Com. v. Bozeman, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EZRA BOZEMAN :
:
Appellant : No. 240 WDA 2019
Appeal from the PCRA Order Entered, January 15, 2019,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0003632-1975.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 20, 2019
Ezra Bozeman appeals pro se from the order that denied as untimely his
eighth petition filed pursuant to the Post Conviction Relief Act (PCRA). 42
Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the pertinent facts as follows:
[Bozeman] was convicted of second-degree murder in
the shooting death of Morris Weitz during an attempted
robbery at the Highland Cleaners in the Highland Park
neighborhood section of Pittsburgh on January 3, 1975. One
of the witnesses who testified against Bozeman at trial was
Thomas Durrett. Durrett testified that he was friends with
Bozeman for about three months prior to the shooting.
Durrett testified that in the early afternoon on the day of the
shooting, Bozeman came to Durrett’s apartment, which he
shared with Gregory Clark, and they discussed making some
money by selling some marijuana that Bozeman had at
Peabody High School. After smoking some marijuana,
Bozeman and Durrett drove to the Peabody High School
area and parked their car and were walking toward the
school when Bozeman stated that “We’re going to rob the
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cleaners.” Durrett told Bozeman he did not want to be
involved and Durrett walked into the next door pizza shop.
Durrett ordered some pizza and spoke to some friends and
as he walked out of the pizza shop Durrett could see into
the cleaner’s shop where he could see Bozeman in a
confrontation with a man behind the counter. He then saw
Bozeman step back and he then heard two gunshots and
saw Bozeman pointing a dark colored revolver at the man
behind the counter. He then saw Bozeman run out of the
cleaners. Frightened, Durrett ran back to his apartment.
Minutes later Bozeman also returned to the apartment.
Durrett confronted Bozeman and said, “Don’t you know you
killed a man?” Bozeman responded that, “He wouldn’t
cough up the money, so I took him out of here.” Bozeman
then threatened [Durrett] that he would be “taken care of”
if he talked about the shooting. [Durrett] was arrested and
charged with the robbery and murder in April of 1975 but
didn’t tell police about what he had witnessed until the day
of his inquest. The charges against him were then
dismissed.
At trial, Gregory Clark, who [] also knew Bozeman and
shared the apartment with Durrett, also testified that
Bozeman came to their apartment the morning of the
shooting and that there was discussion about selling
marijuana. He testified that they smoked some marijuana
together and then Bozeman and Durrett left the apartment.
While they were gone, another man, Gaylord Veney, arrived
at the apartment looking for Durrett. They talked until
Durrett returned to the apartment about 15 to 20 minutes
after Gaylord arrived. When he returned, Durrett looked
dazed. Bozeman returned minutes later and Durrett and
Bozeman went to Durrett’s bedroom. Shortly thereafter,
Clark went into Durrett’s bedroom with Durrett and
Bozeman at which point Bozeman stated that he “shot
someone.” Bozeman then stated that if there were any
repercussions from the conversation, “someone would get
hurt.”
Gaylord Veney, who also knew Bozeman, testified that
he was a guard on a cigarette truck and as part of his job
he wore a uniform and carried a gun. He testified that he
went to Durrett’s apartment on the day of the shooting but
Durrett was not there but Clark let him in and he was only
there for a few minutes when Durrett returned. He said that
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Durrett looked “depressed” but didn’t say what was wrong.
About five minutes later, Bozeman returned and Durrett and
Bozeman went to the kitchen, and Veney, while standing 10
to 15 feet away, heard Durrett say to Bozeman, “Do you
realize you killed a man?” Bozeman responded, “I asked
the guy for the money and he wouldn’t cough it up, so I took
him away from there.” Veney moved to another part of the
room but then turned and saw a dark blue steel revolver in
Bozeman’s hand. Bozeman then asked Veney if he had 2
extra bullets and Veney told him that he had to account for
all his bullets at work. Bozeman then opened the revolver
and dropped two empty shell casings into his hand. Veney
later heard Bozeman tell Durrett “that if anything about
what happened had got out, that he would be taken care
of.”
PCRA Court Opinion, 6/27/19, at 3-5 (citation omitted).
Based on the above facts, the jury convicted Bozeman of second-degree
murder on October 16, 1975. Three days later, the trial court sentenced him
to life in prison. Bozeman filed a direct appeal to our Supreme Court, which
was denied on January 28, 1977.
Thereafter, Bozeman began his quest for post-conviction relief. In
denying Bozeman’s seventh such attempt, we summarized the lengthy
procedural history, and discussed the claims he raised on appeal as follows:
By our count, Bozeman has filed a direct appeal, six prior
PCRA petitions, two prior federal habeas corpus petitions,
and one prior Mandamus action. None of these petitions has
provided Bozeman with any relief.
