Com. v. Hill, D. ( 2021 )

J-A15014-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DWAYNE HILL :
:
Appellant : No. 1917 EDA 2020
Appeal from the PCRA Order Entered September 23, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0505682-1990
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 18, 2021
Dwayne Hill appeals from the September 23, 2020 order that dismissed
his serial petition for relief pursuant to the Post-Conviction Relief Act (“PCRA”).
Upon review, we agree with the PCRA court’s conclusion that Appellant’s
petition is untimely. Thus, we affirm.
The facts of this case have been summarized by this Court, as follows:
On February 12, 1990, at approximately 7:20 p.m., Appellant and
an accomplice, armed with a sawed-off shotgun, entered the
Joong Park Market at 2734 West Allegheny Avenue in the City of
Philadelphia and ordered the store owner to open his cash
register. When the victim failed to comply quickly enough, the
two men shot and killed the store owner and then fled on foot.
About an hour later, after another attempted armed robbery in
the same neighborhood, police arrested both Appellant and his
confederate, James Davis.
[O]n October 8, 1991, a jury convicted Appellant of second-degree
murder, robbery, conspiracy, and possessing an instrument of
crime (“PIC”). The trial court . . . sentenced him to a mandatory
life sentence for murder with concurrent terms of two to ten years
J-A15014-21
imprisonment for conspiracy and one to two years incarceration
for PIC.
Commonwealth v. Hill, 37 A.3d 1245 (Pa.Super. 2011) (unpublished
memorandum at 1). On March 10, 1993, this Court affirmed Appellant’s
judgment of sentence. See Commonwealth v. Hill, 628 A.2d 451 (Pa.Super.
1993) (unpublished memorandum). Appellant did not petition for allowance
of appeal to the Pennsylvania Supreme Court. Thus, his judgment of sentence
became final pursuant to the PCRA on April 9, 1993.1
Thereafter, Appellant filed a succession of unsuccessful PCRA petitions.
Most recently, this Court affirmed the denial of Appellant’s eighth PCRA
petition on the basis that it was untimely filed. See Commonwealth v. Hill,
203 A.3d 292 (Pa.Super. 2018) (unpublished memorandum at 2), appeal
denied, 216 A.3d 227 (Pa. 2019). While his most-recent petition for
discretionary review in the Supreme Court was pending, Appellant filed a
motion for appointment of counsel and a supplemental PCRA petition.
After the Supreme Court denied Appellant’s request, the PCRA court
provided notice of its intent to dismiss these filings as untimely without a
hearing pursuant to Pa.R.Crim.P. 907. Appellant submitted a timely amended
PCRA petition, which forms the basis for this appeal.2 Therein, Appellant
____________________________________________
1 See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).
2 At the time that Appellant submitted the supplemental filings noted above,
his eighth PCRA petition was still under appellate review before the
(Footnote Continued Next Page)
-2-
J-A15014-21
asserted two grounds for relief pursuant to Brady v. Maryland, 373 U.S. 83(1963) and claimed that the Commonwealth: (1) suppressed evidence of a
malfunctioning firearm at his trial; and (2) “withheld notice of aggravating
circumstances.”3 See Amended PCRA Petition, 7/23/20, at 1-4. On August
____________________________________________
Pennsylvania Supreme Court. “[A] PCRA trial court cannot entertain a new
PCRA petition when a prior petition is still under review on appeal.”
Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012). However, “this holding
will not preclude a trial court from granting leave to amend a PCRA petition
that is currently pending before that court.” Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000), overruled on separate grounds, Commonwealth
v. Small, 238 A.3d 1267, 1286 (Pa. 2020) (disavowing the public record
presumption in the context of PCRA timeliness). While Appellant’s initial filings
were premature, the subsequent amended petition was timely filed after
allowance of appeal was denied. See Commonwealth v. Wharton, 886 A.2d
1120, 1125 n.7 (Pa. 2005).
