Com. v. Souffrant, K. ( 2021 )

J-S26044-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN SOUFFRANT :
:
Appellant : No. 1450 MDA 2020
Appeal from the PCRA Order Entered October 9, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002313-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN SOUFFRANT :
:
Appellant : No. 1451 MDA 2020
Appeal from the PCRA Order Entered October 9, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002314-2013
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: OCTOBER 29, 2021
Kevin Souffrant (“Souffrant”) appeals, pro se, from the Order dismissing
his second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In a prior appeal, this Court set forth the factual and procedural history
of this case as follows:
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On March 9, 2013, officers from the Lancaster City Bureau of
Police responded to a report of shots fired at 1117 Wabank Street,
Apartment C-304, in Lancaster County, Pennsylvania. Upon
arrival, the officers located inside the apartment a deceased
female, Shadae Brooks [(“Brooks” or “the victim”)], who had
suffered multiple gunshot wounds, and additionally found
[Souffrant] in the vestibule outside [of] the apartment, also
suffering from multiple gunshot wounds. Their investigation led
police officers to interview Leonda Washington [(“Washington”)]
and Shaina Taylor-Brooks [(“Taylor-Brooks”)], who informed
police that they had been inside [of] the apartment prior to the
shooting, and saw [Souffrant] strike the victim on the head with
a small silver handgun, and threaten to kill everyone in the
apartment, including three children under age five. [] Washington
and [] Taylor-Brooks were able to leave the apartment with two
of the children while [Souffrant] was beating the victim, and when
the victim attempted to give [] Washington and [] Taylor-Brooks
the third child to take with them, [Souffrant] physically restrained
her from doing so, and pointed the gun at [] Washington and []
Taylor-Brooks. [] Washington and [] Taylor-Brooks were able to
leave with two of the children while the victim remained in the
apartment with [Souffrant] and her infant child. [Souffrant]
instructed [] Washington and [] Taylor-Brooks that if he heard
police sirens he would shoot the victim, and the two women thus
opted not to report the incident to police. However, at
approximately 4:38 p.m. that afternoon, Officer Mark Gehron
received a report from an unidentified source of shots fired at
Apartment C-304, and upon arrival found [Souffrant] and the
deceased victim. [Souffrant] was transported to Lancaster
General Hospital for treatment of his gunshot injuries, where he
was interviewed by police and informed them that two men had
entered his apartment and shot him and the [victim]. Following
further investigation, [Souffrant] was arrested and charged with
the aforementioned crimes.
Commonwealth v. Souffrant, 125 A.3d 459 (Pa. Super. 2015) (unpublished
memorandum at 1-3) (internal citations to record omitted).
Souffrant filed his first PCRA Petition, pro se, in March 2016. The PCRA
court appointed counsel, and Souffrant filed a counseled Petition in July 2016.
Souffrant subsequently filed an Amended, pro se, PCRA Petition in September
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2016. The PCRA court held a hearing and ultimately denied Souffrant’s
Petition. This Court affirmed the denial of Souffrant’s first PCRA Petition, and
our Supreme Court denied allowance of appeal. See Commonwealth v.
Souffrant, 178 A.3d 162 (Pa. Super. 2017) (unpublished memorandum),
appeal denied, 181 A.3d 1081 (Pa. 2018).
Souffrant filed the instant, pro se, PCRA Petition on June 19, 2020. The
PCRA court appointed counsel to represent Souffrant.1 In August 2020,
Souffrant’s court-appointed counsel filed a Petition to Withdraw as Counsel
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
On August 27, 2020, the PCRA court issued a Pa.R.Crim.P. 907 Notice,
in which it found that counsel had satisfied the dictates of Turner/Finley and
granted counsel’s Petition to Withdraw. Pa.R.Crim.P. 907 Notice, 8/27/20, at
3 (unnumbered). The 907 Notice further informed Souffrant that, following
its independent review, the PCRA court determined that Souffrant’s PCRA
Petition was facially untimely and did not fall within any of the exceptions set
forth in 42 Pa.C.S.A. § 9545(b)(1). Id. at 3-6 (unnumbered). Souffrant filed
____________________________________________
1 This action was originally filed under two docket numbers: No. CP-36-CR-
0002313-2013 (“No. 2313”) and No. CP-36-CR-0002314-2013 (“No. 2314”).
No. 2313 contained the information charging Souffrant with one count each
of persons not to possess a firearm, aggravated assault, terrorist threats,
endangering the welfare of a child and two counts of simple assault, based
upon the March 9, 2013, incident. No. 2314 contained the information
charging Souffrant with homicide based upon the March 9, 2013, incident.