In this PCRA petition, Bozeman has argued that he was
never formally charged and therefore the trial court was
without jurisdiction to try him. Additionally, he claims to
have recently discovered proof that the only eyewitness
against him testified because of favorable treatment he
received. Finally, he claims that recent United Supreme
Court’s decision in Miller v. Alabama, 132 S.Ct. 2455(2012), mandates he be resentenced.
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The PCRA court determined Bozeman’s petition was
untimely and dismissed the petition without a hearing.
Commonwealth v. Bozeman, 96 A.3d 1085 (Pa. Super. 2014) (unpublished
memorandum) (footnote omitted).
Before addressing the substance of that appeal, this Court first
determined the timeliness of his seventh petition. After discussing the
applicable provisions of the PCRA, in conjunction with pertinent case law, we
determined that, because Bozeman failed to prove any exception to the
PCRA’s time bar, the PCRA court properly dismissed it as untimely. We first
determined that Bozeman’s jurisdiction claim did not invoke any of the
timeliness exceptions. See Bozeman, unpublished memorandum at 5. While
we recognized that in Bozeman’s second claim he attempted to raise a claim
of newly discovered evidence regarding Commonwealth witness, Thomas
Durrett, we found the claim to fail because Bozeman did not demonstrate due
diligence in discovering this evidence. Id. at 5-6. Finally, Bozeman’s Miller
v. Alabama argument failed because Bozeman admitted that he was not a
juvenile at the time he committed the murder. Id. at 7. On June 4, 2014,
our Supreme Court denied Bozeman’s petition for allowance of appeal.
Commonwealth v. Bozeman, 93 A.3d 461 (Pa. 2014).
On July 7, 2017, Bozeman filed the PCRA petition at issue, his eighth.
The PCRA court appointed counsel, and PCRA counsel filed a petition to
withdraw and a “no-merit” letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
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Super. 1988) (en banc). On December 17, 2018, the PCRA court issued
Pa.R.Crim.P. 907 notice of its intention to dismiss Bozeman’s PCRA petition as
untimely and permitted PCRA counsel to withdraw. Bozeman filed a response.
By order entered January 15, 2019, the PCRA court dismissed Bozeman’s
PCRA petition. This appeal followed. Both Bozeman and the PCRA court have
complied with Pa.R.A.P. 1925.
Bozeman’s statement of questions presented consists of seven
numbered paragraphs, some of which did not raise any issue. See Bozeman’s
Brief at 9-11. In essence, Bozeman raises the following two issues: 1) a claim
that the trial court lacked jurisdiction to try him because he was never given
notice of the crimes for which he was being held for trial; and 2) a claim of
newly-discovered evidence in the form of a recantation by Thomas Durrett.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the certified
record.” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).
Before addressing the merits of Bozeman’s issues, we again must first
determine whether Bozeman’s serial PCRA petition was untimely filed.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
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Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition
invoking one of these statutory exceptions must “be filed within 60 days of
the date the claim could have been presented.” See Hernandez, 79 A.3d
651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).2 Finally,
exceptions to the PCRA’s time bar must be pled in the petition, and may not
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1 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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), (ii), and (iii)
2 Our legislature recently amended this section of the PCRA to provide
petitioners one year to file a petition invoking a time-bar exception. See Act
of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to
Bozeman’s serial petition.
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be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues
not raised before the lower court are waived and cannot be raised for the first
time on appeal).
Here, as this Court noted in denying Bozeman’s seventh PCRA petition,
Bozeman’s serial petition was patently untimely:
The Pennsylvania Supreme Court denied Bozeman’s direct
appeal, without comment, on January 28, 1977.
Commonwealth v. Bozeman, 367 A.2d 1089 (Pa. 1977).
Therefore, Bozeman’s judgment of sentence became final
90 days thereafter, when the time allowance to file an
appeal to the United States Supreme Court expired. See
42 Pa.C.S. § 9545(b)(3); former U.S.Sup.Ct.R. 22. See
also Commonwealth v. Williamson, 21 A.3d 236, 241
(Pa. Super. 2011) (judgment of sentence becomes final 90
days [from] Pennsylvania Supreme Court final order, after
period for filing writ of certiorari with United States Supreme
Court expired). Therefore, on or about April 28, 1977,
Bozeman’s judgment of sentence became final.
Pursuant to statute 42 Pa.C.S. § 9545(b)(1), Bozeman
had one year from the date his judgment of sentence
became final to file his PCRA petition. See
[Commonwealth v. Taylor, 933 A.2d 1035 (Pa. Super.
