Com. v. Nguyen, C.

J-S21027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER NGUYEN :
:
Appellant : No. 1203 MDA 2021
Appeal from the PCRA Order Entered August 30, 2021,
in the Court of Common Pleas of Berks County,
Criminal Division at No(s): CP-06-CR-0005541-2005.
BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JULY 26, 2022
Christopher Nguyen appeals from the order denying his third petition
filed pursuant to the Post Conviction Relief Act (“PCRA”) as untimely filed. 42
Pa.C.S.A. §§ 9541-46. We affirm.
In 2006, a jury convicted Nguyen of third-degree murder, conspiracy,
and related charges as a result of the death of Huey Pigford (“the victim”).
Previously this Court cited the trial court’s summary of the pertinent facts as
follows:
In the early morning hours of June 5, 2005, a group of
people gathered in the apartment of one Michelle Grubb (Grubb),
located at 710 North Second Street in Reading, Berks County,
Pennsylvania. [Nguyen] was among the six or seven males who
came to the apartment for a get-together. Within an hour of
everyone arriving, a bottle was dropped from the third[-]floor fire
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* Retired Senior Judge assigned to the Superior Court.
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escape outside of Ms. Grubb’s apartment. At that point, Ms.
Grubb’s neighbor, Huey Pigford (‘Big Man’) called her to come
downstairs. Big Man was standing by the alleyway with two other
men, Mikey and Jason, Grubb went down to speak to him and he
told her someone had dropped a bottle from her fire escape. Big
Man said ‘we need to get this cleaned up because kids play here.’
Grubb told Big Man she would take care of it and that she was
trying to get the guys to leave. When Grubb asked the men to
leave, they told her they were waiting for their ride. They left
within ten or fifteen minutes and she then locked the door. Within
a couple of minutes, Grubb heard a lot of gunshots fired.
On that weekend, Amy Incledon (Incledon) was staying with
Grubb in her apartment. Incledon saw [Nguyen] who she knew
as ‘Chris’ at the party. She also saw Dontrell Gonzalez in the
apartment; she testified that he had a gun in his pants. The men
were arguing whether to pick up the glass from the dropped beer
bottle. Incledon also heard the gunshots after the men left the
apartment.
Wendy Collado (Collado) lived next door to Big Man. On the
night in question, Collado and her children were sleeping when
she heard several gunshots and Latricia Diggs (Diggs) began
knocking on her window, telling her to call 911. Diggs asked for
the keys to [Collado’s] vehicle to transport Big Man to the hospital.
Collado saw Big Man at the bottom of the steps right in front of
her apartment. Big Man was standing there, holding his side.
Collado gave Diggs the keys and went back inside, locked her
doors and stayed in her living room. Collado never saw Big Man
nor Diggs with a gun and a subsequent search of her vehicle did
not produce one.
On the night in question, Rosalinda Cruz (Cruz) was walking
in the area of the 700 block of North Second Street in Reading,
with two other young women, her cousin and a friend, when they
stopped to talk to some males. Her [cousin] Nashieda was talking
to Andrew Gonzalez and Dontrell Gonzalez. Cruz testified that the
first car that came up to them had [Nguyen] in it. [Nguyen’s] car
was on the right side of Front Street. One Nelson Concepcion was
in one of the cars. The males told these girls that they were going
to a party and asked them to come along. Cruz said her friend
Erica liked [Nguyen], so they wound up going with them.
Cruz was in Grubb’s apartment when Nelson Concepcion
threw the beer bottle off of the fire escape. She heard yelling back
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and forth and her name being called, telling her and her friends to
‘get their butts outside.’ She went down on the side where Big
Man, Jason and Mike were standing. Her cousin offered to pick up
the broken pieces of glass but Big Man wouldn’t allow it. He
wanted Nelson to come [and] pick it up. Nelson then got on the
phone and made a call, saying, ‘Yo, we got problems. I need you
to come handle this.’
