Com. v. Nelson, E.

J-S23020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERNEST JAMAL NELSON :
:
Appellant : No. 1142 WDA 2018
Appeal from the PCRA Order Entered July 16, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003618-2000,
CP-02-CR-0017102-1999
BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 03, 2020
Appellant Ernest Jamal Nelson appeals from the order denying his third
petition filed under the Post Conviction Relief Act1 (PCRA). Appellant’s counsel
has filed a petition to withdraw and a no-merit brief. We affirm and grant
counsel’s petition to withdraw.
We previously summarized the facts of this matter in Commonwealth
v. Nelson, 1220 WDA 2016 (Pa. Super. filed July 7, 2017) (unpublished
mem.). Briefly, Appellant was charged with voluntary manslaughter and
related offenses for his involvement in an April 1999 shooting. On October
25, 2000, following a jury trial, Appellant was sentenced to thirty-two to
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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seventy years’ incarceration. On direct appeal, this Court affirmed Appellant’s
judgment of sentence and the Pennsylvania Supreme Court denied review.
Thereafter,
[o]n August 23, 2003, [Appellant] filed his first, counseled PCRA
petition. That petition was denied on March 4, 2004, and after
this Court affirmed on appeal, our Supreme Court denied
[Appellant]’s subsequent petition for allowance of appeal.
On February 9, 2011, [Appellant] filed a second pro se PCRA
petition alleging the existence of newly-discovered exculpatory
evidence. The PCRA court appointed counsel, who filed an
amended PCRA petition on July 14, 2011. The PCRA court held a
hearing on October 25, 2011, where [Appellant] and a witness,
Alvin [Nix], testified that [Nix’s] deceased brother, Damion [Nix],
was responsible for the shooting for which Appellant had been
convicted. The PCRA court, determining that their testimony was
not credible, denied the petition on November 3, 2011.
Appellant filed a timely appeal from the denial of this second PCRA
petition, and this Court affirmed, concluding that the PCRA court’s
credibility determinations were supported by the record, and that
[Appellant] “failed to provide newly-discovered evidence because,
even if admissible, [Alvin] Nix’s testimony would not ‘likely compel
a different verdict.’” Notably, neither the PCRA court, nor this
Court, conducted any assessment of whether [Appellant]’s second
PCRA petition, asserting the after-discovered evidence of Alvin
Nix’s statement, met an exception to the PCRA’s one-year time-
bar . . . .
On September 10, 2015, [Appellant] filed a third, pro se PCRA
petition . . . . In that facially untimely petition, [Appellant]
maintained that he satisfied the ‘new fact’ exception to the PCRA’s
one-year time-bar. Specifically, [Appellant] asserted that he had
“received information” that an individual named Ronald Robinson
“was with Damion Nix[] when Damion shot Kevin Green.” See
PCRA Petition, 9/10/15, at 3. [Appellant] further averred that he
“sought to have this information either confirmed or denied [b]y
Ronald Robinson[,]” and after “[e]xploring all avenues,” he finally
received “in early September of 2015,” an affidavit from Robinson.
Id.
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Appellant attached Robinson’s signed affidavit (dated August 28,
2015) to his petition. Therein, Robinson stated that he and
Damion Nix had gone to Frankie’s Bar on the night of the shooting
and, once inside the bar, Robinson had given Nix one of two guns
that Robinson had secreted into the bar. See PCRA Petition,
9/10/15 (Sworn Affidavit of Ronald Robinson). Robinson stated
that he and Nix then proceeded to the dance floor, where they
saw Kevin Green and “[a]n argument immediately broke out
between [Green] and [Nix].” Id. Robinson claimed that he and
Nix “both pulled out our guns and started shooting.” Id. Robinson
explained that after the shooting, he and Nix fled out a back door
of the bar and “drove to the Rakin [sic] Bridge,” where Robinson
“threw both guns into the river.” Id.
