Com. v. Salmond, Q. ( 2023 )

J-S23044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
QUENTIN M. SALMOND :
:
Appellant : No. 3037 EDA 2022
Appeal from the PCRA Order Entered November 23, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009615-2012
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED AUGUST 24, 2023
Appellant, Quentin M. Salmond, appeals pro se from the order entered
in the Philadelphia County Court of Common Pleas, which denied as untimely
his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
The PCRA court set forth the relevant facts of this case as follows:
On April 12, 2008, at about 12:30 p.m., Joan Hill was
working at an insurance office located at 5637 Chew Avenue
when she saw a blue Lincoln town car parked with the
engine running on Woodlawn Avenue. A man, later
identified as [Appellant], dressed in women’s Muslim
clothing exited the vehicle. Hill believed the man was going
to rob Skyline Restaurant, located around the corner, so she
called 9-1-1 and gave the license plate number of the
vehicle.
At around noon that day, Kerron Denmark and Kenneth
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1 42 Pa.C.S.A. §§ 9541-9546.
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Wiggins went to Skyline Restaurant and Wiggins ordered
food. Immediately after they left the restaurant with
Wiggins carrying his food, a man approached them asking
them for marijuana. As Denmark and Wiggins were walking
down the street someone yelled “don’t’ f’ing move.”
Denmark heard gunshots and ran away.
On April 12, 2008, at 12:44 p.m., while on routine patrol,
Police Officer Christopher Mulderrig was flagged down by a
man on the street and told there had been a shooting about
two blocks away. When Officer Mulderrig arrived at 5643
Chew Avenue, he observed a male, later identified as
Wiggins, lying in the street with a gunshot wound to his
chest. Wiggins subsequently died from this gunshot to his
chest.
After the murder, Detective Thorsten Lucke recovered
surveillance video from Skyline Restaurant. The
surveillance video showed Wiggins and Kerron Denmark
enter Skyline Restaurant. While the men are inside the
restaurant, a vehicle drove by on Chew Avenue and turned
left at the corner. Co-Defendant Jamil Banks and
[Appellant], wearing women’s Muslim clothing, emerge from
the area where the car had turned from Chew Avenue.
[Appellant] and Banks walked towards Skyline Restaurant.
[Appellant] stopped in an alley while Banks enters the
restaurant. Banks buys a bottle of soda, leaves the
restaurant, and stood with [Appellant] in the alley, out of
sight of the camera. After Wiggins gets his food, he and
Demnark left the restaurant and walked down the street.
Banks followed closely behind Wiggins and Denmark while
[Appellant] followed farther back. [Appellant] and Banks
confronted Wiggins and Demnark and Wiggins falls to the
ground. Quickly thereafter everyone ran away.
Police Officer Joanne Gain of the Crime Scene Unit recovered
two .22 caliber fired cartridge casings (“FCCs”), a Nike Air
Jordan sneaker, and a Mountain Dew bottle from the murder
scene. Officer Gain tested the Mountain Dew bottle for
fingerprints and DNA. According to Police Officer John
Cannon, an expert in firearms identification, these two .22
caliber FCCs were fired from the same unrecovered firearm.
The bullet recovered from the decedent’s body and the FCCs
were not fired from the same firearm.
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On April 14, 2008, at about 9:00 p.m., an unlicensed blue
Lincoln town car was found on fire in the area of Tenth
Street and Chew Avenue. Lieutenant Rodney Wright of the
Philadelphia Fire Department determined that the vehicle
was burned intentionally.
On April 15, 2008, Charles Hayward gave a statement to
police. Hayward explained that in February he had sold the
blue Lincoln town car that Hill had called in to 9-1-1 to
Bernard Salmond, [Appellant’s] brother. According to
Hayward, about a week previously, Wiggins had robbed
[Appellant] after they had been gambling.
On April 17, 2008, Richard Hack, a friend of Wiggins, gave
a statement to police. Hack explained that two days before
the murder, [Appellant], Wiggins, and himself were
gambling. [Appellant] and Wiggins argued about gambling
debt and then Wiggins choked [Appellant] and took $1,000
from him. For the next couple of nights, [Appellant] and his
friends were in the area looking for Wiggins.
On January 13, 2010, Robert Bluefort told police about three
weeks after the murder, [Appellant] confessed to him that
he shot Wiggins. According to [Appellant], he had to shoot
or be shot. Bernard Salmond told Bluefort that the police
had questioned Hayward because the car that was used in
the murder was in his name. Bluefort and Bernard Salmond
then discussed burning the vehicle. Benard Salmond stayed
with Bluefort for about a month after the murder.