3 Appellant’s unseasonable PCRA filing contained allegations that the records
documenting Appellant’s participation in various drug treatment programs
constituted “newly discovered evidence” pursuant to 42 Pa.C.S.
§ 9545(b)(1)(ii). See Supplemental PCRA Petition, 1/30/19, at 1-2.
Appellant abandoned this claim in his brief. Thus, this issue is waived. See
Commonwealth v. Heggins, 809 A.2d 908, 912 n.2 (Pa.Super. 2002).
Appellant also raised a potential layered ineffective assistance of counsel claim
in a separate filing. See Amended PCRA Petition, 7/23/20, at ¶ 19. Appellant
mentions this issue in passing in his brief. See Appellant’s brief at 9. To the
extent that this issue was not included in the statement of the issues that
appears in Appellant’s brief, it is waived. See Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the statement of questions involved or
is fairly suggested thereby.”). Moreover, Appellant offers nothing more than
a bare assertion of ineffectiveness. “To prove counsel’s ineffectiveness,
appellant must demonstrate: (1) the underlying claim has arguable merit; (2)
counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness
of counsel caused him prejudice.” Commonwealth v. Williams, 899 A.2d
1060, 1063 (Pa. 2006). This oversight is fatal to the merits of these claims
as Appellant has failed to satisfy any of the requisite factors. Id. (“Failure to
address any prong of the test will defeat an ineffectiveness claim.”).
-3-
J-A15014-21
28, 2020, Appellant filed a motion for discovery requesting various materials
from the Commonwealth. On September 23, 2020, Appellant’s ninth PCRA
petition was dismissed. Appellant filed a timely notice of appeal to this Court.
The PCRA court did not direct Appellant to file a concise statement pursuant
to Pa.R.A.P. 1925(b) and he did not file one. The PCRA court filed an opinion
pursuant to Rule 1925(a). This case is now ripe for our disposition.
Appellant has raised the following issues for our review:4
I. Whether the PCRA court erred in denying [Appellant’s] petition
as untimely when he established that the government officials
interfered with the presentation of his claims by failing to turn
over impeachment and exculpatory evidence in violation of Brady
within the plain language of the timeliness exception.
a. The Commonwealth withheld the notice of the
aggravating circumstances.
b. The Commonwealth withheld evidence of a defect in the
firearm that was exculpatory.
II. Whether the PCRA court erred in failing to issue dismissal
notice to [Appellant’s] amended PCRA petition.
III. Whether the PCRA court erred and/or abused its discretion
when it ruled on the merits of [Appellant’s] petition without first
deciding his discovery request.
Appellant’s brief at 1 (issues reordered).
____________________________________________
4 The Commonwealth filed an untimely brief in this case. Accordingly, we
have not considered it in our adjudication of this appeal. Appellant filed an
application to strike the brief on timeliness grounds. See Application to Strike,
6/21/21, at 1-2. That motion is hereby denied as moot. Appellant also filed
a separate application for relief seeking relief from his obligation to file a
“responsive pleading” to the Commonwealth’s brief. See Application for
Relief, 7/6/21, at 1-2. This motion is similarly denied as moot.
-4-
J-A15014-21
Before assessing the merits of these issues, we must determine whether
Appellant’s PCRA petition was timely filed. See Commonwealth v. Davis,
86 A.3d 883, 887 (Pa.Super. 2014) (“[T]he PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition.[]”). The PCRA provides as follows as to timeliness:
Any petition [filed pursuant to the PCRA], including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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 . . . .
42 Pa.C.S. § 9545(b)(1). Furthermore, any petition invoking an exception to
this one-year time bar “shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant has invoked the “governmental interference” exception. A
PCRA petitioner asserting the applicability of § 9545(b)(1)(i) in the context of
an alleged Brady violation must plead and prove that the “information” upon
which the claim is based was “not previously known to the petitioner and could
not have been ascertained through due diligence.” Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (citing Breakiron, supra at 98).
