Com. v. Brewer, A. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTWON MONTRELL BREWER :
:
Appellant : No. 617 WDA 2021
Appeal from the PCRA Order Entered January 29, 2021
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000893-2002
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: MAY 6, 2022
Antwon Montrell Brewer (“Brewer”) appeals from the order dismissing
his untimely serial petition for relief filed pursuant to the Post Conviction Relief
Act statute (“PCRA”).1 We affirm.
In 2003, a jury found Brewer guilty of first degree murder for shooting
Jason Tate. The trial court sentenced Brewer to life imprisonment. This Court
affirmed the judgment of sentence, and our Supreme Court denied allowance
of appeal on December 7, 2005. See Commonwealth v. Brewer, 875 A.2d
383 (Pa. Super. 2005) (unpublished memorandum), appeal denied, 890 A.2d
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546.
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1055 (Pa. 2005). Brewer did not seek relief in the United States Supreme
Court.
Brewer filed a timely PCRA petition which the PCRA court denied
following an evidentiary hearing. This Court affirmed the denial of the PCRA
petition. See Commonwealth v. Brewer, 951 A.2d 1205 (Pa. Super. 2008)
(unpublished memorandum). Brewer did not petition for allowance of appeal
in the Pennsylvania Supreme Court. In January 2019, Brewer filed a second
PCRA petition through privately retained counsel, Anthony Rodriques, Esquire.
Therein, Brewer asserted that his conviction should be vacated because four
of the Commonwealth’s witnesses who testified at his trial recanted their
testimony. The PCRA court issued a Pennsylvania Rule of Criminal Procedure
907 notice of its intent to dismiss the petition as untimely. Brewer filed no
response to the Rule 907 notice, and the PCRA court dismissed his petition.
Brewer did not appeal.
On December 9, 2019, Brewer, again represented by Attorney
Rodriques, filed a third PCRA petition. Therein, Brewer reasserted his claims
regarding the four Commonwealth witnesses, and raised a new claim
regarding a purported eyewitness who would testify that the shooter had
braided hair, whereas Brewer had short hair at the time. The PCRA court
issued a Rule 907 notice of its intent to dismiss the petition, noting, among
other things, that the petition was untimely. Brewer responded to the Rule
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907 notice. The PCRA court dismissed Brewer’s third PCRA petition on January
29, 2020. Brewer did not appeal.
In April 2021, Brewer, having retained new counsel, filed a fourth PCRA
petition. In that petition, Brewer asserted that Attorney Rodriques had
rendered ineffective assistance by, among other things, failing to appeal the
order dismissing his third PCRA petition. The PCRA court granted relief, and
reinstated Brewer’s right to appeal the dismissal order nunc pro tunc. Brewer
thereafter filed a timely appeal, and both he and the PCRA court complied with
Pa.R.A.P. 1925.2
Brewer raises the following issues for our review:
1. Did the court below commit an abuse of discretion and
reversible error by failing to grant [Brewer] an evidentiary
hearing[,] [based on its] finding that [his second and third
PCRA petitions were not] not timely [because] [Attorney
Rodriques’s] petition did not properly establish an exception to
the timeliness rule by properly setting forth after[-]discovered
evidence, and by ruling the proposed evidence was unreliable
without said hearing, as well [as] failing to hold a hearing on
the [third] petition[,] which listed additional after[-]discovered
evidence?
2. Was [Attorney Rodriques] ineffective by not sufficiently
drafting [Brewer’s] PCRA petition to properly establish that
[Brewer] was [entitled] to an evidentiary hearing based upon
after[-]discovered evidence, and should the case be remanded
pursuant to Commonwealth v. Bradley[, 261 A.3d 381 (Pa.
2021)]?
____________________________________________
2The PCRA court elected not to write a Pa.R.A.P. 1925(a) opinion but, instead,
specified where the reasons for its order appear in the record, i.e., in the May
20, 2019 Rule 907 notice of its intent to dismiss Brewer’s second PCRA
petition.
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Brewer’s Brief at 1-2 (issues reordered for ease of disposition).
Our standard of review is well-settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA Court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. Super. 2018) (internal
citation and quotations omitted).
Under the PCRA, any petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). 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.” 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature, and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. See Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
As noted above, our Supreme Court denied Brewer’s petition for
allowance of appeal on December 7, 2005; therefore, his judgment of
sentence became final after the ninety-day period for appeal to the United
States Supreme Court expired, i.e., on March 7, 2006. See 42 Pa.C.S.A.
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§ 9545(b)(3); Commonwealth v. Bankhead, 217 A.3d 1245, 1247 (Pa.
Super. 2019); U.S. Sup. Ct. R. 13.1. Brewer thus had until March 7, 2007 to
file a timely PCRA petition. Therefore, his third PCRA petition, filed on
December 9, 2019, was facially untimely. See 42 Pa.C.S.A. § 9545(b)(3).
Pennsylvania courts may consider an untimely PCRA petition if the
petitioner can plead and prove one of three exceptions set forth in 42
Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of these exceptions
“shall be filed within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2); see also Commonwealth v.
