Com. v. Britton, D. ( 2021 )

J-S17029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEREL BRITTON :
:
Appellant : No. 44 MDA 2021
Appeal from the PCRA Order Entered December 2, 2020,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0000013-2005.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 10, 2021
Derel Britton appeals from the order denying as untimely his third
petition filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The pertinent facts and procedural history have been summarized as
follows:
On October 18, 2004, the victim, Kenneth Pailen, drove
to Harrisburg with the intent of purchasing illegal drugs. He
observed [Britton] standing on a porch at a residence
located on Schuylkill Street, and believing that he might be
a drug dealer, Pailen stopped his car. [Britton] and his
cohort, Donald James Sherrill, Jr., approached Pailen’s car.
After looking at Pailen, Sherril stated that he thought Pailen
looked like a guy with whom [Britton] may have fought
previously. In response, [Britton] shot Pailen, who survived
and testified against [Britton] and his cohort at their joint
jury trial.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S17029-21
The jury convicted [Britton] of various crimes, including
attempted homicide, and on April 12, 2006, the trial court
imposed an aggregate sentence of twenty-one years to
forty-two years in prison. On April 5, 2007, this Court
affirmed [Britton’s] judgment of sentence on direct appeal.
[Britton] did not file a petition for allowance of appeal with
our Supreme Court.
On or about April 7, 2008, [Britton] filed a timely pro se
PCRA petition, and counsel was appointed to represent him.
The PCRA court provided notice of its intent to dismiss
[Britton’s] first PCRA petition and granted counsel
permission to withdraw. Thereafter, [Britton] retained
private counsel, who filed a response to the PCRA court’s
notice, and following a hearing, the PCRA court denied
[Britton’s] first PCRA petition on February 3, 2011.
[Britton] filed a timely appeal and raised in this Court the
issue of whether trial counsel was ineffective for failing to
call [Britton’s] cousin, Jalieta Britton, as an alibi witness at
trial. Concluding [Britton] was not entitled to relief, this
Court affirmed the PCRA court’s denial of [Britton’s] first
PCRA petition. [Britton] filed a petition for allowance of
appeal, which our Supreme Court denied on March 1, 2013.
Commonwealth v. Britton, 154 A.3d 867 (Pa. Super. 2016), unpublished
memorandum at 1-3 (citations omitted).
On or about May 1, 2013, Britton filed a second pro se PCRA in which
he asserted that he possessed newly-discovered evidence in the form of a
letter his mother had received from Calvin McKinney stating that his brother,
Fred McKinney, a/k/a “CJ” actually committed the crime. The Commonwealth
filed a response. The PCRA court issued notice of its intent to dismiss, and
Britton filed a pro se response. On October 9, 2015, the PCRA court dismissed
Britton’s second pro se PCRA petition as untimely.
-2-
J-S17029-21
Britton filed a timely appeal to this Court in which he claimed that Calvin
McKinney’s notarized letter constituted newly discovered facts pursuant to 42
Pa.C.S.A. section 9545(b)1(ii). A panel majority rejected this claim by
concluding that the letter did “not provide ‘unknown facts’ and constitute[d],
at most, a newly discovered or newly willing source for known facts.” Britton,
supra, unpublished memorandum at 9.1 In reaching this conclusion, the
majority noted that “defense counsel explored at length the possibility that
Fred McKinney, aka ‘CJ,’ was the shooter.” Id. As part of this discussion, the
majority cited a portion of the trial transcript in which Detective John O’
Connor testified that Officer Julian Adams had provided him with information
establishing McKinney as a suspect. Id. at 9-10. The majority further stated:
Additionally, defense counsel indicated that he intended
to call Officer Julian Adams as a witness to testify on behalf
of [Britton]. The trial court, out of the presence of the jury,
directed defense counsel to question Officer Adams to
establish whether his proffered testimony would have any
probative value.
Upon questioning, Officer Adams indicated, in relevant
part, that while he was working as a security officer at a
bingo hall on October 21, 2004, a woman approached him,
said her name was Margaret, and informed him that people
were saying the police had the wrong person for the
shooting at issue. Specifically, he testified Margaret
indicated people at the bingo hall were saying the shooter
was a “person who goes by CJ or JC.” Officer Adams
indicated he provided this information in his supplemental
police report, and he confirmed that Margaret had no
____________________________________________
1 In a dissenting memorandum, Judge John Bender disagreed with the
majority’s characterization of the letter and would have remanded for an
evidentiary hearing.
-3-
J-S17029-21
“firsthand knowledge” but was repeating rumors she had
heard.
