Com. v. Pulley, P. ( 2020 )

J-S40022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PHILLIP PULLEY :
:
Appellant : No. 2114 EDA 2018
Appeal from the PCRA Order Entered May 30, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1206001-1986
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED OCTOBER 15, 2020
Appellant, Phillip Pulley, 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.
The relevant facts and procedural history of this case are as follows. In
1988, a jury convicted Appellant of first-degree murder (two counts), rape,
terroristic threats, and recklessly endangering another person. The court
sentenced Appellant on December 1, 1988, to an aggregate term of life
imprisonment. This Court affirmed the judgment of sentence on September
29, 1993, and our Supreme Court denied allowance of appeal on August 9,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
J-S40022-20
1994. See Commonwealth v. Pulley, 636 A.2d 1215 (Pa.Super. 1993)
(unpublished memorandum), appeal denied, 538 Pa. 644, 647 A.2d 899(1994).
Appellant filed his first PCRA petition on January 16, 1997, alleging, inter
alia, the Commonwealth had committed a Brady2 violation by failing to
disclose the complete criminal history of one of the Commonwealth’s principal
witnesses, who was a victim in the case. Appellant claimed he should have
been able to use the full criminal history to impeach her credibility and/or
demonstrate bias. The PCRA court denied relief, and this Court initially
affirmed on July 26, 1999. Following the grant of panel reconsideration, this
Court once against affirmed the order denying PCRA relief on December 7,
1999. Our Supreme Court denied allowance of appeal on May 9, 2000. See
Commonwealth v. Pulley, 750 A.2d 374 (Pa.Super. 1999) (unpublished
memorandum), appeal denied, 563 Pa. 628, 758 A.2d 661 (2000).
On February 6, 2009, Appellant filed a petition for writ of habeas corpus
ad subjiciendum, which the court denied without prejudice to allow Appellant
to file a PCRA petition. On appeal, this Court decided the petition for writ of
habeas corpus was an untimely PCRA petition with no exception pled, so this
Court affirmed the order denying relief but vacated the portion of the order
permitting Appellant to file a PCRA petition without prejudice. In its decision,
____________________________________________
2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
-2-
J-S40022-20
this Court stated that the “specific issue underlying Appellant’s request for
relief in his writ of habeas corpus is his claim that the Commonwealth
misrepresented the criminal record of a Commonwealth witness that would
have been relevant for impeachment purposes. …[T]his claim is, in fact, a
reincarnation of the Brady claim he raised in his first PCRA petition.”
Commonwealth v. Pulley, No. 3281 EDA 2010, at 5-6 (Pa.Super. March 5,
2012) (unpublished memorandum) (internal footnotes omitted).
On August 15, 2012, Appellant filed another PCRA petition, pro se. In
this petition, Appellant raised only one issue seeking relief under Miller v.
Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding
Eighth Amendment of U.S. Constitution prohibits mandatory sentence of life
imprisonment without possibility of parole for those who were under 18 years
old when they committed their crimes). Although Appellant admitted he was
31 years old at the time of his crimes, Appellant claimed he should be entitled
to relief under Miller. The court took no action on this petition.
On February 20, 2013, Appellant filed a pro se request to resume PCRA
litigation. Appellant indicated that he had a “newly-discovered fact” he wanted
to raise, but Appellant did not elaborate on that claim. Still, the court took no
action on Appellant’s petition.3
____________________________________________
3The record does not indicate any activity regarding Appellant’s 2012 PCRA
petition or his 2013 motion to resume litigation on the petition. See
Commonwealth v. Renchenski, 616 Pa. 608, 623, 52 A.3d 251, 260 (2012)
-3-
J-S40022-20
Counsel entered his appearance on Appellant’s behalf on October 1,
2016, and filed an “amended” PCRA petition on July 2, 2017. In the amended
petition, Appellant asserted a “newly-discovered fact” to the PCRA’s time-bar,
based on Appellant’s discovery that a significant portion of his certified record
was missing. Specifically, Appellant claimed that on August 8, 2011, Appellant
learned for the first time that his record was incomplete. Appellant insisted
that the judge who ruled on Appellant’s first PCRA petition did not have the
benefit of a complete certified record, so Appellant called into question the
validity of the court’s ruling concerning Appellant’s Brady claim. Appellant
said he subsequently filed motions in this Court in an effort to obtain more
information about his missing record, but those motions were denied. On
October 27, 2011, Appellant said he received a package from a friend, Mr.
