Com. v. Kennedy, S. ( 2021 )

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2021 PA Super 249COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAMON KENNEDY :
:
Appellant : No. 441 EDA 2021
Appeal from the PCRA Order Entered January 6, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001545-2008
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
OPINION BY LAZARUS, J.: FILED DECEMBER 16, 2021
Shamon Kennedy appeals pro se from the order, entered in the Court of
Common Pleas of Chester County, denying as untimely his fourth petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
Upon careful review, we affirm.
On April 1, 2009, Kennedy was sentenced to 25 years’ imprisonment in
federal court on unrelated charges. In July 2009, Kennedy was convicted, in the
instant case, of numerous charges, including aggravated assault, recklessly
endangering another person, conspiracy, and firearms offenses.1 On December
11, 2009, the trial court sentenced Kennedy to a term of 12 to 24 years’
imprisonment; his sentence was ordered to be served consecutively to the
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* Retired Senior Judge assigned to the Superior Court.
1 The jury found Kennedy not guilty of criminal attempt to commit homicide and
criminal conspiracy.
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federal sentence that he was then-currently serving. Kennedy filed a motion to
modify sentence, which was denied by the trial court on April 15, 2010. On May
17, 2010, Kennedy filed a direct appeal; counsel sought to withdraw on appeal
under Anders.2 This Court affirmed Kennedy’s judgment of sentence and
granted counsel’s petition to withdraw. See Commonwealth v. Kennedy,
1338 EDA 2010 (Pa. Super. filed Nov. 24, 2010) (unpublished memorandum
decision). Kennedy did not seek allowance of appeal with the Pennsylvania
Supreme Court.
Kennedy filed four PCRA petitions. His first petition, which was timely filed
on November 22, 2011, raised claims of ineffective assistance of counsel and a
claim that the court improperly permitted the Commonwealth to cross-examine
Kennedy about his prior federal drug conviction and related drug case.
Appointed PCRA counsel3 filed an amended petition raising claims of ineffective
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2 Anders v. California, 386 U.S. 738 (1967).
3 Originally, the court appointed Robert P. Brendza, Esquire, to represent Kennedy in
his first PCRA petition. Counsel petitioned for leave to withdraw as counsel pursuant
to Turner/Finley. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). In his no-
merit letter to Kennedy, counsel stated that because our Court on direct appeal had
found no legal merit to Kennedy’s claim that the trial court erred by permitting the
jury to hear testimony about Kennedy’s prior federal drug conviction, the claim had
been previously litigated under the PCRA. See Turner/Finley No-Merit Letter,
1/24/12, at 1; see also 42 Pa.C.S.A. § 9544(a)(2). With regard to Kennedy’s
remaining issue that trial counsel was ineffective for failing to question a defense
witness about Kennedy’s relationship with a third party, counsel stated that the
examination of witnesses “is largely a matter of trial strategy to be determined by
counsel and a defendant is not entitled to relief simply because the strategy may have
been unsuccessful.” See Turner/Finley No-Merit Letter, 1/24/12, at 2. However,
counsel subsequently was granted leave to withdraw due to a potential conflict of
interest and new PCRA counsel was appointed.
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assistance of counsel (failure to present defense witness; failure to file motion
in limine to exclude mention of federal conviction). After the court issued
Pa.R.Crim.P. 907 notice of its intention to dismiss Kennedy’s first petition without
a hearing, Kennedy filed a pro se response and supplemental pro se response to
the PCRA court stating that appointed counsel did not amend his pro se petition
as he had requested. On October 15, 2012, the PCRA court dismissed Kennedy’s
petition.
Kennedy filed a timely pro se notice of appeal; our Court ordered PCRA
counsel to file either a Rule 1925(b) concise statement of errors complained of
on appeal or a proper Anders4 brief. Counsel filed a “statement of intent to file
an Anders/McClendon brief in lieu of filing a Rule 1925(b) statement.” Despite
being advised that the court could not accept Kennedy’s pro se filings and would
forward any such filings to counsel of record, Kennedy filed his pro se Rule
1925(b) statement. In response, counsel filed a statement of her intent to file
an Anders brief, concluding that after “review[ing] the record . . . [she] has
concluded that there are no meritorious issues for review” and that the notice
was “filed in lieu of a [c]oncise [s]tatement of [e]rrors [c]omplained of on
[a]ppeal.” Statement of Intent, 12/28/12, at 2.
