Com. v. Gibson, V. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
VEGAS GIBSON
Appellant No. 634 MDA 2020
Appeal from the PCRA Order entered August 6, 2019
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0001851-2004
BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 09, 2021
Appellant, Vegas Gibson, appeals pro se from the August 6, 2019 order
entered in the Court of Common Pleas of Dauphin County, denying his fifth
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends he has satisfied
the newly-discovered facts exception to the PCRA’s timeliness requirements
based on our Supreme Court’s clarification of the term “cumulative evidence.”
He also asserts that the failure to grant him an opportunity to present
additional evidence in a new trial violates his equal protection rights under the
Fourteenth Amendment to the U.S. Constitution. Following review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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The underlying facts are not in dispute. The procedural history is
similarly undisputed. As reflected in the PCRA court’s memorandum opinion,
on May 16, 2005, a jury found Appellant guilty of one count each of criminal
homicide, former convict not to own a firearm, and recklessly endangering
another person, and two counts of aggravated assault. PCRA Court Opinion,
7/10/19, at 1. On July 26, 2005, the trial court imposed a sentence of life in
prison without possibility of parole. Id. Appellant’s initial PCRA petition was
withdrawn in favor of a direct appeal. This Court affirmed his judgment of
sentence on November 22, 2006. Our Supreme Court denied his petition for
allowance of appeal on April 25, 2007.
Appellant filed a timely first PCRA petition in 2008. Following denial of
the petition, Appellant filed an appeal with this Court raising eight issues. On
November 9, 2011, we affirmed the PCRA court’s order, agreeing with the
PCRA court’s bases for rejecting seven of the eight issues and affirming the
PCRA court’s rejection of the remaining issue on different grounds.
Specifically, in that remaining issue, Appellant claimed direct appeal counsel
was ineffective for failing to challenge the exclusion of Appellant’s testimony
regarding his knowledge of witness Jason Brown’s violent acts history. The
testimony, he argued, would have been relevant to a likely aggressor defense.
He contended the testimony did not constitute hearsay because it was offered
to establish his state of mind, not the truth of the matter asserted.
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This Court disagreed with both the ruling of the trial court and the
conclusion of the PCRA court that the testimony constituted hearsay.
However, based on a review of the record, the Court determined that
Appellant failed to demonstrate prejudice from the trial court’s error or
counsel’s omission on direct appeal. “The jury heard testimony from Appellant
regarding instances in which he personally observed [Jason] Brown commit
acts of violence and other witnesses testified at Appellant’s trial about violent
episodes in which Brown was involved.” Commonwealth v. Gibson, 43 MDA
2011, unpublished memorandum at 8 (Pa. Super. filed November 9, 2011)
(citing Notes of Testimony, Trial, 5/16/05-5/23/05, at 738-39). “In view of
this evidence, the excluded testimony was cumulative.” Id. Because
Appellant did not demonstrate that the outcome of the trial or direct appeal
would have been different if counsel had challenged the evidentiary ruling,
Appellant was not entitled to relief. Id.
Appellant sought review of this Court’s decision. Our Supreme Court
denied his petition for allowance of appeal on June 20, 2012. Appellant’s
second, third and fourth PCRA petitions were dismissed by the PCRA court and
his subsequent appeals to this Court were unsuccessful.
Appellant filed the instant petition, his fifth, on March 7, 2019, claiming
that our Supreme Court refined the definition of “cumulative evidence” in
Commonwealth v. Small, 189 A.3d 961 (Pa. 2018), and that Small applies
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retroactively to evidence ruled inadmissible as hearsay at Appellant’s trial.1
By order entered August 6, 2019, the PCRA court dismissed the petition.
Appellant filed this appeal following reinstatement of his appeal rights nunc
pro tunc. The PCRA court did not order the filing of a Rule 1925(b) statement
but did file a statement in lieu of a Rule 1925(a) opinion on May 15, 2020,
noting that the court’s July 10, 2019 memorandum opinion addressed the
issue raised on appeal.
The issue Appellant asks us to consider is:
Whether the [PCRA] court abused its discretion by concluding that
Commonwealth v. Small, 189 A.3d 961 (Pa. 2018) is not
applicable to [Appellant] via equal protections of the laws provided
by our Fourteenth Amendment.
Appellant’s Brief at 4.
“Our review of the grant or denial of PCRA relief 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.” Small, 189 A.3d at
971 (citation omitted). However, before we may consider the merits of
Appellant’s issue, we must first determine whether we have jurisdiction over
this appeal. As our Supreme Court recently reiterated, “[I]f a PCRA petition
is untimely, neither this Court nor the trial court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
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1 We note that Small involved a timely first PCRA petition. Therefore, unlike
the case before us, the PCRA’s time bar was not at issue.
