Com. v. Young, M. ( 2018 )

J-S06023-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK YOUNG :
:
Appellant : No. 1016 EDA 2017
:
Appeal from the PCRA Order March 9, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1118461-1974
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 16, 2018
Mark Young appeals pro se from the order entered in the Philadelphia
County Court of Common Pleas dismissing his “Petition for Writ of Habeas
Corpus” as an untimely petition pursuant to the Post Conviction Relief Act1
(“PCRA”). We affirm.
A previous pannel of this Court set forth the relevant facts and
procedural history as follows:
On October 6, 1975, [Young] was convicted of Second Degree
Murder, Robbery and Criminal Conspiracy and received a life
sentence following a jury trial presided over by the Honorable John
Geisz. On August 12, 1976, [Young] was sentenced to life
imprisonment. These convictions and life sentence were
supported by evidence showing that [Young] and co-defendant,
Charles Sheppard, robbed the Place Bar in Philadelphia County on
September 7, 1974. While in process of robbing the Place Bar, Mr.
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1 42 Pa.C.S. §§ 9541-9546.
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Sheppard shot and killed a patron of the bar, Walter Palmero. At
trial, the Commonwealth presented [Young’s] confession and the
corroborating testimony of a witness — the barmaid who was
working at the Place Bar on the night of the robbery. This evidence
established that [Young] jumped over the bar and forced the
barmaid to open the cash register. After taking money from the
register, [Young] grabbed a bottle of liquor and fled the scene.
***
The Pennsylvania Supreme Court affirmed [Young’s] conviction on
March 16, 1979[,] and reargument was denied on April 16, 1979.
On November 30, 1992, [Young] filed a Petition for Post
Conviction Relief. On April 10, 1997, the Honorable Genece
Brinkley dismissed [Young’s] Petition without a hearing. [Young]
appealed and the Pennsylvania Superior Court affirmed the
dismissal on June 30, 1998. The Pennsylvania Supreme Court
denied [Young’s] Petition for Allowance of Appeal on June 23,
1999. On June 23, 2000, [Young] then filed a Petition for Writ of
Habeas Corpus in federal court. On March 1, 2001, the United
States Court of Appeals for the Third Circuit denied [Young’s]
application to file a subsequent petition. On July 23, 2001,
[Young] filed a [second] pro se Petition for Post Conviction Relief.
[Young’s] counsel then filed an amended petition on April 1, 2002.
On December 20, 2002, [Young] was sent notice of [the PCRA
court's] intent to dismiss his [second Amended] Petition for Post-
Conviction Relief because it was untimely. [Young] failed to
respond, and [the PCRA court] dismissed [Young’s] [s]econd
Amended PCRA Petition on January 23, 2003.]
...
[Young] filed his [t]hird PCRA Petition on June 24, 2008[,] wherein
he requested a new trial based on the discovery of new evidence
in the form of a witness, Shantee Neals Williams. [Young]
attached what he purported to be an affidavit signed by Ms.
Williams wherein she attested to the fact that she was in the Place
Bar on September 7, 1974[,] when she witnessed a robbery and
murder. She swears that the man she saw jump over the bar and
force the barmaid to take money from the cash register was
someone she knew who went by the name Turtle. [Young] also
offered an affidavit wherein he averred that he knew nothing of
Ms. Williams until May 29, 2008[,] when he was contacted by an
investigative reporter named Daniel Hicks. He averred that he was
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also contacted by an investigative reporter named Helen Bodley
on June 20, 2008. He averred that he filed his [t]hird PCRA Petition
within 60 days of learning about Ms. Williams on June 24, 2008.
[The PCRA court] reviewed [Young’s] pro se [p]etition, and
appointed counsel who filed an amended petition on December 8,
2009. However, around or about the time this amended petition
was filed, [Young] filed a motion to proceed pro se. On January
28, 2010, [the PCRA court] held a Grazier2 Hearing to resolve
[Young’s] motion to proceed pro se and[,] at the conclusion of
this Grazier Hearing[,] [Young] was permitted to proceed pro se
with stand-by counsel. [The PCRA court] then granted [Young’s]
request to file an amended PCRA petition and scheduled a status
listing for March 25, 2010.
At the March 25, 2010 status listing, [the PCRA court]
addressed the fact that the trial transcripts were not in the
quarter session[s] file. It raised this issue sua sponte
because it wanted to obtain copies to aid in the review of
[Young’s] [t]hird PCRA Petition. The Assistant District
Attorney who appeared on behalf of the Commonwealth
represented that her file was incomplete, and that the trial
transcripts had been missing for many years. She offered a
nonprecedential memorandum decision, Commonwealth v.
