Com. v. Blackwell, D. ( 2016 )


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  • J-S63022-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    DARRYL BLACKWELL,
    Appellant                 No. 2536 EDA 2015
    Appeal from the PCRA Order July 24, 2015
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0219841-1987, CP-51-CR-0303591-
    1987
    BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.
    MEMORANDUM BY SHOGAN, J.:                        FILED NOVEMBER 03, 2016
    Appellant, Darryl Blackwell, appeals from the order denying his serial
    petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
    §§ 9541-9546. We affirm.
    This Court previously summarized the facts of the crime, as follows:
    Appellant and the victim, June Lane, who was his former
    girlfriend, lived in separate residences in West Philadelphia.1 On
    November 16, 1986 [A]ppellant lured Ms. Lane into his house on
    the false pretext that he was repaying a loan owed to her. Once
    [A]ppellant had Ms. Lane in his home he punched her, dragged
    her to the second floor, bound her with an electrical cord, taped
    her mouth shut, wrapped a tie around her neck and raped her.
    Appellant threatened to hurt Ms. Lane and members of her
    family if she told anyone about the crimes.
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-S63022-16
    1
    The victim initially lived in her grandmother’s house
    in West Philadelphia.
    Ms. Lane returned to her grandmother’s home in a
    hysterical state and told her grandmother that [A]ppellant had
    raped her. The grandmother called her son, who was the
    victim’s uncle, and told him about the rape. He took the victim
    to a police station and then to the hospital.
    Appellant was arrested and when the police searched his
    house they found the electrical cord, the tape and the tie.
    Appellant was charged with rape.
    Appellant was released on bail on November 21, 1986.
    After his release he admitted to a friend, Robert Belk, that he
    had raped the victim. He also told Belk that he should have
    killed the victim and disposed of the physical evidence that had
    been subsequently seized by the police. N.T., 2/26/87, at 18.
    The victim moved from her grandmother’s home to her
    uncle’s home. She appeared at the November 26, 1986 first
    listing of [A]ppellant’s preliminary hearing but the case was
    continued pursuant to [A]ppellant’s request. On December 7,
    1986 the victim spent the night at her grandmother’s house. The
    next morning she left to go to work. Appellant was sitting on his
    front porch, which was located two houses away from the
    grandmother’s home. Appellant confronted the victim on the
    sidewalk and grabbed her arm. He ordered her not to testify
    against him. She ran toward her grandmother’s porch and
    [A]ppellant followed her.     Appellant produced a .22 caliber
    revolver and pointed it at the victim. N.T., 5/9/89, at 50. He
    shot the victim three times, in her head, her face and her hand.
    Appellant then fled into his home. The victim then staggered to
    her grandmother’s porch and her grandmother helped her into
    the house.
    Appellant barricaded himself in his house and police
    arrived.2 Over several hours police negotiators and a minister
    attempted to get [A]ppellant to surrender. Appellant was on a
    second floor landing and threw the .22 caliber revolver to the
    base of the staircase leading to the second floor. Police then
    entered the house and found [A]ppellant lying at the top of the
    staircase; police subsequently determined that [A]ppellant had
    apparently shot himself twice in his head. Upon discovering
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    [A]ppellant an officer asked him if he was hurt. Appellant
    replied, “I f-ked up.” N.T., 5/8/89, at 64. The police began to
    assist [A]ppellant and [A]ppellant stated, “How’s the girl?” Id. at
    65. An officer asked [A]ppellant to whom he was referring.
    Appellant replied, “The girl I shot.” Id. Appellant was eventually
    charged with retaliation against a witness, aggravated assault,
    possessing an instrument of crime and related charges.3
    2
    The police took the victim to the hospital where
    she underwent emergency brain surgery; she
    suffered seizures as a result of the surgery.
    3
    Appellant underwent emergency surgery and was
    hospitalized for two weeks. He was then sent to the
    Psychiatric Unit of Holmesburg Prison in Philadelphia.
    The victim was eventually discharged from the hospital.