Banks was identified at trial by Michael Miller. Miller, who
had interacted with Banks on many prior occasions,
identified Banks from the surveillance video from Skyline
Restaurant.
According to Halim Mackey and Andrea Williams, experts in
latent print examination, Banks’ fingerprints from his right
middle finger and right ring finger were found on the
Mountain Dew bottle recovered at the scene. An
examination conducted through the AFIS database
confirmed these findings.
[Appellant] testified that before the murder he was
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gambling with Hack, Wiggins, and a couple individuals from
the neighborhood. Wiggins won and there was a
disagreement over payment. [Appellant] denied killing
Wiggins or conspiring with anyone else to do so. [Appellant]
presented evidence that he had an excellent reputation for
peacefulness.
Banks presented testimony from Laurie Citino, an expert in
DNA analysis and comparison. On May 31, 2012, Citino
examined the swab taken from the Mountain Dew bottle.
Citino was able to get DNA results from one marker, which
would be able to include, but not match, or exclude an
individual as providing the DNA. Citino was never given a
DNA sample from Banks to compare to the sample taken
from the Mountain Dew bottle.
(PCRA Court Opinion, filed 11/23/22, at 2-4).
Procedurally, a jury convicted Appellant on March 12, 2014, of third-
degree murder and conspiracy to commit murder. The court sentenced
Appellant on July 28, 2014, to an aggregate term of (25) to fifty (50) years’
imprisonment. This Court affirmed Appellant’s judgment of sentence on
October 30, 2015. Commonwealth v. Salmond, 134 A.3d 109 (Pa.Super.
2015) (unpublished memorandum). Appellant did not seek further direct
review.
On July 5, 2016, Appellant timely filed his first PCRA petition, and the
PCRA court appointed counsel. On June 29, 2017, Appellant filed an amended
PCRA petition. Following a hearing, the court denied PCRA relief on February
20, 2018. This Court affirmed the denial of PCRA relief on January 23, 2019,
and our Supreme Court denied allowance of appeal on July 8, 2019. See
Commonwealth v. Salmond, 209 A.3d 519 (Pa.Super. 2019) (unpublished
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memorandum), appeal denied, 654 Pa. 522, 216 A.3d 232 (2019).
Appellant filed the current pro se PCRA petition on September 16, 2022.
On October 24, 2022, the court issued Pa.R.Crim.P. 907 notice of intent to
dismiss the petition without a hearing. The court denied PCRA relief on
November 23, 2022. Appellant timely filed a notice of appeal on November
30, 2022. The court did not order Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and Appellant filed none.
Appellant raises eight issues for our review:
Did the PCRA court err by dismissing [Appellant’s] Post
Conviction Relief Act Petition without an evidentiary
hearing?
Did the PCRA court err by failing to recognize and/or
acknowledge [Appellant’s] timeliness exception?
Did the PCRA Court err by failing to recognize [Appellant’s]
government interference exception and [Appellant’s] due
diligence?
Did the PCRA Court err by denying [Appellant] an
evidentiary hearing on his claims of ineffective trial counsel
and ineffective PCRA counsel?
Did the PCRA Court err and violate [Appellant’s]
constitutional right by denying [Appellant] an evidentiary
hearing when it denied his newly-discovered fact exception?
Did the PCRA Court err and/or violate [Appellant’s]
Constitutional right by dismissing [Appellant’s] PCRA
petition and by denying him an evidentiary hearing without
acknowledging and/or addressing all of [Appellant’s]
meritorious issues in his PCRA petition?
Did the PCRA Court violate [Appellant’s] Constitutional Right
by dismissing [Appellant’s] PCRA petition without correcting
its illegal sentence of the [Appellant]?
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Did the PCRA Court err by dismissing [Appellant’s] PCRA
petition without providing him effective counsel?
(Appellant’s Brief at 6-7).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence 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 the review.” 42 Pa.C.S.A. § 9545(b)(3). The statutory
exceptions to the PCRA time-bar allow very limited circumstances to excuse
the late filing of a petition; a petitioner must also assert the exception within
the time allowed under the statute. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).
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
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(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). Generally, “a claim of ineffective assistance
of counsel does not provide an exception to the PCRA time bar.”
Commonwealth v. Sims, 251 A.3d 445, 448 (Pa.Super. 2021), appeal
denied, ___ Pa. ___, 265 A.3d 194 (2021).
“The governmental interference exception permits an otherwise
untimely PCRA petition to be filed if it pleads and proves that 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 Constitutional or
laws of this Commonwealth or the Constitution of laws of the United States.”
