Com. v. Perez, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYRIK PEREZ :
:
Appellant : No. 3131 EDA 2019
Appeal from the PCRA Order Entered September 24, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0012874-2009.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 26, 2021
Tyrik Perez appeals from the order denying as untimely his second
petition filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
On February 11, 2011, a jury found [Perez] guilty of
attempted murder, aggravated assault, criminal conspiracy,
and related offenses. The evidence adduced at trial showed
that [Perez] and his co-defendant Khaleef Mumin (“Mumin”)
were members of the Master Street Crew (“MS Crew”) gang.
This gang had a long-running feud with members of the
Lansdowne Avenue gang (“LA Gang”), with regular
shootouts between the two rival gangs.
On October 23, 2017, Cornell Drummond (“Drummond”),
a member of the LA gang, was talking to friend on the street
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* Retired Senior Judge assigned to the Superior Court.
J-S56020-20
when he saw two men suspiciously ducking behind cars as
they approached him. Drummond quickly went to a nearby
alley where he normally kept a handgun stashed, but upon
his arrival he remembered that he had recently loaned the
gun to a fellow gang member, “Little Dave.” Drummond
went to Little Dave’s house near the intersection of 60th and
Media Streets to retrieve the gun. As he approached the
intersection, [Perez] and Mumin jumped out from behind a
parked vehicle. Drummond recognized both of them as
members of the MS Crew. [Perez] and Mumin began
shooting at Drummond, striking him in the back.
Drummond had fallen to the ground, unable to walk, when
[Perez] walked over to him and tried to shoot him three
more times at close range but the gun jammed.
Police arrived on the scene shortly thereafter;
Drummond did not identify his shooters and told police that
the men were wearing ski masks and that “they finally got
me.” When interviewed by detectives at the hospital[,]
Drummond only said, “They got me,” and indicated that the
shooters were from the MS crew. Beyond that, Drummond
refused to cooperate with police. The next day, an
anonymous caller provided police with information about the
shooting. Based upon this phone call, as well as additional
investigation, police created a photo array which included
photos of [Perez] and Mumin. Drummond was shown these
photo arrays and he declined to identify anyone.
Drummond remained hospitalized for over a month and
then entered a rehabilitation center. As a result of the
shooting, he was paralyzed permanently from the waist
down and is now confined to a wheelchair.
PCRA Court Opinion, 4/21/20, at 2-3 (paragraph breaks added).
Thereafter, Drummond was arrested by federal agents and was charged
with various drug trafficking and weapons charges. Although he was originally
granted bail on these charges, bail was later revoked and Drummond was held
in federal prison.
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In March 2009, while awaiting trial on his federal charges, Drummond
participated in a “proffer session.” In exchange for consideration of a reduced
sentence on his federal charges, Drummond agreed to provide information
regarding criminal activity in the area of 60th and Lansdowne Streets, which
had been the ongoing subject of an extensive investigation by federal agents.
Toward the end of this session, Drummond volunteered that he knew who
shot him and identified Perez and Mumin. The federal authorities conveyed
this information to the Philadelphia Police Department, which ultimately led to
the arrest of both men.
A joint trial began on February 16, 2011. On February 22, 2011, the
jury found both men guilty of attempted murder and related charges. On July
18, 2011, the trial court sentenced Perez to an aggregate term of 17½ to 35
years of imprisonment.1 After the trial court denied his motion for
reconsideration of sentence, Perez filed a timely appeal to this Court. In an
unpublished memorandum filed on July 2, 2012, this Court affirmed Perez’s
judgment of sentence. Commonwealth v. Perez, 55 A.3d 122 (Pa. Super.
2012). On December 4, 2012, our Supreme Court denied his petition for
allowance of appeal. Commonwealth v. Perez, 57 A.3d 69 (Pa. 2012).
Perez did not seek further review.
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1The trial court sentenced Mumin to an aggregate term of 15 to 30 years in
prison. Mumin appealed the order denying him post-conviction relief at No.
3130 EDA 2019, which we also decide today.
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On February 27, 2013, Perez filed a timely pro se PCRA petition.
Thereafter, the PCRA court appointed counsel, who subsequently filed an
amended petition and a supplemental petition. The PCRA court held an
evidentiary hearing on February 22, 2016. By order entered April 25, 2016,
the PCRA court dismissed Perez’s first PCRA petition. Perez filed a timely
appeal to this Court. In an unpublished memorandum filed on September 11,
2017, we affirmed the order denying post-conviction relief, and, on February
15, 2018, our Supreme Court denied Perez’s petition for allowance of appeal.
Commonwealth v. Perez, 178 A.3d 147 (Pa. Super. 2017), appeal denied,
181 A.3d 1082 (Pa. 2018).
On June 22, 2018, counsel for Perez filed the PCRA petition at issue, his
second. Current counsel entered her appearance, and filed a supplemental
petition on Perez’s behalf on February 19, 2019. In these petitions, Perez
claimed to have “after-discovered” evidence based upon an affidavit from
Drummond, in which he allegedly recanted his trial testimony, and evidence
that detectives involved in the investigation of his case were guilty of
misconduct.
