Com. v. Stokes, W.

J. S06038/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIE STOKES, :
:
Appellant : No. 1335 EDA 2014
Appeal from the PCRA Order November 15, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0606661-1984
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 06, 2015
Appellant, Willie Stokes, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, denying his fifth Post
Conviction Relief Act1 (“PCRA”) petition for untimelness. Appellant contends:
(1) the PCRA court erred in dismissing his habeas corpus petition as an
untimely PCRA petition; and (2) the Commonwealth permitted known false
testimony to remain on the record.2 We affirm.
The PCRA court summarized the facts and procedural history of this
case:
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
The Commonwealth did not file a brief.
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In August 1984, [Appellant] elected to exercise his right
to a jury trial and pled not guilty to all charges . . . . On
August 21, 1984, the jury found [him] guilty of Murder in
the First Degree and Possession of an Instrument of Crime
(PIC). The [court] sentenced [him] to the mandatory term
of Life imprisonment on the murder charge and 2.5-5
years of incarceration on the PIC charge, to run
concurrently. [Appellant] subsequently filed a notice of
appeal to the Superior Court of Pennsylvania and the Court
affirmed his convictions and judgment of sentence on
March 31, 1986.[3 Appellant] filed a Petition for Allowance
of Appeal to the Supreme Court of Pennsylvania, which the
Court denied on April 1, 1987.
In April 1987, [Appellant] filed his first PCRA petition,
which was dismissed by the PCRA court. [Appellant]
subsequently appealed the dismissal to the Superior Court
of Pennsylvania and the Court affirmed the dismissal on
August 22, 1991.
On October 30, 1995, [Appellant] filed a second PCRA
petition, which was dismissed by the PCRA court. [He]
subsequently appealed the dismissal to the Superior Court
of Pennsylvania and the Court affirmed the dismissal on
December 26, 1996. [Appellant] filed a Petition for
Allowance of Appeal to the Supreme Court of Pennsylvania,
which the Court denied on July 2, 1997.
In September 1998, [Appellant] filed a Petition for a
Writ of Habeas Corpus in the United States District Court,
which the Court denied in May 1999. [Appellant] appealed
to the United States Court of Appeals for the Third Circuit
and the Court affirmed the denial of the Petition for a Writ
of Habeas Corpus in April 2001. [Appellant] filed a Petition
for Writ of Certiorari in the Supreme Court of the United
States, which the Court denied in October 2001.
In November 2002, [Appellant] filed a third PCRA
petition, which was dismissed by the PCRA court in May
2003.
3
Commonwealth v. Stokes, 1202 PHL 1985 (unpublished memorandum)
(Pa. Super. Mar. 31, 1986).
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In January 2005, [Appellant] filed a fourth PCRA
petition and PCRA counsel was appointed. The PCRA court
dismissed the petition on December 12, 2005. On January
20, 2006, [Appellant] appealed the dismissal to the
Superior Court of Pennsylvania and the Court affirmed the
dismissal on October 30, 2008. [Appellant] filed a Petition
for Allowance of Appeal to the Supreme Court of
Pennsylvania on January 16, 2009, which the Court denied
on June 1, 2009.
On November 17, 2010, [Appellant] filed the instant
PCRA petition, in the form of a Petition for Writ of Habeas
Corpus. [Appellant] also filed a Petition for Writ of
Mandamus and/or Extraordinary Relief in the Supreme
Court of Pennsylvania. On January 25, 2012, the Supreme
Court of Pennsylvania denied [Appellant’s] petition
requesting extraordinary relief, but granted his petition
requesting mandamus relief and directed the Court of
Common Pleas to dispose of the Petition for Writ of Habeas
Corpus. [Appellant] filed an Amended Petition for Writ of
Habeas Corpus on March 12, 2012 and on February 20
2013, PCRA counsel was appointed. On July 22, 2013,
counsel filed a [Commonwealth v.] Finley [550 A.2d 213
(Pa. Super. 1988)] Letter. The matter was first listed
before this court for decision on September 16, 2013. On
September 17, 2013, following a review of the record, this
court sent [Appellant] a 907 Notice, pursuant to
Pa.R.Crim.P. 907(1). This court received a response to the
907 Notice on September 27, 2013. On November 15,
2013 this court dismissed the PCRA petition [and
granted counsel permission to withdraw].
On January 16, 2014, [Appellant] filed an Application to
File an Appeal Nunc Pro Tunc, which this court granted on
April 17, 2014 because [he] had not received the
November 15, 2013 Order formally dismissing his
PCRA petition. On April 28, 2014, this court received
[Appellant’s] Notice of Appeal and, in response, has
submitted the instant Opinion.
Trial Ct. Op., 6/18/14, at 1-3 (footnotes omitted) (emphases added).
Appellant raises the following issues for our review:
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1. Whether the Court of Common Pleas was in err [sic] for
dismissing Appellant’s Habeas Corpus as untimely and as a
PCRA[?]
2. Did the Commonwealth’s prosecuting Attorney err and
commit reversible error, when he permitted known false
testimony to remain on the records uncorrected[?]
Appellant’s Brief at 3.
