Com. v. Lockhart, E.

J-A26034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMMETT M. LOCKHART
Appellant No. 110 MDA 2015
Appeal from the PCRA Order Entered on December 23, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No.: CP-21-0001591-2000
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 07, 2015
Emmett Lockhart appeals the December 23, 2014 order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46. Lockhart’s petition was untimely under the PCRA’s
jurisdictional time limits. Consequently, we affirm.1
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The PCRA court dismissed Lockhart’s petition on the merits, implicitly
determining that Lockhart had successfully pleaded and proved that the
newly-discovered fact exception to the PCRA’s time limits should apply to his
case, conferring jurisdiction over the petition upon the PCRA court.
However, “[e]ven where neither party nor the PCRA court have addressed
[jurisdiction], it is well-settled that we may raise it sua sponte since a
question of timeliness implicates the jurisdiction of our Court.”
Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012) (internal
quotation marks omitted). Because the PCRA court lacked jurisdiction to
consider the merits of Lockhart’s petition, it should have dismissed
Lockhart’s petition upon that basis.
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We previously have provided the following abridged factual history of
this case:
On the evening of April 24, 2000, a Shippensburg University
student named Sydney Bull left a study group meeting sometime
between 9:00 and 9:45 p.m. with the stated intention of
returning. His charred body was discovered several hours later
when members of the South Newton Township Fire Company
responded to a forest fire alarm call. Traces of gasoline were
found in soil samples, leaves, and other debris taken from the
area where the body was found. An autopsy revealed that
Mr. Bull was blasted in the face with a shotgun and killed before
his body was set on fire.
The police investigation eventually focused on [Lockhart],
Dontae Chambers, and Matthew Norris. A jury found Chambers
guilty of second-degree murder and the predicate offenses of
kidnapping and robbery. In a separate proceeding [that
occurred several months before Chambers’ trial, Lockhart] and
Norris were tried jointly before a jury . . . . [T]he jury found
[Lockhart] guilty of first-degree murder, kidnapping, arson,
robbery, theft by unlawful taking, abuse of corpse, and five
counts of criminal conspiracy . . . .[2] On July 23, 2001, the trial
court sentenced [Lockhart] to life imprisonment with no
possibility of parole and also directed [Lockhart] to serve a
concurrent aggregate term of ten to twenty years[’]
incarceration on the remaining counts.
Commonwealth v. Lockhart, 484 MDA 2002, slip op. at 1-2 (Pa. Super.
2003) (unpublished memorandum).
Lockhart then filed post-sentence motions, which were denied. He
filed a direct appeal to the this Court. A panel of this Court affirmed
Lockhart’s judgment of sentence on October 7, 2003. Lockhart then filed a
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2
See 18 Pa.C.S. §§ 2502(a), 2901, 3301, 3701, 3921, 5510, and 903,
respectively.
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timely first PCRA petition. On January 13, 2005, the PCRA court granted
Lockhart leave to file a petition for allowance of appeal nunc pro tunc to the
Supreme Court. All remaining claims were denied. Lockhart filed a petition
for allowance of appeal, and, on August 1, 2005, the Pennsylvania Supreme
Court denied review of the appeal. Commonwealth v. Lockhart, 880 A.2d
1237 (Pa. 2005) (per curiam).
On May 18, 2014, Lockhart filed the instant PCRA petition on the basis
of newly-discovered facts, alleging that he had discovered a previously
unknown and unavailable witness whose testimony would have contradicted
that of the prosecution’s lead witness, co-defendant Chambers.3 On
December 18, 2014, immediately following a hearing, the PCRA court denied
Lockhart’s request for relief, specifically citing the court’s determination that
the new witness was not credible. Notes of P.C.R.A. Testimony (“N.P.T.”),
12/18/2014, at 75-76.
On January 15, 2015, Lockhart timely filed a notice of appeal of the
PCRA court’s ruling. On January 16, 2015, the PCRA court directed Lockhart
to file a concise statement of errors complained of on appeal pursuant to
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3
Actually, the new witness’ testimony would have contradicted
Chambers’ testimony on direct examination, which directly implicated
Lockhart in the murder, but would have corroborated Chambers’ recantation
of that testimony during cross-examination, supporting Chambers’
contention that he was not a witness to Bull’s murder. That is to say, in
effect, the new witness’ testimony would, at best, have provided support for
one of two inconsistent accounts of events that Chambers offered the jury at
trial.
