Com. v. Pinson, P. ( 2021 )

J-A18045-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PIERRE LAMONT PINSON :
:
Appellant : No. 933 WDA 2020
Appeal from the PCRA Order Entered August 3, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013750-1999,
CP-02-CR-0014157-1999
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: OCTOBER 22, 2021
Pierre Lamont Pinson (“Pinson”) appeals, pro se, from the Order
dismissing his fifth Petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. Additionally, Pinson has filed
an Application for Relief requesting that Judge Olson recuse herself from
consideration of this appeal. We grant Pinson’s Application for Relief, and we
affirm the PCRA court’s Order dismissing Pinson’s PCRA Petition.
On August 27, 1999, Pinson and his co-defendant committed a drive-by
shooting of the Pittsburgh Police Station in Zone 6, located at Northumberland
Street, Pittsburgh, Pennsylvania. Subsequently, on August 30, 1999, Pinson
and his co-defendant unsuccessfully attempted to break into a Qwicash, a
check-cashing business, before business hours. On the following day, Pinson
and his co-defendant entered the store during business hours, each armed
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with a handgun, and robbed the Qwicash. On September 20, 1999, Pinson
was arrested and charged with the Pittsburgh Police Zone 6 drive-by shooting
at Docket Number CP-02-CR-0013750-1999 (“No. 13750-1999”), and with
the Qwicash robbery at Docket Number CP-02-CR-0014157-1999 (“No.
14157-1999”).
On July 24, 2000, after a jury trial, Pinson was convicted of four counts
of aggravated assault, and one count each of criminal conspiracy and carrying
a firearm without a license,1 at No. 13750-1999. After the conclusion of his
trial at No. 13750-1999, Pinson immediately proceeded to a separate jury trial
at No. 14157-1999. At No. 14157-1999, a jury convicted Pinson of three
counts of robbery, two counts of criminal conspiracy, and one count of criminal
attempt.2
On September 12, 2000, Pinson was sentenced, at No. 13750-1999, to
an aggregate term of 35 to 90 years in prison. On the same day, Pinson was
sentenced, at No. 14157-1999, to an aggregate term of 15 to 60 years in
prison. Pinson’s sentences were imposed consecutively, resulting in an
aggregate term of 50 to 150 years in prison.
On March 22, 2002, Court affirmed Pinson’s judgment of sentence
imposed at No. 13750-1999, and on August 28, 2002, our Supreme Court
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1 18 Pa.C.S.A. §§ 2702(a), 903(a)(1), 6106(a)(1).
2 18 Pa.C.S.A. §§ 3701(a)(1), 901(a).
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denied allowance of appeal. See Commonwealth v. Pinson, 799 A.2d 173(Pa. Super. 2002) (unpublished memorandum), appeal denied, 806 A.2d
860 (Pa. 2002). On March 27, 2002, this Court affirmed Pinson’s judgment of
sentence imposed at No. 14157-1999, and on March 30, 2004, our Supreme
Court denied allowance of appeal. See Commonwealth v. Pinson, 799 A.2d
173 (Pa. Super. 2002) (unpublished memorandum), appeal denied, 847
A.2d 1282 (Pa. 2004).
Subsequently, Pinson filed four unsuccessful PCRA Petitions. Relevantly,
Pinson previously argued, before this Court, that all prior counsel rendered
ineffective assistance by failing to investigate and call Michael Snowden
(“Snowden”) and John Carter (“Carter”) to testify.3 See Commonwealth v.
Pinson, 968 A.2d 795, (Pa. Super. 2009) (unpublished memorandum at 7-
8). In that case, Pinson had claimed that Snowden’s testimony was
exculpatory and would have proven Pinson’s innocence. Id. Ultimately,
Pinson’s ineffective assistance claim was dismissed for failure to produce any
evidence supporting his claim. See id.____________________________________________
3 According to Pinson, Snowden and Carter, during interviews with the police,
told the police that Pinson and his co-defendant were involved in the
Pittsburgh Police Zone 6 drive-by shooting. Brief for Appellant at 12-18.
Instantly, as discussed infra, Pinson now claims that Snowden’s testimony was
exculpatory because Snowden would admit that he lied to the police when he
stated that Pinson was involved in Pittsburgh Police Zone 6 drive-by shooting.