On May 31, 2019, the Commonwealth filed a motion to dismiss Perez’s
petition. On August 26, 2019, the PCRA court issued Pa.R.Crim.P. 907 notice
of its intent to dismiss the petition without a hearing. Perez did not file a
response. By order entered September 24, 2019, the PCRA court denied
Perez’s PCRA petition. This timely appeal followed. The PCRA court did not
require Pa.R.A.P. 1925 compliance.
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Perez now raises the following issue on appeal:
I. Did the PCRA court err in finding that [the petition
alleging] the newly discovered evidence was not
timely?
II. Did the PCRA court err in failing to find merit to
[Perez’s] claim of [after-discovered] evidence?
Perez’s Brief at 3.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
In his first issue, Perez challenges the PCRA court’s conclusion that his
second PCRA petition was untimely. The timeliness of a post-conviction
petition is jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651
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(Pa. Super. 2013). Generally, a petition for relief under the PCRA, including
a second or 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 60 days of the date the claim could have been presented.”
42 Pa.C.S.A. § 9545(b)(2).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, Perez’s judgment of sentence became final on March 4, 2013,
ninety days after our Supreme Court denied his petition for allowance of
appeal and the time for filing a writ of certiorari to the United States Supreme
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2 Effective December 24, 2018, the Pennsylvania legislature increased the
time period in this subsection from 60 days to one year. See Act 2018-146,
§ 2. Because Perez filed his second PCRA petition prior to that date, the 60-
day time period applies.
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Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. Therefore,
Perez had until March 4, 2014, to file a timely petition. Because Perez filed
his second petition in 2018, it is untimely unless he has satisfied his burden
of pleading and proving that one of the enumerated exceptions applies. See
Hernandez, supra.Perez argues that he had 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,
as 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.
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Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations
omitted).
Perez asserts that his newly discovered evidence “is based upon a sworn
affidavit from the Commonwealth’s key witness, [Drummond], who for the
first time admits not only that he lied at [Perez’s] trial when he inculpated
[Perez,] but that he did so at the express request of detectives in the case.”
Perez’s Brief 12.
The PCRA court rejected Perez’s claim. The court explained:
In his petition, [Perez] claims that Rhonea Hill allegedly
received a text message from Drummond regarding
Drummond’s involvement in Commonwealth v. Hill. After
[Perez] learned of this text, an investigator visited
Drummond and obtained an affidavit in which Drummond
stated, “In the case of Commonwealth v. Tyrik Perez, my
testimony talking about lying and blaming other people for
murder is true. We did whatever needed to be free again.”
This is insufficient to serve as a “newly discovered fact”
to overcome the time bar as there is nothing “new” in this
affidavit. [Perez] was aware of Drummond’s testimony at
trial. In the affidavit, Drummond never recanted his
testimony identifying [Perez] as one of his shooters.
Nothing in Drummond’s affidavit changes any of the fact or
evidence adduced at trial. Since none of this is new
information, it cannot satisfy the “newly discovered fact”
exception to the time bar.
PCRA Court Opinion, 5/12/20, 6 (paragraph break added).
Our review of the record supports the PCRA court’s conclusion that Perez
has failed to meet his burden. Initially, we believe he mischaracterizes
Drummond’s affidavit as it relates to his case. Contrary to his argument cited
above, in his affidavit, Drummond does not admit that he lied at Perez’s trial,
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let alone that he did so “at the express request of detectives in the case.”
Perez’s Brief at 12.3
At best, Drummond made a general reference in his affidavit to
testifying “[i]n the case of Commonwealth v. Tyrik Perez,” that his testimony
about “talking about lying and blaming other people for murder is true.”
However, Perez does not provide a citation to Drummond’s testimony from
the joint trial in this case where Drummond “may have admitted that his gang
was not beyond resorting to lies and blaming other people for murders they
didn’t do.” Perez’s Brief at 19. Our review of the transcript of Drummond’s
testimony reveals no such statement. See N.T., 2/16/11, at 24-142, N.T.,
2/17/11, at 58-68.
In sum, because the record supports the PCRA court’s conclusion that
Perez’s second PCRA petition was untimely, the court lacked jurisdiction to
consider Perez’s claim of after-discovered evidence. Thus, we need not
address Perez’s second issue in this appeal.4
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3We note that, in the supplement to his first PCRA petition, Perez claimed that
Detectives James Pitts and Omar Jenkins “purposely concealed” the missing
ballistics evidence in his case. The PCRA court found no merit to this claim.
4 The PCRA court found that even if timely, Perez was “unable to show that
Drummond’s recantation would not be used solely for impeachment or would
have compelled a different verdict at trial. PCRA Court Opinion, 5/12/20 at 7.
In addition, the court concluded that Perez’s “claims regarding police
misconduct [were] wholly without merit as he provided no evidence of
misconduct in his own case.” Id. at 8. We found the record to support both
of these conclusions when affirming the order denying Mumin post-conviction
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/21
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relief. See Commonwealth v. Mumin, 3130 EDA 2019, which we also
decide today.
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