Commonwealth v. Staton, 646 Pa. 284, 293, 184 A.3d 949, 955 (2018)
(internal citation omitted). “In other words, [the petitioner] is required to
show that but for the interference of a government actor, he could not have
filed his claim earlier.” Id.To satisfy the “newly-discovered facts” timeliness exception set forth in
Section 9545(b)(1)(ii), a petitioner must demonstrate that “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), appeal denied, 633 Pa. 761, 125 A.3d
1197 (2015). Due diligence requires the petitioner to take reasonable steps
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to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164(Pa.Super. 2001). A petitioner must explain why he could not have learned
the new fact(s) earlier with the exercise of due diligence; this rule is strictly
enforced. Commonwealth v. Monaco, 996 A.2d 1076 (Pa.Super. 2010),
appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011).
The new constitutional right exception has two requirements: First, the
right asserted must be a right newly recognized by the Supreme Court of the
United States or the Supreme Court of Pennsylvania; second, the right must
have been held by that Court to apply retroactively. Commonwealth v.
Spotz, 642 Pa. 717, 724, 171 A.3d 675, 679 (2017).
In Commonwealth v. Bradley, ___ Pa. ___, 261 A.3d 381 (2021), our
Supreme Court held “that a PCRA petitioner may, after a PCRA court denies
relief, and after obtaining new counsel or acting pro se, raise claims of PCRA
counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.”
Bradley, supra at __, 261 A.3d at 401 (internal footnote omitted).
Nevertheless, Bradley involved ineffectiveness claims that the petitioner
raised on direct appeal following the dismissal of a timely, first PCRA petition.
The Bradley Court noted that “an approach favoring the consideration of
ineffectiveness claims of PCRA counsel on appeal (if the first opportunity to do
so) does not sanction extra-statutory serial petitions.” Id. at ___, 261 A.3d
at 403. Consequently, this Court has declined to extend the holding of
Bradley to cases involving untimely or serial petitions. See Commonwealth
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v. Johnson, No. 696 EDA 2022 (Pa.Super. filed Mar. 7, 2023) (unpublished
memorandum)2 (holding Bradley did not recognize new constitutional right
permitting PCRA petitioners to file subsequent PCRA petitions in order to
challenge prior PCRA counsel’s ineffective assistance).
Instantly, Appellant’s judgment of sentence became final on November
29, 2015, thirty days after this Court affirmed Appellant’s judgment of
sentence and the time for filing a petition for allowance of appeal with our
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). See also Pa.R.A.P.
1113 (providing 30 days to file petition for allowance of appeal with Supreme
Court). Thus, Appellant had until November 29, 2016 to file a timely PCRA
petition. See 42 Pa.C.S.A. § 9545(b)(1). Appellant filed the current PCRA
petition on September 16, 2022, which is facially untimely.
On appeal, Appellant attempts to invoke each of the PCRA’s timeliness
exceptions. In support of the governmental interference exception, Appellant
argues that the government suppressed Appellant’s phone records that
demonstrated Appellant was not at the scene of the crime at the relevant time.
Appellant claims he attached to his PCRA petition exhibits showing that he
requested the records but that government officials ignored the requests.
Regarding the “newly-discovered facts” exception, Appellant alleges
that Detective Williams was indicted in 2019, which calls into question the
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2 See Pa.R.A.P. 126(b) (stating this Court may cite to and rely on for
persuasive value unpublished decisions of this Court filed after May 1, 2019).
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detective’s conduct in Appellant’s case.3 Appellant also relies on an affidavit
by Summer Morgan, which he claims would have been critical to impeaching
testimony offered from Robert Bluefort that implicated Appellant in the
murder. With respect to the new constitutional right exception, Appellant cites
Bradley for the proposition that he is entitled to raise claims of prior PCRA
counsel’s ineffectiveness at this time.
The PCRA court rejected Appellant’s reliance on the governmental
interference exception, reasoning:
[Appellant] fails to prove that the government interference
exception applies to his [underlying] alleged Brady[4]
violation, because there is no evidence that the
Commonwealth obtained his phone records or that he
exercised due diligence. …
[Appellant] provides no evidence that the Commonwealth
obtained his phone records. A May 20, 2008 activity sheet
indicating that Det. Williams provided Det. Dunlap with
information to apply for a search warrant is insufficient to
show the Commonwealth obtained the phone records or
interfered with [Appellant’s] ability to obtain his records.
