Com. v. Long, B.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BUTCHIE LONG, : No. 2770 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered September 24, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0003619-2012
BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 28, 2020
Butchie Long appeals from the September 24, 2019 order entered by
the Court of Common Pleas of Philadelphia County denying appellant’s second
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
The PCRA court set forth the following procedural history:
On January 19, 2012, [appellant] was arrested and
charged with murder and related offenses. On
May 17, 2013, after a jury trial, [appellant] was
convicted of first-degree murder, firearms not to be
carried without a license, and possession of an
instrument of crime (“PIC”).[1] On that date, [the trial
court] imposed the mandatory sentence of life
imprisonment without parole for first-degree murder,
and concurrent sentences of one to two years[’]
imprisonment for firearms not to be carried without a
1 18 Pa.C.S.A. §§ 2502(a), 6106(a), 907(a), respectively.
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license and PIC, for a total sentence of life
imprisonment without parole.
[Appellant] appealed and on July 9, 2014, the
Superior Court affirmed the judgment of sentence.[2]
On January 26, 2015, the Pennsylvania Supreme
Court denied allowance of appeal.[3]
On December 1, 2015, [appellant] filed a counseled,
timely [PCRA] petition. On November 21, 2016, after
an evidentiary hearing, [the PCRA court] dismissed
the petition. [Appellant] appealed and on June 18,
2018, the Superior Court affirmed [the PCRA court’s]
dismissal.[4] On March 21, 2019, the Supreme Court
of Pennsylvania denied his petition for allowance of
appeal.[5]
On March 22, 2019, [appellant] filed a pro se writ of
habeas corpus, which [the PCRA court] treat[ed] as
a second, subsequent PCRA petition. On June 25,
2019, appointed PCRA counsel filed an amended
petition. On September 24, 2019, after an evidentiary
hearing, [the PCRA court] dismissed the instant
petition. On that same date, [appellant] filed a notice
of appeal. [The PCRA court] did not require
[appellant] to file a statement of matters complained
of on appeal pursuant to Pa.R.A.P. 1925(b).
2Commonwealth v. Long, 105 A.3d 785 (Pa.Super. 2014) (unpublished
memorandum).
3Commonwealth v. Long, 108 A.3d 34 (Pa. 2015). Appellant did not file a
petition for a writ of certiorari with the Supreme Court of the United States.
4 Commonwealth v. Long, 193 A.3d 1085 (Pa.Super. 2018).
5 Commonwealth v. Long, 202 A.3d 686 (Pa. 2019). Appellant did not file
a petition for a writ of certiorari to the Supreme Court of the United States.
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PCRA court opinion, 11/4/19 at 1-2 (extraneous capitalization omitted). The
PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) on November 4,
2019.
In its Rule 1925(a) opinion, the PCRA court set forth the following facts
as elicited at the September 24, 2019 PCRA hearing:
At the September 24, 2019 evidentiary hearing,
[appellant’s] witness Liddell Brightman testified that
on January 8, 2012, after having been shown a photo
array by homicide detectives, he identified [appellant]
as the shooter. On May 14, 2013, the date of the trial
in the instant matter, Brightman appeared at the
Criminal Justice Center to testify, accompanied by his
father, and spoke with detectives outside of the
courtroom. [Appellant] identified Detectives Thorsten
Lucke and Francis Kane, the same detectives that took
his January 8, 2012 statement, as African-American.
The taller detective, Detective Lucke, allegedly asked
Brightman if he was prepared to identify [appellant]
as the shooter. Brightman indicated that he was not,
[and] Detective Lucke told him to “get the f**k out of
here,” whereupon Brightman left the building. . . .
With counsels’ agreement, [the PCRA court] took
judicial notice of the fact that both Detectives Lucke
and Kane are Caucasian males, and could not be
construed as being of African descent. The trial record
indicates that trial counsel had sought a missing
witness instruction after Brightman failed to testify at
trial.
Id. at 5, citing notes of testimony, 9/24/19 at 19-27, 51-54, 61-62.
Appellant raises the following issue for our review:
Did the PCRA court err in denying relief where
[appellant] presented compelling and credible
testimony at this evidentiary hearing that, if admitted
at trial, would have likely compelled a different result?
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Appellant’s brief at 7.
The PCRA requires that any petition for collateral relief be filed within
one year of the date that the judgment of sentence becomes final.
42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes 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.” Commonwealth v. Callahan, 101 A.3d 118,
122 (Pa.Super. 2014), quoting 42 Pa.C.S.A. § 9545(b)(3).
Here, appellant’s judgment of sentence became final on April 26, 2015,
following the conclusion of the period in which appellant could have filed a
petition for a writ of certiorari with the Supreme Court of the United States.
See U.S. Sup. Ct. R. 13. Appellant filed the instant PCRA petition on March 22,
2019 – over three years after his judgment of sentence became final and over
two years after a PCRA petition could be considered timely. See 42 Pa.C.S.A.