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4 Technically, counsel was required to file a Turner/Finley letter and
accompanying petition to withdraw—not an Anders brief and accompanying
petition—in order to seek withdrawal from a collateral appeal. However, because
the bar to withdraw under Anders is higher than that under Turner/Finley, we
have permitted such briefs to be filed in collateral appeals. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011)
(“Because an Anders brief provides greater protection to a defendant, this Court
may accept an Anders brief in lieu of a Turner/Finley letter.”).
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Subsequently, counsel filed an improper Anders brief, and our Court
remanded the case and denied counsel’s request to withdraw for failure to
comply with the withdrawal requirements. Although counsel ultimately filed an
advocate’s brief on Kennedy’s behalf, our Court found all of Kennedy’s issues
waived due to counsel’s failure to file a Rule 1925(b) statement.
Commonwealth v. Kennedy, 3166 EDA 2012 (Pa. Super. filed Sept. 18, 2013)
(unpublished memorandum decision). PCRA counsel filed an unsuccessful
motion for reconsideration that our Court denied on October 1, 2013. On April
16, 2014, the Pennsylvania Supreme Court denied Kennedy’s petition for
allowance of appeal.
On April 9, 2015, Kennedy filed a second PCRA petition alleging that PCRA
counsel: was ineffective for failing to re-plead all of the claims he presented in
his original, pro se petition; failed to file a Rule 1925(b) statement on collateral
appeal; and filed an improper Anders brief, even after being instructed by our
Court on remand how to properly proceed. The second petition was denied as
untimely on May 7, 2015, after the PCRA court issued Rule 907 notice of its
intent to dismiss the petition without a hearing and Kennedy filed a pro se
response thereto.5 Kennedy filed a pro se appeal and Rule 1925(b) statement
from the denial of that second petition.
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5 In his Rule 907 response, Kennedy was clearly mistaken in his belief that he
had until one year from the date the Pennsylvania Supreme Court denied review
of his petition for allowance of appeal from his collateral appeal, on April 16,
2014, to file a timely second PCRA petition.
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While his collateral appeal was pending, Kennedy filed a third pro se PCRA
petition on July 5, 2015,6 raising the newly-discovered facts and governmental
interference exceptions under the PCRA. Kennedy asserted the PCRA court, the
District Attorney, and “federal incarceration” were the entities that created
governmental interference. See Pro Se 3rd PCRA Petition, 7/5/15, at 1-3.
However, on July 28, 2015, the court quashed Kennedy’s third petition, without
prejudice, “as premature because [his] appeal from the denial of his second
PCRA petition [was] still pending in the Superior Court of Pennsylvania.” Order,
7/28/15. On October 15, 2015, at Kennedy’s request, our Court withdrew
Kennedy’s appeal, with prejudice. See Order, 10/15/15.
On January 29, 2016,7 Kennedy filed, pro se, an “Amended 3rd PCRA
Petition,” seeking to resurrect the claims advanced in his prior, quashed petition.
This amended third petition was also dismissed as untimely. Kennedy filed a pro
se collateral appeal from that decision; the appeal was dismissed due to his
failure to file an appellate brief. See Order, No. 1183 EDA 2016, 10/13/16.
Kennedy filed the instant petition, his fourth, on August 20, 2020. The
PCRA court issued its Pa.R.Crim.P. 907 notice of intent to dismiss Kennedy’s
petition on September 10, 2020. After receiving multiple extensions, Kennedy
filed a response to the court’s Rule 907 notice on December 14, 2020. On
January 6, 2021, the court formally dismissed the petition. Kennedy timely filed
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6 The court received Kennedy’s third PCRA petition on July 13, 2015.
7 The court received Kennedy’s “Amended 3rd Petition” on February 5, 2016.
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a notice of appeal,8 followed by a court-ordered Rule 1925(b) statement.
Kennedy raises the following issues for our review:
1. The PCRA court erred by holding Kennedy to an erroneous
heightened standard of “diligence” in discovering unavailable
evidence and law in aid[] to file a timely [and] proper appeal in state
court in violation of Commonwealth v. Burton[, 121 A.3d 1063(Pa. Super. 2015),] as it applies to prisoner[s] lacking access to
public information[, thus] depriving him of due process.
2. The PCRA court’s err[or] of misapprehending Kennedy’s
governmental interference claim that is brought against the PCRA
court and the Superior Court—not against the federal prison[—]
caused an erroneous analysis under [section] 9545(b)(1)(i) [of the
PCRA,] resulting in a due process violation.
