Com. v. Parker, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee :
:
v. :
:
CLIFTON PARKER, :
:
Appellant : No. 624 EDA 2021
Appeal from the PCRA Order Entered March 1, 2021
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0608821-2001
BEFORE: PANELLA, P.J., KUNSELMAN, J. and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 27, 2021
Appellant, Clifton Parker, appeals pro se from the March 1, 2021, order
entered in the Court of Common Pleas of Philadelphia County dismissing his
serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing. We affirm.
This Court has previously set forth the relevant facts and procedural
history, in part, as follows:
During a one-hour crime spree [in 2001], Appellant and a
cohort killed one man, [Raphael Shaw], attempted to kill another
man, [Leon Tuck], and robbed a third man, [Jonathan
Steadman]. On March 11, 2004, a jury convicted Appellant of
one count each of second-degree murder, attempted murder,
aggravated assault, robbery, and theft by unlawful taking, and
three counts of criminal conspiracy. The court sentenced him to
life imprisonment, and a consecutive aggregate term of not less
than twenty nor more than forty years of imprisonment.
*Former Justice specially assigned to the Superior Court.
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On May 5, 2005, this Court affirmed the judgment of
sentence on direct appeal. See Commonwealth v. Parker,
880 A.2d 10 (Pa.Super. 2005). On December 29, 2005, the
Pennsylvania Supreme Court denied allowance of appeal. See
Commonwealth v. Parker, 892 A.2d 822 (Pa. 2005). On
August 31, 2006, Appellant filed his first PCRA petition. The
court appointed counsel, who filed an amended petition. On
November 1, 2007, the PCRA court dismissed his petition as
meritless. This Court affirmed on April 14, 2010. A second
petition also failed.
On March 23, 2016, Appellant filed [a] third PCRA petition,
pro se. On November 21, 2017, the PCRA court dismissed
Appellant’s petition as untimely. [On appeal, this Court affirmed
the dismissal of the third petition.]
Commonwealth v. Parker, 4059 EDA 2017, 2018 WL 5292443, at *1-3
(Pa.Super. 2018) (unpublished memorandum) (some parentheses omitted).
Appellant filed the instant petition, pro se, on or about September 1,
2020. Therein, Appellant acknowledged that the instant petition was
untimely; however, he contended that it met the newly-discovered facts
exception to the PCRA’s time-bar.1 PCRA Petition, 9/1/20, at ¶¶ 48-61. In
support of his contention, he attached two letters dated November 5, 2019,
and December 19, 2019, purportedly sent to him from an investigator from
the Pennsylvania Innocence Project. Id. at Exhibits A-B. Appellant averred
that the information contained within the letters was newly discovered by
him as of the date he received the letters.
1
There are three exceptions to the PCRA’s time-bar, one of which is the
newly-discovered facts exception discussed infra. See 42 Pa.C.S.A.
§ 9545(b)(1)(i-iii).
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The first letter indicated that, in October of 2019, the investigator
spoke to Steven Thomas (“Thomas”), who told the investigator that he
recognized Appellant at trial and knew he was not one of the two people
Thomas saw with an unspecified victim before the victim was shot.2 The
second letter indicated that the investigator planned to obtain an affidavit
from Thomas in January 2020.
The second letter also indicated that the investigator had previously
spoken to Leon Tuck (“Tuck”), who was the victim in the attempted murder
case, and Tuck was uncooperative. However, according to the letter, Tuck
changed his mind and agreed to speak to the investigator in January 2020.
Notably, the petition did not provide any information as to whether Thomas
signed an affidavit or whether the investigator spoke to Tuck as planned. It
also did not specify what information Tuck could supposedly provide.
Appellant averred that he exercised due diligence in obtaining the
information and that he could not have obtained the information any sooner
because Thomas and Tuck only now agreed to provide the information.
The Commonwealth filed a response, urging the PCRA court to dismiss
the petition as untimely filed. On January 27, 2021, the PCRA court issued
notice of its intent to dismiss the petition without a hearing pursuant to
Pa.R.Crim.P. 907, explaining that it was dismissing the petition as untimely
2
Although it is unclear from the attached letter, based upon the averments
in the petition, presumably “the victim” refers to Shaw.
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because Appellant did not meet his burden of pleading and proving an
exception to the PCRA’s time bar. It also stated his petition was without
merit. Appellant filed a response. On March 1, 2021, the PCRA court
dismissed Appellant’s PCRA petition on the basis it was untimely.
Appellant timely filed a pro se notice of appeal. The trial court did not
order a concise statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Appellant did not file one. In lieu of an opinion
pursuant to Pa.R.A.P. 1925(a), the PCRA court directed our attention to its
May 1, 2021, opinion accompanying its dismissal order.
On appeal, Appellant asserts one issue (verbatim): “Whether Appellant
is entitled to Post Conviction Relief or a remand for an evidentiary hearing as
a result of newly discovered evidence in the form of testimony of an
exonerating eyewitness and victim of the crime?” Appellant’s Brief at 3.
We review this issue mindful of the fact that “[t]he question of
whether a [PCRA] petition is timely [filed] raises a question of law. Where
the petitioner raises questions of law, our standard of review is de novo and
our scope of review [is] plenary.” Commonwealth v. Brown, 141 A.3d
491, 499 (Pa.Super. 2016).
