Com. v. Slowe, T.

J-S39041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE SLOWE :
:
Appellant : No. 3 EDA 2019
Appeal from the Order Entered November 30, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002955-2008
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 19, 2019
Appellant Tyrone Slowe appeals from the order of the Court of Common
Pleas of Delaware County denying his pro se petition pursuant to the Post
Conviction Relief Act (PCRA),1 his petition for post-conviction DNA testing, and
his petition for discovery materials. We affirm.
Appellant was charged in connection with the April 16, 2008 murders of
Tyrone Nelson and Jimmy Strong in Upper Darby. On February 18, 2009,
Appellant entered a nolo contendere plea to two counts of third-degree murder
and one count of persons not to possess a firearm. Thereafter, Appellant was
sentenced to an aggregate term of seventeen to thirty-four years’
incarceration. Appellant filed a post-sentence motion to withdraw his plea,
which the lower court denied. On March 3, 2010, this Court affirmed the
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1 42 Pa.C.S.A. §§ 9541-9546.
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* Former Justice specially assigned to the Superior Court.
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judgment of sentence and on September 16, 2010, our Supreme Court denied
Appellant’s petition for allowance of appeal.
On December 22, 2010, Appellant filed his first PCRA petition. The PCRA
court subsequently appointed counsel, who filed a petition to withdraw along
with a no-merit letter. The PCRA court issued notice of its intent to dismiss
the petition without a hearing pursuant to Pa.R.Crim.P. 907. On May 18,
2011, the PCRA court dismissed the petition.
On June 24, 2014, this Court affirmed the PCRA court’s order dismissing
Appellant’s petition. The panel noted that Appellant wished to raise certain
claims of ineffectiveness of counsel for the first time on appeal in a
supplemental brief; however, this Court determined that Appellant could only
raise the ineffectiveness claims in a new PCRA petition that met the PCRA
timeliness requirements. On July 16, 2014, Appellant filed a petition for
allowance of appeal in the Supreme Court at 506 MAL 2014.
Just two days later, while Appellant’s appeal related to his first PCRA
petition was pending in the Supreme Court, Appellant filed the instant PCRA
petition on July 18, 2014, which the PCRA court held in abeyance during the
pendency of Appellant’s appeal of his first petition. On November 18, 2014,
our Supreme Court denied Appellant’s petition for allowance of appeal.
On May 26, 2015, Appellant filed a pro se motion for DNA testing. On
December 27, 2016, Appellant attempted to file an amended PCRA petition.
On May 3, 2017, Appellant filed a “Motion for Updated Discovery Materials.”
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On September 14, 2018, the PCRA court issued Rule 907 notice of its
intent to dismiss the petition. On November 30, 2018, the PCRA court
dismissed Appellant’s second PCRA petition (filed on July 18, 2014), his
amended PCRA petition (filed on December 27, 2016), his motion for DNA
testing, and his motion for request updated discovery materials. Appellant
filed this appeal and complied with the PCRA court’s direction to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
I. Whether PCRA Court erred by ruling Appellant’s second
PCRA Petition was untimely based upon the date the
evidence was discovered?
II. Whether Lower Court erred or abused its discretion by not
being in compliance with Reeves v. Fayette, 897 F.3d 154(3rd Cir. 2018), when Appellant asserted ineffective
assistance claims based on Trial and PCRA Counsel’s failure
to present or discover evidence that was exculpatory in
nature, to overcome time bar pursuant to Schlup v. Delo,
513 U.S. 298 (1995)?
III. Whether PCRA Court erred as a matter of law pursuant to
Rule 907 Notice to Dismiss, by failing to give notice
pertaining to second PCRA Petition as untimely filed,
violated Due Process?
IV. Whether PCRA Court committed legal error by failing to
issue Notice of Intent to Dismiss second PCRA Petition and
Motion for Updated Discovery Materials, therefore denying
Appellant procedural due process by not affording him a
right to file written objections to dismissal?
V. Whether Trial Court erred when holding Trial and PCRA
Counsels were not ineffective for failing to investigate eight
(8) eyewitnesses, was irrelevant to prove Appellant’s
innocence?
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VI. Whether Counsel’s failure to seek suppression of unduly
suggestive photo identification was irrelevant?
VII. Whether PCRA Court erred when it concluded
Commonwealth Brady violation claims were irrelevant?
VIII. Whether PCRA Court erred as a matter of law or its
conclusion was contrary to 42 Pa.C.S. § 9543.1 as amended,
when denying Post Conviction DNA testing?
Appellant’s Brief, at 5 (renumbered for ease of review).
Our standard of review is as follows:
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. Generally, we are bound by a PCRA court's
credibility determinations. However, with regard to a court's legal
conclusions, we apply a de novo standard.
Commonwealth v. Johnson, 635 Pa. 665, 139 A.3d 1257, 1272 (2016)
(quotation marks and quotations omitted).