As a prefatory matter, we consider whether the PCRA court erred in
considering Appellant’s Habeas Corpus petition as a PCRA petition.
It is well-settled that the PCRA is intended to be the sole
means of achieving post-conviction relief. 42 Pa.C.S. §
9542 . . . . Unless the PCRA could not provide for a
potential remedy, the PCRA statute subsumes the writ of
habeas corpus. Issues that are cognizable under the PCRA
must be raised in a timely PCRA petition and cannot be
raised in a habeas corpus petition. . . . Phrased
differently, a defendant cannot escape the PCRA time-bar
by titling his petition or motion as a writ of habeas corpus.
Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (some
citations omitted).
Before examining the merits of Appellant’s claims, we also consider
whether the PCRA court had jurisdiction to entertain the underlying PCRA
petition. On appellate review of a PCRA ruling, “we determine whether the
PCRA court’s ruling is supported by the record and free of legal error.”
Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).
We . . . turn to the time limits imposed by the PCRA,
as they implicate our jurisdiction to address any and all of
[an a]ppellant’s claims. To be timely, a PCRA petition
must be filed within one year of the date that the
petitioner’s judgment of sentence became final, unless the
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petition alleges and the petitioner proves one or more of
the following statutory exceptions:
(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 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).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any
of the timeliness exceptions must be filed within 60
days of the date the claim first could have been
presented. 42 Pa.C.S. § 9545(b)(2). A petitioner fails to
satisfy the 60–day requirement of Section 9545(b) if he or
she fails to explain why, with the exercise of due diligence,
the claim could not have been filed earlier.
Id. at 719-20 (emphases added) (some citations omitted).
This Court has stated:
To obtain relief based upon newly-discovered evidence
under the PCRA, a petitioner must establish that: (1) the
evidence has been discovered after trial and it could not
have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not
being used solely to impeach credibility; and (4) it would
likely compel a different verdict.
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Commonwealth v. D'Amato, 856 A.2d 806, 823 (Pa. 2004).
Appellant’s judgment of sentence became final on June 1, 1987, thirty
days after the Pennsylvania Supreme Court denied his petition for allowance
of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment 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[ ]”); Sup. Ct. R. 20.1
(repealed June 30, 1990).4 Appellant thus generally had until June 1, 1988
to file his PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (providing PCRA
petition, including second and subsequent petitions, must be filed within one
year of date judgment becomes final). Appellant filed his fifth PCRA petition,
in the form of a Petition for Writ of Habeas Corpus, on November 17, 2010.
Therefore, it is patently untimely.
Appellant avers that he is raising a claim of fraud upon the court based
upon the October 19, 2005 affidavit of Commonwealth witness Frank Lee.
Appellant’s Brief at 9. He contends this issue was not previously litigated or
waived. Id. He claims “the information upon which this Petition rests was
4
We note that Appellant’s sentence became final before the effective date of
the amendments to the PCRA, January 16, 1996. “The 1995 amendments to
the PCRA also provide that if the judgment of sentence became final before
the effective date of the amendments (i.e., January 16, 1996), a PCRA
petition could be filed within one year, or by January 16, 1997. This grace
period does not apply to second or subsequent petitions, regardless of when
the first petition was filed.” Commonwealth v. Fairiror, 809 A.2d 396,
398 (Pa. Super. 2002).
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not previously known or discoverable with reasonable diligence.
Consequently, to the extent that [he] properly raised the claim of fraud upon
the Court relying on Mr. Lee’s Affidavit were not previously litigated, [he]
was entitled to review of the claims.” Id. (emphasis added). Appellant
contends the PCRA court erred in failing to conduct an evidentiary hearing
on alleged newly discovered evidence based upon Lee’s affidavit. Id.
at 10. Appellant avers he “acted with sufficient diligence in discovering Lee’s
perjury. [He] had no proof of Lee’s perjury until he received Lee’s Affidavit
on 10/19/05.” Id. at 11 (emphasis added).
A prior panel of this Court, affirming the PCRA court’s dismissal of
Appellant’s fourth PCRA petition, stated: “Appellant presents an affidavit
from Lee dated October 19, 2005, in which Lee states that his testimony was
false[.]” Commonwealth v. Stokes, 272 EDA 2006 (unpublished
memorandum at 9) (Pa. Super. Oct. 30, 2008). The PCRA court opined
Appellant “has not proven that his claim, relating to after-discovered
evidence of the conviction being procured by fraud, warranted relief under
any of the enumerated exceptions to the one year filing requirement.
Moreover, even if his claim did satisfy one of the timeliness exceptions, his
claim has already been litigated in a previous PCRA proceeding and is,
therefore, waived for purposes of the instant proceeding.” PCRA Ct. Op. at
5. The PCRA court found no relief was due. We agree. See Marshall, 947
A.2d at 719-20; D'Amato, 856 A.2d at 823.
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Appellant did not plead and prove any exception to the PCRA’s
timeliness requirement. See Marshall, 947 A.2d at 719-20. Thus, the
PCRA court did not err in dismissing his PCRA petition as untimely. See id.
at 719.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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