Com. v. Leach, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBIN LEACH :
:
Appellant : No. 3589 EDA 2019
Appeal from the Order Entered October 29, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0002066-2012.
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: JANUARY 29, 2021
Robin Leach appeals pro se from the order that denied as untimely her
latest petition filed pursuant to the Post Conviction Relief Act (PCRA). 42
Pa.C.S.A. §§ 9541-46. We affirm.
Previously, this Court has summarized the pertinent facts as follows:
In or around 2000, Yolanda Harper (“Harper”) and
Steven Shipley (“Shipley”) began a romantic relationship.
In November 2010, Harper learned that Shipley was also in
a romantic relationship with [Leach]. Thereafter, [Leach]
began sending Harper threatening and harassing messages
via a variety of electronic platforms. In those messages,
[Leach] demanded that Harper terminate her relationship
with Shipley. Beginning in August 2011, [Leach] began
harassing Harper on a daily basis, including sitting in her
vehicle outside of Harper’s residence.
On November 25, 2011, Harper observed [Leach] sitting
in her vehicle outside of Harper’s residence. When Harper
complained to Shipley, he requested that Harper meet him
at his place of employment. Harper and her daughter,
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Vashti Wilks (“Wilks”), then traveled to [Shipley’s] place of
employment. [Leach], along with several other individuals,
followed Harper to Shipley’s place of employment. Shipley
got into Harper’s vehicle and they, along with Wilks, drove
away. [Leach] followed them in her vehicle. When Harper,
Shipley, and Wilks stopped at a gas station, [Leach] and the
other occupants of her vehicle exited the vehicle and began
harassing Harper, Shipley, and Wilks. [Leach] urged her
daughter, one the occupants of her vehicle, to physically
assault Wilks.
Harper, Shipley, and Wilks began driving to the nearest
police station. When they were one block from the police
station, [Leach’s] vehicle and several other vehicles
surrounded Harper’s vehicle. [Leach] exited her vehicle and
told Shipley, who was sitting in Harper’s passenger seat,
that she had ten more vehicles coming and that Harper was
going to be murdered that evening. Eventually, Harper
made it to the police station. Unfortunately, police declined
to file charges and instead instructed Harper to file a private
criminal complaint.
When Harper arrived back at her residence there were
several vehicles located in front of her home. When Shipley
exited Harper’s vehicle, Tyrone McDuffie (“McDuffie”) fired
a single shot which struck Shipley in the chest. Harper
rushed Shipley to the hospital. McDuffie and [Leach] were
arrested for attempting to murder Shipley. While [Leach]
was free on $200,000.00 bond, she continued to harass
Harper.
Commonwealth v. Leach, 160 A.3d 243 (Pa. Super. 2017), unpublished
memorandum at 1-3.
The Commonwealth charged Leach with multiple counts, including
attempted murder, aggravated assault, conspiracy to commit aggravated
assault, solicitation to commit aggravated assault, two counts of making
terroristic threats, and two counts of stalking. On October 3, 2014, Leach’s
jury trial commenced. Because Shipley failed to appear, the trial court
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admitted his preliminary hearing testimony over Leach’s objection. On
October 11, 2013, the jury found Leach guilty of all of the above charges. On
October 29, 2014, the trial court sentenced Leach to an aggregate term of ten
to twenty years of imprisonment and a consecutive five-year probationary
term.
Although Leach filed a timely pro se motion that was denied by operation
of law, she did not file a timely direct appeal. After filing a PCRA petition in
2015, however, the PCRA court granted Leach’s petition and reinstated her
direct appellate rights nunc pro tunc. Thereafter, Leach filed a timely appeal
to this Court in which she challenged the admission of Shipley’s preliminary
hearing testimony, as well as the sufficiency and weight of the evidence
supporting her convictions. Finding no merit to any of these claims, we
affirmed her judgment of sentence on January 4, 2017. Leach, supra. On
July 7, 2017 our Supreme Court denied Leach’s petition for allowance of
appeal. Commonwealth v. Leach, 169 A.3d 1039 (Pa. 2017). Leach did
not seek further review.