Wallace, containing Appellant’s entire certified record which was woefully
deficient. Appellant claimed he filed a pro se PCRA petition on December 15,
2011, within 60 days of his discovery of the deficient record, but the petition
was never docketed. Appellant filed a supplemental amended PCRA petition
on July 15, 2017.
The Commonwealth filed a motion to dismiss on February 9, 2018,
claiming, inter alia, Appellant was aware of the incomplete record as early as
____________________________________________
(stating PCRA court has ability and responsibility to manage its docket and
caseload and thus has essential role in ensuring timely resolution of PCRA
matters).
-4-
J-S40022-20
1999, based on statements in this Court’s memorandum decision affirming
the denial of Appellant’s first PCRA petition. The Commonwealth alleged
Appellant failed to exercise due diligence in learning of the alleged newly-
discovered fact, so his petition remained time-barred.
Appellant filed a counseled response on March 24, 2018, and another
supplemental amended PCRA petition on March 31, 2018. In these petitions,
Appellant claimed, inter alia, that notwithstanding this Court’s remarks in its
1999 memorandum decision, it was not until August 2011 that Appellant knew
something was fundamentally wrong with the record.
The Commonwealth filed a second motion to dismiss on April 3, 2018,
stating there was no support for Appellant’s claim that he filed a PCRA petition
on December 15, 2011. Thus, the Commonwealth suggested Appellant also
did not satisfy the “60-day rule.” On April 12, 2018, the court issued notice
of its intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907.
Appellant responded on April 17, 2018, attaching a copy of Appellant’s
purported December 15, 2011 pro se filing. Appellant attached two postage
slips dated December 16, 2011 and February 16, 2013. On May 29, 2018,
the Commonwealth filed a third motion to dismiss, indicating that Appellant’s
postage receipt showed Appellant mailed his pro se document to the Clerk of
Quarter Sessions on December 16, 2011, not the post-trial unit. The
Commonwealth said the other postage slip mailed to the post-trial unit is
dated February 16, 2013, which does not satisfy the 60-day rule.
-5-
J-S40022-20
The court denied PCRA relief on May 30, 2018. On June 24, 2018,
Appellant timely filed a notice of appeal. The court ordered Appellant, on June
26, 2018, to file a concise statement of errors complained of on appeal per
Pa.R.A.P. 1925(b). Appellant timely complied on July 9, 2018.
Appellant raises three issues for our review:
Did the PCRA court err in denying Appellant’s PCRA petition
without an evidentiary hearing where Appellant raised
genuine issues of material fact concerning when he became
aware of the loss of his lower court record?
Did the Commonwealth violate Brady and its progeny when
it failed to turn over the full criminal history of the alias of
lead prosecution witness Melissa Murphy, also known as
Karen Coleman, which showed she received favorable
treatment from the Commonwealth?
Did the PCRA court err in holding that Appellant’s Brady
claim is previously litigated?
(Appellant’s Brief at 3).
In his first issue, Appellant argues that the judge who ruled on his first
PCRA petition did not have the benefit of a complete certified record when the
judge decided Appellant’s Brady claim. Appellant asserts the PCRA court had
reviewed only a “dummy” file that had been reconstructed at some point and
did not contain trial transcripts, exhibits, or other relevant pleadings necessary
for the court’s disposition. Appellant maintains that his underlying Brady
claim involves the Commonwealth’s withholding of the full criminal history of
one of its principal witnesses at trial. Appellant insists a complete criminal
history of this witness, including the criminal history of her alias, shows the
-6-
J-S40022-20
witness had been arrested for robbery shortly before Appellant’s trial. At that
time, the witness was in the A.R.D. program, and Appellant insists the robbery
charge should have resulted in suspension from that program. Yet, Appellant
emphasizes that just before Appellant’s trial, the Commonwealth dropped the
robbery charge and the witness was able to continue participating in A.R.D.
