Com. v. Massina, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KWAME MASSINA :
:
Appellant : No. 2341 EDA 2021
Appeal from the PCRA Order Entered October 7, 2021
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0001680-2008
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY BOWES, J.: FILED JULY 18, 2022
Kwame Massina appeals pro se from the order dismissing his second
Post-Conviction Relief Act (“PCRA”) petition as untimely. After careful
consideration, we affirm.
The trial court summarized the facts as follows:
At approximately 12:30 a.m. on January 31, 2008, while on
routine patrol, Officer Jeffrey Rush of the Allentown Police
Department witnessed what he believed to be a large[-]scale fight
outside of Trinkle’s Bar, located at 533 Turner Street, Allentown,
Lehigh County, Pennsylvania. He saw approximately two dozen
patrons exiting the bar, some with pool cues or drinks in hand.
Officer Rush exited his patrol vehicle and approached the scene,
simultaneously calling for additional police backup. Upon his
approach individuals pointed to a man of medium-build, wearing
dark clothing and a hoodie, running east on Turner Street. Officer
Rush witnessed the individual turn north onto Law Street, where
the officer lost sight of the individual. Patrons informed the officer
that the man had a gun.
After being alerted that someone had been shot, Officer rush
entered Trinkle’s Bar. In the area by the pool tables, he observed
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a man on his back, wearing a white t-shirt and jeans, bleeding
profusely form the head area. The man was unresponsive. A
young female, later identified as Margarita Morales, was
attempting to give the man CPR. Officer Rush asked individuals
at the bar to remain so that they could provide statements as to
what had occurred. Officer rush noted the faint smell of
gunpowder in the room and a large neck wound on the man.
Office Rush also noted gray matter on the floor of the bar. The
victim was later identified as William “Big Will” Spearman.
Ms. Morales has been at Tinkle’s Bar for approximately
seven hours when she noticed [Appellant] due to his “pretty eyes,”
though she did not interact with him or know his identity. During
the struggle, Ms. Morales saw [Appellant] with a gun and heard
two gunshots and then saw people running form the area. After
the two gunshots, Ms. Morales saw the victim slip onto the floor.
She then saw [Appellant] shoot the victim two more times. After
the shots rang out, Ms. Morales froze in place. [Appellant] ran
past her, pulling his hoodie up. Once she saw [Appellant] leave,
Ms. Morales went over to the victim to try to help him. She
instructed the bartender to call 9-1-1 and attempted to give the
victim CPR, to no avail.
Ms. Iris Rodriguez was also at the bar that evening. Close
to 12:30 a.m., Ms. Rodriguez went to the ladies’ room, located in
the same room as the pool tables and the men’s bathroom. Earlier
in the evening, Ms. Rodriguez had seen [Appellant] and she was
familiar with the victim from earlier occasions. While in the ladies’
room, Ms. Rodriguez could hear people arguing and talking loudly.
She exited the ladies’ room and took a seat at a table close to
where Ms. Morales was working and began to speak to Ms.
Morales. She saw [Appellant] exit the bathroom, leave the
immediate vicinity, and then return to the bathroom. The victim
and [Appellant] exited the bathroom, seemingly trying to force
each other out of the bathroom. Ms. Rodriguez, at that point, did
not see a weapon. The victim and [Appellant] continued to
physically push each other. Ms. Rodriguez then noticed a gun in
[Appellant’s] hand and heard shots ring out. The victim fell to the
ground. Ms. Rodriguez tried to leave the bar but wasn’t able
to. . . .
Mr. Edward Reid, the nighttime bartender at Trinkle’s Bar,
also testified. Mr. Reid testified that the victim was at the bar that
evening, wearing a large white coat and a big silver chain around
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his neck. Mr. Reid was standing at one end of the bar when he
heard a loud “bang” emanating from the other end of the bar. He
responded to that end of the bar, taking note that other patrons
began to leave the bar quickly, including a black, heavy-set male
with a large handgun in his hand. Mr. Reid also noted that the
man with the gun was wearing a hood and that he had seen the
man earlier in the evening and that he may have been wearing a
baseball hat. When he went to the end of the bar, Mr. Reid noticed
that the victim was lying on the floor, bleeding. Mr. Reid called 9-
1-1 and watched as Ms. Morales attempted to help the victim.
While on scene, police photographed and collected various
items of evidence. Evidence included a black New York Yankees
baseball hat, found on top of a pool table in close proximity to the
victim. After review of surveillance video from the bar, officers
noted that this hat was worn by the suspect. The hat was sent to
Pennsylvania State Police Crime Laboratory for DNA analysis.