3. The PCRA court’s failure to order an evidentiary hearing for a full
and fair opportunity to be heard will cause[] a fundamental
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8 Kennedy’s pro se notice of appeal of the court’s January 6, 2021 order was not
docketed by the clerk of courts until February 22, 2021, more than thirty days
after the entry of the order. Accordingly, the notice of appeal is presumptively
untimely. See Pa.R.A.P. 903 (notice of appeal shall be filed within thirty days
of entry of order from which appeal is taken). On July 14, 2021, this Court
entered a rule to show cause why the appeal should not be quashed as untimely
filed. Kennedy filed a pro se response on July 21, 2021, followed by an amended
response on August 2, 2021. In his amended response, Kennedy attached a
copy of a postage order and receipt from the Department of Corrections
indicating that he paid for a certified mailing to the Chester County Clerk of
Courts on February 2, 2021. Kennedy also attached a copy of a certified mail
receipt bearing a postmark dated February 5, 2021. On August 16, 2021, this
Court entered an order informing the parties that the issue raised in the rule to
show cause would be referred to the panel assigned to decide the merits of this
appeal.
“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019). Here,
the documentation Kennedy submitted demonstrates that he delivered his notice
of appeal to prison authorities on February 2, 2021, and it was postmarked on
February 5, 2021. Accordingly, pursuant to the prisoner mailbox rule, we
conclude that Kennedy’s notice of appeal was timely filed.
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miscarriage of justice in violation of the state and federal
constitution[s] under procedural and substantive due process.
Brief of Appellant, at 9.
In reviewing the denial of PCRA relief, “we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and
citations omitted).
Pursuant to the PCRA, any petition—including a second or subsequent
one—must be filed within one year of the date the judgment of sentence
becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Burton, 158
A.3d 618, 623 n.7 (Pa. 2017). Section 9545(b)(3) provides a judgment of
sentence becomes final at the conclusion of direct review or at the expiration of
the time period for seeking the review. Id.Instantly, Kennedy’s judgment of sentence became final on December 24,
2010, thirty days after our Court affirmed his judgment of sentence, when
Kennedy’s time expired to seek discretionary appellate review in the Supreme
Court of Pennsylvania. See id.; see also Commonwealth v. Kennedy, 1338
EDA 2010 (Pa. Super. filed Nov. 24, 2010) (unpublished memorandum decision);
Pa.R.A.P. 1113. Thus, Kennedy had until December 24, 2011, to file a timely
PCRA petition. Kennedy’s instant petition, however, was not filed until August
28, 2020; thus, it is facially untimely. In order to overcome the timeliness
requirements of the PCRA, Kennedy was required to plead and prove a section
9545(b)(1) exception under the PCRA. See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).
Moreover, Kennedy’s petition had to have been “filed within one year of the date
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the claim could have been presented.” Id. at § 9545(b)(2).9 Because Kennedy
has failed to prove a timeliness exception, we conclude that the PCRA court
properly dismissed his petition.
Kennedy asserts that he lacked access to public information that he was
only able to procure—after he finished serving a federal sentence—when he was
remanded to SCI Rockview in 2019. In state confinement, Kennedy claims he
had “access to state law [materials] and procedures” and that is where he
“signed up for sessions in the Law Library where [he] gained access to the Rules
of Criminal Procedure under the PCRA.” Appellant’s Pro Se Brief, at 14-17;
Appellant’s Pro Se Reply Brief, at 2-3. Additionally, Kennedy asserts that
because federal correctional institutions do not provide access to such state law
cases or rules of procedure, “all state appellate recourse w[as] unknown to [him]
from the time he was in federal custody from his start date of January 18, 2006[,
until he was transferred to Chester County Prison on August 27, 2019].”
Appellant’s Pro Se Brief, at 17.10
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9 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(Dec. 24, 2018), extending the time for filing from sixty days of the date the
claim could have been presented, to one year. The amendment applies to claims
arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L. 894,
No. 146, § 3. Here, Kennedy’s claims arose after December 24, 2017, thus, the
one-year time limit applies to his case.