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Pa.R.A.P. 1925(b). Lockhart timely complied on February 4, 2015. On April
30, 2015, the PCRA court filed a Rule 1925(a) opinion. Therein, the court
explained, as it had done at the conclusion of the hearing, that it found the
new witness’ testimony incredible. It further added that the testimony in
question would have served only to impeach Chambers’ trial testimony, and
consequently could not, without more, justify granting Lockhart a new trial.
See Trial Court Opinion (“T.C.O.”), 4/30/2015, at 3-4.
Lockhart raises the following issue on appeal:
Whether a PCRA Court has abused its discretion when it
dismisses a PCRA petition for relief[] on the basis of witness
credibility alone, thereby preventing compelling evidence of
innocence from reaching a jury, where the four (4) prongs of
after-discovered evidence . . . have not been met, the witness in
question is an air traffic controller responsible for thousands of
lives daily, and is an [h]onorably discharged veteran of the
United States Air Force, with two (2) [c]ommendation medals,
and where there was no evidence of untruthfulness in the
witness’ testimony[?]
Brief for Lockhart at 4.
Well-established principles govern our review of an order denying
post-conviction relief:
Our standard of review of the denial of a PCRA petition is limited
to examining whether the court’s determination is supported by
the evidence of record and free of legal error. This court grants
great deference to the findings of the PCRA court if the record
contains any support for those findings. Further, the PCRA
court’s credibility determinations are binding on this Court,
where there is record support for those determinations.
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Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)
(citations omitted).
It is well-established that the PCRA time limits are jurisdictional, and
are meant to be both mandatory and applied strictly by the courts to all
PCRA petitions, regardless of the potential merit of the claims asserted.
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011);
Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000). “[N]o court
may properly disregard or alter [these filing requirements] in order to reach
the merits of the claims raised in a PCRA petition that is filed in an untimely
manner.” Murray, 753 A.2d at 203; see Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000).
Despite facial untimeliness, a tardy PCRA petition nonetheless will be
considered timely if (but only if) the petitioner pleads and proves one of the
three exceptions to the one-year time limit enumerated in
subsection 9545(b) of the PCRA, which provide as follows:
(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:
(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
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(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.
42 Pa.C.S. § 9545(b).
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. § 9545(b)(3). Lockhart’s judgment of
sentence became final on October 31, 2005.4 Thus, the deadline for
Lockhart to file a timely PCRA petition was October 31, 2006. Lockhart filed
the instant PCRA petition on June 4, 2014. Thus, Lockhart’s instant petition
is facially untimely under the PCRA.
Lockhart does not dispute this fact. Instead, he invokes the newly-
discovered fact exception to the PCRA’s time limit set forth in subsection
9545(b)(1)(ii), contending that the new facts in question were unknown to
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4
The Pennsylvania Supreme Court denied Lockhart’s petition for
allowance of appeal on August 1, 2005. As of that date, he had ninety days
to seek a writ of certiorari from the United States Supreme Court, which
deadline fell on October 30, 2005. Because that was a Sunday, October 31,
2005 was the deadline for Lockhart to petition for a writ of certiorari. See
U.S. Sup. Ct. R. 13. Because he did not do so, his judgment of sentence
became final on that date.