Analysis was performed and DNA found on the headband of the
baseball cap was compared to [Appellant’s] known DNA profile.
While analysis did not reveal that [Appellant’s] DNA was a match
to the DNA found on the headband of the hat, it was determined
that the DNA found on the headband would be consistent with a
mixture of multiple individuals. Further, analysis determined that
1 in 2,700 unrelated Caucasians, 1 in 3,900 unrelated African-
Americans, and 1 in 3,200 unrelated Hispanics would be expected
to be included in the DNA mixture profile discovered on the hat
headband.
Video surveillance of the bar area was obtained.
Photographs made form the video show (A) the victim walking into
the men’s bathroom, wearing a large medallion; (B) a struggle
between the victim and another individual; and (C) the victim on
the floor with the other individual standing above him, holding a
gun in the right hand. The individual’s face was partially covered
by a hoodie, with only the top part of the nose and eye area
displayed. A Yankees baseball hat was observed on the shooter’s
head.
An autopsy of the victim was performed by Dr. Samuel
Land. The cause of death was multiple gunshot wounds and the
manner of death was ruled a homicide.
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On March 17, 2008, Mr. Reid was asked to view a photo
array. At that time, Mr. Reid identified [Appellant] as the shooter,
but made note that he was only 60% sure of his identification.
On April 1, 2008, Ms. Rodriguez was shown a photo array
containing eight individual pictures on one piece of paper and was
able to identify [Appellant] as the shooter. On April 2, 2008, Ms.
Morales was shown the same photo array and was able to identify
[Appellant] as the shooter.
Trial Court Opinion, 2/2/10, at 5-9.
Appellant was arrested and charged with homicide and related firearms
offenses. Appellant’s pretrial motions to suppress various pieces of evidence,
including the photo arrays as unduly suggestive, were denied and, on
September 1, 2009, a jury trial commenced on the homicide charge.1 At trial,
Appellant’s cell mate testified that Appellant had confessed to the homicide
and revealed various details which had not been released to the press. Trial
counsel attempted to attack the reliability of the eyewitness identifications on
cross-examination and in his closing argument. On September 4, 2009, the
jury found Appellant guilty of first-degree murder. Appellant was sentenced
to life imprisonment without the possibility of parole and his post-sentence
motion was denied. A direct appeal followed, in which this Court affirmed
Appellant’s judgment of sentence, and on March 16, 2011, our Supreme Court
denied allowance of appeal. Commonwealth v. Massina, 15 A.3d 544____________________________________________
1 The Commonwealth withdrew all other charges prior to trial.
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(Pa.Super. 2010) (unpublished memorandum), appeal denied, 20 A.3d 485(Pa. 2011).
In 2012, Appellant filed a timely pro se PCRA petition. Appointed
counsel filed a motion to withdraw and no-merit brief pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).2 The PCRA court dismissed
the PCRA petition without a hearing and granted counsel’s motion to withdraw.
Appellant timely appealed. We affirmed the denial of Appellant’s PCRA
petition, and our Supreme Court denied allowance of appeal on June 21, 2016.
See Commonwealth v. Massina, 141 A.3d 603 (Pa.Super. 2016)
(unpublished memorandum), appeal denied, 61 MM 2016 (Pa. 2016).
On September 9, 2021, Appellant filed his second pro se PCRA petition,
which is the subject of this appeal. In his petition, Appellant indicated that he
had “newly discovered facts received by mail” discussing alleged flaws in the
eyewitness evidence adduced at his trial. See PCRA Petition, 9/9/21, at 3.
Specifically, Appellant identified the newly discovered facts as the “eyewitness
identification task force. Greenspan Loftus Publ. (5-07-02). Temple Law
____________________________________________
2 Initially, the PCRA court denied the petition based on a Turner/Finley letter.
However, during the resulting pro se appeal, the PCRA court reconsidered the
letter, found it insufficient, and requested that we remand for further
proceedings. We vacated the PCRA order and remanded for further
proceedings. See Commonwealth v. Massina, 83 A.3d 1065 (Pa.Super.
2013) (unpublished memorandum). On remand, the PCRA court appointed
new PCRA counsel, who also filed a motion to withdraw and Turner/Finley
letter.