The trial court then questioned Detective O’Connor, out
of the presence of the jury, as to whether “CJ” was Fred
McKinney, and he indicated, “I don’t know off the top of my
head, but I think he does go by Charles.” Detective
O’Connor then indicated he spoke to Jodi Moppin about Fred
McKinney. Ultimately, the trial court excluded Officer
Adams’ proffered testimony on the basis it lacked any
probative value and was based upon hearsay.
Britton, supra, unpublished memorandum at 10-11. We therefore affirmed
the PCRA court’s denial of post-conviction relief.
On August 18, 2020, Britton filed the pro se PCRA petition at issue, his
third. On October 8, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of
its intent do dismiss Britton’s petition as untimely filed and because he failed
to establish any exception to the PCRA’s time bar. Britton filed a pro se
response. By order entered December 2, 2020, the PCRA court denied
Britton’s third PCRA petition. Britton filed a timely appeal to this Court.
Thereafter, current counsel entered his appearance. Both Britton and the
PCRA court have complied with Pa.R.A.P. 1925.
Britton now raises two issues claiming he met a timeliness exception
based on Officer Adams’ termination from the Harrisburg Police Department.
Specifically, he claims:
I. Whether it was an abuse of discretion to dismiss
[Britton’s] PCRA petition without a hearing when the
PCRA court determined that [Britton] failed to set
forth how government officials interfered with
[Britton’s] learning of the evidence regarding [] Julian
Adams’ termination from the Harrisburg Police force?
-4-
J-S17029-21
II. Whether it was an abuse of discretion to dismiss
[Britton’s] PCRA petition without a hearing where the
evidence regarding the termination of Julian Adams’
termination from the Harrisburg Police force,
constituted newly discovered evidence that may have
resulted in a different verdict?
Britton’s Brief at 4 (excess capitalization omitted).2
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
As mentioned, in both of his issues, Britton essentially challenges the
PCRA court’s conclusion that his third PCRA petition was untimely. The
____________________________________________
2 The Commonwealth did not file a brief.
-5-
J-S17029-21
timeliness of a post-conviction petition is jurisdictional. Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 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 becomes final unless the petition
alleges, and the petitioner proves, that an exception to the time for filing the
petition is met. The three narrow statutory exceptions to the one-year time
bar are as follows: “(1) interference by government officials in the
presentation of the claim; (2) newly discovered facts; and (3) an after-
recognized constitutional right.” Commonwealth v. Brandon, 51 A.3d 231-
233-34 (Pa. Super. 2012) (citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). A PCRA
petition invoking one of these statutory exceptions must be filed within one
year the date the claim could have been presented.” 42 Pa.C.S.A. §
9545(b)(2). Finally, exceptions to the PCRA’s time bar must be pled in the
petition and may not be raised for the first time on appeal. Commonwealth
v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a)
(providing issues not raised before the lower court are waived and cannot be
raised for the first time on appeal).
Here, Britton’s judgment of sentence became final on May 7, 2007,
thirty days after we affirmed his judgment of sentence and the time for filing
a petition for allowance of appeal to our Supreme Court. See 42 Pa.C.S.A. §
9545(b)(3). Therefore, Britton had until May 7, 2008, to file a timely petition.
Because Britton filed his second petition in 2020, it is patently untimely unless
-6-
J-S17029-21
he has satisfied his burden of pleading and proving that one of the enumerated
exceptions applies. See Hernandez, supra.Britton argues that in his third PCRA petition he established both the
governmental interference exception and the newly discovered fact exception.
Both claims are based upon Britton’s recent discovery that Officer Julian
Adams had been terminated from the Harrisburg Police force in 2007 after an
internal affairs investigation revealed he had lied while testifying in an
unrelated criminal proceeding. According to Britton, the Commonwealth
committed a Brady3 violation when it failed to disclose Officer Adams’
investigation and termination to the defense, and that the information
regarding the officer’s termination constituted newly discovered evidence. We
disagree.
Although a Brady violation might fall within the governmental
interference exception to the PCRA’s time bar, the statute nevertheless
requires a petitioner to plead and prove: (1) the failure to previously raise the
claim was the result of interference by government officials, and (2) the
information on which he relies could not have been obtained earlier with the
exercise of due diligence. No Brady violation occurs when the parties had
equal access to the information or if the defendant knew or could have
____________________________________________
3 See Brady v. Maryland, 373 U.S. 83 (1963).
-7-
J-S17029-21
uncovered such evidence with reasonable diligence. Commonwealth v.
Williams, 105 A.3d 1234 (Pa. Super. 2014).