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him at the time of trial; that he could not have ascertained them before
April 20, 2014; and that he filed the instant PCRA petition within sixty days
of when he learned of the new facts.5
The newly-discovered fact in question is embodied in a sworn affidavit
offered by Michelle Greer. At the time of the murder in question, Greer was
married to Joseph Brenize. In her affidavit, she asserts that, on the night of
the murder, she and Brenize (collectively, “the Brenizes”) hosted a two-
month wedding “anniversary” party, and that she remembers that Chambers
was present at the party. Consequently, he could not simultaneously have
been at the scene of the murder. Were this the case, it would support
Chambers’ recantation testimony during Lockhart’s trial to the effect that he
was not present at the scene of the murder (and thus, knew nothing of who
was there or what they did), and that the elaborate, self-incriminating,
contrary account that he provided to investigators (and again during his
direct examination at trial), which evidently was entirely consistent with the
physical evidence, was in fact a fabrication that he offered in an effort to
____________________________________________
5
Specifically, Lockhart contends that a colleague of his brother, Shakhir
Lockhart, alerted Shakhir on April 18, 2014, to newspaper article indicating
that Norris had filed a PCRA petition based upon the testimony of a then
unidentified witness that would contradict Chambers’ incriminating account
of events; that Shakhir, in turn, informed Lockhart about the article during a
prison visit on April 20, 2014; and that Lockhart received a clipping of the
article, which had been mailed by Shakhir, on April 24, 2014, coincidentally
exactly fourteen years after the murder. See Pro Se PCRA Petition at 2
¶¶ 5-7.
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appease investigators. In her affidavit, Greer also asserts that shortly after
the events in question, and before any of the defendants’ trials, she enlisted
in the United States Air Force, and successfully sought postings a great
distance from Shippensburg, eventually arriving at Panama City, Florida,
where she still lived at the time of the PCRA hearing.
Greer attests that she never was contacted by investigators or
attorneys associated with either of the trials spawned by the murder of
Sydney Bull. Indeed, having already left Shippensburg while the
investigation of Bull’s murder was ongoing, she claims to have been wholly
unaware of any trial. Instead, she claims that it was only in 2013, when she
was contacted via Facebook by Norris’ sister, that she heard of Norris’,
Lockhart’s, and Chambers’, convictions for Bull’s murder.6 Norris’ sister
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6
Somewhat supporting the PCRA court’s determination that Greer’s
testimony at the PCRA hearing was less than convincing, her attempt during
cross-examination to establish the chronology regarding her establishment
of a Facebook account, Norris’ sister’s unsolicited effort to reach out to Greer
through that account, and the events that followed, including when she first
contacted Norris in prison to discuss with him her recollection of the evening
of April 24, 2000, revealed several inconsistencies. For example, Greer
testified that she established the account a year or two before Norris
contacted her. However, defense counsel presented her with a document
providing the “born-on date” for Norris’ account, which indicated that she
had established it in September 30, 2013. Her notarized affidavit was dated
December 13, 2013, approximately six weeks later. However, she also
testified that, before preparing a notarized affidavit, she had discussions
with Norris and, on at least two occasions, sent him versions of her affidavit
that were not notarized, each of which was returned to her because she
failed to address the post in compliance with prison requirements—and only
thereafter did she have her affidavit notarized and successfully transmit it to
Norris. N.P.T. at 30-35. Although the matter is not developed at length by
(Footnote Continued Next Page)
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allegedly asked whether Greer would be willing to provide Norris, who was
working up his own PCRA petition, with a full accounting of Greer’s
recollections from the night of the murder. She agreed to speak with Norris,
who ultimately convinced her to prepare the notarized statement. She did
so and had it notarized on December 13, 2013.7
Lockhart alleges that he could not have learned of Greer’s account any
sooner than he did because only upon the publication of the newspaper
article concerning Norris’ conviction did he have any reason to be aware of
Greer or her potential testimony. Brief for Lockhart at 19. However, even
accepting that at face value, Lockhart’s petition was not filed within sixty
days of that date. Rather, he satisfies the sixty-day requirement in
subsection 9545(b)(2) only if he is granted the benefit of his assertion that
he could not be aware of the article and its indication that a new witness had
emerged until his brother brought it to his attention, approximately two
months after the article ran on February 11, 2014.
_______________________
(Footnote Continued)
either party or the PCRA court, this timeline, as related by Greer, simply
does not add up.
7
Although it mattered more to the PCRA court’s merits review—and
specifically its assessment of Greer’s credibility—than it does to our
jurisdictional ruling, we find it noteworthy that it emerged at the PCRA
hearing that during or in the wake of Greer’s initial conversations with
Norris, she and Norris became involved in something resembling a romantic
relationship. See N.P.T. at 35-36. The trial court treated this as a fact that
undermined Greer’s credibility. See T.C.O. at 3 (“When [Greer] conceded
on cross-examination that she was currently, and had been for some time,
in a romantic relationship with Norris, her credibility was destroyed.”).