On October 22, 2015, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss [Appellant]’s petition without a
hearing, stating only that his petition “is patently frivolous and
without support on the record . . . .” Rule 907 Notice, 10/22/15,
at 1. [Appellant] filed a pro se response, but on February 1, 2016,
the PCRA court issued an order dismissing his petition.
. . . . Appellant ultimately filed his notice of appeal within the time-
frame mandated by the PCRA court. It does not appear from the
record that the PCRA court directed Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.
However, on September 22, 2016, the PCRA court issued an
opinion, the entirety of which stated as follows:
[Appellant] has appealed this [c]ourt’s dismissal of his most
recent [PCRA] petition. This court has reviewed the petition
and finds that it is time-barred for the same reasons as
stated in the attached previous opinion dismissing a prior
PCRA.
To this opinion, the court attached its opinion from 2012, in which
it explained the basis for its denial of [Appellant’s] second PCRA
petition, as follows:
The sole issue on appeal is the allegation of an abuse of
discretion in denying the Petition. This [c]ourt, during the
evidentiary hearing, heard all of the testimony and observed
all of the witnesses and concluded that the testimony of
[Appellant], and witness Alvin [N]ix[,] was incredible. A
credibility determination adverse to [Appellant] requires
dismissal of the Petition and is not an abuse of discretion.
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Nelson, 1220 WDA 2016, at *2-4.
On appeal, this Court vacated the PCRA court’s order and remanded the
matter for the PCRA court to determine whether Appellant’s petition was
timely. See Nelson, 1220 WDA 2016, at *9-10. Thereafter,
[o]n March 22, 2018, the PCRA court held an evidentiary hearing.
See N.T. PCRA Hr’g, 3/22/18. Appellant testified that Alvin Nix
alluded to Ronald Robinson’s involvement in the shooting at some
point after his second PCRA petition, but never directly stated it.
Id. at 12-13. Appellant testified that he continued to research
who was at the bar on the night of the shooting. Id. He stated
that he “had a whiff” of Robinson’s involvement in 2015, which
prompted him to send a letter to Robinson. Id. at 15. Appellant
explained that in his letter, he asked Robinson if he was at the bar
on the night of the shooting. Id. He stated that Robinson
responded by sending back a signed affidavit implicating himself
in the shooting. Id. Appellant testified that the affidavit was
dated August 28, 2015, and he filed his third PCRA petition on
September 10, 2015. Id. at 11.
Appellant’s cousin, Devaughn Northcutt, testified that he received
a phone call from Appellant in August or September of 2015. Id.
at 5. At that time, Appellant instructed Northcutt to forward a
letter from Appellant to Northcutt’s cousin, Robinson, who was
incarcerated at another state facility. Id. Northcutt testified that
he received Appellant’s letter “maybe a day later” and
immediately forwarded it to Robinson without opening the
envelope. Id. He stated that he received a reply letter from
Robinson “maybe a week later.” Id. at 6. Northcutt stated that
he immediately mailed Robinson’s letter to Appellant without
opening the envelope. Id.
Appellant also called Robinson to testify on his behalf. However,
at the hearing, Robinson asserted his Fifth Amendment right
against self-incrimination and refused to testify. Id. at 18.
At the conclusion of the hearing, the PCRA court took the matter
under advisement and indicated that it would issue “an order
either dismissing the petition or an order granting [Appellant] a
new trial.” Id. at 27. On July 16, 2018, the PCRA court issued an
order denying Appellant’s petition. See PCRA Ct. Order, 7/16/18.
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The order stated that Appellant’s petition was “patently frivolous
and without support on the record.”[2] Id.