The timeliness of the filing of a post-conviction petition is jurisdictional.
Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.Super. 2011).
“Pennsylvania law makes clear no court has jurisdiction to hear an untimely
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PCRA petition.” Commonwealth v. Allison, 235 A.3d 359, 362 (Pa.Super.
2020).
Any PCRA petition, including second and subsequent petitions, must
either (1) be filed within one year of the judgment of sentence becoming
final, or (2) plead and prove a timeliness exception. 42 Pa.C.S.A. § 9545(b).
“For purposes of [the PCRA], 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 the review.” 42 Pa.C.S.A. § 9545(b)(3).
Appellant concedes that his petition was not filed within the PCRA’s
one-year timeframe, but he argues that he has pleaded and proved the
newly-discovered facts exception to the time bar. Appellant’s Brief at 7. This
exception provides as follows.
(b) Time for filing petition.—
(1) Any petition under this subchapter, 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:
***
(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[.]
42 Pa.C.S.A. § 9545(b)(1)(ii). Any petition invoking a timeliness exception
must be filed within one year of the date the claim could have been
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presented.3 42 Pa.C.S.A. § 9545(b)(2). “We emphasize that it is the
petitioner who bears the burden to allege and prove that one of the
timeliness exceptions applies.” Allison, 235 A.3d at 363 (citing
Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008)).
On appeal, Appellant argues the PCRA court erred by dismissing his
petition without a hearing because his petition met the newly-discovered
facts exception. He contends “Mr. Thomas and Mr. Tuck spoke with the
Innocence Project on October 25, 2019, setting forth the averment that
Appellant was falsely accused and was not one of the two suspects who shot
the victim.” Appellant’s Brief at 7. In Appellant’s view, the PCRA court
should have held an evidentiary hearing to hear from Thomas and Tuck and
determine their credibility. Id. at 8.
Appellant’s contention in his brief does not match the information he
pleaded in his PCRA petition. In his petition, he averred that the Innocence
Project spoke to Thomas on October 25, 2019; neither the petition nor its
3
42 Pa.C.S.A. § 9545(b)(2) previously provided that a petition invoking a
timeliness exception was required to be filed within sixty days of the date
the claim could first have been presented. However, effective December 24,
2018, the legislature amended Subsection 9545(b)(2) to read: “Any petition
invoking an exception provided in paragraph (1) shall be filed within one
year of the date the claim could have been presented.” See 42 Pa.C.S.A. §
9545(b)(2) (effective December 24, 2018). The amendment to Subsection
9545(b)(2) only applies to “claims arising on [December] 24, 2017, or
thereafter.” See id., cmt. Appellant filed the instant PCRA petition on
September 1, 2020, relying upon claims related to a November 5, 2019, and
a December 19, 2019, letter. Accordingly, the amendment applies to
Appellant.
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attachments specify the date Tuck spoke to the Innocence Project. As noted
above, the petition did not allege any information provided by Tuck, let
alone any information that would exonerate Appellant.
Moreover, regarding Thomas, although Appellant’s PCRA petition
alluded to the potential of obtaining an affidavit from Thomas, the petition
neither attached an affidavit nor explained why an affidavit was not
attached. See Pa.R.Crim.P. 902(A)(12) (explaining that a PCRA petition
must contain “the facts supporting each [ground complained of] that do not
appear in the record, and an identification of any affidavits, documents, and
other evidence showing such facts”); Pa.R.Crim.P. 902(D) (“The defendant
shall attach to the petition any affidavits, records, documents, or other
evidence which show the facts stated in support of the grounds for relief, or
the petition shall state why they are not attached.”). Notably, Appellant
provided no signed certification to his PCRA petition as to Thomas wherein
he stated the witness’s name, address, date of birth, and substance of
testimony.4 See 42 Pa.C.S.A. § 9545(d)(1).
All that Appellant pleaded was that he received a letter from an
investigator who allegedly spoke to Thomas, and that Thomas allegedly told
the investigator that Appellant was not the person Thomas originally
identified. This indirect double hearsay does not constitute specific facts
4
Appellant also did not provide any signed certification as to Tuck.
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needed to establish an exception to the PCRA time-bar. See
Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999) (“A claim which
rests exclusively upon inadmissible hearsay is not of a type that would
implicate the [newly]-discovered [facts] exception to the timeliness
requirement.”). Accordingly, the PCRA court did not err by dismissing the
petition as untimely filed.5
Order affirmed
5 Appellant contends the PCRA court erred in dismissing his PCRA petition
without holding an evidentiary hearing. We note:
[T]he right to an evidentiary hearing on a post-conviction
petition is not absolute. It is within the PCRA court’s discretion
to decline to hold a hearing if the petitioner’s claim is patently
frivolous and has no support either in the record or other
evidence. It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA petition in light
of the record certified before it in order to determine if the PCRA
court erred in its determination that there were no genuine
issues of material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Grayson, 212 A.3d 1047, 1054 (Pa.Super. 2019)
(quotation omitted).
Here, applying this standard, we conclude the PCRA court did not err
in declining to hold an evidentiary hearing as to Appellant’s petition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2021
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