Com. v. Gray, D. ( 2020 )


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  • J-S74026-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    DARRLY GRAY                                :
    :
    Appellant               :   No. 3640 EDA 2018
    Appeal from the PCRA Order Entered December 4, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0108411-1996
    BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
    MEMORANDUM BY MURRAY, J.:                              Filed: February 7, 2020
    Darrly Gray (Appellant) appeals pro se from the order dismissing his
    second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
    Pa.C.S.A. §§ 9541-9546. We affirm.
    On June 10, 1996, a jury convicted Appellant of first-degree murder and
    possession of an instrument of crime in connection with the shooting death of
    Thomas Horn in the City of Philadelphia on May 18, 1995.1 On October 3,
    1996, the trial court sentenced Appellant to life imprisonment without the
    possibility of parole. Appellant appealed without success to both this Court
    and the Pennsylvania Supreme Court. See Commonwealth v. Gray, 353
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    1   18 Pa.C.S.A. §§ 2502 and 907.
    J-S74026-19
    PHL 1997 (Pa. Super. Mar. 3, 1998) (unpublished memorandum), appeal
    denied, 
    725 A.2d 1218
    (Pa. 1998) (table). Appellant did not seek further
    review with the United States Supreme Court.
    On April 22, 1999, Appellant filed a pro se PCRA petition. Counsel was
    appointed and filed an amended petition. On October 3, 2001, the PCRA court
    denied Appellant’s petition. Appellant appealed, and this Court affirmed the
    denial on November 21, 2002. Commonwealth v. Gray, 811 EDA 2002 (Pa.
    Super. Nov. 21, 2002) (unpublished memorandum).              The Pennsylvania
    Supreme Court denied Appellant’s petition for allowance of appeal on May 15,
    2003. Commonwealth v. Gray, 
    825 A.2d 637
    (Pa. 2003) (table).
    On June 1, 2015, Appellant filed the underlying pro se “Petition for
    Habeas Corpus Relief . . . and for Post-Conviction Relief Act[.]”2 Appellant’s
    PCRA Petition, 6/1/15, at *1. On July 25, 2018, the PCRA court issued notice
    of its intent to dismiss Appellant’s petition without a hearing pursuant to Rule
    907 of the Pennsylvania Rules of Criminal Procedure; Appellant filed an
    amended petition in response to the court’s notice on August 16, 2018. On
    December 4, 2018, the PCRA court dismissed Appellant’s petition as untimely.
    Appellant appealed.
    Appellant raises three issues for review:
    ____________________________________________
    2 We note that Appellant’s petition must be construed as being raised under
    the PCRA. It is well-settled that the PCRA is intended to be the sole means of
    achieving post-conviction relief. See Commonwealth v. Taylor, 
    65 A.3d 462
    , 465 (Pa. Super. 2013).
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    [1.] WHETHER PCRA COUNSEL RENDERED INEFFECTIVE
    ASSISTANCE OF COUNSEL “PER-SE’ [sic] UNDER THE STATUTORY
    EXCEPTION 42 PA C.S. § 9545 (b)(1)(ii), IN THAT, PCRA COUNSEL
    WAIVED APPELLANT’S PCRA CLAIM BY FAILING TO CONDUCT AN
    INDEPENDENT INVESTIGATION OF AN EYEWITNESS WHO WOULD
    HAVE TESTIFIED AND PROVED APPELLANT’S CLAIM OF ACTUAL
    INNOCENCE?
    [2.] WHETHER APPELLANT’S CONSTITUTIONAL RIGHTS UNDER
    THE SIXTH AND FOURTEENTHS [sic] (THE RIGHT TO EFFECTIVE
    ASSISTANCE OF COUNSEL, AND DUE PROCESS) OF THE UNITED
    STATES CONSTITUTION WAS VIOLATED DURING A CRITICAL
    STAGE OF THE CRIMINAL PROCEEDINGS?
    [3.] WHETHER THE HONORABLE JUDGE GENECE BRINKLEY
    COMMITTED A LEGAL ERROR THROUGH A SIX (6) YEARS OF
    (INORDINATE) DELAY [?] AND COMMITTED AN OBSTRUCTION OF
    JUSTICE OR GOVERNMENT INTERFERENCE BY NOT GRANTING A
    MEANINGFUL PCRA REVIEW ON APPELLANT’S PCRA CLAIMS
    PERTAINING TO A STRUCTURE ERROR?
    Appellant’s Brief at 3.
    Preliminarily, in reviewing the denial of a PCRA petition, our review is
    limited to examining whether the PCRA court’s findings are supported by the
    record and free of legal error. See Commonwealth v. Hanible, 
    30 A.3d 426
    , 438 (Pa. 2011). We view the findings of the PCRA court and the evidence
    of record in the light most favorable to the prevailing party. 
