Com. v. Stokes, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
TYON STOKES :
:
Appellant : No. 306 EDA 2020
Appeal from the PCRA Order Entered November 4, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006083-2009
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 02, 2020
Tyon Stokes appeals from the order that dismissed without a hearing
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We
vacate the order and remand for the appointment of counsel and a hearing.
Given our disposition, we offer only a brief recitation of the history of
the case. In 2012, Appellant was sentenced to life imprisonment after a jury
convicted him of the 2003 murder of Phillip “Diesel” Sheridan in a dispute over
drug territory. Neither his direct appeal nor his first PCRA petition afforded
him any relief. See Commonwealth v. Stokes, 100 A.3d 296 (Pa.Super.
2014) (unpublished memorandum), appeal denied, 99 A.3d 925 (Pa. 2014).
See also Commonwealth v. Stokes, 175 A.3d 1062 (Pa.Super. 2017)
(unpublished memorandum).
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Appellant filed the facially-untimely1 pro se PCRA petition at issue in the
instant appeal on March 18, 2019. Therein, he claimed that on December 28,
2018, he learned through a mutual acquaintance that Darrian Deans had
witnessed the killing of Diesel and was certain that Appellant was not the
murderer. See PCRA Petition, 3/18/19, at 8. He attached the affidavit of Mr.
Deans, as well as that of the mutual acquaintance, and asserted that his
testimony supported an after-discovered evidence claim. Id. at 3, 7, 12
(citing 42 Pa.C.S. § 9543(a)(2)). See also id. at Exhibits A and B. Appellant
further alleged that the petition was subject to the newly-discovered-facts
timeliness exception because the existence of Mr. Deans and his knowledge
of the incident was previously unknown to Appellant and could not have been
discovered earlier with the exercise of due diligence. Id. at 2-3, 7-8 (citing
42 Pa.C.S. § 9545(b)(1)(ii)).
The Commonwealth filed a response to the petition indicating that it did
not object to the PCRA court granting a hearing on the issue. Commonwealth’s
Letter Response, 10/2/19. However, the PCRA court on October 4, 2019,
issued notice of its intent to dismiss Appellant’s petition without a hearing
pursuant to Pa.R.Crim.P. 907 because it was untimely and no timeliness
exception applied. See Notice of Intent to Dismiss, 10/4/19, at 1. Appellant
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1 Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final. See 42 Pa.C.S. § 9545(b)(1).
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filed a timely response reiterating that he had invoked § 9545(b)(1)(ii), and,
noting that the PCRA court had not explained the reason for its conclusion that
the timeliness exception had not been satisfied, renewed his request for an
evidentiary hearing. See Objection to Notice of Intent to Dismiss, 10/16/19,
at 2-3. Nonetheless, the PCRA court dismissed Appellant’s petition without a
hearing by order of November 4, 2019.
Appellant filed a timely notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925. In particular, Appellant maintained
that the PCRA court erred in dismissing his petition without a hearing given
his allegations concerning his discovery of the new evidence provided by Mr.
Deans. See Pa.R.A.P. 1925(b) Statement, 1/17/20. He reiterates his
arguments in his brief, contending that he sufficiently pled and offered to
prove the newly-discovered facts timeliness exception.2 See Appellant’s brief
at 18-19.
The PCRA court, in its Rule 1925 opinion, agreed with Appellant. The
court explained that it had errantly applied a prior version of the § 9545(b)
which required that a claim based upon a newly-discovered fact be filed within
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2 Appellant also argues the merits of his substantive after-discovered evidence
claim. See Appellant’s brief at 20-26. However, the substantive claim is
distinct from the timeliness exception. Appellant must first satisfy his burden
of proving that he has satisfied all the requirements of the timeliness exception
before this Court or any court has jurisdiction to entertain the merits of the
substantive claim. See Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.
Super. 2015) (discussing the distinct requirements of the timeliness exception
and the substantive after-discovered evidence claim).
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sixty days of the date that the claim could have been presented, rather than
the version applicable beginning on December 24, 2018, which changed the
deadline from sixty days to one year. See PCRA Court Opinion, 2/28/20, at
5. Accordingly, the PCRA court acknowledged that it improperly dismissed the
petition, and requests that we remand for Mr. Deans to testify at a hearing. 3
Id.We agree with Appellant and the PCRA court that Appellant has pled and
offered to prove sufficient facts to warrant a hearing to determine whether the
facts upon which his claim was based were previously unknown to him and
could not have been discovered earlier through the exercise of due diligence,
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3 For its part, the Commonwealth does not go so far as to concede that a
hearing is necessary, although its response to the petition affirmatively
indicated its lack of objection to a hearing. Rather, it merely expresses a lack
of opposition to a remand, and opines that:
on remand, the lower court should determine whether defendant’s
proffered evidence otherwise satisfied all the requirements to
establish the exception for discovery of new facts that could not
have been discovered earlier with the exercise of due diligence.
It will simply need to make that determination while applying the
applicable one-year rather than the superseded sixty-day period.
Commonwealth’s brief at 8 n.1. Since Appellant has pled that neither he nor
the Commonwealth had any knowledge of the fact that Mr. Deans witnessed
the shooting, let alone that he could describe the murderer’s appearance and
affirmatively represent that it was not Appellant, we agree with the PCRA court
that a hearing is warranted to ascertain the truth of Appellant’s assertions. If
the PCRA court concludes after hearing from the witnesses that Appellant has
satisfied the timeliness exception, it may then proceed to take evidence upon
substantive after-discovered evidence claim and decide whether it merits
relief.
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and whether Appellant filed his petition within one year of when he could have
presented the claim. Accord Commonwealth v. Shiloh, 170 A.3d 553, 560
(Pa.Super. 2017) (remanding for a hearing to determine the veracity of the
allegations concerning the petitioner’s discovery of new facts and whether the
petitioner could have discovered them sooner with the exercise of due
diligence). Therefore, we vacate the order dismissing Appellant’s petition as
untimely without a hearing, and remand for the PCRA court for a hearing on
the timeliness of Appellant’s petition and, if warranted by the PCRA court’s
timeliness findings, on the substance of Appellant’s after-discovered evidence
claim.
Moreover, the Pennsylvania Rules of Criminal Procedure provide that
when an unrepresented, indigent establishes entitlement to a hearing, “the
judge shall appoint counsel to represent the defendant.” Pa.R.Crim.P. 904(D).
Upon remand, the PCRA court shall ascertain whether Appellant’s financial
circumstances entitle him to appointed counsel to represent him at the hearing
and related proceedings.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/20
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