Com. v. Davis, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE DAVIS :
:
Appellant : No. 2234 EDA 2022
Appeal from the PCRA Order Entered August 28, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0229071-1984
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 11, 2023
Tyrone Davis appeals from the order dismissing his sixth Post Conviction
Relief Act (“PCRA”) petition as untimely. See 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
Davis stood trial for the first-degree murder of Anthony Bolden.1 The
Commonwealth argued that Davis was guilty under a theory of accomplice
liability, regardless of whether it was Davis or his co-defendant who had fired
the shots that killed Bolden. The jury found Davis guilty, and the court
sentenced him to life imprisonment. This Court affirmed Davis’s judgment of
sentence, and the Supreme Court denied Davis’s petition for allowance of
appeal on September 25, 1987.
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1 See 18 Pa.C.S.A. § 2502. Davis was also charged with possessing an
instrument of crime. See id. at § 907.
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Davis filed his first PCRA petition in 1988. The court appointed counsel,
who moved to withdraw and filed a no-merit letter. See Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213(Pa.Super. 1988) (en banc). The court dismissed the petition and granted
counsel leave to withdraw. Davis filed an untimely pro se notice of appeal,
which this Court dismissed.
Davis filed his second, third, fourth, and fifth PCRA petitions, pro se, in
1996, 2006, 2007, and 2012. No relief was granted.
Davis filed a sixth PCRA petition pro se in May 2017. He alleged
Commonwealth v. Burton, 158 A.2d 618 (Pa. 2017), had recognized a new,
retroactive constitutional right that applied to his case.2 The PCRA court issued
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2 In his sixth petition, Davis alleged that Burton expressly overruled
Commonwealth v. Chester, 895 A.2d 520 (Pa. 2006), upon which he
claimed this Court had relied when affirming the dismissal of his fifth PCRA
petition as untimely. Davis’s fifth petition had sought reinstatement of his right
to appeal the dismissal of his fourth petition, of which Davis claimed he had
not received notice. Our Court affirmed the dismissal of Davis’s fifth petition
because the docket sheet showing the dismissal of Davis’s fourth petition was
a matter of public record, and Davis could have discovered the dismissal
through the exercise of due diligence. However, we also stated that even if
Davis’s fifth petition had been timely on the basis that Davis had not received
notice of the dismissal of his fourth petition, reinstating Davis’s right to appeal
the dismissal of his fourth petition would have not led to relief, because his
fourth petition, based on Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007), had been untimely as well. See Commonwealth v. Davis, No. 427
EDA 2013, 2014 WL 10986799, unpublished mem. at *4 (Pa.Super. filed Feb.
18, 2014).
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notice of its intent to dismiss the petition without a hearing, 3 and, after Davis
responded, dismissed the petition in August 2017 as untimely.
Davis filed a seventh PCRA petition, pro se, in March 2018. His seventh
petition asserted that he had never received a copy of the August 2017 order
dismissing his sixth petition and that he had been unaware that it had been
dismissed until the clerk of courts responded to his request for an updated
docket sheet in February 2018. He argued he filed his seventh petition within
60 days of learning of the dismissal of his sixth petition. Davis sought
reinstatement of his right to appeal from the dismissal of his sixth petition.
Before the court took any action on his seventh petition, Davis filed an
amended PCRA petition, pro se, in August 2018. In his amended petition,
Davis argued his trial counsel had been ineffective for failing to object to the
court’s instruction on accomplice liability for first-degree murder. He asserted
his claim was timely as it was filed within 60 days of when he learned of the
Third Circuit decision in Bennett v. Superintendent Graterford SCI, 886
F.3d 268 (3d Cir. 2018). Davis filed another amended petition, pro se, in April
2021, raising the same claim.
The court appointed counsel on Davis’s seventh and amended petitions
in October 2021. Counsel filed an amended petition in January 2022,
advancing Davis’s request for reinstatement of his right to appeal from the
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3 The Rule 907 notice is not in the certified record and does not appear on the
docket. However, Davis responded to the notice, and has stated that he
received it on August 3, 2017. See PCRA Pet., 3/8/18, at 3.