    Because of the seizures resulting from the emergency brain
    surgery the doctors prescribed Dilantin in an attempt to control
    any possible future seizures. The victim began to have severe
    headaches and re-entered the hospital. The victim died on
    January 26, 1987. The medical examiner determined that the
    cause of death was fulminating hepatitis (with liver failure 4)
    caused by the gunshot wounds, the craniotomy (which is a
    surgical opening of the skull) performed upon her during
    emergency surgery immediately after the shooting, and, the
    Dilantin therapy; the manner of death was determined to be
    homicide. N.T., 5/9/89, at 52.
    4
    The victim had no history of liver problems prior to
    being shot by [A]ppellant.
    Commonwealth v. Blackwell, 
    647 A.2d 915
    , 917–918 (Pa. Super. 1994).
    The PCRA court summarized the procedural history as follows:
    On May 9, 1989, [Appellant] entered into a negotiated
    guilty plea to first-degree murder, possessing an instrument of
    crime, retaliation against a witness and rape. [Appellant] was
    thereafter sentenced to life imprisonment for the murder and
    lesser consecutive sentences for the remaining charges.
    [Appellant] did not seek to withdraw his plea. He also declined
    to seek reconsideration of his sentence or to pursue a direct
    appeal.
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    On September 18, 1989, [Appellant] filed a PCRA petition.
    Counsel was appointed and thereafter, the PCRA petition was
    withdrawn without prejudice on March 12, 1992 to permit
    [Appellant] to retain private counsel. Rather than obtaining
    representation, [Appellant] filed another pro se PCRA petition on
    June 9, 1992. Counsel was again appointed and subsequently
    filed a Finley2 no-merit letter.     The PCRA court dismissed
    [Appellant]'s petition on March 5, 1993. The Superior Court
    affirmed the dismissal on September 12, 1994.3                The
    Pennsylvania Supreme Court denied allocatur on January 17,
    1995.4
    2
    Commonwealth v. Finley, 
    550 A.2d 213
     (Pa.
    Super. 1988).
    3
    Commonwealth v. Blackwell, 
    647 A.2d 915
     (Pa.
    Super. 1994).
    4
    Commonwealth v. Blackwell, 
    655 A.2d 509
     (Pa.
    1995).
    On October 7, 2013, [Appellant] filed the instant pro se
    PCRA petition.     Pursuant to Pennsylvania Rule of Criminal
    Procedure 907, [Appellant] was served notice of the lower
    court’s intention to dismiss his petition on June 12, 2015. On
    July 24, 2015, the PCRA court dismissed his petition as untimely.
    On August 17, 2015, the instant notice of appeal was filed to the
    Superior Court.
    PCRA Opinion, 9/11/15, at 1–2.1
    Appellant raises the following questions on appeal:
    Is the Appellant’s sentence in violation of Alleyne v. U.S.,
    
    133 S.Ct. 2151
    , 
    186 L.Ed.2d 314
     (2013), which is held a
    “substantive rule” and must be applied retroactively[?]
    ____________________________________________
    1
    The PCRA court did not order Appellant to file a statement of errors
    pursuant to Pa.R.A.P. 1925.
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    The U.S. Supreme Court’s decision in Alleyne, 
    supra,
     
    id.,
     at
    2163-64 applies, the ruling renders all [A]ppellant’s sentences,
    18 Pa.C.S.A. §§ 2502; 907; 3121; 4953 unconstitutional. See,
    Comm v. Hopkins, 
    117 A.3d 247
    , 
    2015 Pa. LEXIS 1282
     in that
    the mandatory minimum statute allows a trial Judge to
    determine if the evidence triggers application of mandatory
    minimum sentence, violating [A]ppellant’s rights of 14th
    Amendment Due Process, 6th Amendment notice and jury trial
    plus Pa. Const. Art. 1. § 9 rights. Alleyne, is retroactive when
    any sentencing decisions not based upon prior convictions, and
    automatically impose maximum sentences on all charges
    submitted by Prosecution based upon preponderance of evidence
    standard. Alleyne, id., at 2157; also Comm v. Newman, 
    99 A.3d 87
    , 2014 Pa. Super 178 (April 23, 2014).
    Appellant’s Amended Brief at 4. (emphases in original).2, 3
    “In reviewing the propriety of an order granting or denying PCRA
    relief, an appellate court is limited to ascertaining whether the record
    supports the determination of the PCRA court and whether the ruling is free
    of legal error.” Commonwealth v. Matias, 
    63 A.3d 807
    , 810 (Pa. Super.
