Com. v. Davis, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SAWUD DAVIS :
:
Appellant : No. 705 MDA 2019
Appeal from the PCRA Order Entered March 21, 2019
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003752-2012
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 08, 2019
Sawud Davis appeals from the order entered in the Luzerne County
Court of Common Pleas denying his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely
following a hearing. Davis argues that his facially untimely PCRA petition was
entitled to review under the newly discovered fact exception to the PCRA’s
time-bar, 42 Pa.C.S.A. § 9545(b)(1)(ii). After our review of the parties’
arguments and the transcript of the PCRA hearing held on these issues, we
conclude that Davis is not entitled to relief.
On October 24, 2012, Davis was charged, as a principal or an
accomplice, with three counts of criminal homicide, one count of criminal
attempt to commit criminal homicide and four counts of robbery for his
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participation in a deadly shooting, which occurred on July 7, 2012. Davis was
sixteen at the time of the crimes, but was charged as an adult.
On December 20, 2013, the parties appeared for a status conference
regarding a petition to decertify the case. At the hearing, the parties advised
the court that a plea agreement had been reached in which Davis agreed to
withdraw his petition for decertification and instead would plead guilty to three
counts of third-degree murder and one count of robbery. The Commonwealth
agreed to withdraw the remaining charges. The parties further agreed to a
sentence of twenty to forty years’ incarceration on the murder charges and
five to ten years’ incarceration for robbery, all of which to run concurrently.
As part of the plea, Davis admitted to the factual basis put forth by the
Commonwealth. After conducting a colloquy, the court imposed the agreed
upon sentence. No post sentence motions or direct appeal was filed.
On June 6, 2014, Davis filed his first PCRA petition, which he
subsequently withdrew. On September 19, 2018, Davis filed another PCRA
petition, alleging he discovered exculpatory evidence that was not available
to him at the time of his guilty plea. Counsel was appointed, who filed a
supplemental PCRA petition on January 17, 2019.
Through his filing, Davis specifically recognized that the petition was
facially untimely, but asserted his claim met the newly discovered fact
exception, 42 Pa.C.S.A. § 9545(b)(1)(ii), to the PCRA’s time-bar.
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On February 25, 2019, a PCRA hearing was held. Defense counsel
presented testimony from Davis and Dashawn Armstrong, a new witness with
allegedly exculpatory evidence. Davis testified that he did not meet Armstrong
until August of 2018, and at that time learned of the “newly discovered facts.”
See N.T., PCRA Hearing, 2/25/2019, at 4. He further testified that he became
aware of Miller v. Alabama, 567 U.S. 460 (2012) (ruling imposition of
mandatory life without parole sentences on juvenile offenders is
unconstitutional), in August of 2018, when he received help in the law library
from a fellow inmate to prepare his PCRA petition based on the new
information from Armstrong. See id., at 5. Davis testified that he would not
have plead guilty if he had known the information from Armstrong at the time,
or if he knew he would not have been facing a sentence of life without parole.
See id., at 5-8. He testified repeatedly that his plea counsel, Attorney John
Pike, informed him numerous times that if he went to trial he could receive a
life without parole sentence. See id., at 6-8, 11.
Armstrong testified that on July 7, 2012, he went to Plymouth to rob
“two black guys” who were going to be in the area. See id., at 16. He was
waiting in his car when he saw one of the “two black guys” he was going to
rob come out of a house, who he identified as Davis. See id., at 17-18. He
was wondering where the other “guy was when he heard gunshots go off
inside the house, while Davis was still on the front porch”. See id., at 18.
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Attorney Pike testified for the Commonwealth. He indicated that by the
time he was appointed to represent Davis, there were already discussions
regarding a potential plea. See id., at 25. He therefore never discussed the
potential outcome of a trial because everyone was in agreement regarding the
plea, and in his experience the court typically accepted a plea agreement. See
id., at 27. Attorney Pike recollected that Davis plead guilty to save his brother
from a capital charge which would have entailed the death penalty. See id.,
at 25, and 29-30.
Ultimately, the court determined Davis failed to overcome the PCRA’s
time-bar. The court found that the testimony from Davis and Armstrong was
not credible and therefore did not prove an exception to the time-bar. Further,
the court found that Miller was part of the public record since June of 2012,
and therefore Davis could have known about it prior to August of 2018.
