Com. v. Anderson, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BENNIE ANDERSON :
:
Appellant : No. 2075 EDA 2020
Appeal from the PCRA Order Entered October 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0405961-1979
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: June 10, 2021
Bennie Anderson (Anderson) appeals pro se from the order entered in
the Court of Common Pleas of Philadelphia County (PCRA court) dismissing
his seventh petition filed pursuant to the Post-Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546, as untimely. We affirm.
I.
A.
The relevant facts and procedural history of this case are as follows. On
February 25, 1979, at 3:10 a.m., Anderson and two other males arrived at a
residence that operated a speakeasy on West Diamond Street in Philadelphia.
Lorraine Rambert (L. Rambert) ran the speakeasy from the second floor of the
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* Retired Senior Judge assigned to the Superior Court.
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residence and she was present at the time, along with several of her family
members and John Farrell (Farrell).
Farrell answered the door and let Anderson and his cohorts inside.
Anderson then grabbed Farrell around the neck and pressed a gun against his
back. Anderson’s co-conspirator warned everyone present at the speakeasy
not to move and he took L. Rambert’s purse. Anderson, still holding Farrell
around the neck, followed his co-conspirator up the stairway towards the third
floor. Two gunshots were fired and Farrell fell down the stairs, fatally
wounded. One of the witnesses observed Anderson fire his weapon and saw
a flash from the gun held by his co-conspirator at the top of the stairs.
Anderson was injured by one of the discharges and he stumbled down the
stairs and into the street, where he received prompt medical assistance.
B.
At Anderson’s October 1979 jury trial, he testified that he was an
innocent bystander to the shooting and that he went to the residence only to
purchase marijuana. Once inside the speakeasy, he was caught off-guard by
the robbery and shooting. The jury convicted Anderson of second-degree
murder,1 robbery, criminal conspiracy and possession of an instrument of a
crime. On August 20, 1980, the trial court sentenced Anderson to an
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1 Second degree murder is a criminal homicide committed while the defendant
was engaged as a principal or as an accomplice in the perpetration of a felony.
See 18 Pa.C.S. § 2502(b).
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aggregate term of life imprisonment. On May 27, 1983, our Supreme Court
affirmed Anderson’s judgment of sentence. (See Commonwealth v.
Anderson, 461 A.2d 208 (Pa. 1983)).2
Anderson thereafter litigated several PCRA petitions. Anderson filed the
instant petition, his seventh, on July 11, 2014, and titled it a writ of habeas
corpus. Anderson claims that a new witness, Allecea Rambert (A. Rambert)
has information exculpating him from the robbery/murder and establishes that
he was an innocent bystander at the speakeasy. A. Rambert was seven years
old at the time of the incident and she claims her uncle, Marvin Lewis (Lewis),
was the shooter.
The PCRA court issued notice of its intent to dismiss the petition on
August 4, 2020,3 and entered its order dismissing it as untimely on October
6, 2020. The court explained that because Anderson’s claims are cognizable
under the PCRA, his petition must be treated as a PCRA petition subject to the
statutory timeliness requirements. (See PCRA Court Opinion, 10/06/20, at
1). The court noted that Anderson failed to specify how he came to learn of
the purported new information and observed that whether Anderson was the
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2 The Court had jurisdiction over Anderson’s direct appeal pursuant to a
statutory provision then in effect, 42 Pa.C.S. § 722(1).
3 See Pa.R.Crim.P. 907(1).
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actual shooter was irrelevant, given that he was convicted of felony murder
based on accomplice liability. (See id. at 2). Anderson timely appealed.
II.
A.
On appeal, Anderson contends the PCRA court erred in treating his writ
of habeas corpus as a PCRA petition. Anderson argues his habeas corpus
petition presented new information establishing that he was neither the
shooter nor a co-conspirator to the robbery/murder. Anderson maintains that
the statement of purported eyewitness A. Rambert shows that her uncle
instead perpetrated the crime.
B.