Young, 468 EDA 2003 (May 27, 2004), to ilustrate that any
issue related to the missing trial transcripts had been
previously addressed by the Superior Court.
Having determined that any issue related to the missing
trial transcripts had been previously litigated, [the PCRA
court] addressed the substance of [Young’s] [t]hird PCRA
Petition. As a courtesy to [Young], [the PCRA court] ordered the
Commonwealth to produce documents contained in its file. [The
PCRA court] hoped that any documents produced might aid
[Young] in the preparation of his [t]hird Amended Petition,
especially considering the unavailability of the trial transcripts.
However, these discovery documents were not required to
address the substance of [Young’s] PCRA Petition. In reality, he
simply raised one issue—after-discovered evidence in the form of
an affidavit purportedly signed by Ms. Williams.
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)
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[Young] was schedule[d] to submit his [t]hird Amended Petition
on June 24, 2010; however, he did not submit his [t]hird Amended
Petition until August 5, 2010. In this Amended Petition, [Young]
continued to pursue his claim of after discovered evidence based
on the affidavit purportedly signed by Ms. Williams. [Young] also
offered what he purported to be an affidavit signed by co-
defendant, Charles Sheppard. In this affidavit, Mr. Sheppard
averred that he was not with [Young] during the September 7,
1974, 2:00 a.m. robbery and murder at the Place Bar. On August
17, 2010, [the PCRA court] conducted a conference with [Young]
and the Assistant District Attorney. The [PCRA court] reviewed the
allegations in [Young’s] [t]hird Amended PCRA Petition, and set a
date for the Commonwealth's response.
On October 18, 2010, the Commonwealth filed a Motion to Dismiss
[Young’s] [t]hird Amended PCRA Petition. In its Motion to Dismiss,
the Commonwealth argued that [Young’s] [t]hird Amended PCRA
Petition was untimely because it was filed (29) twenty-nine years
after his Judgment of Sentence was entered. Under this theory, it
argued that the affidavits allegedly signed by Shantee Neals
Williams and co-defendant, Charles Sheppard, simply did not
meet the definition of after-discovered evidence.
Commonwealth v. Young, No. 3274 EDA 2010, unpublished memorandum
at 1-5 (Pa.Super. filed December 5, 2011) (citing PCRA court’s 1925(a)
Opinion, Jan. 18, 2011, pp. 1-4) (citations omitted) (emphasis added).
In regards to Young’s third PCRA petition, the PCRA court ultimately
concluded that the evidence presented was insufficient to meet the definition
of “after discovered evidence” under the PCRA and therefore the court
dismissed his petition as untimely. This Court affirmed and our Supreme Court
denied his petition for allowance of appeal.
Young filed his instant petition in December 2014. The PCRA court filed
a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 and Young filed a
response. Thereafter, the PCRA court once again concluded that his petition
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was untimely, and dismissed it via an order and opinion issued on March 9,
2017. Young filed a timely Notice of Appeal and the PCRA court did not require
him to comply with Pa.R.A.P. 1925(b).
Young raises multiple interrelated issues for our review:
1. The [PCRA] court abused its discretion when [the] court
issued an order on the 9th of March, 2017 that dismissed
the petition filed by [Young] as a state habeas corpus
petition, 42 Pa.C.S.A. §§ 6501-6506. The [PCRA] court
utilized the time limitations that apply to 42 Pa.C.S.A. §
9545 and then decided to dismiss the state habeas
corpus petition as being untimely filed under § 9545
time rule limitations.
2. The [PCRA] court abused its discretion when it
transferred the civil case action, February Term, 2016
No. 622 from the civil trial division of the common pleas
court to the criminal division of the common pleas court,
ordering that the civil matter be determined by the
criminal division.
3. The [PCRA] court abused its discretion when it dismissed
both the civil case No. 622 February Term, 2016 as
untimely and the criminal case CP-51-CR-1118461-
1974 as untimely. See the March 9th court order issued
by Judge John M. Younge in the appendix section of this
brief.
4. The PCRA court abused its discretion when it dismissed
the petition which incorporated both the criminal and
civil cases without conducting a fact finding evidentiary
hearing or evaluating the merits of the issues and claims
raised.
5. The lower court abused its discretion when it failed to
view the issues and claims that supported actual
innocence of [Young].
Young’s Brief at 3-4.
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The crux of Young’s issues lie in his contention that the trial court erred
by considering his petition for habeas corpus as constituting the legal
equivalent of a PCRA petition, subject to the PCRA’s timeliness requirements.