Within five minutes, Cruz saw [Nguyen] come around the
corner, and [Nguyen] asked, ‘Is there a problem?’ Big Man
replied, ‘I don’t know, is there a problem?’ Cruz saw [Nguyen] go
behind a van and she heard a sound like ‘cocking it back.’ Big
Man told the girls to run; Cruz said she started taking off and all
she heard was boom, boom, boom, shots being fired. She ended
up in-between two cars, kneeling down and screaming. She then
saw [Nguyen] come back out, running across the street towards
Big Man. She testified that [Nguyen] just stated shooting boom,
boom, boom, boom, boom. She didn’t know what type of gun it
was but she knew it was black. [Cruz] did not see Big Man with a
gun, Cruz said the gun in [Nguyen’s] hand was approximately
eight inches long. The record also showed that [Nguyen] was not
licensed to carry a firearm.
Dr. Barbara Bollinger performed the autopsy on the victim,
Big Man. She determined that the cause of death was a gunshot
wound to the chest.
Commonwealth v. Nguyen, 990 A.2d 50 (Pa. Super. 2009), non-
precedential memorandum at 1-3 (citations omitted).
Nguyen was tried before a jury along with Gonzalez’ brothers. Relevant
to the instant appeal, Matthew Branford testified that all three men are his
first cousins. He further testified that, in late June of 2005, they stayed with
him, and the police arrested all three of them at his residence. Branford also
testified that he met with a detective in the case about guns. According to
Branford he told the detective that “Dontrell has a .40 caliber, [Nguyen] has
a .32 and Andrew had a 9 millimeter.” N.T., 6/5/06, at 47.
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On cross-examination by trial counsel, Branford confirmed that he was
in jail at that time of trial. When asked what he had been promised for his
testimony, Branford responded, “Absolutely nothing.” Id. at 50. When
questioned further, he denied that he ever asked the detective if he could get
any “consideration” for his testimony. Id. at 51.
On June 8, 2006, the jury convicted Nguyen as noted above. On July
28, 2006, the trial court sentenced him to an aggregate term of twenty to
forty years of imprisonment. Nguyen appealed to this Court, and we affirmed
his judgment of sentence after determining that all his issues were waived.
See Commonwealth v. Nguyen, 931 A.2d 50 (Pa. Super. 2007).
Thereafter, Nguyen filed a PCRA petition, and, on January 16, 2009, the PCRA
court reinstated his appellate rights nunc pro tunc.
Nguyen filed an appeal to this Court in which he claimed that the
evidence was insufficient to support the jury’s determination that the
Commonwealth had disproved his claim of self-defense, as well as a challenge
to the weight of the evidence supporting his convictions. Finding no merit to
these claims, we affirmed his judgment of sentence on December 24, 2009.
See Nguyen, supra. Our Supreme Court denied Nguyen’s petition for
allowance of appeal on June 15, 2010. Commonwealth v. Nguyen, 996
A.2d 1068 (Pa. 2010). Nguyen did not seek further review.
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On May 11, 2011, Nguyen filed a pro se PCRA petition.1 Among the
issues raised therein, Nguyen claimed that trial counsel was ineffective for
failing to object to the false and perjured testimony of Branford during trial
and for failing to move for a mistrial. The PCRA court appointed counsel,
who, on April 18, 2012, filed a “no-merit” letter and petition to withdraw
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Thereafter, the PCRA court issued a Pa.R.A.P. 907 notice of its intent to
dismiss Nguyen’s without a hearing and granted counsel’s petition to
withdraw. After being granted several time extensions, Nguyen filed a
response. By order entered January 4, 2013, the PCRA court denied Nguyen’s
first PCRA petition.
Nguyen filed a timely appeal to this Court, which we later dismissed
because Nguyen failed to file a brief. On June 3, 2016, Nguyen filed a second
pro se PCRA petition. On January 10, 2017, Nguyen filed a motion to withdraw
this petition, which the PCRA court granted.
On March 16, 2020, Nguyen filed the pro se PCRA petition at issue, his
third. Turner, supra. The PCRA court twice denied Nguyen’s motions for the
appointment of counsel. The Commonwealth filed its response to Nguyen’s
petition on July 9, 2021. On July 20, 2021, the PCRA court issued a Pa.R.A.P.