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Before reviewing the merits of his claim, we first must ascertain
whether Lockhart has successfully pleaded and proved the newly-discovered
fact exception. To gain the benefit of that exception, the petitioner must
prove that “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. § 9545(b)(1)(ii). Additionally, the petitioner must
demonstrate that the petition has been filed within sixty days after the date
the claim could have been presented, i.e., when he learned of the evidence
in question. See 42 Pa.C.S. § 9545(b)(2).
The newly-discovered fact timeliness exception is distinct from the
newly-discovered evidence basis for relief stated in 42 Pa.C.S. § 9543. To
be eligible for relief under section 9543, the “petitioner must plead and
prove by a preponderance of the evidence . . . [t]hat the conviction or
sentence resulted from . . . the unavailability at the time of trial of
exculpatory evidence that has subsequently become available and would
have changed the outcome of the trial if it had been introduced.” 42 Pa.C.S.
§ 9543. Conversely, the newly-discovered fact exception set forth in
subsection 9545(b)(1)(ii) “does not require any merits analysis of the
underlying claim. Rather, the exception merely requires that the ‘facts’ upon
which such a claim is predicated must not have been known to appellant,
nor could they have been ascertained by due diligence.” Commonwealth
v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007) (quotations and citations
omitted). In other words, “[a] petitioner must clear the first hurdle, the
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exception to the PCRA time limit . . ., in order to obtain review on the
merits” under section 9543. Commonwealth v. Soto, 983 A.2d 212, 215
n.6 (Pa. Super. 2009).
While Lockhart may have filed his petition within the sixty days of the
time he first learned of Greer’s potentially exculpatory evidence, thereby
satisfying subsection 9545(b)(2), the record discloses an absence of
evidence that Lockhart could not have learned of Greer many years sooner
than he did through the exercise of due diligence. To begin, a number of
guests were present at the Brenizes’ April 24, 2000 party. In her affidavit,
Greer names a total of nine in attendance, including herself. At least one of
the partygoers testified at Lockhart’s trial. Specifically, Brenize testified as a
witness for the prosecution. See Notes of Trial Testimony Vol. 1 (“N.T.T.1”),
5/3/2001, at 56-98. However, Lockhart asserts that because information
about the party was not elicited at his trial, from Brenize or otherwise, he
could not be expected to have uncovered the prospect that Chambers was at
the party either before his trial or at any time earlier than when he finally
did, over a decade later. Lockhart asserts that he “didn’t know about
Michelle Greer at the time. And they had no realistic way to find out about
her.” Brief for Lockhart at 19. Notably, Brenize mentioned Greer, whom he
identified as his wife, during his testimony at Lockhart’s trial, albeit it in an
unrelated connection. N.T.T.1 at 85. Thus, at a minimum, it is unrealistic to
maintain that Lockhart did not know that she existed and was Brenize’s
spouse.
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Lockhart also asserts that in the immediate wake of his trial, and
ostensibly following Chambers’ trial, Greer would have been beyond his
reach due to her active duty status with the Air Force then and for years
thereafter. This bald assertion, however, is belied by both common sense
and the record. Steven Junkin, at the time of the PCRA hearing the Chief of
Police for Hampden Township Police Department, and a corporal in the
Pennsylvania State Police during the investigation of Bull’s murder, testified
that, in connection with other investigations, he had located active-duty
military personnel with little difficulty. N.P.T. at 56-57. When asked to
elaborate, he explained how one might locate active military personnel:
First is you could contact family members and ask them where
the person is located. You could go to a recruiting station and
ask them to locate. In the area here, there’s the Army War
College, there’s the Navy Depot, there’s various places that you
could go and reach out and ask them.
Id. In this connection, Greer testified that she had numerous family
members that still resided in the area, both in the years immediately
following Lockhart’s trial and at the time of the PCRA hearing. Id. at 27-29.