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3 Relatedly, Appellant alleges that based on Detective Williams’ indictment,
Appellant is entitled to an updated analysis of the Mountain Dew bottle that
was tested for Banks’ DNA and fingerprints. Nevertheless, postconviction DNA
testing is permitted only where the motion is made in a timely manner and
the petitioner explains how the testing would produce exculpatory results.
See 42 Pa.C.S.A. § 9543.1(a). Here, the PCRA court explained that
Appellant’s request for DNA testing was boilerplate and speculative. (See
PCRA Court Opinion at 9). Given that the fingerprint analysis is tied to
Appellant’s co-defendant Banks and not Appellant, we agree with the PCRA
court that Appellant cannot show any DNA testing would yield exculpatory
results. See 42 Pa.C.S.A. § 9543.1(a).
4 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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[Appellant] did not exercise due diligence because he did
not attempt to acquire his records until over eight years
after his conviction. …[Appellant] alleges that he spoke with
trial counsel prior to trial about obtaining his phone records
but provides no documentation to support this assertion
other than a copy of the May 20, 2008 Activity Sheet with a
handwritten note which says “Cell phone records—GPS Can
tell where people are.” See September 16, 2022 pro se
PCRA Petition Exhibit F2. Even if this assertion is true,
[Appellant] failed to take any action regarding his phone
records until June 29, 2022, when he sent the Department
of Corrections’ (“DOC”) Office of Open Records a request for
his phone records. While [Appellant] did send the DOC’s
Right-to-Know-Office a letter in March of 2016, [Appellant]
only requested a copy of his discovery and did not request
his phone records. See September 16, 2022 pro se PCRA
Petition Exhibits B1-B3.
(PCRA Court Opinion at 6-7). We agree with the PCRA court’s analysis that
Appellant has failed to satisfy the governmental interference exception where
Appellant has not shown there was any government action which prevented
Appellant from bringing this claim sooner. See Staton, supra.
Additionally, the PCRA court evaluated Appellant’s reliance on the
newly-discovered facts exception as follows:
[Appellant’s] claim that Det. Williams’ November 21, 2019
indictment satisfies the newly-discovered fact exception for
his claims that Det. Williams falsified evidence and that Det.
Williams’ indictment is after-discovered evidence, fails
because he first learned about the indictment on February
25, 2020 [by his own admission] and did not file a PCRA
petition within one year of when the claim could have been
presented.
[Appellant’s] claim that Summer Morgan’s July 28, 2022
affidavit satisfies the newly-discovered fact exception fails
because he failed to show that he exercised due diligence.
On January 13, 2010, Robert Bluefort was interviewed and
provided a statement in which he stated that Appellant and
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Bernard Salmond (“Bernard”), [Appellant’s] brother and co-
defendant, confessed to the murder and that he suggested
burning Bernard’s car around Fern Rock Transportation
Center, in Philadelphia. N.T. 3/10/2014 at 22, 26, 29.
Bluefort also stated that Bernard stayed at his house for “a
good month or so after the murder.” Id. at 29. At trial,
Bluefort did not recall his statement.
On July 28, 2022, Summer Morgan, the mother of Bluefort’s
children, signed an affidavit stating that Bernard Salmond
never lived or stayed at Bluefort’s house after the murder in
2008 because she lived with Bluefort from 2007 to 2009.
[Appellant] makes a boilerplate claim that…he exercised due
diligence, so the claim is untimely and fails.
Even if the claim were timely, the claim would still fail
because the affidavit would be used solely to impeach
Bluefort’s credibility. Additionally, the affidavit would likely
not result in a different verdict because Bluefort did not
recall his statement at trial and the affidavit would only
contradict Bluefort’s statement that Bernard stayed with
him after the murder, not his statement that [Appellant] and
Bernard confessed to the murder or that he suggested
burning Bernard’s car.[5]
(PCRA Court Opinion at 8-9). We agree with the PCRA court that Appellant
failed to exercise due diligence necessary to succeed on these claims. See
Brown, supra; Monaco, supra.Finally, the PCRA court rejected Appellant’s reliance on the new
constitutional right exception, stating that Bradley “did not assert a new
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5 To obtain relief on a substantive after-discovered-evidence claim under the
PCRA once jurisdiction is established, a petitioner must 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. Commonwealth v. Washington,
592 Pa. 698, 927 A.2d 586 (2007).
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constitutional right which applies retroactively.” (PCRA Court Opinion at 7).
We agree with the PCRA court that Appellant’s reliance on Bradley affords
him no relief. See Johnson, supra. Therefore, Appellant’s current PCRA
petition remains time barred. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2023
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