10 Kennedy cites to Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super.
2015), claiming that as a pro se incarcerated petitioner, he is not subject to the
strictures of the public record presumption. See id. at 1073 (“the presumption
of access to information available in the public domain does not apply where the
untimely PCRA petitioner is pro se.”). Notably, in Commonwealth v. Small,
238 A.3d 1267, 1268 (Pa. 2020), our Supreme Court recently “disavow[ed] the
(Footnote Continued Next Page)
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The specific issue Kennedy asserts in his petition is that “[o]n his 1st PCRA
[petition], Kennedy’s attorney caused his appellate rights to be waived by
failing to file a 1925(b) statement [] while he was in federal custody without
access to state law and procedures[.]” Appellant’s Brief, at 16 (emphasis
added). Kennedy claims he was unaware that he could have filed a serial PCRA
petition seeking reinstatement of his rights, still within the one-year time
strictures of the PCRA, until he was able to research Pennsylvania procedure and
case law in 2019.
The Pennsylvania Supreme Court has unanimously held that the PCRA
“provides the exclusive remedy for post-conviction claims seeking restoration of
an appellant’s rights due to counsel’s failure to perfect a direct appeal.”
Commonwealth v. Eller, 807 A.2d 838 (Pa. 2002) (emphasis added). Here,
Kennedy did perfect a direct appeal. On appeal, our Court reviewed counsel’s
Anders petition and brief and conducted its own independent review of the case,
which included analyzing claims regarding the admission of expert testimony,
the overruling of a defense objection, and the propriety of the Commonwealth’s
cross-examination of Kennedy. See Commonwealth v. Kennedy, 1338 EDA
2010 (Pa. Super. filed Nov. 24, 2010) (concluding appeal frivolous, permitting
counsel to withdraw, and affirming judgment of sentence). On direct appeal,
our Court also deferred Kennedy’s claims of trial counsel’s ineffectiveness for
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public record presumption [and overruled any] earlier decisions, including [its]
own, [that] relied upon and applied that presumption to reject a petitioner’s
claim.” Thus, the presumption no longer exists for any PCRA petitioner, whether
incarcerated or not. However, as discussed infra, the holdings of Burton and
Small provide Kennedy no relief.
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failing to raise certain objections to the Commonwealth’s cross-examination
regarding one or more federal cases in which Kennedy was the defendant and
for not objecting to the court’s cautionary instruction and/or not requesting a
mistrial. See id. at *9; see also Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002) (holding ineffectiveness claims must be raised in collateral proceedings
under PCRA, not on direct appeal).
Instantly, PCRA counsel’s failure to file a Rule 1925(b) statement caused
Kennedy’s collateral appeal rights to be foreclosed. Id., 3166 EDA 2012 (Pa.
Super. filed Sept. 18, 2013). In Commonwealth v. Bennett, 930 A.2d 1264(Pa. 2007), our Supreme Court held that while “PCRA counsel’s ineffectiveness
cannot be advanced as a newly-discovered ‘fact’ for purposes of application of
the subsection 9545(b)(1)(ii) exception to the PCRA’s one-year time bar, [it] has
no application in cases where PCRA counsel's ineffectiveness per se completely
forecloses review of collateral claims.” Id. at 1130. See 42 Pa.C.S.A. §
9545(b)(1)(ii). In Bennett, the Court concluded that the petitioner was entitled
to an extension to file a collateral appeal since he established that counsel had
abandoned him by failing to file an appellate brief, granting the petitioner
reinstatement of his PCRA appeal rights nunc pro tunc in an untimely second
PCRA petition. Id. at 1266. Later, in Commonwealth v. Peterson, 192 A.3d
1123 (Pa. 2018), our Supreme Court similarly held that the section
9545(b)(1)(ii) exception applied where PCRA counsel filed an untimely PCRA
petition. Under such facts, the Court found that counsel’s actions amounted to
ineffectiveness per se as it “completely foreclosed [defendant] from obtaining
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review of the collateral claims set forth in his first PCRA petition[,]” likening it to
cases where counsel has failed “to file a notice of appeal, Rule 1925(b)
statement, brief, or petition for allowance of appeal.” Id. at 1131-32 (emphasis
added).
Here, counsel failed to file a Rule 1925(b) statement on appeal from the
denial of Kennedy’s first PCRA petition, after he unsuccessfully petitioned to
withdraw on appeal. In that petition, Kennedy reiterated several claims of trial
counsel’s ineffectiveness that were raised on direct appeal, but where review of
those claims was deferred to collateral proceedings pursuant to Grant, supra.
When Kennedy filed his second PCRA petition, pro se, the PCRA’s one-year filing
time limit had expired. Thus, his petition was dismissed as untimely. Kennedy
filed a pro se appeal from that dismissal, which he later withdrew. Kennedy filed
a third PCRA petition that was also dismissed as untimely. Kennedy filed a
collateral appeal from that decision; the appeal was dismissed for failure to file
an appellate brief. Now, in his fourth petition, he alleges the newly-discovered
facts exception under section 9545(b)(1)(ii), claiming that until 2019 he was
unaware that he was entitled to have his collateral appeal rights reinstated nunc
pro tunc after his claims were found waived by our Court.