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1 Because Nguyen’s direct appeal rights were reinstated nunc pro tunc as a
result of his first PCRA petition, this subsequent petition is considered his first
PCRA petition for timeliness purposes. Commonwealth v. Turner, 73 A.3d
1283, 1286 (Pa. Super. 2013).
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907 notice of its intent to dismiss Nguyen’s without a hearing. Nguyen filed
pro se responses. By order entered August 30, 2021, the PCRA court denied
Nguyen’s third petition as untimely. Nguyen timely appealed to this Court.
Both Nguyen and the PCRA court have complied with Pa.R.A.P. 1925.
Nguyen raises the following issues on appeal:
1. Whether the PCRA Court committed an error of law and
abused [its] discretion by concluding that Nguyen’s third pro
se PCRA petition was untimely and overlooked the fact that
he filed his petition within the one-year newly-discovered
fact exception under 42 Pa.C.S.A. § 9545(b)(1)(ii) and
(b)(2)?
2. Whether the PCRA Court committed an error of law and
abused its discretion by failing to find that the
Commonwealth violated [Brady v. Maryland, 373 U.S. 83(1963)], and its progeny, because the prosecutor failed to
disclose the existence of a deal given to Matthew Branford
in exchange for his testimony against Nguyen?
Nguyen’s Brief at 5 (italics added).2
In addressing his first issue, we consider the PCRA court’s conclusion
that Nguyen’s third PCRA petition was untimely filed, and that he failed to
establish a time-bar exception. The timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013). 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
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2 The Commonwealth did not file a brief. Thus, we deny Nguyen’s motion to
strike and/or preclude the Commonwealth’s untimely brief as moot.
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becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized constitutional
right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). Here, Miller was required to file his
PCRA petition invoking one of these statutory exceptions within 60 days of the
date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). In
addition, exceptions to the PCRA’s time bar must be pled in the petition and
may not 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). Moreover, a PCRA petitioner must file his petition
“within one year of date the claim could have been presented.” 42 Pa.C.S.A.
§ 9545(b)(2).
Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “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.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
Here, Nguyen’s judgment of sentence became final on September 13,
2010, ninety days after our Supreme Court denied his petition for allowance
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of appeal, and the time for filing a writ of certiorari to the United States
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Nguyen
had until September 13, 2011, to file a timely petition. Because Nguyen filed
his third PCRA petition in 2020, it is patently untimely unless he has satisfied
his burden of pleading and proving that one of the enumerated exceptions
applies. See Hernandez, supra.Nguyen failed to prove an exception to the PCRA’s time bar. In his pro
se petition, Nguyen asserted he could establish the newly discovered fact
exception.3 As this Court has previously summarized:
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
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,
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3 Although Nguyen also states in his PCRA petition that he was unaware that
the Commonwealth committed a Brady violation by failing to reveal its deal
with Branford, he does not argue the government-interference exception to
the PCRA’s time bar.
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as 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).
Here, Nguyen claims that he only recently learned from Branford that
Branford perjured himself at trial when he testified that he did not have a deal
with the Commonwealth. The PCRA court found no merit to this claim because
Nguyen could not establish due diligence regarding the alleged newly
discovered fact, i.e., that Branford actually made a deal with the
Commonwealth in return for his testimony against Nguyen. The court
explained:
[Nguyen] avers that he became aware of this information
on December 9, 2019 when he saw his cousin within the
department of corrections facility and that he filed his
petition promptly. However, this filing is more than thirteen
years after his trial. In light of the familial relationship with
[Branford], who is his cousin, even if there was no personal
contact between them since trial, there is no explanation
why [Nguyen] could not have learned the alleged “new”
facts earlier and the due diligence prong is not met.
Rule 907 Notice, 7/16/21, at 4 (unnumbered).
Our review of the record supports the PCRA court’s conclusion that
Nguyen did not plead and prove due diligence. Nguyen’s self-serving
statement that he had no contact with Branford “since 2006 after their fall out
when Branford testified against him” is insufficient, in and of itself, to warrant
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an evidentiary hearing. Nguyen’s Brief at 14. Although he states that
Branford made this confession to him in a recorded prison phone call, his
petition does not include a sworn affidavit from Branford. See Pa.R.Crim.P.