    2013) (citing Commonwealth v. Johnson, 
    966 A.2d 523
    , 532 (Pa. 2009)).
    This Court is limited to determining whether the evidence of record supports
    the conclusions of the PCRA court and whether the ruling is free of legal
    error. Commonwealth v. Rykard, 
    55 A.3d 1177
    , 1183 (Pa. Super. 2012).
    We grant great deference to the PCRA court’s findings that are supported in
    ____________________________________________
    2
    While Appellant filed his combination original brief and reproduced record
    on February 1, 2016, he filed a combined amended brief and reproduced
    record, by permission, on March 29, 2016.
    3
    Appellant’s Application for Relief titled, “Letter of Notice,” seeking to object
    to the Commonwealth’s late filing of its brief is hereby denied.
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    the record and will not disturb them unless they have no support in the
    certified record. Commonwealth v. Rigg, 
    84 A.3d 1080
    , 1084 (Pa. Super.
    2014).   “There is no absolute right to an evidentiary hearing on a PCRA
    petition, and if the PCRA court can determine from the record that no
    genuine issues of material fact exist, then a hearing is not necessary.”
    Commonwealth v. Jones, 
    942 A.2d 903
    , 906 (Pa. Super. 2008) (quoting
    Commonwealth v. Barbosa, 
    819 A.2d 81
     (Pa. Super. 2003)). “[S]uch a
    decision is within the discretion of the PCRA court and will not be overturned
    absent an abuse of discretion.” Commonwealth v. Mason, 
    130 A.3d 601
    ,
    617 (Pa. 2015).
    The timeliness of a PCRA petition is a jurisdictional threshold that may
    not be disregarded in order to reach the merits of the claims raised in a
    PCRA petition that is untimely. Commonwealth v. Cintora, 
    69 A.3d 759
    ,
    762 (Pa. Super. 2013). “We have repeatedly stated it is the [petitioner’s]
    burden to allege and prove that one of the timeliness exceptions applies.
    See, e.g., Commonwealth v. Beasley, 
    741 A.2d 1258
    , 1261 (Pa. 1999).
    Whether [a petitioner] has carried his burden is a threshold inquiry prior to
    considering the merits of any claim.”     Commonwealth v. Edmiston, 
    65 A.3d 339
    , 346 (Pa. 2013).
    In order to be considered timely, a first, or any subsequent PCRA
    petition, must be filed within one year of the date the petitioner’s judgment
    of sentence becomes final.     42 Pa.C.S. § 9545(b)(1).       A judgment of
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    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.” 42 Pa.C.S. § 9545(b)(3).
    As noted, Appellant pled guilty on May 9, 1989, and he did not file a
    direct appeal. Thus, Appellant’s judgment of sentence became final on June
    8, 1989, thirty days after the time expired for Appellant to file a direct
    appeal to this Court.       42 Pa.C.S. § 9545(b)(3).   Where the judgment of
    sentence became final before the effective date of the 1995 amendments to
    the PCRA, a first petition shall be deemed timely if it was filed within one
    year of the effective date of the 1995 amendments.        Commonwealth v.
    Thomas, 
    718 A.2d 326
    , 328 (Pa. Super. 1998); Act of November 17, 1995,
    P.L. 1118, No. 32 (Spec. Sess. No. 1), § 3(1). “Because the effective date
    of the amendments is January 16, 1996, the operative deadline for first-time
    PCRA petitions is January 16, 1997.” Commonwealth v. Voss, 
    838 A.2d 795
    , 799 (Pa. Super. 2003).
    Instantly, the current petition is considered to be Appellant’s second
    petition filed pursuant to the PCRA.4 Thus, Appellant’s second PCRA petition,
    ____________________________________________
    4
    In Blackwell, 
    647 A.2d 915
    , we stated, “For purposes of this appeal we
    will treat [A]ppellant’s [second and] current PCRA [petition] as his first PCRA
    [petition], since his initial PCRA petition was withdrawn without prejudice.”
    
    Id.
     at 919 n.7.