As an initial matter, we note that Appellant filed his second PCRA petition
on July 18, 2018, while his appeal of this Court’s dismissal of his first PCRA
petition was still pending in our Supreme Court. These circumstances have
been addressed before by our prior precedent:
Preliminarily, Pennsylvania law makes clear the trial court has no
jurisdiction to consider a subsequent PCRA petition while an
appeal from the denial of the petitioner's prior PCRA petition in
the same case is still pending on appeal. Commonwealth v.
Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000). See also
Commonwealth v. Montgomery, 181 A.3d 359, 364 (Pa.Super.
2018) (en banc ), appeal denied, ––– Pa. ––––, 190 A.3d 1134(2018) (reaffirming that Lark precludes consideration of
subsequent PCRA petition while appeal of prior PCRA petition is
still pending). A petitioner must choose either to appeal from the
order denying his prior PCRA petition or to file a new PCRA
petition; the petitioner cannot do both, i.e., file an appeal and also
file a PCRA petition, because “prevailing law requires that the
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subsequent petition must give way to a pending appeal from the
order denying a prior petition.” Commonwealth v. Zeigler, 148
A.3d 849, 852 (Pa.Super. 2016). In other words, a petitioner who
files an appeal from an order denying his prior PCRA petition must
withdraw the appeal before he can pursue a subsequent PCRA
petition. Id. If the petitioner pursues the pending appeal, then the
PCRA court is required under Lark to dismiss any subsequent
PCRA petitions filed while that appeal is pending. Lark, supra.Pennsylvania law also states unequivocally that no court has
jurisdiction to place serial petitions in repose pending the outcome
of an appeal in the same case. Id. See also Commonwealth v.
Porter, 613 Pa. 510, 523, 35 A.3d 4, 12 (2012) (stating that
holding serial petitions in abeyance pending appeal in same case
perverts PCRA timeliness requirements and invites unwarranted
delay in resolving cases, as well as strategic litigation abuses).
Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super. 2019).
As noted above, Appellant timely filed his first PCRA petition on
December 22, 2010. Thereafter, the PCRA court granted appointed counsel’s
petition to withdraw and issued notice of its intent to dismiss the petition. On
May 18, 2011, the PCRA court dismissed the petition, and on June 24, 2014,
this Court affirmed the PCRA court’s order dismissing Appellant’s petition. On
July 16, 2014, Appellant chose to file a petition for allowance of appeal in the
Supreme Court.
Thereafter, Appellant also filed a second PCRA petition on July 18, 2014,
while his appeal related to his first PCRA petition was pending in the Supreme
Court. Pursuant to Lark, Appellant was not permitted to pursue both an
appeal of the denial of his first PCRA petition and the filing of a new PCRA
petition in the lower court. As such, the PCRA court should have dismissed
the July 18, 2014 petition that was filed during the pendency of his appeal to
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the Supreme Court; the lower court had no jurisdiction to hold this petition in
abeyance pending the outcome of the appeal. See Lark, supra.To the extent that Appellant suggests this Court should review the denial
of his “amended” PCRA petition filed on December 27, 2016, we agree with
the PCRA court’s finding that this petition was untimely filed. It is well-
established that “the PCRA's timeliness requirements are jurisdictional in
nature and must be strictly construed; courts may not address the merits of
the issues raised in a petition if it is not timely filed.” Commonwealth v.
Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011) (citations omitted).
Generally, a PCRA petition “including a second or subsequent petition, shall
be filed within one year of the date the judgment of sentence becomes final.”
42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the review.
42 Pa.C.S.A. § 9545(b)(3).
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of the three exceptions
enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the
petitioner’s inability to raise a claim as a result of governmental interference;
(2) the discovery of previously unknown facts or evidence that would have
supported a claim; or (3) a newly-recognized constitutional right that has been
held to apply retroactively by the Supreme Court of the United States or the
Supreme Court of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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As noted above, Appellant entered a nolo contendere plea on February
18, 2009, this Court affirmed the judgment of sentence on March 3, 2010,
and the Supreme Court denied Appellant’s petition for allowance of appeal on
September 16, 2010. Appellant did not seek further review in the Supreme
Court of the United States. As a result, Appellant’s judgment of sentence
became final on December 15, 2010, after the expiration of the ninety-day
period in which he was allowed to seek review in the U.S. Supreme Court.
See U.S. Sup.Ct. R. 13. As such, Appellant needed to file his PCRA petition
by December 15, 2011. Thus, Appellant’s petition filed on December 27, 2016
is facially untimely.
Moreover, Appellant failed to plead and prove that any of the exceptions
set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies in this case. While
Appellant formulates multiple arguments to suggest that he is entitled to a
remand based on “exculpatory” evidence, his assertions are completely
undeveloped as he does not identify this alleged evidence, provide any detail
as to when such evidence was discovered, or explain why such information
could not have been obtained earlier. As such, Appellant has not shown that
he is entitled relief from the PCRA timeliness requirements.
We note that Appellant also claims the PCRA court did not give proper
notice of its intent to dismiss his petition without a hearing pursuant to Rule
907. While Appellant acknowledges that the PCRA court did file notice of its
intent to dismiss his petition and outlined the procedure for Appellant to
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respond to the notice, Appellant claims he was denied due process as the
notice did not state Appellant’s petition was being dismissed as untimely filed.