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Review Vol. 91 (1) (Fall 2019) and Commonwealth v. George Cortez
(“Cortez”).” Id.3 Appellant also noted that he received the new facts in the
mail from an “outside source” on July 16, 2021. Id.The PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss
the petition without a hearing, finding that Appellant had failed to meet the
timeliness requirements of the PCRA. See Order, 9/16/21. Appellant filed a
response, arguing that his petition was timely because the law on expert
eyewitness testimony had changed, and he was unaware of that change until
he received the Cortez decision on July 16, 2021. See Objection to Notice of
Intent to Dismiss, 10/5/21, at unnumbered 1. Appellant averred that he could
not have discovered Cortez earlier because it was not published in the State
Correctional Institutes library. Id. at unnumbered 2. Accordingly, since
Appellant filed his petition within one year of the receipt of this mail, Appellant
had exercised due diligence. Id.____________________________________________
3 Appellant attached exhibits to his petition which included the title page, table
of contents, and introduction of the Philadelphia Event Review Team report
analyzing “Commonwealth v. George Cortez” from April 2019 and the title
page of a Temple Law Review Article from the Fall of 2019, discussing a study
conducted on eyewitness confidence malleability. Appellant did not include a
case citation or the text for “Commonwealth v. George Cortez.” Nevertheless,
the parties agree that Cortez was a 2012 homicide case in the Court of
Common Pleas of Philadelphia where the defendant was convicted and later
granted a new trial after a successful PCRA petition. See PCRA Opinion,
12/10/21, at 6; see also Commonwealth’s brief at 13. During the preparation
for the retrial, the defendant’s brother confessed to the homicide, causing the
Commonwealth to realize that the surviving victim had misidentified the
shooter. Id. The defendant was later exonerated. Id.-6-
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The PCRA court disagreed and dismissed the petition. In the order, the
court explained that a non-precedential, “2012 homicide case where the
defendant was convicted and later exonerated following a PCRA petition” did
not qualify as a newly discovered fact for purposes of the PCRA time bar.
Order, 10/7/21, at 1 n.1. The PCRA court also found that Appellant had failed
to show the necessary due diligence to overcome the PCRA time bar. Id. This
timely, pro se appeal followed.
Appellant presents two issues in his brief, which we reproduce as
follows:
A. PCRA court erred in failing to appoint an identification expert
to explain to the court and jurors of certain scientifically
proven facts relating to eyewitness identification[.]
B. PCRA court erred in holding publication: a) eyewitness
identification task force (2020) and b) Temple L. Rev. (Fall
[2010]) were newspapers or judicial determinations, in not
applying sec. 9545(b)(1)(ii) (“facts unknown to
petitioner”[)].
Appellant’s brief at 4.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the record evidence and free of legal error.” Commonwealth v.
Whitehawk, 146 A.3d 266, 269 (Pa.Super. 2016).
In order for a petition to be timely under the PCRA, it must be filed
within one year of the date that the petitioner’s judgment of sentence became
final. See 42 Pa.C.S. § 9545(b)(1). Appellant’s petition, filed nearly ten years
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after his judgment of sentence became final, is patently untimely. Thus,
unless Appellant pled and proved one of the three exceptions to the PCRA
time-bar outlined in 42 Pa.C.S. § 9545(b)(1)(i-iii),4 we cannot address the
claims he asserts therein. See Commonwealth v. Miller, 102 A.3d 988, 992
(Pa.Super. 2014) (“[N]either this Court nor the trial court has jurisdiction over
[an untimely] petition”).
Appellant alleges that the instant PCRA petition falls under the
timeliness exception set forth at § 9545(b)(1)(ii), relating to newly-discovered
facts. See Appellant’s brief at 9. “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
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4 These exceptions are:
(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).
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A.3d 475, 481 (Pa.Super. 2018) (emphasis omitted). Due diligence demands
“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.Although facially untimely, Appellant pled the newly-discovered facts
exception in an attempt to overcome the PCRA time bar. See PCRA Petition,
9/9/21, at 3; see also Objection to Notice of Intent to Dismiss under
Pa.R.Crim.P. 907, 10/5/21, at unnumbered 1. Accordingly, first, we must
pinpoint the new fact Appellant invokes. In his PCRA petition, Appellant
alleged that Cortez and a report analyzing the case were his newly discovered
facts. See PCRA Petition, 9/9/21, at 3. Appellant also pointed to a law review
article which discussed eyewitness misidentification as further proof that the
eyewitness identifications in his case were unreliable and that he is entitled to
an eyewitness identification expert. Id. Appellant’s claim fails.