Appellant’s substantive claims for relief rest entirely upon expert
testimony and filings from the Commonwealth that were presented at his trial.
Yet, Appellant has not presented any argument or evidence that addresses
-5-
J-A15014-21
the issue of due diligence. He offers no explanation as to why he could not
have discovered this information and raised these matters at an earlier
juncture. Thus, Appellant has failed to plead sufficient jurisdictional facts that,
if proven, would establish that he acted with due diligence. Abu-Jamal,
supra at 1270. We discern no error of law or abuse of discretion in the PCRA
court’s dismissal of Appellant’s petition.
We will also briefly address Appellant’s two remaining procedural claims.
“This Court’s standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error.” Commonwealth v. Rizvi, 166
A.3d 344, 347 (Pa.Super. 2017).
Appellant’s second claim challenges the PCRA court’s issuance of notice
pursuant to Rule 907(1), which provides as follows:
[T]he judge shall promptly review the petition, any answer by the
attorney for the Commonwealth, and other matters of record
relating to the defendant's claim(s). If the judge is satisfied from
this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by any
further proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the notice
the reasons for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
judge thereafter shall order the petition dismissed, grant leave to
file an amended petition, or direct that the proceedings continue.
Pa.R.Crim.P. 907(1). While Appellant concedes that the PCRA court’s initial
Rule 907 notice was proper, he claims that the “entire process” should have
-6-
J-A15014-21
begun anew after he submitted an amended petition. See Appellant’s brief at
4-5 (“The PCRA [c]ourt was required to file a new dismissal notice[.]”).
Even assuming, arguendo, that the PCRA court should have filed a
second notice of dismissal pursuant to Rule 907(1), no relief would be due.
See Commonwealth v. Zeigler, 148 A.3d 849, 852 (Pa.Super. 2016)
(“[T]he failure to issue Rule 907 notice is not reversible error where the record
is clear that the petition is untimely.”). As set forth above, Appellant’s petition
is patently untimely. Accordingly, no relief is due.5
Appellant’s third claim involves his request for discovery that sought the
disclosure of: (1) any “reports, notes, or memoranda” prepared by the
Commonwealth; (2) all “reports and notes reflecting the examination,
analysis, and testing performed on the firearm in this case;” (3) the
“Commonwealth’s notice of aggravating circumstances;” and (4) any “reports,
notes or memoranda” prepared by the assistant district attorney previously
assigned to his case. Motion for Discovery, 8/28/20, at ¶ 5(a)-(d). Appellant
asserts that his “substantive and procedural due process rights were violated
when the PCRA [c]ourt dismissed his petition without addressing his discovery
request.” Appellant’s brief at 7. We disagree.
____________________________________________
5 Appellant had a full and fair opportunity to respond and file an amended
PCRA petition following his receipt of the PCRA court’s Rule 907 Notice. See
Appellant’s brief at 4 (“[T]hirteen days after the PCRA [c]ourt’s notice,
defendant amended his PCRA petition to address the defects.”).
-7-
J-A15014-21
While the PCRA court did not explicitly issue a ruling on Appellant’s
discovery motion, we will construe its dismissal of Appellant’s petition as a
denial of that request. In the context of the PCRA, “no discovery shall be
permitted at any stage of the proceedings, except upon leave of court after a
showing of exceptional circumstances.” Pa.R.Crim.P. 902(E)(1). Our review
leads us to conclude that Appellant’s request for discovery “merely sought to
assess the accuracy of the Commonwealth’s trial evidence.” See
Commonwealth v. Roney, 79 A.3d 595, 612 (Pa. 2013). Appellant did not
assert how this evidence would have helped to establish either the timeliness
of his petition or the merits of his claims. Rather, these discovery requests
were “entirely speculative” and, consequently, did not “constitute good cause
for further discovery.” Id. No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2021
-8-