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2 Appellant filed the counseled notice of appeal on August 9, 2018. We note
that in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), which was
decided on June 1, 2018, the Pennsylvania Supreme Court announced a
prospective rule that “the proper practice under [Pa.R.A.P.] 341(a) is to file
separate appeals from an order that resolves issues arising on more than one
docket.” Walker, 185 A.3d at 977. In Commonwealth v. Creese, 216 A.3d
1142 (Pa. Super. 2019), this Court held that that a notice of appeal may only
contain one docket number and quashed appeals in which the appellant filed
four separate notices of appeal, each listing all four docket numbers.
However, in Commonwealth v. Stansbury, ___ A.3d ___, ___, 2019 WL
4197218, *2 (Pa. Super. Sept. 5, 2019), this Court recognized that the failure
to file separate notices of appeal may be excused where there was a
breakdown in the operation of the court. Stansbury, 2019 WL 4197218, at
*2. In Stansbury, the order being appealed contained multiple docket
numbers and advised the appellant “that he has thirty days from this day, to
file a written notice of appeal to the Superior Court. Said notice of appeal
must be filed with the Clerk of Courts of Philadelphia County-Criminal Division
. . . .” Id. (citation omitted) (emphasis in original). This Court concluded that
the failure to advise the appellant of the need to filed separate notices of
appeal constituted “a breakdown in court operations such that we may
overlook” any Walker defect. See Stansbury, 2019 WL 4197218, at *3
Instantly, the state of the record creates some confusion. Appellant’s
underlying PCRA petition bore two docket numbers, the above-captioned case,
in which Appellant was convicted of several counts of aggravated assault and
related offenses, and Docket No. 17102-1999, in which Appellant was found
guilty of voluntary manslaughter. All relevant proceedings on the petition
were docketed in both cases. However, the actual documents are only
contained in the record in Docket No. 17102-1999. The order denying
Appellant relief contained both trial court docket numbers and advised
Appellant that he had thirty days to file “an appeal” with this Court. Order,
7/16/18. Appellant filed a notice of appeal listing both docket numbers. Under
these circumstances, we decline to quash the appeal under Walker or
Creese. See Stansbury, 2019 WL 4197218 at *3. However, we have
amended the caption of this appeal to reflect that it properly lies from both
Docket Nos. 17102-1999 and 3618-2000.
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Commonwealth v. Nelson, 1142 WDA 2018 (Pa. Super. filed Aug. 9, 2019)
(unpublished mem.). On appeal, we once again vacated the PCRA court’s
order and remanded the matter for the PCRA court to determine whether
Appellant met the timeliness exception in Section 9545(b)(1)(ii).
On September 6, 2019, the PCRA court filed a supplemental Rule
1925(a) opinion stating that Appellant met the Section 9545(b)(1)(ii)
timeliness exception. However, the PCRA court explained that because
Appellant did not meet the test for after-discovered evidence, he was not
entitled to relief. See Trial Ct. Op., 9/6/19 at 6-11. On October 18, 2019,
counsel filed a petition to withdraw and a no-merit brief. Appellant has not
filed a pro se response or a counseled brief with new counsel.
Before we address the issues identified by counsel, we must first address
whether counsel has fulfilled the procedural requirements for withdrawing his
representation. See Commonwealth v. Muzzy, 141 A.3d 509, 510 (Pa.
Super. 2016) (stating that before “addressing the merits of the appeal, we
must review counsel’s compliance with the procedural requirements for
withdrawing as counsel”) (citation omitted). Initially, we note that counsel
has filed a no-merit brief and a separate petition to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). Where counsel seeks to withdraw on
appeal from the denial of PCRA relief, a Turner/Finley “no-merit letter” is the
appropriate filing. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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However, “[b]ecause an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n. 2 (Pa. Super.
2011). Therefore, we proceed to analyze whether counsel has substantially
complied with the dictates of Turner/Finley. See also Muzzy, 141 A.3d
510.
Counsel’s no-merit brief identifies the following issue:
Did the [PCRA] court err in denying relief under the [PCRA] on the
grounds that the conviction resulted from the unavailability at the
time of the trial of exculpatory evidence, which has subsequently
become available and would have changed the outcome of the
trial if it had been introduced, pursuant to 42 Pa.C.S. §
9543(a)(2)(vi)?