To this end, Young presents voluminous arguments regarding his claim of
“actual innocence.” He cites to evidence previously considered by this Court,
including the affidavits of Shantee Neals Williams and co-defendant Charles
Sheppard. He asserts that his claim of “actual innocence” is not cognizable
under the PCRA and thus his petition must be construed as a habeas corpus
petition. We decline to agree.
Our standard of review of an order denying PCRA relief is limited to
determining “whether the decision of the PCRA court is supported by the
evidence of record and is free of legal error.” Commonwealth v. Melendez-
Negron, 123 A.3d 1087, 1090 (Pa.Super. 2015). Further, it is well settled
that “the PCRA provides the sole means of obtaining state collateral relief” for
claims that are cognizable under the PCRA. Commonwealth v. Yarris, 731
A.2d 581, 586 (Pa. 1999); 42 Pa.C.S. § 9542.
If a claim is cognizable under the PCRA, the PCRA remains the sole
means of obtaining collateral relief regardless of the manner in which a filing
is titled. Commonwealth v. Hutchens, 760 A.2d 50, 52 n.1 (Pa.Super.
2000). Moreover, this Court has specifically rejected any attempt to “evade
the timeliness requirements of the PCRA” by framing a request for collateral
relief as something other than a PCRA petition. Commonwealth v. Stout,
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978 A.2d 984, 988 (Pa. 2011) (citations omitted). “Phrased differently, a
defendant cannot escape the PCRA time-bar by titling his petition or motion
as a writ of habeas corpus.” Commonwealth v. Taylor, 65 a.3d 462, 466
(Pa.Super. 2013).
Further, our Supreme Court has rejected the argument that a claim of
“actual innocence” is outside the ambit of the PCRA and therefore eligible for
habeas corpus relief:
Appellant posits his “‘actual innocence’ claim is not cognizable on
the face of the PCRA,” . . . and therefore habeas relief is available
to him because there is no remedy under the PCRA. This
argument is specious; although § 9543 does not use the term
“actual innocence” in enumerating cognizable claims, the Act
specifically states it is intended to “provide[ ] for an action by
which persons convicted of crimes they did not commit . . . may
obtain collateral relief.” 42 Pa.C.S. § 9542. Further, “[t]he action
established in this subchapter shall be the sole means of obtaining
collateral relief and encompassing all other common law and
statutory remedies for the same purpose. . ., including habeas
corpus . . . .” Thus, appellant is not entitled to habeas corpus
relief.
Commonwealth v. Abu-Jamal, 833 A.2d 719, 728 (Pa. 2003).
In this case, the trial court properly treated Young’s habeas corpus
petition as a PCRA petition subject to the PCRA’s time bar. See Stout, 978
A.2d at 988; Taylor, 65 a.3d at 466. Young’s argument that his claim of
“actual innocence” is not cognizable under the PCRA has been rejected by this
Court. See Abu-Jamal, 833 A.2d at 728. Therefore, Young’s instant petition
is subject to the timeliness requirements of the PCRA.
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It is beyond cavil that in the absence of an applicable exception, a
petitioner must file a PCRA petition, including a second or subsequent petition,
within one year of the date his or her judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). In this case, the Pennsylvania Supreme Court
affirmed Young’s judgment of sentence in March 1979 and re-argument was
denied in April 1979. Thus, Young’s instant petition, filed over 30 years later
in 2014, is patently untimely.
To overcome the PCRA’s timeliness requirement, Young was required to
plead and prove one of the following exceptions: (1) unconstitutional
interference by government officials; (ii) newly discovered facts that could not
have been previously ascertained with due diligence; or (iii) a newly
recognized constitutional right that has been held to apply retroactively. See
42 Pa.C.S.A. §§ 9545(b)(1)(i)(iii). Here, Young does not plead, let alone
prove, any exception to the PCRA’s time bar. Therefore, the PCRA court
properly dismissed Young’s petition as untimely.
Young also argues that his “civil” claim regarding the absence of his trial
transcripts was improperly dismissed in tandem with his instant PCRA petition.
However, the PCRA court’s order does not mention Young’s claim regarding
his transcripts and the only evidence Young presents regarding this claim is a
May 9, 2016 order, entered in the Philadelphia Court of Common Pleas, Civil
Trial Division, transferring the purported matter to the criminal division.
Further, we note that the issue of Young’s missing transcripts has been
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previously addressed by the PCRA court, in connection with his third PCRA
petition, and found to be of no moment to his underlying claims. Young,
supra. Therefore, Young’s argument regarding his trial transcripts lacks merit.
Accordingly, we affirm the PCRA court’s order dismissing Young’s
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/18
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