Because Davis did not prove the timeliness exception, the PCRA court denied
his petition as untimely. This timely appeal followed.
On appeal, Davis presented five issues for consideration:
1. The PCRA court committed error by dismissing PCRA petition
as untimely without the PCRA court first satisfying itself that
the court had jurisdiction to entertain the merits of the PCRA
petition.
2. The PCRA court committed error by denying PCRA petition on
newly-discovered evidence where the PCRA court’s credibility
determination is not supported by the record.
3. The PCRA court committed error by denying PCRA petition on
ineffective assistance of counsel for misadvising appellant
would receive life without parole sentence if he went to trial.
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4. PCRA counsel was ineffective for failing to subpoena to prove
appellant did not become aware of Miller v. Alabama until
August[] [2018], when appellant sought assistance in
preparing his PCRA petition.[1]
5. This case should be remanded to PCRA court for a second
evidentiary hearing to give appellant the opportunity to plead
and prove he did meet the exception of 42 Pa.C.S.A.
§9545(b)(1)(ii), (b)(2), since the PCRA court’s determinations
are not supported by the record.
Appellant’s Brief, at 2.
Our standard of review is well settled. “When reviewing the denial of a
PCRA petition, we must determine whether the PCRA court’s order is
supported by the record and free of legal error.” Commonwealth v. Smith,
181 A.3d 1168, 1174 (Pa. Super. 2018) (citation omitted). While we are
generally bound by a PCRA court’s credibility determinations, we apply a de
novo standard to our review of the court’s legal conclusions. See id.A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
The PCRA’s timeliness requirements are jurisdictional; therefore,
a court may not address the merits of the issues raised if the
petition was not timely filed. The timeliness requirements apply to
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1 Although we need not reach the merits of this issue due to our disposition of
this appeal, we note Davis did not preserve the claim for our review, having
not raised this claim regarding PCRA counsel in his PCRA petition. See
Commonwealth v. Ford, 44 A.3d 190, 1201 (Pa. Super. 2012) (“Claims of
PCRA counsel ineffectiveness cannot be raised for the first time after a notice
of appeal has been taken from the underlying PCRA matter.”)
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all PCRA petitions, regardless of the nature of the individual claims
raised therein. The PCRA squarely places upon the petitioner the
burden of proving an untimely petition fits within one of the three
exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal
citations and footnote omitted).
Davis does not dispute that his petition, filed over four years after his
judgment of sentence became final, is facially untimely.2 However, Davis
asserts his claim merits review because he pled, and proved, an exception to
the PCRA’s one-year time-bar in his PCRA petition.
The PCRA provides three exceptions to its time bar:
(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.
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2 Since Davis did not file a direct appeal, his judgment of sentence became
final on January 20, 2014, when his time for seeking direct review with this
Court expired. See 42 Pa.C.S.A. § 9545(b)(3)(judgment of sentence becomes
final “at the conclusion of direct review … or at the expiration of time for
seeking the review”).
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these
exceptions must file a petition within 60 days of the date the claim could have
first been presented. 42 Pa.C.S.A. § 9545(b)(2). Exceptions to the time-bar
must be pled in the petition, and may not be raised for the first time on appeal.
See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007).
Davis asserts he meets the requirements of 42 Pa.C.S.A. §
9545(b)(1)(ii), i.e., the newly discovered fact exception to the PCRA’s time-
bar. The newly discovered fact exception “has two components, which must
be alleged and proved. The petitioner must establish that: 1) the facts upon
which the claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. See Commonwealth v.
Bennett, 930 A.2d 1264, 1272 (Pa. 2007).
Due diligence requires the petitioner “take reasonable steps to protect
his own interests.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
Super. 2010) (citations omitted). However, it does not require “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. Shiloh, 170 A.3d
553, 558 (Pa. Super. 2017) (citation omitted). As such, “the due diligence
inquiry is fact-sensitive and dependent upon the circumstances presented.”
Id. (citation omitted). “A petitioner must explain why he could not have
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obtained the new fact(s) earlier with the exercise of due diligence.” Monaco,
at 1080.
