Com. v. Dooley, C. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CASEY DOOLEY :
:
Appellant : No. 3574 EDA 2019
Appeal from the PCRA Order Entered November 25, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0312431-2001
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED OCTOBER 02, 2020
Appellant, Casey Dooley, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his serial
petition filed under the Post Conviction Relief Act (“PCRA”).1 We affirm.
This Court has previously set forth the relevant facts of this case as
follows:
On the morning of August 29, 2000[, Appellant] parked his
car alongside the car of Josephine Leary, walked up five (5)
steps and entered into the home of Nicole Gaskins, where
she was…with Josephine Leary. [Appellant] approached the
then 21 year old Ms. Gaskins, not saying a word, and shot
her three times in the neck, shoulder, and chin. [Appellant]
pursued Ms. Leary as she ran to her car, and fired several
shots, shattering her [drivers’] side window and left several
bullet holes in the side of her car and the trunk. Unknown
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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to these victims, not more than one half (1/2) hour before,
[Appellant] had entered into a distribution warehouse,
inquired about a job, and upon exiting the office, stopped
and fired a bullet into the chest of Joseph Connell.
[Appellant] then continued shooting at the employees at the
warehouse, approached Randy Salvati and fired several
shots, the first into Randy’s face, another shot hitting him
in the stomach. After leaving the warehouse, [Appellant]
was spotted entering a laundromat. There [Appellant]
encountered Dean Lockhart who was there washing his
clothes. As testified [to] at trial, [Appellant] approached Mr.
Lockhart where he made a comment of “what’s up old
head.” [Appellant] then pointed a gun at Mr. Lockhart and
began firing hitting him eight (8) times.
Shortly after the shooting of Ms. Gaskins, and the shootings
at the warehouse, Officer Morace, a Philadelphia police
officer on patrol, spotted a black Ford Probe matching the
description of [Appellant’s] vehicle. The Officer pulled up
behind the vehicle, and signaled him to stop. [Appellant]
pulled his vehicle to the curb, but once the Officer opened
his door to get out of his vehicle, [Appellant] fled at a high
rate of speed. [Appellant’s] vehicle was eventually brought
to a halt when it was involved with a collision with another
police vehicle. The Officer reached in the then shattered
[drivers’] side window and grabbed [Appellant’s] arm that
was then holding a 9 millimeter handgun. The vehicle was
in neutral and was rolling backwards, the officer however,
was able to lunge into the passenger side door and stop the
vehicle by putting it into gear. [Appellant] was placed in a
holding cell, where he sat naked, after apparently removing
his clothes.
Commonwealth v. Dooley, No. 3323 EDA 2002, at 2 (Pa.Super. filed April
7, 2004) (unpublished memorandum).
A jury convicted Appellant guilty but mentally ill of numerous counts of
aggravated assault, attempted murder, recklessly endangering another
person, firearms not to be carried without a license, carrying firearms on
public streets in Philadelphia, and possessing instruments of crime. The court
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sentenced Appellant on August 15, 2002, to an aggregate term of 102½ to
205 years’ imprisonment. On April 7, 2004, this Court affirmed the convictions
but vacated Appellant’s aggravated assault sentences, concluding that those
sentences should have merged with Appellant’s attempted murder sentences.2
See id. Our Supreme Court denied allowance of appeal on December 29,
2004.
Between 2005 and 2013, Appellant unsuccessfully litigated two PCRA
petitions. On January 4, 2018, Appellant filed pro se the current PCRA
petition. Appellant claimed he received an e-mail on November 20, 2017,
from Donald Gaines stating that at some point prior to Appellant’s arrest, Mr.
Gaines had witnessed a woman named Mary drop “an e-pill” (or Ecstasy
tablet) into Appellant’s soda. Mr. Gaines said he had observed Mary do this
on two occasions, not long before Appellant was arrested. Mr. Gaines
admitted that he probably should have said something sooner, and was unsure
whether what Mr. Gaines observed had anything to do with Appellant’s actions
on the day of the shooting spree.
Appellant alleged that Mr. Gaines’ e-mail presented “newly-discovered
facts” to render his current PCRA petition timely. Appellant further claimed
the new facts would explain why Appellant acted in the manner he did on the
day of the shooting spree, which Appellant said was inconsistent with
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2 Because the trial court had imposed the aggravated assault sentences
concurrently, this Court did not need to remand for resentencing.
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Appellant’s character. Appellant insisted he has always exercised due
diligence to discover a reason for why Appellant acted as he did on that day,
because Appellant has almost no recollection of the events that transpired.
Appellant also indicated that he would be filing a supplemental PCRA petition
with an affidavit from Mr. Gaines.
Appellant submitted Mr. Gaines’ sworn affidavit on February 9, 2018. In
his affidavit, signed January 19, 2018, Mr. Gaines reiterated that he observed
Mary put an Ecstasy pill into Appellant’s soda on two separate occasions. Mr.
Gaines knew the drug was Ecstasy because Mary told him so. Mr. Gaines
explained that he is one of Appellant’s closest friends and hung out with
Appellant a great deal before Appellant’s arrest. Mr. Gaines stated that he did
not see Appellant again after Appellant’s arrest and Mr. Gaines did not know
the circumstances of what transpired on the day of the shooting spree. Mr.
Gaines claimed he did not realize sooner that he had any information that
could have been helpful to Appellant’s case, and if he would have known the
information was important, he would have said something sooner.
The PCRA court subsequently appointed counsel, who filed an amended
PCRA petition on April 12, 2019. On September 23, 2019, the court issued
notice of its intent to dismiss the petition without a hearing per Pa.R.Crim.P.