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On December 3, 2019, Pinson, pro se, filed the instant PCRA Petition, at
both docket numbers, his fifth. On February 10, 2020, Pinson, pro se, filed
an Amended PCRA Petition at both docket numbers. On June 17, 2020, the
PCRA court issued Notice of its Intent to dismiss Pinson’s Petition without a
hearing pursuant to Pa.R.Crim.P. 907. On July 20, 2020, Pinson filed his
Objections as well as a Motion for an Evidentiary Hearing. On August 3, 2020,
the PCRA court dismissed Pinson’s Petition as untimely. Pinson filed a timely
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Notice of Appeal4 and a court-ordered Pa.R.A.P. 1925(b) Concise Statement
of errors complained of on appeal.
Pinson now raises the following claims for our review:
[1.] Did the PCRA court abuse its discretion when finding that …
Snowden[’]s [A]ffidavit was not after-discovered evidence thereby
applying a misnomer and ignoring the plain language of 42
Pa.[]C.S.[A.] § 9545(b)(1)(ii)?
[2.] Did the suppression of the circumstances surrounding …
Snowden’s arrest and subsequent false identification deprive
[Pinson] of his due process rights including the right to present a
complete defense?
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4 On November 2, 2020, this Court ordered Pinson to show cause why his
appeal should not be quashed in light of our Supreme Court’s decision in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). In Walker, our
Supreme Court, relying upon Pa.R.A.P. 341(a), held that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each case.” Id. at 971.
This Court has recognized that when a breakdown in court operations
occurs, this Court may decline to quash an appeal “when the defect resulted
from an appellant’s acting in accordance with misinformation relayed to him
by the trial court.” Commonwealth v. Larkin, 235 A.3d 350, 353 (Pa.
Super. 2020) (en banc) (citing Commonwealth v. Stansbury, 219 A.3d 157,
159-60 (Pa. Super. 2019)).
Instantly, Pinson’s Notice of Appeal contains both of the above-
captioned docket numbers. However, the PCRA court’s Order dismissing
Pinson’s PCRA Petition informed Pinson of his appellate rights as follows:
“[Pinson] is hereby advised pursuant to Pa.R.Crim.P. 907, that he has the
right to appeal from this final Order and that such appeal must be taken
within thirty (30) days from the date of this Order.” Order, 8/30/20, at 1
(emphasis added). We conclude that this misstatement by the PCRA court
constituted a breakdown in court operations such that we may overlook the
defective nature of Pinson’s timely Notice of Appeal. See Stansbury, 219
A.3d at 160 (stating that a breakdown in court operations had occurred where
the trial court advised defendant that he only need file a single notice of
appeal).
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[3.] Did the PCRA court deny a fundamentally fair procedure to
afford [sic] [Pinson] an opportunity to substantiate his evidentiary
issues thereby constraining [this Court] by failing to properly
develop the record when pursuant Franks[ v. Delaware, 438
U.S. 154 (1978)5] and 42 Pa.[]C.S.[A.] § 9545(d) [Pinson] was
entitled to an evidentiary hearing?
Brief for Appellant at 1-2 (footnote added).
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of the record. We will not disturb a PCRA court’s ruling
if it is supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Under the PCRA, any PCRA petition “shall be filed within one year of the
date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment
of sentence 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
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5 In his Motion, Pinson argued that he was entitled to an evidentiary hearing
pursuant to Franks v. Delaware, 438 U.S. 154 (1978). In Franks, the
United States Supreme Court held that,
[w]here the defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the
warrant affidavit, and if the allegedly false statement is necessary
to the findings of probable cause, the Fourth Amendment requires
that a hearing be held at the defendant’s request.
Franks, 438 U.S. at 154.
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review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature, and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
Instantly, Pinson’s judgments of sentence became final on November
26, 2002, and June 25, 2004, respectively, when the time to file a petition for
writ of certiorari with the United States Supreme Court expired. See 42
Pa.C.S.A. § 9545(b)(3); SUP. CT. R. 13. Thereafter, Pinson had until November
26, 2003, and June 24, 2005, respectively, to file a timely PCRA petition.
Thus, Pinson’s Petition is facially untimely.
However, Pennsylvania courts may consider an untimely petition if the
petitioner can explicitly plead and prove one of the three exceptions set forth
at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Those three exceptions are as follows:
(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 or 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
(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). Any petition invoking one of these
exceptions “shall be filed within one year of the date the claim could have
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been presented.” Id. § 9545(b)(2). “The PCRA petitioner bears the burden
of proving the applicability of one of the exceptions.” Commonwealth v.