First, Davis contends the new information he learned from Armstrong in
August of 2018 constitutes newly discovered facts for the purposes of section
9545(b)(1)(ii). Davis asserts it was error for the PCRA court to conclude he
did not meet the newly discovered fact exception since the court’s credibility
determinations are not supported by the record. Although he frames his issue
as a challenge to the court’s credibility determination, he specifically asks us
to conduct a de novo review of the PCRA court’s “legal conclusions” because
the court found he had five years to have a witness fabricate testimony where
no evidence of fabrication was presented. See Appellant’s Brief, at 7.
The court’s conclusion is accurately categorized as a credibility
determination rather than a legal determination. As such, we have previously
held that the PCRA court passes on witness credibility and its credibility
determinations should be provided great deference. See Commonwealth v.
Johnson, 966 A.2d 523, 539 (Pa. 2009)(citations omitted)(“one of the
primary reasons PCRA hearings are held in the first place is so credibility
determinations can be made; otherwise, issues of material fact could be
decided on pleadings and affidavits alone.”). The PCRA court was therefore in
the best position to determine the credibility of Armstrong as a witness and
we must defer to their determination that his testimony was not credible.
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Further, section 9545(b)(1)(ii) “requires petitioner to allege and prove
that there were ‘facts' that were ‘unknown’ to him” and that he could not have
ascertained those facts by the exercise of “due diligence.” See Bennett, at
1270–72. “The focus of the exception is on the newly discovered facts, not on
a newly discovered or newly willing source for previously known facts.”
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).
In Commonwealth v. Abu-Jamal, 941 A.2d 1263 (Pa. 2008), the
Pennsylvania Supreme Court held that an affidavit alleging perjury did not
bring a petitioner's claim of fabricated testimony within the scope of section
9545(b)(1)(ii) because the only “new” aspect of the claim was that a new
witness had come forward to testify regarding the previously raised claim. See
id., at 1267. Specifically, the Court held “[t]he fact appellant discovered yet
another conduit for the same claim of perjury does not transform his latest
source into evidence falling within the ambit of § 9545(b)(1)(ii).” Id., at 1269;
see also Commonwealth v. Johnson, 863 A.2d 423 (Pa. 2004) (Court
rejecting petitioner’s argument that a witness's subsequent admission of
alleged facts brought a claim within the scope of section 9545(b)(1)(ii) even
though the facts had been available to the petitioner beforehand).
Here, the actual “fact” for purposes of Section 9545(b)(1)(ii) is that
Davis was allegedly standing on the front porch when shots were fired. This is
not a “newly discovered fact.” It is clear that Davis would know where he was
when the shootings occurred, and could have brought this fact up before
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pleading guilty. Our review of the record shows no indication that Davis
attempted to bring this fact up sooner. The “fact” that Armstrong was willing
to testify to a previously known fact does not satisfy the newly discovered fact
exception to the PCRA’s time-bar.
Davis additionally contends he filed his petition within 60 days of the
date he discovered Miller, and therefore it was error for the trial court to
conclude he did not meet the newly discovered fact exception based on his
assertion that the holding in Miller constitutes newly discovered facts. Davis
specifically claims that he would not have pleaded guilty had he known that
he could not receive a life without parole sentence pursuant to Miller.
Initially, we note that decisional law does not amount to a new fact
under the newly discovered fact exception to the PCRA’s time bar. See
Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011) (“[S]ection
9545(b)(1)(ii) applies only if the petitioner has uncovered facts that could not
have been ascertained through due diligence, and judicial determinations are
not facts”). As a result, Davis’s attempt to shoehorn his claim based on Miller
into the newly discovered fact exception fails.
Under the circumstances, even if Miller constituted a newly discovered
fact, the PCRA court did not err or abuse its discretion in concluding that Davis
had not established its applicability.
At the PCRA hearing, guilty plea counsel testified that Davis agreed to
plead guilty in order to spare his co-defendant and brother, Sean James
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Hamilton, from the possibility of the death penalty. See N.T, PCRA Hearing
2/25/19, at 25, 29. Plea counsel further testified that Davis wanted the plea
agreement not for himself, but for the benefit of Hamilton. See id., at 29. The
trial court found plea counsel’s testimony credible. Therefore, the facts, as
found by the PCRA court, would not support a conclusion that Miller would
have changed Davis’s decision to plead guilty.
As the PCRA court properly concluded Davis’s PCRA petition was
untimely and does not fall under an exception to the PCRA time bar, we affirm
the PCRA court’s order dismissing the petition.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/08/2019
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