Souffrant’s appeals were filed at docket Nos. 1450 MDA 2020 and 1451 MDA
2020. This Court, sua sponte, consolidated the two appeals on January 21,
2021.
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a pro se Response, wherein he asserted that the newly-discovered fact
exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii) applied, and requested an
evidentiary hearing. Pa.R.Crim.P. 907 Response, 9/18/20. The PCRA court
entered an Order dismissing Souffrant’s PCRA Petition without a hearing on
October 8, 2020. Souffrant filed a timely Notice of Appeal. It does not appear
that the PCRA court ordered Souffrant to file a Pa.R.A.P. 1925 Concise
Statement of matters complained of on appeal.
Souffrant presents two questions for our review:
1. Did the [PCRA] court err by failing to find trial counsel, direct
appeal counsel, and first court[-]appointed PCRA counsel
ineffective[,] and that the second court[-]appointed PCRA
counsel’s no merit letter was seriously deficient?
2. Did the PCRA court err by dismissing [Souffrant’s] PCRA
[Petition] without holding an evidentiary hearing?
Brief for Appellant at 4.
When reviewing an order dismissing a PCRA petition, we examine
whether the determination of the PCRA court is supported by the record and
free of legal error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super.
2014). The merits of a PCRA petition cannot be addressed unless the PCRA
court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely filed.
Id; see also Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003)
(holding “[t]his Court has repeatedly stated that the PCRA timeliness
requirements are jurisdictional in nature, and accordingly a PCRA court cannot
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hear untimely PCRA petitions.”). Any PCRA petition must be filed within one
year of the date the petitioner’s judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment becomes final for the purposes of PCRA
review at the conclusion of direct review or at the expiration of time for
seeking such review. 42 Pa.C.S.A. § 9545(b)(3).
Souffrant’s judgment of sentence became final in October 2015, when
the time for seeking review with the Pennsylvania Supreme Court expired.
See Pa.R.A.P. 113 (providing that “a petition for allowance of appeal should
be filed … within 30 days after the entry of the order of the Superior Court to
be reviewed.”) Accordingly, Souffrant’s instant Petition, filed on June 19,
2020, is facially untimely.
However, we may exercise jurisdiction over an untimely PCRA petition
if the petitioner proves one of three enumerated exceptions set forth in Section
9545(b)(1)(i)-(iii). Pursuant to Section 9545(b)(1), a PCRA petition must be
filed within one year that the judgment becomes final, unless 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;
(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
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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).
The petitioner bears the burden to plead and prove that one of the
timeliness exceptions applies. Commonwealth v. Marshall, 947 A.2d 714,
719 (Pa. 2008). Further, a petition asserting one these exceptions must also
establish that the exception was raised within one year of the date the claim
could have been brought. 42 Pa.C.S.A. § 9545(b)(2).
Souffrant alleges that the instant PCRA Petition falls under the timeliness
exception set forth at section 9545(b)(1)(ii), relating to newly discovered
facts. Brief for Appellant at 11-13. “A petitioner satisfies the newly-
discovered facts exception when the petitioner pleads and proves that (1) the
facts upon which the claim [is] predicated were unknown and (2) could not
have been ascertained by the exercise of due diligence.” Commonwealth v.
Hart, 199 A.3d 475, 481 (Pa. Super 2018) (emphasis in original) (quoting
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)). “Due
diligence requires ‘reasonable efforts by a petitioner based on the particular
circumstances, to uncover facts that may support a claim for collateral relief’
but does not require ‘perfect vigilance [or] punctilious care.’” Id. (quoting
Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. Super. 2015)).
Souffrant argues that he has satisfied the newly-discovered fact
exception to the PCRA’s timeliness requirements. Brief for Appellant at 11.
Specifically, he alleges that there are photographs of blood drops found in the
back stairwell of the apartment building where the victim was murdered and
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Souffrant was shot.2 Id. The existence of these photographs, Souffrant
posits, would have proven that another individual fled the scene of the crime.
Id. Souffrant argues that “the best course of action was for trial counsel to
simply produce those photos of blood drops found in the back stairwell left
behind by the perpetrators fleeing the scene of the time, and that alone would
have raised reasonable doubt.” Id. Although Souffrant argues that his trial
counsel should have used the photographs at trial, and was ineffective for
failing to do so, he also alleges that he was not aware of the existence of these
photographs until July 30, 2019, when he received a letter from the Public
Defender’s Office. Id. at 11-12 (citing Exhibit B, Letter from Todd E. Brown
to Souffrant, dated 7/30/19, enclosing “a copy of … pictures of the westside
stairwell and the pictures of the bone fragments.”).