Regardless of the merits of Appellant’s challenge to the adequacy of the
PCRA court’s notice pursuant to Rule 907, we need not review this claim
further as Appellant has failed to plead and prove the applicability of one of
the timeliness exceptions as forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013) (quoting
Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 917 n. 7 (2000)
(finding that the absence of Rule 907 notice does not automatically warrant
reversal, when the PCRA petition is facially untimely and one of the timeliness
exceptions does not apply)). Accordingly, we conclude that the PCRA court
did not err in dismissing Appellant’s petition.
Appellant also claims that the PCRA court erred in denying his motion
pursuant to Section 9543.1 of the PCRA statute, which allows petitioners to
seek forensic DNA testing. We may proceed to review this claim as “the
PCRA's one-year time bar does not apply to motions for the performance of
forensic DNA testing under Section 9543.1.” Commonwealth v. Walsh, 125
A.3d 1248, 1252 (Pa.Super. 2015) (quoting Commonwealth v. Brooks, 875
A.2d 1141, 1146 (Pa.Super. 2005) (emphasis in original)).
Motions for post-conviction DNA tests, while considered post-conviction
petitions under the PCRA, are “clearly separate and distinct from claims
pursuant to other sections of the PCRA.” Commonwealth v. Perry, 959 A.2d
932, 938 (Pa.Super. 2008) (quoting Commonwealth v. Williams, 909 A.2d
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383, 384 n. 1 (Pa.Super. 2006)). A successful request for post-conviction
DNA testing pursuant to Section 9543.1 “allows … a convicted individual to
first obtain DNA testing which could then be used within a PCRA petition to
establish new facts in order to satisfy the requirements of an exception under
42 Pa.C.S.A. § 9545(b)(2).” Commonwealth v. Gacobano, 65 A.3d 416,
419 (Pa.Super. 2013).
To obtain post-conviction DNA testing under Section 9543.1, an
individual must present a prima facie case demonstrating that the:
(i) identity of or the participation in the crime by the perpetrator
was at issue in the proceedings that resulted in applicant's
conviction and sentencing; and
(ii) DNA testing of the specific evidence, assuming exculpatory
results, would establish:
(A) the applicant's actual innocence of the offense for which
the applicant was convicted[.]
42 Pa.C.S.A. § 9543.1(c)(3)(i)-(ii)(A).2
Moreover,
If the evidence was discovered prior to the applicant's conviction,
the evidence shall not have been subject to the DNA testing
requested because the technology for testing was not in existence
at the time of the trial or the applicant's counsel did not seek
testing at the time of the trial in a case where a verdict was
rendered on or before January 1, 1995, or the applicant's counsel
sought funds from the court to pay for the testing because his
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2 We note that our Legislature amended Section 9543.1 on October 24, 2018.
As the amended language did not become effective until December 23, 2018,
we will review Appellant’s challenge to the PCRA court’s November 30, 2018
ruling pursuant to the prior version of the statute.
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client was indigent and the court refused the request despite the
client's indigency.
42 Pa.C.S. § 9543.1(a)(2). In other words, a petitioner “does not meet the
requirements of § 9543.1(a)(2) [if] the technology existed at the time of his
trial, the verdict was rendered after January 1, 1995, and the court never
refused funds for the testing.” Commonwealth v. Williams, 587 Pa. 304,
310, 899 A.2d 1060, 1063 (2006).
In his motion, Appellant asked for DNA testing to be performed on pieces
of evidence recovered by police during their initial investigation of the crime
scene where two men were murdered on April 16, 2008. The DNA testing that
Appellant requests in the instant motion was available to Appellant when he
entered his plea agreement on February 18, 2009 and the court did not refuse
funds for testing. See 42 Pa.C.S.A. § 9543.1(a)(2); Commonwealth v. B.
Williams, 35 A.3d 44, 51 (Pa.Super. 2011) (upholding the denial of the
request for DNA testing as DNA testing was available at the time of the
appellant’s trial, he was convicted after January 1, 1995, and the trial court
did not refuse funds for testing); Commonwealth v. Perry, 959 A.2d 932,
938 (Pa.Super. 2008) (same). As such, the PCRA court properly concluded
that Appellant had not met the threshold requirements for DNA testing under
Section 9543.1(a)(2). See Order, 11/30/18, at 13.
Moreover, Appellant does not provide argument or analysis to challenge
the PCRA court’s finding that he failed to plead a prima facie case that
exculpatory evidence would establish his actual innocence as required by
Section 9543.1(c)(3). Even if we assume that Appellant’s DNA was absent
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from pieces of evidence obtained from the crime scene, Appellant has made
no attempt to show how DNA testing would establish his actual innocence. In
addition to the fact that a witness came forward to testify that Appellant
admitted to the murders, Appellant confessed to his investigator in a recorded
phone call from prison that he was present at the scene of the murders;
Appellant was repeatedly cautioned that this conversation was being recorded.
As a result, we conclude that the PCRA court did not err in denying Appellant’s
request for post-conviction DNA testing under Section 9543.1.
For the foregoing reasons, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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