§ 9545(b)(1). Accordingly, appellant’s petition is facially untimely.
A petitioner may only file a PCRA petition beyond one year of the date
the judgment of sentence becomes final if, inter alia, “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[.]” 42 Pa.C.S.A.
§ 9545(b)(1)(ii).
“[T]he time limitations pursuant to . . . the PCRA are
jurisdictional.” Commonwealth v. Fahy, [] 737 A.2d
214, 222 ([Pa.] 1999). “[Jurisdictional time]
limitations are mandatory and interpreted literally;
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thus, a court has no authority to extend filing periods
except as the statute permits.” Id. “If the petition is
determined to be untimely, and no exception has been
pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the
petition.” Commonwealth v. Perrin, 947 A.2d
1284, 1285 (Pa.Super. 2008).
Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012). In cases in which a petitioner is claiming an
exception to the PCRA time-bar, the petition must be filed within one year of
the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
In the instant case, appellant contends that he has presented newly
discovered evidence in the form of Liddell Brightman’s testimony. (Appellant’s
brief at 10.) At the PCRA hearing, the PCRA court found Brightman’s
testimony to be incredible and dismissed appellant’s petition. (Notes of
testimony, 9/24/19 at 64.) On appeal, appellant contends that the PCRA court
erred because, “the PCRA court relie[d] exclusively on [] Brightman’s
confusion regarding the race of the [d]etectives as evidence of his
incredibility.” (Appellant’s brief at 13.) Specifically, appellant argues that the
PCRA court “failed to appreciate [] the distance in time between [appellant’s]
trial (May 2013) and the PCRA court’s evidentiary hearing (September 2019).”
(Id. (parentheticals in original).)
Before we can review the merits of appellant’s petition, we must first
determine whether we have jurisdiction to do so.
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The timeliness exception set forth at [42 Pa.C.S.A.]
§ 9545(b)(1)(ii) has two components, which must be
alleged and proven as an initial jurisdictional
threshold. Commonwealth v. Brown, 111 A.3d
171, 176 (Pa.Super. 2015). Namely, the petitioner
must establish that: (1) the facts upon which the
claim was predicated were unknown; and (2) they
could not have been ascertained by the exercise of
due diligence. See Commonwealth v. Bennett, []
930 A.2d 1264, 1272 ([Pa.] 2007). Due diligence
demands that the petitioner take reasonable steps to
protect his own interests and explain why he could not
have learned the new facts earlier with the exercise of
due diligence. Commonwealth v. Monaco, 996
A.2d 1076, 1080 (Pa.Super. 2010).
Once it is established that the PCRA court has
jurisdiction over the claim, the petitioner can present
a substantive after-discovered evidence claim. See
42 Pa.C.S.[A.] § 9543(a)(2)(vi). In order to obtain
relief on a substantive after-discovered evidence
claim, a petitioner must demonstrate that: (1) the
evidence has been discovered after trial and it could
not have been obtained at or prior to trial through
reasonable diligence; (2) the evidence is not
cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different
verdict. Commonwealth v. Washington, [] 927
A.2d 586 ([Pa.] 2007). The substantive merits-based
analysis is more demanding tha[n] the analysis
required by the “new facts” exception to establish
jurisdiction. See Bennett, [] 930 A.2d 1264.
Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa.Super. 2019).
Here, the PCRA court concluded that the evidence at issue in this case
was “previously unknown and could not have been ascertained by the exercise
of due diligence.” (PCRA court opinion, 11/4/19 at 8.) Indeed, as noted by
the PCRA court:
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At trial, [appellant] sought a missing witness
instruction respecting Brightman’s alleged
unavailability to testify. Trial counsel indicated that
the Commonwealth withheld Brightman’s contact
information in discovery by redacting his address from
statements. [(Notes of testimony, 5/15/13 at 213.)]
There was no indication at trial that Brightman
actually appeared prepared to testify, nor that the
Commonwealth provided trial counsel with
information to that effect. Prior PCRA counsel sought
to interview Brightman on numerous occasions, but
was not able to locate him until April 6, 2017, when
he allegedly first revealed his intent to recant the
contents of his statement if he testified.
Id. We further note that the Commonwealth does not raise an objection to
the PCRA court’s conclusion. To the contrary, in its brief, the Commonwealth
notes that Brightman was “difficult to track down.” (Commonwealth’s brief at
9 n.2, citing PCRA court opinion, 11/4/19 at 8 “(indicating that [appellant’s]
PCRA counsel sought to interview [] Brightman but could not find him until
April 6, 2017)”.) We, therefore, find that appellant has met the threshold
requirement set forth in Bennett, and we shall proceed to consider the merits
of his appeal.
On appellate review of a PCRA petition, we are held to the following
standard of review:
“Our review of a PCRA court’s decision is limited to
examining whether the PCRA court’s findings of fact
are supported by the record, and whether its
conclusions of law are free from legal error.”