Furthermore, it is not at all clear that Greer would not have been subject to
the court’s subpoena authority while serving. Indeed, in attesting that she
was available and willing to testify, Greer at least suggests that she could
have made efforts to arrange to attend the trial. Id. at 16-18. That she
visited Shippensburg on leave on at least two occasions during her service
further reinforces that conclusion. Finally, Greer served in the Air Force for
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six years before her honorable discharge. Consequently, even if she had not
been available during her service, she was a civilian who could have been
located for the latter half of the time between Lockhart’s trial and the date of
filing for the instant PCRA petition.
In any event, neither Lockhart nor she provides a concrete basis
beyond conclusory assertions upon which to conclude that Greer could not
have been located, had Lockhart or his counsel endeavored to do so, or that
she would not have been amenable to process or otherwise available at the
time of trial or during the years that separated her service from when she
furnished the affidavit upon which Lockhart’s petition relies. Thus, this
argument is not responsive insofar as Lockhart’s mere pleading that she
would not have been accessible to him until after her discharge satisfies, at
most, his burden to plead that fact. It did not obligate the PCRA court to
conclude that he had proved it.
Setting aside Lockhart’s ability to discover her location and contact
her, we are left with a more important basis upon which to conclude that
Lockhart did not diligently investigate these matters in a way that would
have led him to contact Greer. During the PCRA hearing, Lockhart testified
that he had spent years in the prison library researching his case. See
N.P.T. at 51 (testifying that he has “always been researching [his] case” and
that he has done so “[a]ll the time, because [he is] innocent”).
Furthermore, he understood that Chambers, the most critical prosecution
witness against Lockhart, later was tried for the killing. And yet Lockhart
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was entirely and unconvincingly dismissive of the very notion that, in service
of his objective, he might have educated himself as to the evidence
introduced during Chambers’ trial. See id. at 52 (responding to an inquiry
about what he knew about Chambers’ trial, “I had my own concerns right
now that I’m trying to worry about”). Although it is fair to say that, as a
state prisoner, Lockhart may have had difficulty obtaining those public
records, he does not assert or imply that he made any effort to do so. Had
he done so, he would have discovered that, at Chambers trial, Chambers
testified that he had been at the Brenizes’ party in support of his alibi
defense, and that Brenize himself was questioned regarding whether
Chambers had attended the party. Although Brenize testified that he could
not remember specifically whether Chambers attended the party, the issue
nonetheless was broached at Chambers’ trial, which presumably would have
indicated to Lockhart, had he learned of this fact, that he should investigate
whether other witnesses might be able to corroborate Chambers’ claim.8
There is yet another obvious basis upon which to question Lockhart’s
diligence. Chambers, of course, recanted at trial, asserting on cross-
examination that he was not involved in any way in the killing, and was not
present in the woods where it occurred at any time relevant to the
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8
Ultimately, Lockhart himself acknowledged the fact and gravamen of
this testimony during his PCRA proceedings, ostensibly after reviewing the
record of Chambers’ trial. See Lockhart’s Brief in Opposition to
Commonwealth’s Motion to Dismiss PCRA Petition Without Hearing at 3.
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prosecution. Although he was not asked, and did not offer, alibi evidence to
establish his whereabouts that evening, surely this was relevant information
that the defense (or the prosecution) might have attempted to elicit. Had
counsel done so, in an exercise of thoroughness in cross-examination,
Chambers might have mentioned the Brenizes’ party, enabling Lockhart to
seek to corroborate such an account.
Although we appreciate that the PCRA court, perhaps in an abundance
of caution, seemed to credit Lockhart’s invocation of the newly-discovered
fact exception to the PCRA’s time requirements, we may not disregard any
cloud over jurisdiction that we discern. See Commonwealth v. Gandy, 38
A.3d 899, 902. The PCRA court appeared to assume rather than conclude
that the exception applied, because the court did not acknowledge the
timeliness issue in its Rule 1925 opinion and made no fact-finding relevant
to that question. However, after careful review, we conclude that the record
fails to provide a basis for the PCRA’s court’s implicit conclusion in that
regard. Thus, we find that the PCRA court, and now this Court, lack
jurisdiction to evaluate the merits of Lockhart’s petition. Because the PCRA
court dismissed that petition, the outcome is the same.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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