Souffrant’s claim that he was unaware of the existence of these
photographs prior to receiving them from the public defender is belied by the
record. Initially, Souffrant’s claim is contradicted by the arguments that he
made in his first pro se, Amended PCRA Petition, filed in September 2016.
Amended PCRA Petition, 9/23/16, at 8 (unnumbered), ¶ H. Therein, Souffrant
states as follows:
____________________________________________
2 To the extent that Souffrant argues that his trial counsel, direct appeal
counsel, first PCRA counsel and second PCRA counsel were ineffective, Brief
for Appellant at 4, we note that our Supreme Court has held that “[it] is well
settled that allegations of ineffective assistance of counsel will not overcome
the jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa. 2005).
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Within the discovery, there are two pictures of two different
physical evidence [sic], which proves a very different account of
events than the expert for the [C]ommonwealth claimed that
happened when the crime was committed. There is a picture of a
bone fragment that was shot from my wrist pictured on the floor
between the living room and the dining room and there is a
picture of a bloodstain or print taken at the bottom of the
west side stairwell. Trial counsel failed to obtain forensic
examination of those two physical evidence [sic] that would have
contradicted [the State’s] theory of how [the] fatal shooting
occurred and would have countered [the State’s] argument that
[the] petitioner intended to kill [the] victim.
Id. (emphasis added). In the September 2016 Petition, Souffrant also
provided the name of a computer specialist who, he averred, would testify
that he and Souffrant had reviewed photographs of the blood stains in the
hallway as well as photographs of bone fragments of Souffrant’s wrist. Id. at
9 (unnumbered). Further, in the September 2016 Petition, Souffrant
requested that the District Attorney provide him with copies of the pictures he
now asserts are newly discovered. Id. at 10 (unnumbered).3
In addition, Souffrant claims that he first learned of the existence of the
photograph in the letter from the public defender. Brief for Appellant at 11.
____________________________________________
3 Souffrant filed an initial pro se PCRA Petition on March 28, 2016.The PCRA
court appointed counsel, and Souffrant filed a counseled PCRA Petition on July
1, 2016. On September 23, 2016, Souffrant filed a pro se Amended PCRA
Petition, wherein he discusses the photograph of the blood stain. On
November 9, 2016, Souffrant filed a counseled Motion for an extension of time
to file a brief in support of his PCRA and filed a counseled Memorandum of
Law in Support of his PCRA on November 29, 2016. Because Souffrant was
represented by counsel when he filed the Amended Petition, any briefs that
he filed acting pro se need not be considered the by the PCRA court.
Commonwealth v. Ellis, 626 A.2d 1137, 1141 (Pa. 1993). The PCRA court
did not address the Amended Petition, although it is part of the certified
record.
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However, the letter from the public defender expressly stated,“[A] review of
your file indicates that we had previously sent these requested items to
you, however we are again providing them to you as a courtesy as some of
the material may have been contained on digital media that you may not have
been able to access.” Exhibit B (Letter from Todd E. Brown to Souffrant,
7/30/19) (emphasis added). Thus, the letter negates Souffrant’s claim that
he had no prior knowledge of the photographs.
Accordingly, the record does not support Souffrant’s claim of newly
discovered facts, as he was aware of the existence of, and had reviewed, the
photographs, at least three and a half years before filing the instant PCRA
Petition. See Hart, 199 A.3d at 481; Commonwealth v. Padillas, 997 A.2d
356, 364 (Pa. Super. 2010) (stating that “a defendant who fails to question or
investigate an obvious, available source of information, cannot later claim
evidence from that source constitutes newly discovered evidence.”). Souffrant
does not explain why he failed to request the photographs earlier, and he has
failed to show that he exercised due diligence. See Commonwealth v. Stokes,
959 A.2d 306, 311 (Pa. 2008) (finding that appellant failed to establish due
diligence where the record reflected appellant’s awareness of certain files several
years before he requested them).
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In light of the foregoing, Souffrant has failed to prove that his untimely
Petition is subject to any of the timeliness exceptions under the PCRA. As a
result, the PCRA court properly denied Souffrant’s Petition as untimely filed.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2021
____________________________________________
4 Souffrant filed a Motion for Extension of Time to File Copies of Reply Brief on
August 12, 2021. That Motion is denied.
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