902(12)(b).
Finally, in his 2011 PCRA petition, Nguyen asserted that trial counsel
was ineffective for failing to object to Branford’s “false and perjured
testimony” and move for a mistrial. PCRA Court Opinion, 1/4/13, at 9.
Because Nguyen believed Branford perjured himself at trial in 2012, his
present claim does not present a new fact. The fact that Branford, seven
years later, has now confirmed Nguyen’s suspicions is of no moment. At best,
Branford’s admissions amount to no more than a “newly willing source of
previously known facts.” Commonwealth v. Ward-Green, 141 A.3d 527,
533 (Pa. Super. 2016). Such a source does not qualify as a fact unknown to
the petitioner. Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.
2015).
The PCRA court further found that, even if it had jurisdiction to consider
Nguyen substantive claim as after-discovered evidence, it would fail. A PCRA
petitioner is entitled to post-conviction relief if he can establish “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.” 42 Pa.C.S.A. § 9543(a)(2)(vi). When discussing the test
in the context of a PCRA appeal, our Supreme Court summarized:
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[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).
Credibility determinations are an integral part of determining whether a
PCRA petitioner has presented after-discovered evidence that would entitle
him to a new trial. See, e.g., Small, 189 A.3d at 978-79 (remanding for the
PCRA court to make relevant credibility determinations). We have stated,
prior to granting a new trial based on after-discovered evidence, “a court must
assess whether the alleged after-discovered evidence is of such a nature and
character that it would likely compel a different verdict if a new trial is
granted.” Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super.
2010). “In making this determination, a court should consider the integrity of
the alleged after-discovered evidence, the motive of those offering the
evidence, and the overall strength of the evidence supporting the conviction.”
Id.Here, the PCRA court found that Nguyen could not establish the four-
part test enumerated in Small because the “new” evidence would only be
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used for impeachment and, given the other testimony presented at trial,
Nguyen could not establish prejudice:
The information alleged to be provided by [Branford] that
is the basis for this PCRA filing is about an undisclosed ‘deal’
for his trial testimony, instructions to lie on the stand and
alleged coaching by the prosecution. All would be solely
impeachment testimony tending to show that his trial
testimony should not be believed. The mere possibility that
an item of (potentially) undisclosed information might have
helped the defense does not establish materiality or the
inference that the verdict would have been different.
[Nguyen] is not asserting any new facts about the
offense through this averred ‘new’ information testimony
that would tend to show that he is not guilty of the crime for
which he was convicted or that he suffered any prejudice.
The trial testimony of [Branford], who is the source of the
alleged “new” information, was that [Nguyen] had a .32
caliber firearm on his person on the night of the murder.
The fact that [Nguyen] was in possession of the murder
weapon was not contested nor was this fact obtained solely
from [Branford] as the sole witness. Other witnesses
similarly put the weapon in the hand of [Nguyen]. Further,
[Nguyen] himself admitted to shooting the victim but
contended that he did so in self-defense.
Rule 907 Notice, 7/16/21, at 5 (unnumbered). Thus, the PCRA court
concluded that Nguyen’s after-discovered evidence “[did] not constitute
exculpatory evidence that would have changed the outcome of the trial had
this information been introduced to the jury.” Id.Again, our review of the record supports the PCRA court’s conclusion.
Given the other evidence at trial detailed above, Branford’s brief testimony
about gun ownership would not have altered the jury’s verdict. Indeed, as
the jury found Nguyen guilty of conspiracy, he would still be guilty of third-
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degree murder, even if the evidence had revealed a different murder weapon.
See Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004)
(explaining that a conspirator is responsible for acts of co-conspirator done in
furtherance of their agreement).
In sum, the PCRA court correctly determined that Nguyen could not
meet the newly discovered fact exception to the PCRA’s time bar. As such,
we lack jurisdiction to address the merits of his second issue. Derrickson,
supra. We therefore affirm the PCRA court’s order denying Nguyen post-
conviction relief.
Motion to Strike denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/26/2022
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