    Id. “The PCRA
    court’s credibility determinations, when supported by the record, are binding
    on this Court; however, we apply a de novo standard of review to the PCRA
    court’s legal conclusions.” See Commonwealth v. Mason, 
    130 A.3d 601
    ,
    617 (Pa. 2015).
    Further, Pennsylvania law makes clear that no court has jurisdiction to
    hear an untimely PCRA petition.     Commonwealth v. Monaco, 996 A.2d
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    1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 
    837 A.2d 1157
    , 1161 (Pa. 2003)). A petitioner must file a PCRA petition within
    one year of the date on which the petitioner’s judgment of sentence became
    final, unless one of the three statutory exceptions applies:
    (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.A. § 9545(b)(1). A petitioner must file a petition invoking one of
    these exceptions “within 60 days of the date the claim could have been
    presented.” 42 Pa.C.S.A. § 9545(b)(2).3 If a petition is untimely, and the
    petitioner has not pled and proven any exception, “neither this Court nor the
    ____________________________________________
    3 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
    2018, and now provides that a PCRA petition invoking a timeliness exception
    must be filed within one year of the date the claim could have been
    presented. Previously, a petitioner had 60 days from when the claim could
    have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
    Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall
    apply only to claims arising one year before the effective date . . . or
    thereafter.” 
    Id. This change
    does not impact Appellant or our analysis.
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    trial court has jurisdiction over the petition. Without jurisdiction, we simply
    do not have the legal authority to address the substantive claims.”
    Commonwealth v. Derrickson, 
    923 A.2d 466
    , 468 (Pa. Super. 2007)
    (quoting Commonwealth v. Chester, 
    895 A.2d 520
    , 522 (Pa. 2006)).
    Appellant’s PCRA petition is facially untimely. “A judgment is deemed
    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.’” 
    Monaco, 996 A.2d at 1079
    (quoting 42 Pa.C.S.A. § 9545(b)(3)).
    Here, the trial court entered Appellant’s judgment of sentence on
    October 3, 1996.    Appellant appealed to this Court and the Pennsylvania
    Supreme Court, but did not seek review with the United States Supreme
    Court.   Therefore, Appellant’s judgment of sentence became final 90 days
    from the July 28, 1998 order denying his petition for allowance of appeal with
    the Pennsylvania Supreme Court, or October 26, 1998. See 42 Pa.C.S.A. §
    9545(b)(3); U.S.Sup.Ct.R. 13.
    Under Section 9545(b)(1), Appellant had to file his PCRA petition within
    one year of his judgment of sentence becoming final – or October 26, 1999.
    Appellant did not file the instant petition, his second, until June 1, 2015.
    Accordingly, we are without jurisdiction to decide Appellant’s appeal unless he
    pled and proved one of the three timeliness exceptions of Section 9545(b)(1).
    See 
    Derrickson, 923 A.2d at 468
    .
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    Appellant argues that he satisfied the newly-discovered fact exception
    under Section 9545(b)(1)(ii), and therefore, the PCRA court has jurisdiction
    over the merits of his petition.4         In order to qualify for this exception, a
    petitioner must establish that (1) he did not know the facts upon which he
    based his petition, and (2) he could not have learned those facts earlier with
    the exercise of due diligence.         See 42 Pa.C.S.A. § 9545(b)(1)(ii).     Both
    components “must be alleged and proven as an initial jurisdictional threshold.”
    Commonwealth v. Diggs, 
    220 A.3d 1112
    , 1117 (Pa. Super. 2019) (citation
    omitted). To qualify as a new fact, “the information may not be part of the
    public record.” Commonwealth v. Edmiston, 
    65 A.3d 339
    , 352 (Pa. 2013)
    ____________________________________________
    4 Throughout his brief, Appellant uses the term “after-discovered facts,”
    instead of “newly discovered facts” in pleading an exception to the PCRA time-
    bar. There is an important and often misapprehended distinction between the
    newly discovered facts exception to the time limitations of the PCRA and after-
    discovered evidence as a basis for substantive relief. The Supreme Court of
    Pennsylvania offered the following clarification:
    To qualify for an exception to the PCRA’s time limitations under
    subsection 9545(b)(1)(ii), a petitioner need only establish that the
    facts upon which the claim is based were unknown to him and
    could not have been ascertained by the exercise of due diligence.
    However, where a petition is otherwise timely, to prevail on an
    after-discovered evidence claim for relief under subsection
    9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory
    evidence has been discovered after trial and 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.
    Commonwealth v. Burton, 
    158 A.3d 618
    , 629 (Pa. 2017).