Leach filed a timely PCRA petition on January 24, 2018. Ultimately, the
PCRA court dismissed the petition, and Leach did not file a direct appeal.
On January 15, 2019, Leach filed the pro se PCRA petition at issue. The
Commonwealth filed a response on July 2, 2019. On July 23, 2019, Leach
filed an amended petition. On August 30, 2019, the PCRA Court filed a Rule
907 notice of its intention to dismiss petition as untimely filed and establishing
no timeliness exception. Leach did not file a response. By order entered on
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October 29, 2019, the PCRA court denied Leach’s petition. This timely appeal
followed.1 Both Leach and the PCRA court have complied with Pa.R.A.P. 1925.
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 issues Leach raises on appeal, we must first
determine whether the PCRA court correctly concluded that her 2019 PCRA
petition was untimely. 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
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1 In her first issue on appeal, Leach challenges the PCRA court’s determination
that this appeal is untimely. Our review of the record supports Leach’s
petition. The PCRA court dismissed Leach’s petition on October 29, 2019.
This order does not appear in the certified record. However, Leach attached
to her notice of appeal a certificate of service dated November 4, 2019. See
Pa.R.A.P. 108(a)(1) (providing day of entry of an order shall be the day the
clerk of courts mails or delivers copies of the order to the parties). Thus,
Leach had thirty days from that date, or December 4, 2019, to timely file her
appeal. See Pa.R.A.P. 903 (providing notice of appeal shall be filed within 30
days after the entry of the order from which the appeal is taken; 1 Pa.C.S.A.
§ 1908 (excluding weekends and legal holidays from time computation).
Although Leach incorrectly stated in her notice of appeal that she is appealing
from the order entered November 26, 2019, the date listed on her certificate
of service, her notice of appeal was docketed with the court below on
December 2, 2019. Thus, the appeal is timely.
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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 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)). A PCRA petition invoking one of these statutory exceptions
must be filed within one year the date the claim could have been presented.”
42 Pa.C.S.A. § 9545(b)(2). Finally, 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).
Here, Leach’s judgment of sentence became final on October 5, 2017,
ninety days after our Supreme Court denied her petition for allowance 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); U.S.Sup.Ct.R. 13. Therefore,
Leach had until October 5, 2018, to file a timely petition. Because Leach filed
her latest petition in 2019, it is untimely unless she has satisfied her burden
of pleading and proving that one of the enumerated exceptions applies. See
Hernandez, supra.-5-
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On appeal, Leach claims that the PCRA court should have concluded that
her 2019 PCRA petition was timely because she established both the
government interference exception and the newly discovered evidence
exception.2 We consider each exception separately.
Leach first asserts that she established the government interference
exception. 42 Pa.C.S.A. § 9545(b)(1)(i). This exception requires the PCRA
petitioner to plead and prove that “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 of laws of the United States.”
Here, the PCRA court cogently described Leach’s arguments in support
of this claim, and explained why it is without merit. The court explained:
[Leach’s] allegations of governmental interference
include the District Attorney withholding exculpatory
evidence in the form of three certified letters from Steven
Shipley, this [c]ourt’s tampering with the jury, this [c]ourt’s
failure to give proper jury instructions and corruption within
the District Attorney’s Office and Police Department. []
Here, [Leach’s] allegations simply cite her perceptions of
governmental interference with her case, not interference
with her timely ability to bring her PCRA Petition. Further,
the allegations lack any form of proof. [Leach] has not
produced the letters she claim[s] exonerate her, she has no
witnesses or other offer of proof [of] the [trial court’s]
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2 Leach also raises claims that her sentence is illegal. This claim has to be
raised in a timely PCRA petition. See Commonwealth v. Fahy, 737 A.2d
214, 223 (Pa. 1999) (explaining that, “[a]lthough legality of sentence is
always subject to review within the PCRA, claims must first satisfy the PCRA’s
time limits or one of the exceptions thereto”).
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interference with the jury, and her claims regarding the
District Attorney’s Office and Police Department are simply
based off newspaper articles that have no relation to her
case. [Leach] fails to avail herself of the governmental
interference exception by failing to show any conduct on the
part of the court or prosecution which prevented her from
discovering or presenting evidence of a particular claim in a
timely PCRA petition.