Appellant suggests this establishes that the Commonwealth gave the witness
favorable treatment in anticipation of her testimony against Appellant, and
Appellant should have been able to impeach her credibility or show bias with
this evidence. Appellant stresses that the “newly-discovered fact” here is not
the criminal history of this witness, but the fact that the PCRA decided the
Brady claim based on an incomplete “dummy file” record that did not contain
all trial transcripts or exhibits.4 Appellant concludes he satisfies a time-bar
exception, and this Court should vacate the order denying PCRA relief. We
disagree.
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
____________________________________________
4 Appellant seems to acknowledge that the relevant criminal history was
available at the time he litigated his first PCRA petition raising the Brady
claim.
-7-
J-S40022-20
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
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). Significantly, at the time Appellant alleges
he learned of his “newly-discovered fact,” he was required to file his petition
-8-
J-S40022-20
within 60 days of the date the claim could have first been presented.5 See
42 Pa.C.S.A. § 9545(b)(2). The “60-day rule” is “of jurisdictional significance
and will be strictly enforced.” Commonwealth v. Vega, 754 A.2d 714, 718
(Pa.Super. 2000). Thus, “when a PCRA petition is not filed within one year of
the expiration of direct review, or not eligible for one of the three limited
exceptions, or entitled to one of the exceptions, but not filed within 60 days
of the date that the claim could have first been brought, the [PCRA] court has
no power to address the substantive merits of a petitioner’s PCRA claims.”
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000).
Further, 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,
____________________________________________
5 As of December 24, 2018, Section 9545(b)(2) changed the 60-day rule and
now allows one year from the date the claim first could have been presented.
See Act 2018, Oct. 24, P.L. 894, No. 146 § 2, effective in 60 days [Dec. 24,
2018] for claims arising on or after December 24, 2017. This amendment
does not apply to Appellant’s case, as Appellant claims he discovered the
incomplete record in August 2011.
-9-
J-S40022-20
704, 158 A.3d 618, 629 (2017) (internal citation and quotation marks
omitted).6
Instantly, Appellant’s judgment of sentence became final in November
1994, 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). Thus, Appellant’s current PCRA petition 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, claiming he did not discover until August 2011
that his certified record was incomplete and that the judge who ruled on his
____________________________________________
6 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
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).
- 10 -
J-S40022-20
first PCRA petition did so based on an inadequate record. Nevertheless, even
if we could accept Appellant’s proffered December 15, 2011 PCRA petition
(which was never docketed), Appellant has still failed to meet the 60-day rule.
Appellant suggests the 60-day clock should run from October 27, 2011, the
date Appellant claims he received a package of his entire certified record from
his friend, Mr. Wallace. But, Appellant admits he first learned of the
deficiencies in the record in August 2011. Appellant does not explain why he
could not have filed the current PCRA petition within 60 days of his August
2011 discovery. See 42 Pa.C.S.A. § 9545(b)(2); Vega, supra.Further, Appellant cannot demonstrate any new facts that were
unknown and could not have been ascertained through the exercise of due
diligence. Appellant acknowledges in his PCRA petitions that this Court’s 1999
memorandum decision referenced the incomplete record. Although Appellant
claims he did not understand which records were missing because neither
counsel nor the court had explained that to him, due diligence demands that
a PCRA petitioner take reasonable steps to protect his own interests. See
Brown, supra at 176. For these reasons, Appellant has failed to satisfy the
asserted time-bar exception and we affirm the order dismissing Appellant’s
current PCRA petition as untimely.7
Order affirmed.
____________________________________________
7 Due to our disposition, we do not need to consider Appellant’s second and
third issues on appeal.
- 11 -
J-S40022-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2020
- 12 -