Commonwealth v. Hanible, [] 30 A.3d 426, 438
([Pa.] 2011) (citing Commonwealth v. Colavita, []
993 A.2d 874, 886 ([Pa.] 2010)). We view the
findings of the PCRA court and the evidence of record
in the light most favorable to the prevailing party. Id.-7-
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. . . . “The PCRA court’s credibility determinations,
when supported by the record, are binding on this
Court; however, we apply a de novo standard of
review to the PCRA court’s legal conclusions.”
Commonwealth v. Roney, [] 79 A.3d 595, 603
([Pa.] 2013).
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
Our supreme court elaborated further as to the level of deference due
to a PCRA court’s credibility determinations:
A PCRA court passes on witness credibility at PCRA
hearings, and its credibility determinations should be
provided great deference by reviewing courts. See,
e.g., Commonwealth v. (Damon) Jones, [] 912
A.2d 268, 293 ([Pa.] 2006); Commonwealth v.
Santiago, [] 855 A.2d 682, 694 ([Pa.] 2004) (Opinion
Announcing the Judgment of the Court) (“We are
bound by the PCRA court’s credibility determinations
where there is record support for those
determinations.”); Commonwealth v. Abu-Jamal,
[] 720 A.2d 79, 99 ([Pa.] 1998) (“Just as with any
other credibility determination, where the record
supports the PCRA court’s credibility determinations,
those determinations are binding on this Court.”).
Indeed, one of the primary reasons PCRA hearings are
held in the first place is so that credibility
determinations can be made; otherwise, issues of
material fact could be decided on pleadings and
affidavits alone.
Commonwealth v. Johnson, 966 A.2d 523, 539 (Pa. 2009).
In the context of a PCRA petition claiming newly discovered evidence,
the Johnson court instructs that a PCRA court’s credibility determination is
linked to the fourth prong of the newly discovered evidence test set forth
supra. Johnson, 966 A.2d at 542. Specifically, our supreme court has held
that the PCRA court must consider “whether the nature and quality of the
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evidence is such that there is a reasonable probability that the jury would have
credited it and rendered a more favorable verdict.” Id.
In the instant case, the PCRA court characterized Brightman’s testimony
as follows:
Brightman’s testimony was wholly incredible and
inadequate to support a motion for a new trial.
[Appellant] contends that, had Brightman testified at
trial, he would have refused to identify [appellant] as
the shooter. Brightman testified that he appeared at
the courthouse on the date of trial prepared to testify,
but told two African-American detectives that he was
not ready to identify [appellant] as the shooter.
Although Brightman could not recall their names, at
the evidentiary hearing, he identified the two African-
American detectives as the two investigators who took
his January 8, 2012 statement, whom the record
demonstrates were Detectives Thorsten Lucke and
Francis Kane. Upon hearing his response that he
would not identify [appellant] as the shooter,
Brightman contends that one of the detectives told
him to “get the f**k out of here” and leave the
building, and Brightman complied with this directive.
The record is clear that Brightman’s January 8, 2012
statement was taken by Detectives Lucke and Kane.
Brightman’s description of those detectives, however,
is inaccurate and unbelievable. After Brightman’s
testimony and with the agreement of counsel, [the
PCRA court] took judicial notice of Detectives Lucke’s
and Kane’s racial backgrounds, which is Caucasian.
Had Brightman spoken to these detectives on the trial
date, he would have identified them as Caucasian,
while if he spoke to different police officers, he would
not have identified them as having taken his
January 8, 2012 statement. For these reasons,
Brightman’s recollection of this interaction is too
inaccurate to support a petition for relief based on his
affidavit.
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Even if [the PCRA court] did not find Brightman’s
testimony incredible, it would still be insufficient to
warrant collateral relief. As the Commonwealth noted
in its argument, Brightman never testified that his
prior police statement identifying [appellant] was a
product of coercion or that he originally identified
someone else as the shooter. Notably, Brightman did
not present any testimony indicating that someone
other than [appellant] committed the instant
shooting, nor did he describe his recollection of the
night of the shooting. Instead, Brightman merely
testified that he identified [appellant] in his January 8,
2012 statement, and then simply told police that he
was not ready to identify [appellant] on the stand on
the May 14, 2013 trial date. At no point in his
testimony does Brightman provide [the PCRA court]
with evidence that anyone other than [appellant]
murdered the decedent. Without any exculpatory
statement on the record, [the PCRA court] is bereft of
evidence demonstrating that Brightman’s trial
testimony could have been sufficient to alter the jury’s
verdict. Accordingly, [appellant] fails to meet his
burden, the allegations in the petition do not warrant
relief, and the instant claim fails.
PCRA court opinion, 11/4/19 at 9-11 (citations to the record and extraneous
capitalization omitted).
We, therefore, find that the record supports the PCRA court’s findings of
fact and that the PCRA court’s conclusions of law are free of legal error.
Accordingly, appellant is not entitled to relief.
Order affirmed.
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 7/28/2020
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