Williamson, 21 A.3d 236, 242 (Pa. Super. 2011) (holding that “a petitioner
invoking section 9545(b)(1)[] must still comply with section 9545(b)(2)
by presenting the claim within [one year] of discovering the new fact”)
(internal citations omitted, emphasis in original). If the petition is untimely
and the petitioner has not pleaded and proven a timeliness exception, the
petition must be dismissed without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the petition. See
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).
Relevantly, section 9545(b)(1)(ii) provides an exception to the time-bar
if the petitioner pleads and 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[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).
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We have observed that section 9545(b)(1)(ii) has two components which must
be alleged and proven:
[T]he petitioner must establish that: 1) the facts upon which the
claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. Due diligence
demands that the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence.
This rule is strictly enforced.
Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (internal
quotations and citations omitted, emphasis in Medina).
In his first issue, Brewer argues that the PCRA court erred in dismissing
his third PCRA petition because he satisfied the timeliness exception in section
9545(b)(1)(ii) by pleading that four of the Commonwealth’s witnesses
recanted their trial testimony and that he had discovered a new eyewitness to
the shooting, Stephon Coleman, who would testify that the shooter had
braided hair. Brewer claims that Coleman’s purported testimony is
exculpatory because his hair at the time of the shooting was too short to braid.
Brewer’s Brief at 10-11.
The PCRA court concluded that Brewer’s petition was untimely and that
he failed to sufficiently plead an exception under section 9545(b)(1)(ii). The
court explained:
[Brewer] claims after-discovered evidence in the form of
witness recantation [that] has come to light which would have
changed the course of the trial. [He] baldly claims three of the
Commonwealth’s witnesses . . . testified [they] saw [him] at the
crime scene[,] but now state [their] testimony was false.
[Brewer] claims a fourth Commonwealth witness . . . testified she
overheard [Brewer] on the phone making inculpatory statements
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concerning the crime[,] but now states she was a drug addict and
is not sure of what she heard. In support, [Brewer] simply
attached a “Witness List” to the PCRA [petition] with the names of
the recanting witnesses along with their phone numbers . . .. This
is entirely insufficient to meet the initial threshold requirement.
[Brewer] has failed to plead and prove in his PCRA [petition]
any exception to the jurisdictional time-bar. Applying the law to
the facts of this case, [Brewer] cannot establish the facts his claim
is predicated on were unknown to him prior to the filing of the
subject [petition] . . ..
****
[Presently, Brewer] claims the witnesses now state their
testimony was false[,] rather than [merely] accusing the
witnesses of testifying falsely. However, [Brewer] does not
explain why he was unable to discover this information sooner
with the exercise of due diligence. [Brewer] provides no
description of the steps he took to protect his interest. [His] PCRA
[petition] includes no written affidavits from the witnesses, or
even any explanation of how, and more importantly when,
[Brewer] found this information out. [Brewer] has failed to
establish an exception on the basis of new facts and this [c]ourt
has no jurisdiction to consider the merits of Petitioner’s claim.
PCRA Court Opinion, 6/23/21, at 1 (citing Notice of Intent, 5/20/19, at 2-5).
Based on our review, we conclude that the PCRA court’s determinations
are supported by the record and free of legal error. As explained above, to
establish the application of section 9545(b)(1)(ii) and, thus invoke the PCRA
court’s jurisdiction, Brewer was required to plead and prove that the facts
upon which the claim is predicated were unknown to him and could not have
been ascertained by his exercise of due diligence. See Medina, 92 A.3d at
1216. Moreover, he must plead and prove that he filed a petition invoking
this exception within one year of the date it could have been presented. See
Williamson, 21 A.3d at 242. As the PCRA court observed, Brewer failed to
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plead how he exercised due diligence in discovering these witnesses twelve
years after his trial, or to show when he discovered that the four
Commonwealth witnesses had recanted their testimony and the purported
exculpatory testimony of the eyewitness. He also did not plead that he filed
his third PCRA petition within one year of the date he discovered these facts.
See 42 Pa.C.S.A. §§ 9545(b)(1)(ii), (b)(2); Medina, 92 A.3d at 1216;
Williamson, 21 A.3d at 242. As we conclude the PCRA court’s determination
that Brewer failed to plead and prove an exception to the PCRA’s time-bar was
supported by the record and free of legal error, Brewer’s first issue warrants
no relief.
In his second issue, Brewer argues that if his third PCRA petition was
insufficient to “overcome the timeliness issue,” it was because Attorney
Rodriques filed a “defective” petition. Brewer’s Brief at 4. Brewer argues that
this Court should find Attorney Rodriques ineffective under Commonwealth
v. Bradley, 261 A.3d 381 (Pa. 2021). Accordingly, Brewer argues, we should
vacate the order dismissing his third petition and remand for present counsel
to amend the petition to properly plead an exception to the PCRA’s time-bar.
In Bradley, our Supreme Court concluded that PCRA petitioners have a
rule-based right to effective counsel for a first PCRA petition, and they
therefore may allege PCRA counsel’s ineffectiveness at the first available
opportunity, even if on appeal. See Bradley, 261 A.3d at 386, 391, 401-02.
Because Brewer is presently alleging the ineffectiveness of privately-retained
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PCRA counsel for his third PCRA petition, Bradley is inapplicable and therefore
affords Brewer no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2022
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