Com. v. Newsome, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TEQUILLA ANGELA NEWSOME
Appellant No. 322 WDA 2015
Appeal from the PCRA Order January 8, 2015
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003061-2005
CP-02-CR-0005726-2005
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 22, 2015
Tequilla Angela Newsome (“Appellant”), appeals from the order
dismissing her petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the procedural posture of this matter as
follows:
[Appellant], Tequilla Fields, a/k/a Tequilla Newsome, was
found guilty by a jury on October 19, 2005 of Second Degree
Murder, 18 Pa.C.S.[] § 2501, Arson – Endangering Persons (2
counts), 18 Pa.C.S.[] § 3301(A), Arson – Endangering Property,
18 Pa.C.S.[] § 3301(C), Causing a Catastrophe, 18 Pa.C.S.[] §
3302, Cruelty to Animals, 18 Pa.C.S.[] § 5511, and Criminal
Conspiracy, 18 Pa.C.S.[] § 903. She was sentenced on the
same day to serve life in prison.
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*
Retired Senior Judge assigned to the Superior Court.
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A direct appeal was filed to the Superior Court, [which]
issued an[] [o]rder and [m]emorandum [o]pinion on January 22,
2007 affirming the judgment of sentence, but overturning the
convictions for [c]ausing a [c]atastrophe and [c]ruelty to
[a]nimals. A subsequent [p]etition for [a]llowance of [a]ppeal
was denied on June 26, 2007.
On May 10, 2008, [Appellant] filed her first timely Petition
under the [PCRA]. [Appellant] refused the appointment of
counsel and she was granted leave to represent herself. After
the Commonwealth filed an [a]nswer, the [p]etition was
dismissed without a hearing on March 26, 2009.
[Appellant] filed her second [p]etition under the [PCRA] on
August 24, 2012. After a review of the record, the [PCRA c]ourt
issued a [n]otice of [i]ntention to [d]ismiss and the second
Petition was dismissed as time-barred on October 16, 2012. A
direct appeal was filed; however, [Appellant] withdrew her
appeal on or about November 27, 2012.
[Appellant] filed her third [p]etition under the [PCRA] on
October 20, 2014. After a review of the record, the [PCRA
c]ourt issued a [n]otice of [i]ntent to [d]ismiss and the third
[p]etition was dismissed as time-barred on January 8, 2015.
This appeal follows.
PCRA Court Pa.R.A.P. 1925(a) Opinion, filed March 12, 2015 (“1925(a)
Opinion”), pp. 1-2.
Appellant raises the following claims for our review:
I. I’m incarcerated for a crime newly discovered scientific
evidence will my innocence and my due process rights was
violated.
II. I’m entitled to an evidentiary hearing because of the
exculpatory evidence
III. I was coerce into a false statement, Det. J.R. Smith showed
me a picture of my alleged deceased children when in fact alot of
the property was destroyed in a flood in the 1990’s and the
picture was not of my children.
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IV. Why would I charged with arson when evidence clearly shows
on lab reports that I didn’t in fact handle or contain any
accelerant?
V. Why was my PCRA dismissed for timeliness and lack of merit
when it was newly discovered evidence?
See Appellant’s Brief, pp. 9-13 (verbatim).1
In reviewing an order denying PCRA relief, our well-settled standard of
review is “to determine 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,
191-192 (Pa.Super.2013) (internal quotations and citations omitted).
Before addressing the merits of Appellant’s claims, we must first
consider the timeliness of his PCRA petition because it implicates the
jurisdiction of both this Court and the PCRA court. Commonwealth v.
Williams, 35 A.3d 44, 52 (Pa.Super.2011) (citation omitted), appeal
denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord
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1
Appellant’s brief does not include a separate statement of the questions
involved as required by Pa.R.A.P. 2111(a). For each of her five numbered
issues, Appellant summarized each issue with one line before engaging in a
separate, albeit brief, argument on each point. This Court has reproduced
Appellant’s five one-line issue summaries to create this list of issues raised
by Appellant on appeal. Because Appellant’s failure to comply with Pa.R.A.P.
2116 does not impede our ability to review her issues, we will address the
merits of Appellant’s claims. Commonwealth v. Long, 786 A.2d 237, 239
n.3 (Pa.Super.2001), aff’d, 819 A.2d 544 (Pa.2003).
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finality to the collateral review process[,]” the PCRA “confers no authority
upon this Court to fashion ad hoc equitable exceptions to the PCRA time-
bar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011).
“It is undisputed that a PCRA petition must be filed within one year of
the date that the judgment of sentence becomes final.” Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).
“This time requirement is mandatory and jurisdictional in nature, and the
court may not ignore it in order to reach the merits of a petition.”
Hernandez, 79 A.3d at 651 (citing Commonwealth v. Murray, 753 A.2d
201, 203 (Pa.2000)). “Without jurisdiction, we simply do not have the legal
authority to address the substantive claims.” Commonwealth v. Seskey,
86 A.3d 237, 241 (Pa.Super.2014) (quoting Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa.2010)).
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). However, a facially
untimely petition may be received where any of the PCRA’s three limited
exceptions to the PCRA time bar are met. Hernandez, 79 A.3d at 651
(footnote omitted). These exceptions include:
(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;
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(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. § 9545(b)(1)(i)-(iii). As our Supreme Court has repeatedly
stated, the petitioner maintains the burden of pleading and proving that one
of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008); see also
Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa.Super.2011) (“The
petitioner bears the burden to allege and prove [that] one of the timeliness
exceptions applies.”). Further,
[a] petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, the petitioner
must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame under section
9545(b)(2).
Hernandez, 79 A.3d at 651-652 (internal quotations omitted).