This court has explained the newly-discovered-fact exception to the
PCRA’s time bar as follows:
The timeliness exception set forth in Section
9545(b)(1)(ii) requires a petitioner to demonstrate he did
not know the facts upon which he based his petition and
could not have learned of those facts earlier by the exercise
of due diligence. Due diligence demands that the petitioner
take reasonable steps to protect his own interests. 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. Additionally, 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) (citations
omitted).
Here, the PCRA court found that Britton did not explain how
governmental officials interfered with his learning of Officer Adams’
termination or how he could not have discovered this sooner. See Rule 907
Notice, 10/8/20, at 5. The court explained:
[Britton’s] PCRA petition fails to set forth how government
officials interfered with his learning of the case or why he
could not have ascertained such information earlier by the
exercise of due diligence. [Officer] Adams commenced [a
discrimination] action by filing a complaint on June 21,
2007. The case therefore existed as a matter of public
record at that time. [Britton] asserts that he learned of the
case thirteen years later, on February 14, 2020. The
Pennsylvania Supreme Court has emphasized that “it is the
petitioner who bears the burden to allege and prove that
-8-
J-S17029-21
one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 947 A.2d 714, 719 (Pa. 2008). Because
[Britton] fails to satisfy a timeliness exception, we need not
address whether any nexus exists between [Britton’s] case
and the matters at issue in [Officer Adams’ civil suit].
Rule 907 Notice, 10/8/20 at 5. Our review of the record supports the PCRA
court’s conclusion that Britton has failed to meet his burden.
Britton’s claims to the contrary are unavailing. First, as to his claim of
governmental interference based upon a Brady violation, Britton asserts:
Despite the fact that Adams was known to receive
evidence important to [his] case, that Adams was a
potential witness in [his] case, and that defense counsel had
requested information relating to Adams (and all officers),
the Commonwealth failed to disclose the investigation into
Adams[] regarding his perjured testimony even as Adams
testified at [his] trial.
Britton’s Brief at 13.
Britton correctly recognizes that, for purposes of Brady, exculpatory
evidence includes possible impeachment evidence. See id. (citing Napue v.
Illinois, 360 U.S. 264 (1959); Commonwealth v. Strong, 761 A.2d 1167(Pa. 2000). However, within his PCRA petition, although Britton cited Brady,
he did not explain adequately how the investigation of Officer Adams and his
subsequent termination was disclosable impeachment evidence given the
circumstances of Britton’s trial. As noted above, Britton’s defense counsel
attempted to call Officer Adams as a witness to support Britton’s claim that
someone else committed the shooting. Officer Adams was questioned outside
-9-
J-S17029-21
the presence of the jury, and the trial court ultimately ruled that his proffered
testimony was not probative.
Second, as to his claim that he established the newly-discovered-fact
exception, although Britton acknowledges that he had to prove due diligence,
he asserts that, because his petition was dismissed without a hearing, “he
never had the chance to bear his burden.” Britton’s Brief at 17. Britton
misunderstands his burden. As noted above, to meet the exception, “[a]
petitioner must explain why he could not have learned the new fact(s) earlier
with the exercise of due diligence.” Britton provides no such explanation.
Rather, he makes the bare assertion that “as evidenced by the lack of
information regarding Officer Adams’ transgressions in his multiple appeals
and PCRA petitions [he] was not aware of the facts he now relies on and
secondly, he has certainly been exercising due diligence these many years
and only recently discovered the issues regarding Officer Adams.” Britton’s
Brief at 18.
As the PCRA court noted, Officer Adams’ termination from the
Harrisburg Police force has been a matter of public record for years. In
Commonwealth v. Small, 238 A.3d 1267, 1281 (Pa. 2020), our Supreme
Court “disavow[ed] the public record presumption” as it is in tension with the
statutory language of the newly-discovered-fact exception. Nonetheless, in
this case, it is Britton’s failure to explain why he could not have learned of
Officer Adams’ termination earlier than 2020 that dooms his attempt to
establish this exception. See Commonwealth v. Brown, 111 A.3d 171, 176
- 10 -
J-S17029-21
(Pa. Super. 2015) (explaining the due diligence requirement for a timeliness
exception is strictly enforced; due diligence demands that the petitioner take
reasonable steps to protect his own interests). Britton asserts that “during
research in the prison law library, [he] learned of the investigation and
termination of Adams by happenstance when he came across a federal
discrimination claim filed by Adams based on his termination.” Britton’s Brief
at 17. He does not, however, explain why he could not have discovered Officer
Adams’ termination through earlier research.
In sum, because the record supports the PCRA court’s conclusion that
Britton’s third PCRA petition was untimely, the court lacked jurisdiction to
consider its merits. We therefore affirm the PCRA court’s order denying
Britton post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/10/2021
- 11 -