PCRA Court Opinion, 5/21/20, at 6-7.
Our review of the record supports the PCRA court’s conclusion. Leach’s
arguments to the contrary are no more than speculation. Although Leach
claims that she “was affected by governmental interference hampering her
abilities to submit her [latest] PCRA on time[,]” she provides no proof other
than stating that the “Commonwealth has a personal vendetta in which no
matter what [she is] attempting to prove or present, [the Commonwealth]
automatically [denies] any effort made.” Leach’s Brief at 8 (excess
capitalization omitted). Leach argues that she never received requested
transcripts and discovery, but fails to identify any precise claim that she was
prevented from raising in a timely petition. Additionally, Leach claims that
first PCRA counsel’s deficient Turner/Finley3 no-merit letter constituted
another instance of government interference. The express language of the
PCRA refutes this claim. See 42 Pa.C.S.A. § 9545(b)(3) (providing that
“government officials” do not include defense counsel).
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3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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For all of these reasons, the PCRA court correctly concluded that Leach
could not establish the governmental interference exception to the PCRA’s
time bar.
Next, Leach argues that she has established the newly discovered fact
exception to the PCRA’s time bar. 42 Pa.C.S.A. § 9545(b)(1)(ii). This Court
has explained this exception as follows:
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,
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).
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Here, the PCRA court did not hold an evidentiary hearing and did not
first conduct a timeliness analysis regarding Leach’s newly-discovered
evidence claims. Rather, the PCRA court addressed them directly and found
them to be meritless. We need not remand for this initial determination at
this time, however, given the nature of Leach’s claims. As the PCRA court
explained:
[Leach] attempts to invoke the newly discovered fact
exception by citing incidents of ineffective assistance of
counsel as well as allegations of corruption within the
District Attorney’s Office and Police Department. Claims of
ineffective assistance of counsel do not amount to an
exception to the timeliness requirement[s] under the PCRA.
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa.
2005). [Leach’s] allegations of corruption do not invoke the
new fact exception either. [Leach] provides newspaper
articles she believes support her allegations, however, these
are not evidence and show no correlation to her case.
Commonwealth v. Castro, 93 A.3d 818, 825 (Pa. 2014).
PCRA Court Opinion, 5/21/20, at 7.
Once again, our review of the record supports the PCRA court’s
conclusion. Although Leach claims that a 2019 letter from Mr. Shipley
exonerates her, and she attached to her latest PCRA petition alibi letters from
three alleged witnesses, it is clear that Leach was aware of Mr. Shipley’s other
letters which made the same assertions, and Leach was clearly aware of at
least two of these alibi witnesses prior to the time she filed her latest PCRA
petition. See Commonwealth v. Edmiston, 64 A.3d 339, 352 (Pa. 2013)
(explaining that a newly discovered or newly willing source of previously
known facts does not meet the timeliness exception). Indeed, Leach raised
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these claims in her timely 2018 PCRA petition. As noted above, Leach did not
file an appeal from the denial of this petition.
Leach’s serial claim of prior counsel’s ineffectiveness does not render
her latest PCRA petition timely. Throughout her brief, Leach asserts that
multiple instances of ineffective assistance of trial and appellate counsel, as
well as her first PCRA counsel, establish a “manifest injustice/actual
innocence” exception to the PCRA’s time bar. Leach’s Brief at 9. No such
exception exists. Layered claims of counsel’s ineffectiveness cannot be used
to salvage an otherwise untimely PCRA. See generally, Commonwealth v.
Fahy, supra; see also Commonwealth v. Abu-Jamal, 833 A.2d 719, 728
(Pa. 2003)(holding claim of “actual innocence” could not be reviewed when
the PCRA petitioner fails to establish a timeliness exception).
Thus, for all of these reasons, the PCRA court correctly concluded that
Leach could not establish the newly-discovered fact exception to the PCRA’s
time bar.
In sum, because Leach’s 2019 PCRA petition was untimely, and she did
not establish an exception to the time bar, the PCRA court correctly denied
her latest petition. We therefore affirm the order denying Leach post-
conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/21
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