Based on the case law cited herein, particularly Bennett, Kennedy was
presumably entitled to have his collateral appeal rights reinstated nunc pro tunc
when his first collateral appeal was dismissed in September of 2013. However,
because Kennedy’s current petition is untimely, in order to establish jurisdiction
under the PCRA, he must now plead and prove a PCRA timeliness exception.
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Kennedy has chosen to proceed under subsection 9545(b)(1)(ii), which requires
a petitioner to prove that the facts were “unknown” to him and that he could not
uncover them with the exercise of “due diligence.”
Kennedy alleges that he “discovered [u]nknown [f]acts once a state
impediment was removed which denied him adequate access to the court[.]”
Appellant’s Brief, at 14. Those “unknown facts” amounted to “legal materials,
computer software or books pertaining to state law and procedure[,]” which he
did not have access to when he was incarcerated in a federal penitentiary. Our
Supreme Court has consistently held that judicial opinions do not amount to new
“facts” under section 9545(b)(1)(ii) of the PCRA. See Commonwealth v. Reid,
235 A.3d 1124, 1148 (Pa. 2020); Commonwealth v. Watts, 23 A.3d 980, 987
(Pa. 2011) (subsequent decisional law does not amount to new fact under
section 9454(b)(1)(ii)). Similarly, we find rules of state procedure are not “facts”
for purposes of pleading the newly-discovered facts exception under the PCRA.
As the Court noted in Watts, a “fact” is distinguishable from the “law,” the latter
of which is “the embodiment of abstract principles applied to actual events.” Id.
at 987. See also Commonwealth v. Baroni, 795 A.2d 1007 (Pa. Super. 2002)
(defendant’s actual knowledge of obscure rule of law involving proper charge
under corpus delicti not considered “facts” as contemplated by section
9454(b)(ii)).
Kennedy also raises the governmental interference exception, found in
section 9545(b)(1)(i), which provides that “the failure to raise the claim
previously was the result of interference by government officials with the
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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.A.
§ 9545(b)(1)(i). Specifically, Kennedy claims that the PCRA court and Superior
Court committed a due process violation where the courts “did not ascertain
[his] lack of access to Pennsylvania law” all the while knowing that PCRA counsel
“was ineffective for failing to preserve [Kennedy’s] appellate rights by failing to
file a 1925(b) statement.” Appellant’s Brief, at 30-31. Such actions, he asserts,
amounted to “a constructive interference with [Kennedy’s] right to file an
appeal.” Id. at 31.
In order to establish the governmental interference exception, a petitioner
must plead and prove: (1) the failure to previously raise the claim was the result
of interference by government officials, and (2) the petitioner could not have
obtained the information earlier with the exercise of due diligence.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
In essence, Kennedy complains that because our Court did not remand his
collateral appeal for the appointment of new counsel or for the filing of a nunc
pro tunc 1925(b) statement, he was effectively prevented from having his claims
addressed on their merits. Kennedy’s argument merely attempts to challenge
our Court’s October 1, 2013 decision to deny his motion to reconsider. We find
no merit to this claim where Kennedy fails to offer a reasonable explanation why,
with the exercise of due diligence, he did not ascertain this alleged interference
of governmental official earlier and seek redress in his prior PCRA petitions or
collateral appeals, especially where he was presumptively aware that this Court
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had affirmed the order dismissing his first PCRA petition in 2013.
Commonwealth v. Rizvi, 166 A.3d 344 (Pa. Super. 2017).11
Accordingly, because Kennedy has failed to plead and prove a PCRA
timeliness exception, we affirm the PCRA court’s dismissal of his petition as
untimely.
Order affirmed.
Judge Dubow joins this Opinion.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2021
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11While we affirm the order dismissing Kennedy’s fourth, untimely PCRA petition
based upon a strict interpretation of the PCRA time bar provisions, we observe
that he has, by reasons of procedural defaults, lost his rule-based right to a
meaningful appeal from the dismissal of his first, timely PCRA petition. In short,
we have not yet had an opportunity to review the merits of Kennedy’s collateral
challenges to his convictions. “Nevertheless, the PCRA time requirements must
be strictly construed and do not permit equitable exceptions.” Commonwealth
v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003).
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