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address the substantive claims.” Commonwealth v. Reid, 235 A.3d 1124,
1143 (Pa. 2020) (citation omitted).
As the PCRA court recognized, a PCRA petition—including a second or
subsequent petition—must be filed within one year of the time the petitioner’s
judgment of sentence was final. 42 Pa.C.S.A. § 9545(b). In this case, our
Supreme Court denied Appellant’s petition for allowance of appeal on April 25,
2007. He did not seek a writ of certiorari to the United States Supreme Court.
Therefore, his judgment of sentence became final 90 days later, on July 24,
2007, at the expiration of the time for seeking a writ of certiorari. U.S.Sup.Ct.
Rule 13. In accordance with 42 Pa.C.S.A. § 9545, he had until July 24, 2008
to file a timely PCRA petition. The instant petition, filed on March 7, 2019, is
untimely on its face. Therefore, neither the PCRA court nor this Court may
consider the merits of the petition unless Appellant satisfied an exception to
the PCRA’s timeliness requirements.
In his PCRA petition, Appellant claimed time bar exceptions for newly-
discovered facts under Section 9545(b)(1)(ii) and a newly-recognized
constitutional right under Section 9545(b)(1)(iii).2 The PCRA court addressed
his claimed exceptions, stating:
____________________________________________
2 Section 9545(b) provides, in relevant part:
Time for filing petition.—
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[Appellant] argues that Small created a constitutional right and
that right retroactively applies to testimony that was excluded
from his trial. He argues this right applies via the equal protection
clause of the 14th Amendment. However, this is not an accurate
interpretation of Small. In Small, a witness came forward after
the original trial with testimony to evidence unknown to either
party at the time of the trial. In other words, the witness provided
“after-discovered evidence” to the parties. The court in Small
ruled that this “after-discovered evidence,” evidence which was
not known to either party at the time of the trial, was not “merely
cumulative” to arguments made by the defense during trial. The
testimony [Appellant] is seeking to have reviewed under the
Small court’s “merely cumulative” definition, is not “after-
discovered evidence,” and therefore Small does not apply.
Furthermore, the “merely cumulative” definition is not a
substantive constitutional right. It is an evidentiary test, and
therefore not one of the three enumerated timeliness exceptions.
Finally, the Supreme Court did not hold that Small applies
retroactively, and therefore it does not apply to [Appellant’s] case.
PCRA Court Opinion, 7/10/19, at 5 (footnote omitted).
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(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
....
(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).
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In his brief, Appellant suggests that the PCRA court erred by addressing
only the constitutional right exception set forth in Section 9545(b)(1)(iii).
Appellant’s Brief at 13. He contends the court chose not to address Appellant’s
claimed exception under Section 9545(b)(1)(ii) for newly discovered facts.
However, we believe the above excerpt reflects that the PCRA court not only
dismissed the claimed constitutional right exception, but also rejected
Appellant’s contention the testimony in question constituted “after-discovered
evidence,” i.e., evidence that was unknown to him at the time of trial. PCRA
Court Opinion, 7/10/19, at 5. Therefore, the testimony would not be
“cumulative evidence” under the Small court’s definition. Id.
In Small, the appellant based his “newly-discovered evidence”
exception to the PCRA’s time bar on an affidavit obtained post-trial from a
witness who admitted she withheld information from police when questioned
after a murder and continued to withhold information when she testified at
trial. Whereas Small was able to demonstrate he was previously unaware of
the witness’s testimony, Appellant cannot demonstrate that the facts upon
which his claim is predicated were unknown to him. In fact, he acknowledges
he wanted to introduce the evidence at trial as part of his self-defense claim.
Appellant’s Brief at 11-12. Moreover, as the PCRA court observed, Small
involved an evidentiary matter, not a constitutional right recognized by our
Supreme Court as retroactive. As our Supreme Court explained in Reid,
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“under appropriate circumstances, a judicial opinion can provide
an independent basis for a new PCRA claim pursuant to 42 Pa.C.S.
§ 9545(b)(1)(iii), which creates a limited exception” for new
constitutional rights that have been held to apply retroactively.
But a judicial opinion — even one which may establish a new
theory or method of obtaining relief — “does not amount to a new
‘fact’ under [S]ection 9545(b)(1)(ii) of the PCRA.”
Reid, 235 A.3d at 1148 (quoting Commonwealth v. Watts, 23 A.3d 980,
983 n.3 and 987 (Pa. 2011)).
We agree with the PCRA court’s conclusion that Small did not create a
new constitutional right and that, by Appellant’s own admission, the evidence
in question was known to Appellant at the time of trial and cannot be
considered “newly-discovered evidence.” Therefore, as the PCRA court
correctly determined, Appellant has failed to plead and prove an exception to
the PCRA’s time bar. As a result, that court, as well as this Court, is precluded
from considering the merits of Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/09/2021
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