2007)]. The instant petition was not filed until August 21,
2012. Facially, this petition is approximately 34 years too
late.
Bozeman, unpublished memorandum at 3-4 (footnote omitted).
For these same reasons, Bozeman’s eighth petition if facially untimely
by almost forty years, unless Bozeman has satisfied his burden of pleading
and proving that one of the enumerated exceptions applies. See Hernandez,
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We previously rejected Bozeman’s claim regarding jurisdiction to try him
because it did not invoke any of the timeliness exceptions. See supra. The
same applies to Bozeman’s first issue—therefore it is both meritless and
previously litigated under the PCRA. See generally, 42 Pa.C.S.A. § 9544(a).
Bozeman’s second issue involves the latest reiteration of his claim of
newly discovered evidence involving Commonwealth witness, Thomas Durrett.
In his seventh PCRA petition, Bozeman claimed that he had recently
discovered that “Durrett testified as the result of a deal with the
Commonwealth, a fact that was denied throughout the trial.” Bozeman,
unpublished memorandum at 5. As noted above, we determined that
Bozeman’s attempt to meet the PCRA’s time-bar exception failed because he
did not establish that he exercised due diligence in discovering this
information. See id. at 6-7.
In his eighth PCRA petition, Bozeman now asserts he recently learned
that Durrett recanted some of his trial testimony. According to Bozeman, this
“newly-discovered fact” entitles him to post-conviction relief in the form of a
new trial.
With this claim, Bozeman attempts to establish the PCRA’s timeliness
exception found at section 9545(b)(1)(ii).
The timeliness exception set forth in Section
9545(b)(1)(ii) requires a petitioner to demonstrate he did
not know the facts upon which he based his petition and
could not have learned of those facts earlier by the exercise
of due diligence. Due diligence demands that the petitioner
take reasonable steps to protect his own interests. A
petitioner must explain why he could not have learned the
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new fact(s) earlier with the exercise of due diligence. This
rule is strictly enforced. Additionally, the focus of this
exception is on the newly discovered facts, not on a newly
discovered or newly willing source for previously known
facts.
The timeliness exception set forth at Section
9545(b)(1)(ii) has often mistakenly been referred to as the
“after-discovered evidence” exception. This shorthand
reference was a misnomer, since the plain language of
subsection (b)(1)(ii) does not require the petitioner to allege
and prove a claim of “after-discovered evidence.” Rather,
an initial jurisdictional threshold, Section 9545(b)(1)(ii)
requires a petitioner to allege and prove that there were
facts unknown to him and that he exercised due diligence in
discovering those facts. Once jurisdiction is established, a
PCRA petitioner can present a substantive after-discovered
evidence claim.
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations
omitted).
In support of his claim, Bozeman attached a May 9, 2017 letter from
Zach Stern, a staff investigator for the Pennsylvania Innocence Project at
Temple University Beasley School of Law. Stern’s letter to Bozeman relayed
the following information he allegedly received in an interview with Durrett:
On Monday, May 1, 2017, I interviewed Thomas Durrett
at his home located at 7500 Upland St in Pittsburgh, PA. Mr.
Durrett told me on the day of the murder, he saw you walk
into Highland Cleaners as he was in the pizza shop across
the street. He did not see you touch anyone or threaten
anyone. He also denies you told him you planned to rob
Highland Cleaners. Durrett then saw other people walk into
the Cleaners as well. Very soon after, he heard gunshots.
He then looked at the Cleaners and saw you along with
many other people running out of the Cleaners. He said he
thought you may have been holding something as you ran
out, but you may not have been, and he honestly didn’t
know if you had a gun.
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After the shooting, Mr. Durrett denies ever having a
conversation with you where you confessed to the murder,
or threatened to get rid of anyone who would snitch on you.
He denied the possibility of Clark or Vesey [sic] being able
to overhear any conversation of the sort.
Unfortunately, by the end of the interview, Mr. Durrett
expressed a lot of anger towards you and stated that he did
not want to talk about this anymore. He then stormed off
and slammed the door, concluding the interview.
On Wednesday, May 3, 2017, I interviewed Gregory Clark
by telephone. I had left a card at his address, and he called
me back. Mr. Clark refused to discuss his memory of the
case, other than he recalls there being a robbery and a man
killed. He continually said he could not help you, but would
not explain why. I tried to get more information as to what
this unhelpful information was, but Clark refused to share.
I then finally concluded the interview.
Finally, on May 1, 2017, I spoke with Gaylord Vesey’s
[sic] ex-wife, who informed me of Mr. Vesey’s [sic] death in
January 2017.