    -6-
    J-S74026-19
    (citation omitted).   In addition, the item must “not merely [be] a newly-
    discovered or newly willing source for previously known facts.” 
    Id. “Due diligence
    demands that the petitioner take reasonable steps to
    protect his own interests and explain why he could not have learned the new
    facts earlier with the exercise of due diligence.” 
    Diggs, 220 A.3d at 1117
    (citation omitted). The Pennsylvania Supreme Court has explained that “[d]ue
    diligence does not require perfect vigilance and punctilious care, but merely a
    showing the party has put forth reasonable effort to obtain the information
    upon which a claim is based.” Commonwealth v. Cox, 
    146 A.3d 221
    , 230
    (Pa. 2016). However, a petitioner must “explain why his asserted facts could
    not have been ascertained earlier with the exercise of due diligence.”
    Commonwealth v. Taylor, 
    933 A.2d 1035
    , 1041 (Pa. Super. 2007) (citation
    omitted). “This rule is strictly enforced.” 
    Monaco, 996 A.2d at 1080
    (citation
    omitted).
    Appellant argues in his amended petition that the affidavit he received
    from Kareem Morefield, who was allegedly present during the shooting of Mr.
    Horn on May 18, 1995, constitutes a newly discovered fact for the purposes
    of Section 9545(b)(1)(ii). See Appellant’s Amended PCRA Petition, 8/16/18,
    at 3. Specifically, Mr. Morefield’s affidavit alleges that Appellant is a victim of
    mistaken identity. Appellant attached Mr. Morefield’s affidavit as an exhibit to
    his amended petition, which states:
    I, Kareem Morefield, hereby attest that I was present during
    the shooting death of Thomas Horn[] (a.k.a. T.J.); and that the
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    J-S74026-19
    shooting occurred on May 18, 1995, on the corner of 22nd and
    Diamond Street, in the County of Philadelphia, PA.
    I, Kareem [Morefield] state that the above-mentioned
    incident, occurred over an argument between Big Bubbie, and T.J.
    (Thomas Horn[]) over some money that T.J. claimed Big Bub had
    owed to him. Big Bub tried explaining that he had paid T.J. the
    money and that T.J. must’ve been high or something, and just
    didn’t remember. T.J. stated that he wasn’t trying to hear that
    BS (bull-shit), that he (Big Bub) better get his money, before he
    bust his ass, and then T.J. reached as if he was going to shoot Big
    Bub, and this is when Big Bub pulled his gun out, and shot T.J.
    and then Big Bub ran.
    I, Kareem Morefield, further attest, that everybody started
    walking towards the corner of 22nd and Diamond Street. Now,
    this is the first time that I seen little Bub ([Appellant]) walk around
    the corner of 22nd and Diamond Street. Little Bub was not out
    there when the shooting took place. At this time some of T.J’s
    Homies (friends and family members) were talking about killing
    Big Bub, in retaliation, and that when everybody seen Little Bub,
    trying to cool everybody out.
    I, Kareem Morefield, states that over the years everybody always
    got Big Bub, and Little Bub, mixed-up. And to this very day
    everybody thinks that Little Bub killed T.J. when all along it was
    Big Bub. A lot of people didn’t know which one (1) of the two (2)
    had killed T.J., but I know, because I was out there. And, I am
    coming forward, because I was out in A-Yard at SCI @
    Huntingdon when I heard people arguing about this, and
    that’s when and where I learned that Little Bub
    [(Appellant)] had a Life Sentence for a crime he didn’t do.
    I said damn, it’s not like I’m snitching on Big Bub, because
    he is dead now, and I know my dad’s Homie (friend) at SCI
    @ Greene maybe I could get him to reach out.
    Appellant’s Amended PCRA Petition, 8/16/18, Exhibit A (emphasis added).
    Upon review, we conclude that Appellant’s alleged newly discovered
    fact, the affidavit of Mr. Morefield, amounts to facts that were previously
    known but are now presented through a newly discovered source. Notably,
    in Appellant’s first PCRA petition, he presented a similar affidavit from another
    individual, Rasheem Wright, which stated “that [Wright] saw the shooting and
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    that [Appellant] was not the shooter. In a sworn statement, Wright states
    that [Appellant] was not present when the victim was shot, because
    [Appellant] had walked around the corner before the shooting.” Gray, 811
    EDA 2002, at *4.
    As stated above, our Supreme Court has explicitly held that a newly
    discovered source does not constitute facts which were unknown to a
    petitioner and could not have been ascertained by the exercise of due
    diligence. 