Anders/Santiago Brief at 9 (full capitalization omitted).
As we have explained,
[c]ounsel petitioning to withdraw from PCRA representation . . .
must review the case zealously. . . . [C]ounsel must then submit
a “no-merit” letter to the [PCRA] court, or brief on appeal to this
Court, detailing the nature and extent of counsel’s diligent review
of the case, listing the issues which petitioner wants to have
reviewed, explaining why and how those issues lack merit, and
requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.
Where counsel submits a petition and no-merit letter that .
. . satisfy the technical demands of Turner/Finley, the
court—[PCRA] court or this Court—must then conduct its
own review of the merits of the case. If the court agrees
with counsel that the claims are without merit, the court will
permit counsel to withdraw and deny relief.
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Muzzy, 141 A.3d 510-11 (citation omitted).
Here, counsel’s petition to withdraw and brief to this Court detail his
diligent review of the case and includes the issue that Appellant wishes to
present. Counsel sets forth reasons why the issue lacks merit and requests
permission to withdraw. Additionally, counsel has provided Appellant with a
copy of the no-merit brief and his application to withdraw, and advised
Appellant of his right to proceed pro se or with privately retained counsel in
this appeal. See Widgins, 29 A.3d at 818. Accordingly, we will permit
counsel to withdraw if, after our review, we conclude that the issues relevant
to this appeal lack merit.
Counsel identifies Appellant’s after-discovered evidence claim, which is
based on the information in Robinson’s signed affidavit. Anders/Santiago
Brief at 19. Counsel states that Appellant successfully established the first
three prongs of the test. Id. at 22-25. However, counsel notes that Appellant
failed to meet the fourth prong, “as he did not demonstrate that the evidence
would likely result in a different result if a new trial were granted.” Id. at 18.
Specifically, counsel explains that at the PCRA hearing, Robinson invoked his
Fifth Amendment rights and refused to authenticate the affidavit. Id. at 25.
Counsel notes that “[b]ecause [Robinson’s] [a]ffidavit is incapable of
authentication, it would not be admissible at a subsequent trial. As such,
[Appellant] cannot demonstrate that the proposed new evidence could result
in acquittal if a new trial were granted.” Id. at 26.
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Our standard of review for the dismissal of a PCRA petition is limited to
“whether the record supports the PCRA court’s determination and whether the
PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90
A.3d 1, 4 (Pa. Super. 2014) (citation omitted). We grant great deference to
the PCRA court’s factual findings and we will not disturb them unless there is
no support in the record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014). Further, we are “not bound by the rationale of the trial court,
and may affirm on any basis.” Commonwealth v. Doty, 48 A.3d 451, 456
(Pa. Super. 2012) (citation and quotation marks omitted).
It is well settled that “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)
(citation omitted). A PCRA petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final.” 42
Pa.C.S. § 9545(b)(1). A judgment is final “at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3). Courts may consider a PCRA petition
filed more than one year after a judgment of sentence becomes final only if
the petitioner pleads and proves one of the three statutory exceptions set
forth in 9545(b)(1)(i)-(iii). Moreover, a petitioner must file his petition within
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sixty days of the date the claim could have been presented. See 42 Pa.C.S.
§ 9545(b)(2) (subsequently amended eff. Dec. 24, 2018).3
To successfully raise the newly discovered fact exception under section
9545(b)(1)(ii), a petitioner must only establish that: (1) “the facts upon which
the claim was predicated were unknown” and (2) the facts “could not have
been ascertained by the exercise of due diligence.” 42 Pa.C.S. §
9545(b)(1)(ii).
Once a petitioner has established the newly discovered fact exception,
he must satisfy the four-part test for after-discovered evidence. Specifically,
he must establish that the evidence
(1) could not have been obtained prior to the conclusion of the
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.
Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008) (citation omitted).
Our Supreme Court has noted that each of these elements, “if unproven by
the petitioner, is fatal to the request for a new trial.” Commonwealth v.
Small, 189 A.3d 961, 972 (Pa. 2018).
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3Section 9545(b)(2) was amended on October 24, 2018, effective December
24, 2018, extending the time for filing from sixty days of the date the claim
could have been first presented to one year. The amendment applies to claims
arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L.
894, No. 146, § 3.
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In determining whether the evidence would compel a different verdict,
“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.” Commonwealth v. Padillas, 997 A.2d
356, 365 (Pa. Super. 2010) (citation omitted). Additionally, “the proposed
new evidence must be producible and admissible.” Small, 189 A.3d at 972;
see also Pa.R.E. 901(a) (stating that “to satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is”).
Here, the PCRA court concluded that Appellant’s petition was timely
based on the newly discovered fact exception.4 However, with respect to the
after-discovered evidence test, the PCRA court explained:
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4 Although the PCRA court determined Appellant’s petition was timely filed,
the court again appears to have improperly conflated the test for a substantive
after-discovered evidence claim with the requirements for the newly
discovered facts exception to the PCRA time bar. See PCRA Ct. Op. at 8
(stating that because Appellant “did not retain a close relationship with
Robinson, he could not have obtained Robinson’s affidavit, through reasonable
diligence, until after his trial”) (emphasis added). Moreover, we add that
the new one-year time for filing a PCRA petition did not apply to the instant
petition. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3.
Nonetheless, the PCRA court credited Appellant’s testimony that (1) the
information contained in Robinson’s affidavit was unknown to Appellant until
2015; and (2) Appellant did not have a close relationship with Robinson and
did not know he was present at the shooting until 2015. See id. at 7-8.
Therefore, we agree with the PCRA court’s conclusion, and add that there was
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Robinson’s affidavit states that he and the now deceased Damion
Nix were the shooters on April 7, 1999, and it was Damion Nix
that killed Green, not [Appellant]. At the [PCRA] evidentiary
hearing, however, Robinson, through counsel, chose to avail
himself of his Fifth Amendment Rights due to the contents of the
affidavit implicating him in criminal activities. Being that Robinson
did not testify to the contents of the affidavit nor confirm that he
wrote and signed the affidavit[, it] calls into question both the
integrity and strength of the information contained within the
affidavit. As previously stated, Robinson is [Appellant]’s cousin.
This familial relationship, despite [Appellant] maintaining that the
two were not close, further calls into question the integrity and
motive of presenting the affidavit.
Id.
Based on our review of the record, we agree with the PCRA court that
Appellant failed to prove his after-discovered evidence claim. See Lawson,
90 A.3d at 4. As noted by the PCRA court, Robinson refused to authenticate
his signature or acknowledge the contents of the affidavit at the PCRA hearing.
Because Appellant did not present any other evidence to authenticate the
affidavit, it would be inadmissible at a new trial. See Pa.R.E. 901(a).
Therefore, Appellant’s claim fails. See Small, 189 A.3d at 972.
Based on our independent review of the record, we agree with counsel
that the claim Appellant intended to raise on appeal is meritless. See Muzzy,
141 A.3d at 511.
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no basis to conclude that Appellant could have learned of Robinson’s testimony
earlier by the exercise of due diligence. Moreover, because the PCRA court
credited Appellant’s testimony that he discovered the new facts in August of
2015, we are satisfied that his instant petition, dated September 10, 2015,
was filed within sixty days of that discovery. See 42 Pa.C.S. § 9545(b)(1)(ii).
Therefore, we will not disturb the PCRA court’s conclusion that Appellant
satisfied the newly discovered fact exception. See Doty, 48 A.3d at 456.
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Order affirmed. Application to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2020
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