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    filed twenty-four years after his judgment of sentence became final, is
    patently untimely as it was not filed until October 7, 2013.
    Nevertheless, an untimely petition may be received when the petition
    alleges, and the petitioner proves, that any of the three limited exceptions to
    the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
    and (iii), is met.5    “That burden necessarily entails an acknowledgment by
    the petitioner that the PCRA petition under review is untimely but that one
    or more of the exceptions apply.” Beasley, 741 A.2d at 1261. “However,
    the PCRA limits the reach of the exceptions by providing that a petition
    invoking any of the exceptions must be filed within 60 days of the date the
    claim first could have been presented.” Commonwealth v. Walters, 
    135 A.3d 589
    , 592 (Pa. Super. 2016) (citing Commonwealth v. Leggett, 16
    ____________________________________________
    5
    The exceptions to the timeliness requirement are:
    (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.
    42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
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    16 A.3d 1144
    , 1146 (Pa. Super. 2011), and 42 Pa.C.S. § 9545(b)(2)). In order
    to be entitled to the exceptions to the PCRA’s one-year filing deadline, “the
    petitioner must plead and prove specific facts that demonstrate his claim
    was raised within the sixty-day time frame” under section 9545(b)(2).
    Commonwealth v. Carr, 
    768 A.2d 1164
    , 1167 (Pa. Super. 2001).
    The PCRA court appropriately and succinctly addressed Appellant’s
    issue as follows:
    In attempt to satisfy the PCRA’s timeliness exception,
    [Appellant] advanced a claim based upon the new constitutional
    right announced in Alleyne v. United States, 
    133 S.Ct. 2151
    (2013). His petition failed however to satisfy the PCRA time-bar
    in two distinct, but equally fatal ways; first, his petition failed to
    invoke the exception within sixty days of the date the claim
    could have been presented, namely June 17, 2013, the date the
    United States Supreme Court decided Alleyne. His petition was
    not filed until October 7, 2013, well-beyond the sixty-day
    mandate.
    Second, in the recent decision Commonwealth v. Miller,
    
    102 A.3d 988
    , 995 (Pa. Super. 2014), the Superior Court
    concluded that “even assuming that Alleyne did announce a new
    constitutional right, neither our Supreme Court, nor the United
    States Supreme Court has held that Alleyne is to be applied
    retroactively to cases in which the judgment of sentence had
    become final.” Thus, his petition failed to satisfy the “newly
    recognized constitutional right” exception specified in 42 Pa.C.S.
    § 9545(b)(iii).5
    5
    Nonetheless, Alleyne would not provide a basis for
    relief for his guilty plea to murder based upon his
    erroneous interpretation that Alleyne conveyed a
    right for a jury determination of the elements of his
    murder charge. See 907 response, 6/30/15 at 1.
    PCRA Opinion, 9/11/15, at 4.
    -9-
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    The PCRA court is correct.    While this Court has held that Alleyne
    applies retroactively to cases that were on direct appeal when Alleyne was
    issued, we have declined to construe that decision as applying retroactively
    to cases during collateral review. Commonwealth v. Ruiz, 131 A.3d. 54,
    58 (Pa. Super. 2015).      Indeed, our Supreme Court recently held that
    “Alleyne does not apply retroactively to cases pending on collateral review.”
    Commonwealth v. Washington, 
    142 A.3d 810
    , 820 (Pa. 2016).
    Appellant’s judgment of sentence became final on June 8, 1989.
    Alleyne was decided on June 17, 2013. Clearly, Appellant’s PCRA petition
    does not qualify for the new constitutional-right exception to the PCRA time-
    bar under Alleyne.
    Therefore, because the instant PCRA petition was untimely and no
    exceptions apply, the PCRA court lacked jurisdiction to address the claims
    presented.    See Commonwealth v. Fairiror, 
    809 A.2d 396
    , 398 (Pa.
    Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely
    petition).   Likewise, we lack the authority to address the merits of any
    substantive claims raised in the PCRA petition.    See Commonwealth v.
    Bennett, 
    930 A.2d 1264
    , 1267 (Pa. 2007) (“[J]urisdictional time limits go to
    a court’s right or competency to adjudicate a controversy.”).
    Order affirmed.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/3/2016
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