Com. v. Holmes, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KENNETH HOLMES :
:
Appellant : No. 1072 EDA 2022
Appeal from the PCRA Order Entered April 7, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0124354-1992
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 28, 2022
Appellant Kenneth Holmes appeals from the Order entered in the Court
of Common Pleas of Philadelphia County on April 7, 2022, denying his serial
petition filed pro se pursuant to the Post Conviction relief Act (PCRA).1 We
affirm.
On December 16, 1992, following a non-jury trial, Appellant was
convicted of first-degree murder, robbery, conspiracy, and possessing
instruments of crime after he robbed a gas station and shot and killed the
attendant. N.T., 12/14/92, at 14-16; 12/15/92, 37-123. The trial court
sentenced Appellant on October 20, 1993, to life imprisonment for the murder
conviction plus concurrent terms of four (4) years to ten (10) years and one
(1) year to two (2) years in prison for the convictions of criminal conspiracy
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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and possession of an instrument of crime, respectively. Appellant also was
sentenced to a consecutive term of ten (10) years to twenty (20) years in
prison for the robbery conviction.
This Court affirmed Appellant’s judgment of sentence on April 28, 1994,
and the Pennsylvania Supreme Court denied his petition for allowance of
appeal on September 20, 1994. See Commonwealth v. Holmes, 435
Pa.Super. 645, 645 A.2d 889 (Pa.Super. 1994), appeal denied, 538 Pa. 666,
649 A.2d 668 (1994).
From December of 1996, when he filed his first PCRA petition, to 2017,
Appellant unsuccessfully litigated numerous collateral relief and habeas
corpus petitions. On December 20, 2019, Appellant filed the instant PCRA
petition, and on May 11, 2021, the Commonwealth filed a motion to dismiss
the petition. On March 15, 2022, the PCRA court issued its notice of intent to
dismiss the petition pursuant to Pa.R.Crim.P. 907, and on April 7, 2022, the
court denied the petition as untimely.
Appellant timely filed a pro se notice of appeal on April 13, 2022. The
PCRA court did not order Appellant to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b); however, the court
filed its Rule 1925(a) Opinion on April 13, 2022.
In his brief, Appellant presents the following Statement of the Questions
Involved:
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Did the learned PCRA court commit an abuse of discretion
by holding that appellant's PCRA petition was not timely filed
because he presented evidence establishing that as an imprisoned
individual he had no way to discover the newly discovered
information and he filed his initial petition within 365 days of
learning of the new exculpatory information?
Did the PCRA court commit an abuse of discretion by
denying [A]ppellant’s claim that his newly discovered evidence did
not warrant a new trial?
Did the PCRA court commit an abuse of discretion by finding
that [A]ppellant’s Brady[2] claim did not warrant a new trial?
Did PCRA court committed an abuse of discretion when it
failed to grant relief on [A]ppellant’s layered ineffectiveness
claim?
Should the PCRA court have granted appellant an
evidentiary hearing based upon initial PCRA counsel’s
ineffectiveness of counsel?
Brief for Appellant at 3.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal
error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation
omitted). Where the record supports the PCRA court’s findings of fact, they
are binding on this Court. Commonwealth v. Watkins, 108 A.3d 692, 701
(Pa. 2014). We review the PCRA court’s legal conclusions de novo. Id.____________________________________________
2 See Brady v. Maryland, 373 U.S. 83 (1963).
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All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final” unless an
exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA's time
restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,
neither this Court nor the [PCRA] court has jurisdiction over
the petition. Without jurisdiction, we simply do not have the legal authority
to address the substantive claims.” Commonwealth v. (Frank) Chester,
895 A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted)
(overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267(Pa. 2020)).
Because timeliness is separate and distinct from the merits of
Appellant’s underlying claims, we first determine whether the
instant PCRA petition was timely filed. Commonwealth v. Stokes, 959 A.2d
306, 310 (Pa. 2008). As stated previously, our Supreme Court denied
allowance of a direct appeal on September 20, 1994. Thus, Appellant’s
judgment of sentence became final on December 19, 1994, upon expiration
of the ninety (90) days to file a petition for writ of certiorari in the U.S.
Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the instant petition on
December 20, 2019, twenty-five (25) later; therefore, it is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1). As such, Appellant bore the burden
of pleading and proving the applicability of one of the three statutorily
enumerated timeliness exceptions to establish jurisdiction over his
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claims. Commonwealth v. Smallwood, 155 A.3d 1054, 1060 (Pa.Super.
2017).
To invoke an exception, a petitioner must allege and prove, within
the petition itself, one of the following:
(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.A. § 9545(b)(1)(i)-(iii). If a petition is untimely and no exception
has been pled or proven, “the petition must be dismissed without a
hearing.” Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa. Super.
2008).