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dismissal of his sixth petition. Counsel also repeated Davis’s claim that his trial
counsel had been ineffective for failing to object to the jury instruction on
accomplice liability. However, counsel did not request relief on this point, and
stated in a footnote that he was “unable to ethically advance this claim”
because he considered it to be untimely. Amended PCRA Pet., 1/22/22, at 9
n.2 (unpaginated).
The Commonwealth filed a letter in response. The letter stated the
Commonwealth did not oppose the reinstatement of Davis’s right to appeal
his sixth petition, as Davis had not been served notice of the dismissal of his
sixth petition pursuant to Pa.R.Crim.P. 907(4).
The court reinstated Davis’s right to appeal from the dismissal of his
sixth petition but granted no other relief.4 According to the court’s Rule
1925(a) opinion, it found Davis’s claim of ineffectiveness in relation to the jury
instruction to be both untimely and meritless.
Davis did not appeal from the order granting only partial relief on his
seventh petition. Instead, through counsel, Davis filed notice of appeal from
the order dismissing his sixth petition. Nonetheless, the only issue Davis raises
in the instant appeal is an issue he first raised in his seventh petition:
Where [Davis’s] prior PCRA counsel was ineffective for failing to
allege that trial counsel was ineffective for failing to object to the
trial court’s inaccurate accomplice liability instruction, can relief
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4 There is no written order in the certified record. The docket states the court
entered an order on August 3, 2022, stating, “Defendant’s appeal Rights
Reinstated,” and “New fact exception has been satisfied.” Docket Entry No.
139.
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be granted on this claim pursuant to Commonwealth v.
Bradley, 261 A.3d 381 (Pa. 2021)?
Davis’s Br. at 4.
“When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court’s order is supported by the record and free of legal
error.” Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020).
(quoting Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa.Super. 2018)).
Davis argues his trial counsel was ineffective for failing to object to the
court’s instruction on accomplice liability and that his prior PCRA counsel, who
represented him for his first PCRA petition, was ineffective for failing to raise
this claim. Davis concedes that this claim “does not fit into one of the three
existing codified exceptions” for PCRA timeliness.5 Id. at 58. However, he
argues we should deem his claim timely “under the reasoning employed, and
adopted, by our Supreme Court in [Bradley].” Id. He argues that Bradley
held that a claim of PCRA counsel’s ineffectiveness may be raised for the first
time on appeal. Davis argues his seventh petition was his first opportunity to
raise his claim of prior PCRA counsel’s ineffectiveness, as this was the first
time he was appointed new counsel.
This claim is not before us. The PCRA court granted Davis leave to appeal
from his sixth PCRA petition, and he did so. Therefore, our review is limited to
the claim Davis raised in his sixth petition, related to Burton. Davis did not
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5 See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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appeal the PCRA court’s order granting only partial relief on his seventh
petition, in which he raised this claim.
Bradley does not allow us to consider the merit of Davis’s
ineffectiveness claim during this appeal. Bradley held “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.” 261 A.3d at 401 (emphasis added). Bradley did
not hold that a petitioner’s first opportunity to raise claims of ineffective
assistance of counsel only arises when new counsel is appointed 30 years after
previous counsel has withdrawn.
The instant appeal from the dismissal of Davis’s sixth PCRA petition is
not Davis’s first opportunity to raise the claim that PCRA counsel on his first
petition was ineffective. He could have raised this claim pro se once he was
no longer represented by his first PCRA counsel. And, in fact, he did raise it
for the first time in his pro se amendment to his seventh petition, the partial
denial of which is not before us.6
Order affirmed.
Judge Olson joins the memorandum.
Judge Stabile concurs in the result.
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6 Bradley reaffirmed the rule that subsequent counsel’s discovery of prior
counsel’s ineffectiveness does not render a serial PCRA petition timely. See
Bradley, 261 A.3d at 404 n.18. Therefore, Davis’s ineffectiveness claim was
not timely when presented in his seventh PCRA petition, and the PCRA court
correctly denied relief.
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Date: 12/11/2023
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