907. Appellant responded on October 1, 2019. On November 25, 2019, the
court denied PCRA relief. Appellant timely filed a notice of appeal on
December 12, 2019. The court did not order, and Appellant did not file, a
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concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
Appellant raises one issue for our review:
Could the [PCRA] court determine whether the issues raised
in the PCRA petition qualify as an exception to the PCRA
time limitations or whether the evidence itself could have
led to a different result at trial?
(Appellant’s Brief at 8).
Appellant argues Mr. Gaines’ e-mail constitutes a newly-discovered fact
that establishes Appellant’s soda was laced with a mind-altering drug shortly
before Appellant committed his crimes. Appellant asserts this new information
explains why Appellant acted so out of character on the day in question. 3
Appellant insists this information was not available at the time of trial because
Mr. Gaines did not disclose his observations until the November 2017 e-mail.
Appellant contends he could not have discovered this information sooner with
the exercise of due diligence. Appellant suggests the newly-discovered fact
could have changed the outcome of trial. Appellant concludes he satisfied the
newly-discovered fact PCRA time-bar exception, and this Court should vacate
the order denying PCRA relief and remand for an evidentiary hearing to assess
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3 We reiterate that Appellant was convicted as “guilty but mentally ill.”
Although the certified record does not contain Appellant’s mental health
records or the trial transcripts, the record makes clear Appellant suffered from
severe mental illness. In his PCRA petitions and on appeal, Appellant attempts
to explain his actions as a result of the Ecstasy pill in his drink. Appellant
seems to ignore that his mental illness played any part in his shooting spree.
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Mr. Gaines’ credibility. We disagree.
As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),
cert. denied, 556 U.S. 1285, 129 S. Ct. 2772, 174 L. Ed. 2d 277 (2009).
Pennsylvania law makes clear that no court has jurisdiction to hear an
untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837
A.2d 1157 (2003). The PCRA requires a petition, including a second or
subsequent petition, to be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
is 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 review.” 42 Pa.C.S.A. §
9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than
one year after the judgment of sentence became final, the petitioner must
allege and prove at least one of the three timeliness exceptions:
(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
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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)(i)-(iii). Additionally, a PCRA petitioner must file his
petition within the relevant statutory window. See 42 Pa.C.S.A. § 9545(b)(2).
To meet the “newly-discovered facts” timeliness exception set forth in
Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the
facts upon which he based his petition and could not have learned those facts
earlier by the exercise of due diligence.” Commonwealth v. Brown, 111
A.3d 171, 176 (Pa.Super. 2015). “The focus of the exception is on [the] newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts.” Commonwealth v. Burton, 638 Pa. 687, 704, 158
A.3d 618, 629 (2017) (internal citation and quotation marks omitted). As
well, a claim based on inadmissible hearsay does not satisfy the “newly-
discovered facts” exception.4 Commonwealth v. Abu-Jamal, 596 Pa. 219,
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4 The substantive claim of after-discovered evidence and the newly-discovered
facts exception to the PCRA timeliness requirements are often conflated and
referred to as the same theory of relief. These concepts, however, are not
interchangeable and require different proofs. Under the newly-discovered
facts exception to an untimely PCRA petition, a petitioner must establish “the
facts upon which the claim was predicated were unknown and…could not
have been ascertained by the exercise of due diligence. If the petitioner
alleges and proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection.” Commonwealth v.
Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1272 (2007) (emphasis in
original). Only if a petitioner meets the statutory jurisdictional requirements
by satisfying this exception to the PCRA time-bar, can he then argue for relief
on a substantive after-discovered-evidence claim, which requires the
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230, 941 A.2d 1263, 1269 (2008), cert. denied, 555 U.S. 916, 129 S. Ct. 271,
172 L. Ed. 2d 201 (2008).
Instantly, Appellant’s judgment of sentence became final in March 2005,
upon expiration of the time to file a petition for writ of certiorari in the U.S.
Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13 (allowing
90 days to file petition for writ of certiorari with United States Supreme Court).
Appellant filed the current PCRA petition on January 4, 2018, which is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant now attempts to invoke the “newly-discovered facts”
exception to the PCRA time-bar, relying on Mr. Gaines’ e-mail and affidavit.
Nevertheless, Appellant cannot demonstrate any new facts that were unknown
and could not have been ascertained through the exercise of due diligence.
Significantly, Mr. Gaines stated that he and Appellant were very close
friends and had hung out frequently prior to Appellant’s arrest. Appellant also
claimed in his PCRA petition that he had been searching diligently for reasons
to explain his actions on the day in question. Had Appellant spent time with
Mr. Gaines shortly before the shooting spree, Appellant could have inquired of
Mr. Gaines if he had observed anything to explain Appellant’s actions,
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petitioner to demonstrate: (1) the evidence has been discovered after trial
and it 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. See,
e.g., Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586 (2007);
Commonwealth v. D’Amato, 579 Pa. 490, 856 A.2d 806 (2004).
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particularly where Appellant claims he has no recollection of the events in
question. See Brown, supra at 176 (explaining due diligence demands that
petitioner take reasonable steps to protect his own interests). See also PCRA
Court Opinion, filed February 4, 2020, at 3 (concluding: “Appellant makes no
attempt to explain why, through due diligence, he could not have discovered
this information at any time in the preceding fifteen years”).
Additionally, neither the e-mail from Mr. Gaines nor his affidavit specify
the date(s) on which Mr. Gaines allegedly observed Mary place Ecstasy in
Appellant’s drink. Further, Appellant’s claim is based on Mary’s statement to
Mr. Gaines that the pill was Ecstasy, which constitutes inadmissible hearsay
that cannot satisfy the “newly-discovered facts” exception in any event. See
Abu-Jamal, supra. Accordingly, we affirm the order dismissing Appellant’s
current PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/20
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