Spotz, 171 A.3d 675, 678 (Pa. 2017).
In his first claim, Pinson purports to invoke the newly-discovered facts
exception at 42 Pa.C.S.A. § 9545(b)(1)(ii). See Brief for Appellant at 12-20.
Additionally, Pinson argues that the PCRA court “abdicated” its duties by failing
to conduct an evidentiary hearing on his PCRA Petition. Id. at 10-12.
In purporting to invoke the newly-discovered fact exception, Pinson
asserts that Snowden authored and signed an Affidavit (the “Snowden
Affidavit”), which proves that both Snowden and Carter lied when they told
police that Pinson and his co-defendant were involved in the Pittsburgh Police
Zone 6 drive-by shooting, resulting in a false conviction. Id. at 12-18. Pinson
acknowledges that, in a previous Petition, he challenged the effectiveness of
all of his previous counsel in failing to call the two men, obtain affidavits, or
otherwise investigate Snowden and Carter. Id. at 12-14. However, Pinson
contends that the instant claim is distinct, because he has since obtained and
provided the Snowden Affidavit. Id. at 14-16. Pinson argues that the
“trigger” for the newly-discovered fact exception is not the existence of
Snowden, but rather the availability of Snowden’s testimonial evidence. Id.
at 16. Pinson further contends that Snowden had previously been unavailable
to him. Id. at 15-18.
Pinson purports to invoke the newly-discovered fact exception, which
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[r]equires that the facts upon which such a claim is predicated
must not have been known to [the petitioner], nor could they have
been ascertained by due diligence. To fall within this exception,
the factual predicate of the claim must not be of public record and
must not be facts that were previously known but are now
presented through a newly-discovered source.
Commonwealth v. Shannon, 184 A.3d 1010, 1015-16 (Pa. Super. 2018)
(citations, quotation marks, and some brackets omitted). Further, “[d]ue
diligence demands that the petitioner take reasonable steps to protect his own
interests. A petitioner must explain why he could not have obtained the new
fact(s) earlier with the exercise of due diligence. This rule is strictly enforced.”
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).
In dismissing Pinson’s PCRA Petition, the PCRA court highlighted that
Pinson had previously argued that Snowden’s testimony would have been
exculpatory. PCRA Court Opinion, 1/12/21, at 5. Thus, the PCRA court
concluded that Pinson must have been aware of the nature and substance of
Snowden’s testimony and, therefore, knew of that testimony as early as
September 2003. Id. at 6.
Our review of the record confirms the PCRA court’s determinations. See
id. Indeed, contrary to Pinson’s assertions, Pinson was aware of Snowden’s
involvement in this case since at least September 2003. See PCRA Court
Opinion, 11/8/07, at 2-3 (wherein the PCRA court, in addressing Pinson’s
second PCRA Petition, summarized that Pinson filed his second PCRA Petition
in September 2003, and raised his claim that all prior counsel were ineffective
for failing to call Snowden and Carter as witnesses). Moreover, other than a
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bald assertion of Snowden’s unavailability for 16 years, Pinson provides no
explanation of the steps he took to secure the Snowden Affidavit, nor any
pitfalls or delays. See Shannon, supra; see also Monaco, supra.Accordingly, because Pinson’s fifth PCRA Petition is untimely and he failed to
successfully plead and prove any of the timeliness exceptions, this Court lacks
the jurisdiction to determine the merits of Pinson’s first claim.6
We address Pinson’s second and third claims together, as they are
related. In his second claim, Pinson contends that the Commonwealth
suppressed Snowden’s whereabouts in violation of Brady v. Maryland, 373
U.S. 83, 87 (1963). Brief for Appellant at 20-25. In his third claim, Pinson
argues that, as a result of the alleged suppression, he was entitled to an
evidentiary hearing pursuant to Franks. Brief for Appellant at 26-32.
With regards to his second and third claims, Pinson fails to invoke any
of the timeliness exceptions set forth at section 9545(b)(1)(i)-(iii). Therefore,
we lack jurisdiction to address the merits of these claims. See Albrecht,
supra.
Application for Relief granted. Order affirmed.
Judge Nichols joins the memorandum.
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6 We note that the Snowden Affidavit does not appear in Pinson’s PCRA
Petition, his Amended Petition, nor anywhere else in the certified record before
this Court. Indeed, the Snowden Affidavit makes its first appearance in
Pinson’s appellate brief. See Brief for Appellant at 37 (unnumbered).
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Judge Olson did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2021
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