We first address the court’s treatment of Anderson’s filing as a PCRA
petition. It is well-settled that the PCRA is intended to be the sole means of
obtaining post-conviction relief. See 42 Pa.C.S. § 9542 (“The action
established in this subchapter shall be the sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for the
same purpose that exist when this subchapter takes effect, including habeas
corpus[.]”) Issues that are cognizable under the PCRA must be raised in a
timely PCRA petition and a petitioner cannot circumvent its time-bar by titling
his petition or motion as a writ of habeas corpus. See Commonwealth v.
Taylor, 65 A.3d 462, 466 (Pa. Super. 2013). Generally, all motions filed after
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a judgment of sentence is final must be construed as a PCRA petition. See
id.4
In the instant case, Anderson contends that new evidence in the form
of A. Rambert’s identification of her uncle as the shooter establishes that he
is innocent of the offenses of which he was convicted. We agree with the
PCRA court that Anderson’s claims are cognizable under the PCRA. See 42
Pa.C.S. § 9543(a)(2)(vi) (providing grounds for relief where petitioner
demonstrates exculpatory evidence has become available after trial and would
have changed its outcome if it had been introduced.). Therefore, the court
properly construed Anderson’s petition, filed many years after his judgment
of sentence became final, as a PCRA petition.
C.
Anderson also maintains that if his filing is considered a PCRA petition,
he is entitled to review on the merits because the newly-discovered fact
exception to the PCRA’s time-bar is applicable to his case. Anderson contends
that A. Rambert provided conclusive proof that he was not the shooter and
that her uncle instead committed the offense. Anderson further asserts that
he filed his petition as soon as this information became available.
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4 Anderson’s judgment of sentence became final in 1983 when his time to file
a petition for writ of certiorari with the United States Supreme Court expired.
See 42 Pa.C.S. § 9545(b)(3) (“A judgment becomes 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.”).
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“The timeliness of a PCRA petition is a jurisdictional requisite.”
Commonwealth v. Shiloh, 170 A.3d 553, 557 (Pa. Super. 2017) (citation
omitted). A petitioner must file a PCRA petition within one year of the date
the underlying judgment becomes final, unless the petition establishes the
applicability of one of the three limited timeliness exceptions. See 42 Pa.C.S.
§ 9545(b)(1)(i)-(iii).
Here, Anderson invokes the newly-discovered fact exception at
subsection 9545(b)(1)(ii), which requires that he plead and prove “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.” 42 Pa.C.S.
§ 9545(b)(1)(ii). Due diligence demands that a petitioner take reasonable
steps to protect his interests and to explain why he could not have learned
the new facts earlier. See Commonwealth v. Brensinger, 218 A.3d 440,
448-49 (Pa. Super. 2019).
The focus of this exception “is on the newly discovered facts, not on a
newly discovered or newly willing source for previously known facts.”
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015), appeal
denied, 125 A.3d 1197 (Pa. 2015). Additionally, because subsection
9545(b)(1)(ii) is an initial jurisdictional threshold, it does not require any
merits analysis of an underlying after-discovered evidence claim. See id.Rather, if jurisdiction is established, a PCRA petitioner can present a
substantive after-discovered-evidence claim. See id.-6-
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There is no dispute that Anderson was present at the scene of the
shooting. He was, therefore, well-aware of the circumstances of the incident,
including any role he had in it, since the day of the robbery/murder. The
“fact” of his purported status as an innocent bystander was already known to
him at the time of trial, and A. Rambert was merely a “newly willing source
for previously known facts.” See Brown, supra at 176. Further, Anderson
has not provided a sound reason why he could not have raised his claim
earlier, as he makes only vague reference as to when he learned of
A. Rambert’s purported eyewitness account.
Additionally, as the PCRA court observed, because Anderson was
convicted of felony murder, it is irrelevant whether he or one of his cohorts
fired the lethal bullet at Farrell. The jury plainly disbelieved Anderson’s
version of events in which he was merely an innocent bystander.
In sum, Anderson has not made a plausible showing that he has
discovered any fact that was unknown to him or that he exercised due
diligence in this regard. Therefore, Anderson’s petition is time-barred and the
PCRA court lacked jurisdiction to review it.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/21
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