See PCRA Petition, 7/17/17 at Exhibit # 3.
Here, the PCRA court did not hold an evidentiary hearing and did not
first conduct a timeliness analysis as Bozeman’s newly discovered evidence
claim. Rather, the PCRA court directly addressed Bozeman’s claim as an after-
discovered evidence claim and found it to be meritless. See Brown, supra.
We need not remand for this initial determination at this time because there
is no record evidence that Bozeman knew of Durrett’s alleged recantation
before he received the Zach Stern letter. In addition, Bozeman filed his eighth
PCRA petition within sixty days of receiving the letter. Thus, we review the
PCRA court’s determination that Bozeman cannot establish his claim of after
discovered evidence.
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To address this issue, we first note the test applied to after-discovered
evidence. When discussing the test in the context of a PCRA appeal, our
Supreme Court recently summarized:
[W]e have viewed this analysis in criminal cases as
comprising four distinct requirements, each of which, if
unproven by the petitioner, is fatal to the request for a new
trial. As stated, the four-part test requires the petitioner to
demonstrate the new evidence: (1) could not have been
obtained prior to the conclusion of 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. The test applies
with full force to claims arising under Section 9543(a)(2)(vi)
of the PCRA. In addition, we have held the proposed new
evidence must be producible and admissible.
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).
Here, the PCRA court first noted that the proffered evidence “must be
assessed in the context of all the evidence in the case. PCRA Court Opinion,
6/27/19, at 8 (citing Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009)).
The PCRA court than compared the statements Durrett allegedly made to
Bozeman’s staff investigator, Zach Stern, with Durrett’s testimony at trial.
The court then noted that, because the contents of the letter constituted, at
most, only a “partial recantation,” Bozeman could not establish the fourth
prong of the Small test—that the new evidence “would likely result in a
different verdict if a new trial were granted.” Small, supra. The PCRA court
explained:
Durrett’s statement, however, does not contradict other
important testimony from the trial and, in fact, confirms
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certain key facts that implicate Bozeman in the shooting.
There is no contradiction of the testimony that Bozeman and
Durrett wanted to get some money that morning and
planned on going to the high school to sell marijuana. On
the way to the high school, Durrett confirms that he went
into the pizza shop and Bozeman went to the cleaners. He
confirms Bozeman’s presence in the [cleaners] at the time
of the shooting and that [Bozeman] ran from the shop after
the shooting. The statement also confirms that [Bozeman]
was seen holding something as he ran from the [cleaners]
even if Durrett could not confirm that it was a gun. In
addition, portions of Durrett’s statement are directly
contradicted by other witnesses who testified at trial.
Gregory Clark and Gaylord Veney, both of whom testified at
trial, confirmed Bozeman’s statements admitting that he
shot the victim because he would not hand over money and
threatening them if anyone talked. In addition, Veney’s trial
testimony was that he saw Bozeman with a gun after the
shooting and that Bozeman removed two empty shell
casing[s] from the gun, which is consistent with the number
of times the victim was shot, remains uncontradicted.
***
Taking into consideration that record as a whole, the
statement of [Durrett] does not qualify as after discovered
evidence. Assuming that Durrett would have testified or
that his statements were otherwise admissible, the
variations in his testimony do not undermine the confidence
in the trial verdict. The verdict against [Bozeman] did not
rest solely on the testimony of Durrett and those portions of
his statement that varied from his trial testimony were
either not critical to the conviction or that testimony was
provided by other witnesses.
PCRA Court Opinion, 6/27/19, at 10-12.
Our review of the record supports the PCRA court’s conclusion that the
contents of the letter failed to meet the Small criteria, and, therefore, did not
warrant a new trial. In addition, we note that Bozeman’s claim also fails
because his proffered after-discovered evidence was not “producible and
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admissible.” Small, supra. Initially, we note that Stern’s summary of what
Durrett allegedly told him is clearly inadmissible hearsay. See
Commonwealth v. Yarris, 731 A.2d 581, 592 (Pa. 1999) (explaining and
after-discovered evidence claim “which rests exclusively upon inadmissible
hearsay is not of a type” that would warrant a new trial). 3 In addition, given
Stern’s description of how his interview with Durrett ended, there is every
indication that Durrett’s alleged recantation testimony would not be
“producible.” Small, supra.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2019
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3 In a footnote, the PCRA court acknowledged that, in his Turner/Finley
letter, PCRA counsel analyzed the admissibility of Durrett’s statement under
the hearsay rules. PCRA Court Opinion, at 11 n.2.
4Indeed, the PCRA court acknowledged PCRA counsel’s averment that Durrett
died on May 21, 2018.
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