Finally, a heightened standard applies to a second or subsequent PCRA
petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). “A second or
subsequent request for relief under the PCRA will not be entertained unless
the petitioner presents a strong prima facie showing that a miscarriage of
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justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,
1251 (Pa.2006). Additionally, in a second or subsequent post-conviction
proceeding, “all issues are waived except those which implicate a
defendant’s innocence or which raise the possibility that the proceedings
resulting in conviction were so unfair that a miscarriage of justice which no
civilized society can tolerate occurred”. Commonwealth v. Williams, 660
A.2d 614, 618 (Pa.Super.1995).
Here, Appellant’s judgment of sentence became final on September
24, 2007,2 over 7 years before she filed the instant petition. Accordingly,
the instant petition is facially untimely. Thus, Appellant must plead and
prove that her petition falls under one of the Section 9545 exceptions set
forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
The PCRA petition claims Appellant is entitled to either the Section
9545(b)(1)(ii) newly-discovered facts timeliness exception3 or the Section
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2
On direct appeal, the Supreme Court of Pennsylvania denied Appellant’s
petition for allowance of appeal from this Court’s affirmance on June 26,
2007. Appellant’s judgment of sentence became final 90 days later, at the
expiration of his time for requesting certiorari from the Supreme Court of the
United States. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13.1 (petition
for writ of certiorari must be filed within 90 days of the date that state court
of last resort denies discretionary review).
3
Appellant checked the “I AM ELIGIBLE FOR RELIEF BECAUSE OF:” box on
her PCRA petition, which reads: “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.” See PCRA
Petition, p. 2.
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9545(b)(1)(iii) newly-recognized constitutional right timeliness exception4
based on advancements in fire science investigation and methodology that
have occurred since her conviction and which were discussed in Han Tak
Lee v. Glunt, 667 F.3d 397 (3d.Cir.2012). See PCRA Petition, pp. 2-3. She
is incorrect for a number of reasons.
Initially, the newly-recognized constitutional right timeliness exception
is inapplicable. Han Tak Lee is a Third Circuit decision, and therefore not “a
constitutional right that was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania [that] has been held by that
court to apply retroactively.” Accordingly, even if this case announced a
relevant change in the law, it would not benefit Appellant on PCRA.5
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4
Appellant’s PCRA petition states:
Petitioner is invoking the exception to the PCRA Statute of
Limitations by asserting a right newly recognized by the U.S.
Supreme Court in the Han Tak Lee ruling __ U.S. ___ (2014).
The Petitioner is innocent and did not set the fire that killed two
children. Accelerant was used to start a fire outside the home,
but no accelerant was ever found in the house or on the personal
belongings or person of the Petitioner. The Han Tak Lee case
calls into question reliance on outdated fire science and faulty
police work to secure a conviction of an innocent person, as in
this Petitioner’s case.
PCRA Petition, p. 3.
5
We further note that the Third Circuit decided Han Tak Lee in 2012.
Therefore, even if it were a decision of the Supreme Court of the United
States or the Pennsylvania Supreme Court that announced a new, expressly
retroactive rule of law, Appellant’s 2014 PCRA petition would not have timely
brought a claim based on Han Tak Lee. See 42 Pa.C.S. § 9545(b)(2) (“Any
(Footnote Continued Next Page)
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Additionally, the Han Tak Lee case is distinguishable on its facts in
that it involved questions about a fire’s cause and origin. Here, no such
question exists: Appellant and her co-defendant plotted to kill a dog by
dousing it with kerosene and setting it on fire. When they implemented their
plan, the burning dog set fire to a couch outside a house, which in turn set
the house on fire. This fire caused the death by asphyxiation of Appellant’s
two children who were asleep inside the house at the time.6 Appellant did
not challenge that the burning dog caused the fatal house fire either at trial
or on direct appeal.7
Additionally, the newly-discovered evidence timeliness exception does
not apply. Appellant argues that an expert in “new fire science” would
challenge the Commonwealth’s witnesses regarding the arson conviction.
See Appellant’s Brief, pp. 9, 10 & 12. In short, Appellant seeks to use a fire
_______________________
(Footnote Continued)
petition invoking an exception provided in paragraph (1) shall be filed within
60 days of the date the claim could have been presented.”).
6
We note that fire officials found the dog’s body inside the house under the
bed of one of the victims.
7
On direct appeal, Appellant raised a sufficiency claim regarding the arson
conviction claiming that the Commonwealth failed to prove she had the
required mens rea for arson because the Commonwealth failed to prove that
Appellant had been warned that dousing a dog with kerosene and lighting it
on fire could result in the house burning down. See Commonwealth v.
Newsome, 1956 MDA 2005, January 22, 2007 (unpublished memorandum).
This claim admits the dog Appellant set alight caused the house fire.
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science expert to impeach the testimony of Commonwealth witnesses.
However,
[t]o obtain relief based on after-discovered evidence, appellant
must demonstrate that the evidence: (1) could not have been
obtained prior to the conclusion of the trial by the exercise of
reasonable diligence; (2) is not merely corroborative or
cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in a
different verdict if a new trial were granted.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa.2008) (emphasis
provided). Accordingly, the newly-discovered evidence timeliness exception
cannot apply.8
For these reasons, advances in fire science do not provide Appellant
with a PCRA timeliness exception. She has failed to make a “strong prima
facie showing that a miscarriage of justice may have occurred”, and her
PCRA petition remains time-barred.
Because the PCRA petition is patently untimely and Appellant cannot
avail herself of any of the PCRA’s time bar exceptions, the PCRA court did
not err in denying this petition as untimely.
Order affirmed.
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8
We do not consider herein whether developments in fire science represent
a newly-discovered fact for PCRA timeliness exception purposes.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2015
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