appellant has not demonstrated that he could not have learned of it earlier by
the exercise of due diligence. “[D]ue diligence requires neither perfect
vigilance nor punctilious care, but rather it requires reasonable efforts by a
petitioner, based on the particular circumstances, to uncover facts that may
support a claim for collateral relief.” Commonwealth v. Burton, 121 A.3d
1063, 1071 (Pa. Super. 2015). “A petitioner must explain why [he or] she
could not have learned the new fact earlier with the exercise of due diligence.”
Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017).
Here, Appellant claims that because police never interviewed Robinson,
she was not listed in police neighborhood surveys, the Commonwealth did not
identify her as a potential witness, she moved away shortly after the crime,
and since Appellant was not at the crime scene, he had no way of knowing
about Robinson’s presence. Id. at 10-11, 16. He argues that reasonable
diligence does not require him to “knock on all of the doors in the victim’s [sic]
neighborhood and ask each of the occupants if they were awake and witnessed
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anyone standing outside in front of the victim’s [sic] house at 4 am.” Id. at
16-17.
The PCRA court offered the following analysis of Appellant’s due-
diligence efforts.
Robinson lived next door to the house where the shooting
took place. She is an obvious potential witness and source of
information regarding the events of the night in question.
Appellant provides no explanation as to why [] Robinson was not
questioned at an earlier date other than to state that Appellant
had no way of knowing that she had been home, much less outside
that night. This statement is without merit because Appellant
could have easily learned that information by interviewing []
Robinson at an earlier time. There is no indication that []
Robinson was unwilling or unable to talk to Appellant at an earlier
date and relay the same information that she relayed in October
2017. The Superior Court made a similar determination in
Commonwealth v. Johnson, 945 A.2d 185 (Pa. Super. [] 2008).
In Johnson, [Johnson’s] family posted flyers seeking witnesses
of the shooting that [Johnson] was convicted of and a new witness
came forward. Id. In holding that the new witness did not meet
the requirements of the newly[-]discovered [facts] exception, the
Superior Court stated the following:
Moreover, we question whether [Johnson] was duly
diligent in locating Mr. Williams. [Johnson] indicates
his family simply posted flyers in the neighborhood
and Mr. Williams responded. With the exercise of such
minimal effort, and without further explanation, it
appears Mr. Williams could have been discovered well
before 2005.
Id. at 191. The lack of due diligence is even more stark in this
case. Due diligence requires that Appellant take reasonable steps
to advance his own self-interest. [Commonwealth v.] Williams,
[35 A.3d 44, 53 (Pa. Super. 2011)]. This certainly at least
required Appellant to ask the residents of the house next door to
the shooting whether they had witnessed the incident. If
Appellant had made such minimal effort, he could have learned of
[] Robinson’s claims at a much earlier date.
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PCRA Court Opinion, 12/10/2018, at 8-9.
We agree with the PCRA court. While Appellant attempts to justify the
13 year delay in locating Robinson by claiming he did not know she existed,
Appellant has not shown he made any effort at all to discover Robinson was a
witness. Thus, Appellant has not pleaded any facts to support a contention
that he acted with due diligence.
Based on the foregoing, we conclude that Appellant’s PCRA petition was
untimely filed and he did not satisfy an exception to the timeliness
requirements. Thus, the PCRA court lacked jurisdiction to review his petition,
and he is not entitled to relief. We therefore affirm the order dismissing the
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/19
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