    Edmiston, 65 A.3d at 352
    ; see also Commonwealth v. Chmiel,
    
    173 A.3d 617
    , 625 (Pa. 2017) (“[T]he factual predicate of the claim . . . must
    not be facts that were not previously known but are now presented through a
    newly discovered source.”) (citation omitted).   Thus, Mr. Morefield’s affidavit
    proffered by Appellant does not qualify as a newly discovered fact for purposes
    of 9545(b)(1)(ii).
    Furthermore, the PCRA court determined that Appellant failed to
    exercise due diligence in asserting his “newly discovered evidence” claim. The
    PCRA court stated:
    In response to the 907 notice, [Appellant] filed an amended
    PCRA petition attempting to invoke the newly discovered facts and
    newly recognized constitutional rights exceptions.[5] [Appellant]
    ____________________________________________
    5The PCRA court correctly notes that Appellant also argues in his amended
    PCRA petition that he meets the newly-recognized constitutional right
    exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(iii).          See Appellant’s
    Amended PCRA Petition, 8/16/18, at 2-3. However, because Appellant has
    abandoned this claim in his brief, it is waived for purposes of our review. See
    Pa.R.A.P. 2119(a)-(d); see also Commonwealth v. Lewis, 
    63 A.3d 1274
    ,
    1279 (Pa. Super. 2013) (holding newly-recognized constitutional right
    exception argument waived for failure to include it in appellate brief).
    -9-
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    attempted to invoke the newly discovered facts exception
    enumerated in 42 Pa. Cons. Stat. § 9545 (b)(1)(ii) by attaching
    an affidavit from Kareem Moorefield stating [Appellant] was a
    victim of mistaken identity. In his affidavit, the affiant alleged
    that [Appellant] was called “Little Bub” while the individual who
    committed the homicide was referred to as “Big Bub.” Mr.
    Moorefield further states that he saw “Big Bub” shoot the
    complainant, and not [Appellant,] who was allegedly referred to
    as “Little Bub.” PCRA amended petition, 08/09/2018, Exhibit A.
    To successfully invoke the newly discovered fact exception,
    [Appellant] must plead and prove the facts that his claim was
    predicated upon were not only unknown to him, but could not
    have been ascertained by exercising due diligence. Upon review
    of this claim, [Appellant] failed to state what due diligence, if any,
    he took to secure the witness’ testimony. [Appellant] did not
    explain why he could not have discovered the witness on an earlier
    date, through the use of a private investigator or otherwise. For
    instance, he did not state what attempts, if any, were taken to
    locate the alleged witnesses.         Furthermore, there was not
    information in [Appellant’s] record making a distinction between
    a “Little Bub” and “Big Bub.” Presumably, [Appellant] would have
    made his trial attorney, appellate attorney, or his PCRA attorney
    aware of this mistaken identity. . . .
    PCRA Court Opinion, 4/1/19, at 3-4 (footnote added).
    We agree with the PCRA court that Appellant failed to demonstrate why
    Mr. Morefield’s affidavit could not have been ascertained earlier through the
    exercise of due diligence. 
    Taylor, 933 A.2d at 1041
    . A review of Appellant’s
    amended PCRA petition indicates that although he “invokes the statutory
    exception under 42 Pa. C.S. § 9545(b)(1)(ii),” Appellant fails to provide any
    explanation or reason as to why Mr. Morefield’s alleged eyewitness account of
    the murder of Mr. Horn could not have been ascertained earlier with the
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    exercise of due diligence. See Appellant’s Amended Petition, 8/16/18, at 3-
    5.6
    In sum, the information upon which Appellant relies to qualify for the
    newly discovered fact exception does not meet the requirements prescribed
    in Section 9545(b)(1)(ii), and Appellant has failed to prove how the alleged
    newly discovered facts could not have been ascertained earlier.           Because
    Appellant’s petition is untimely and not subject to a statutory exception to the
    PCRA’s time bar, the PCRA court lacked jurisdiction. We therefore affirm the
    order denying relief.
    Order affirmed.
    ____________________________________________
    6 Likewise, Appellant’s claim of mistaken identity contradicts the arguments
    Appellant presented on direct appeal. In a post-sentence motion, Appellant
    argued the evidence was insufficient to establish that he had the specific intent
    to kill Mr. Horn. Appellant stated:
    Lyons’ and Corbitts’ testimony indicated that [Appellant] had fired
    5 or 6 times at close range while the victim was struck only once,
    in the side. [Appellant’s] erratic firing at close range is consistent
    with his being intoxicated and with his acting for a reason other
    than his wanting to kill . . . .”
    Appellant’s Post-Sentence Motion Memorandum, at 17. Given Appellant’s
    argument that he was the shooter but the shooting was an accident, Mr.
    Morehead’s affidavit would not have been helpful to Appellant.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/7/20
    - 12 -
    

Document Info

Docket Number: 3640 EDA 2018

Filed Date: 2/7/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024