The PCRA court concluded that since judicial decisions do not amount to
new facts, Appellant failed to meet the PCRA time bar. See PCRA Opinion,
12/21/21, at 6. We agree. “As [our Supreme Court has] related quite a few
times, ‘subsequent decisional law does not amount to a new ‘fact’ under
[S]ection 9545(b)(1)(ii) of the PCRA.’” Commonwealth v. Reid, 235 A.3d
1124, 1147 (Pa. 2020) (quoting Commonwealth v. Watts, 23 A.3d 980, 987
(Pa. 2011)). Therefore, to the extent Appellant claims Cortez, a judicial
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decision, constitutes a new fact, his claim does not satisfy the newly
discovered facts exception to PCRA timeliness.
In his brief, Appellant asserted that the factual predicate for his claim
was not the Cortez decision itself but, instead, the scientific principles
questioning the reliability of eyewitness identifications. See Appellant’s brief
at 14. Appellant based his assertion on Commonwealth v. Chmiel, 173 A.3d
617 (Pa. 2017). However, Appellant reads Chmiel too broadly. Instead, this
case should be governed by our Supreme Court’s holding in Commonwealth
v. Edmiston, 65 A.3d 339 (Pa. 2013) (overruled in part on separate grounds).
In Chmiel, our Supreme Court concluded the appellant met the newly-
discovered facts exception based upon an FBI press release and corresponding
newspaper article in which the FBI publicly admitted, for the first time, that
its examiners gave flawed and scientifically unsupportable testimony and
spread this flawed methodology to state and local analysts. Id. at 625. The
Court reasoned that while the scientific principles themselves did not
constitute new facts, FBI’s public admission discrediting the science and
related testimony did amount to new facts. Since the appellant could not have
discovered this concession earlier with due diligence, his claim satisfied the
newly discovered fact exception and warranted a remand for merits review of
the substantive claim.
In contrast, in Edmiston, the appellant attempted to rely on a new
report about scientific principles questioning the reliability of hair comparison
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analysis as his previously undiscoverable fact. Id. at 352. However, our
Supreme Court explained that the scientific principles contained within the
report were not new, but had existed in various sources prior to the publication
of the report. Id. Since the appellant was unable to prove that he had
discovered any new facts, but rather a new source for old facts, the PCRA
court lacked jurisdiction to reach the merits of his claims.
The questions that Appellant raises in the instant case about the
reliability of photo arrays and other out-of-court identification procedures
similarly are not new. Indeed, in 2014, while changing the law on the
admissibility of eyewitness expert testimony in Pennsylvania, our Supreme
Court examined and cited to “many scholarly articles detail[ing] the
considerable amount of behavior research in the area of eyewitness
identification” that predated that opinion and “convincingly demonstrate[d]
the fallibility of eyewitness identification testimony.” Commonwealth v.
Walker, 92 A.3d 766, 781-82 (Pa. 2014). Thus, the scientific principles
discussed in the articles upon which Appellant relies are not new, but instead
were publicly available in 2014 when Walker was published.5 However,
Appellant did not raise this claim alleging that he was entitled to expert
____________________________________________
5 In 2014, Appellant was litigating his first, counseled PCRA petition, which
concluded in 2016. Thus, the public record exception would not apply here.
See Commonwealth v. Burton, 158 A.3d 618, 719 (Pa. 2017) (holding that
“the presumption that information which is of public record cannot be deemed
‘unknown’ for purposes of subsection (b)(1)(ii) does not apply to pro se
prisoner petitioners”).
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eyewitness testimony until 2021. Despite attempting to exclude eyewitness
testimony pretrial, our review of the record uncovered no instances where
Appellant requested an expert on eyewitness testimony. Appellant also
proffered no allegations of the efforts he made to discover the facts pertinent
to his claim in the intervening years. For all the record shows, Appellant
waited until these articles fell into his lap and then attempted to capitalize on
Walker’s success, seven years after the fact. Such is not a proper invocation
of the newly-discovered facts exception. See Watts, supra at 988
(concurring opinion, Justice Baer) (“Section 9545(b)(1)(ii) is not designed to
reward this type of piggyback litigation; instead, it is designed to provide a
limited timeliness exception for after-discovered facts in one’s own case.”).
Since Appellant has provided no new facts or explanation for why he
could not have ascertained earlier with due diligence the facts upon which he
bases his challenge to the absence of expert eyewitness identification
testimony, we agree with the PCRA court that Appellant has not carried his
burden under § 9545(b)(2). See PCRA Court Opinion, 12/10/21, at 6.
Accordingly, we find that the PCRA court did not err when it denied his petition
as untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2022
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