In his first two issues presented on appeal, Appellant purports to invoke
the newly discovered fact exception to the PCRA’s timeliness requirement
under § 9545(b)(1)(ii). Pursuant to this provision, a petitioner must establish
that the facts upon which the claim was predicated were unknown and could
not have been ascertained by the exercise of due diligence. Commonwealth
v. Cox, 146 A.3d 221, 227 (Pa. 2016). Under the first prong, the focus “is on
the newly discovered facts, not on a newly discovered or newly willing
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source for previously known facts.” Commonwealth v. Lopez, 249 A.3d
993, 999 (Pa. 2021) (citation, quotation, and footnote omitted; emphasis in
original). Discovering “yet another conduit for the same claim” does not
“transform [the] latest source” into a “new fact” for purposes of the timeliness
exception. Commonwealth v. Johnston, 42 A.3d 1120, 1127-1128
(Pa.Super. 2012), citing Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa.
2008).
Regarding the second prong of the newly discovered fact analysis, due
diligence “requires neither perfect vigilance nor punctilious care, but rather it
requires reasonable efforts by a petitioner, based on the particular
circumstances, to uncover facts that may support a claim for collateral
relief.” Commonwealth v. Smith, 194 A.3d 126, 134 (Pa.Super.
2018), appeal denied, 208 A.3d 64 (2019) (citation and quotation omitted).
A petitioner fails to establish due diligence where the current claim is
predicated on the same facts that formed the basis of prior post-
conviction petitions for collateral relief in federal or state court. See Lopez,
249 A.3d at 999-1000; Cox, 146 A.3d at 230 (rejecting petitioner’s claim
where his “initial attempt to obtain the ballistics evidence was made in his
first PCRA petition, in connection with his claim that trial counsel was
ineffective for failing to seek independent ballistics
testing”); Commonwealth v. Maxwell, 232 A.3d 739, 746 (Pa.Super. 2020)
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(en banc) (rejecting claim where petitioner raised claims on a similar factual
basis in three prior post-conviction filings within federal and state court).
Upon review, we conclude, as did the PCRA court, that Appellant has
failed herein to demonstrate that his claim fell within the newly discovered
fact exception because he has not satisfied either of the two prongs necessary
to sustain his burden.
Initially, Appellant posits his codefendants committed perjury during his
trial at the direction of the Commonwealth due to the prosecutor’s failure to
disclose that they had entered into plea deals in exchange for their testimony.
However, Appellant has failed to show that the underlying facts supporting his
claim were unknown to him. To the contrary, it was disclosed to him at trial
that Appellant’s codefendants would testify against Appellant in return for
negotiated sentences of twenty (20) to forty (40) years in prison after pleading
guilty to robbery and conspiracy to commit third-degree murder. N.T.,
12/15/92, at 103. In fact, Appellant argued on direct appeal that his
convictions were against the weight of the evidence by insisting his co-
conspirators’ testimony was not credible in light of their plea deals. As this
Court explained:
[Appellant] seeks a new trial on the basis that the verdict is
against the weight of the evidence because Roane, Nicholson and
Smith received concessions that were “so beneficial” in exchange
for their testimony against him that they conformed their
testimony to meet the expectations of the Commonwealth.
***
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In the present case, Roane testified that after [Appellant]
demanded and received the money from the attendant at
gunpoint, [Appellant] shot him in the head. N.T., 12/15/92, at 46.
Nicholson testified that [Appellant] stated, “I made that pussy get
down on his knees, and I busted him.” Id. at 101. In exchange
for their testimony, Roane and Nicholson received a negotiated
sentence of 20 to 40 years, after pleading guilty to robbery and
conspiracy to commit third degree murder. Id. at 103. Steven
Smith testified that [Appellant] admitted to him that he,
[Appellant], robbed the gas station and shot the attendant. N.T.,
12/16/92, at 24-25. In exchange for Smith's testimony, the
Commonwealth promised not to request that he receive the
mandatory minimum sentence in an unrelated robbery charge,
but if convicted the court was free to impose whatever sentence
it wished. Id. at 32-33. These concessions do not appear to be
“so beneficial” that the witnesses would feel compelled to conform
their testimony to meet the expectations of the Commonwealth.
Commonwealth v. Holmes, No. 3479 Philadelphia 1993, unpublished
memorandum at 2-4. (Pa.Super. filed April 28, 1994).
Also, in its Opinion filed in response to Appellant’s post-verdict motions,
the trial court stated the following:
[Appellant’s] specific argument that the evidence is not
sufficient because two of the witnesses were accomplices who
were permitted to plead guilty has no merit. Defense counsel had
the opportunity and did cross-examine both witnesses thoroughly
as to their “deals” with the Commonwealth and any bias they
might have as a result. Furthermore, the Commonwealth
presented a third witness, Steven Smith, who testified that
[Appellant[] bragged to him that he had done the killing at the
Sunoco Station on the night in question.
Trial Court Opinion, filed 10/26/93, at 2 (emphasis added).
Furthermore, in when considering the merits of Appellant’s first PCRA
petition, this Court observed:
The record reflects that Appellant’s trial strategy was to show
that the Commonwealth’s witnesses, Nicholson and Roane, were
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inherently untrustworthy because they had testified against
Appellant in exchange for deals which permitted them to plead
guilty to lesser crimes and, thus, avoid being subject to the death
penalty.
Commonwealth v. Holmes, 171 EDA 1999, unpublished memorandum at 7.
(Pa.Super. filed June 30, 2000).
Therefore, Appellant has failed to demonstrate that there were any new
“facts” that would overcome the PCRA time-bar.
Additionally, Appellant failed to show that he acted with due diligence in
bringing this claim. Despite his bald assertions that he learned about the
alleged prosecutorial misconduct in 2019, the record reflects that Appellant
was aware of the plea agreements at the time of his trial. Even if this were
not the case, Appellant asserts he had a friend request the guilty plea
colloquies of his codefendants in March or April of 2019. Brief for Appellant at
9-10. Significantly, Appellant never explains why he waited over twenty
years to make this inquiry. Thus, he cannot prove that this information could
not have been ascertained previously with due diligence.
In his third claim Appellant asserts he is entitled to relief in light of
Brady, supra, because the prosecutor did not inform him of his codefendant’s
plea deals and used “perjured” and “coerced” testimony at trial. Brief for
Appellant at 25-26. Appellant alleges he did not learn of this alleged
prosecutorial misconduct until June 28, 2019. Specifically, Appellant argues
he “presented credible alibi evidence and as noted, the [C]ommonwealth
witnesses consisted of the actual perpetrators of felony murder whom [sic]
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implicated [Appellant] based upon hidden favors afforded them by ADA Judith
Rubino.” Brief for Appellant at 26. In this regard, Appellant implicates the
governmental interference exception to the PCRA time bar.
The governmental interference exception, § 9545(b)(1)(i), requires a
petitioner to plead and prove: (1) the failure to raise the claim previously was
the result of interference by government officials and (2) the information upon
which the petitioner relies could not have been obtained earlier with the
exercise of due diligence. Commonwealth v. Williams, 105 A.3d 1234, 1240
(Pa. 2014) ( citing Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa.
2008)).
It is well-settled that a prosecutor has the obligation under Brady to
disclose all favorable evidence that is material to an accused’s guilt or
punishment. See Commonwealth v. Bagnall, 235 A.3d 1075, 1085 (Pa.
2020). To establish a Brady violation, a PCRA petitioner has the burden of
proving that: “(1) the evidence at issue was favorable to the accused, either
because it is exculpatory or because it impeaches; (2) the prosecution has
suppressed the evidence, either willfully or inadvertently; and (3) the evidence
was material, meaning that prejudice must have ensued.” Id. at 1086
(citation omitted). Materiality requires the petitioner to show that the
favorable evidence “could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.” Commonwealth
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v. Natividad, 200 A.3d 11, 26 (Pa. 2019) (citation and quotation marks
omitted).
The assessment of materiality under Brady extends to the petitioner’s
ability to investigate alternate defense theories and formulate and present
trial defenses, including evidence affecting the credibility of a
witness. See Commonwealth v. Ly, 980 A.2d 61, 76 (Pa.
2009); Commonwealth v. Green, 640 A.2d 1242, 1245 (Pa. 1994). To be
entitled to a new trial based on the Commonwealth's failure to disclose
information relating to a witness’s credibility, the petitioner must demonstrate
that the reliability of the witness may well be determinative of his guilt or
innocence. See Commonwealth v. Simpson, 66 A.3d 253, 266 (Pa. 2013).
Appellant’s assertion is based upon information the Commonwealth
disclosed during trial; therefore, he cannot satisfy the elements necessary to
prove a Brady violation. Bagnall, supra. Instead, Appellant essentially asks
this Court to reweigh the evidence and reach a different result. This we cannot
do. The trial court, sitting as the finder of fact, chose to believe the evidence
presented by the Commonwealth and the logical inferences derived therefrom,
as was its right. It was within the province of the trial judge as factfinder to
resolve all issues of credibility, resolve any conflicts in evidence, make
reasonable inferences from the evidence, believe all, none, or some of the
evidence, and ultimately adjudge Appellant guilty. See Commonwealth v.
Small, 741 A.2d 666, 672 (Pa. 1999).
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Appellant’s final two issues raise claims of ineffective assistance of prior
counsel in an attempt to satisfy the newly discovered fact exception to the
PCRA time bar. However, our courts expressly have rejected attempts to
utilize ineffective assistance of counsel claims as a means of escaping the
jurisdictional time requirements for filing a PCRA petition.
See, e.g., Commonwealth v. Gamboa-Taylor, 753 A.2d 785 (Pa. 2000)
(claim of ineffective assistance of counsel does not save an
otherwise untimely petition for review on the merits).
In the instant PCRA petition, Appellant rehashes arguments he
presented to no avail on direct appeal and in his first PCRA petition. Thus,
any attempt to couch these claims in terms of ineffective assistance of counsel
must fail. In light of the foregoing, we find Appellant has failed to satisfactorily
invoke 42 Pa.C.S.A. § 9545(b)(1)(ii) in this regard as well.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2022
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