Com. v. Marshall, S.

J-A05021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN MARSHALL :
:
Appellant : No. 843 EDA 2022
Appeal from the PCRA Order Entered February 22, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0007393-2011.
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 14, 2023
Shawn Marshall appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (PCRA). 42 Pa.C.S.A. §§ 9541–
9546. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
On March 7, 2011, [the twenty-two-year-old victim] was
found badly beaten in Fisher Park. The victim was transported to
Einstein Hospital, where she was diagnosed with a skull facture
and traumatic brain injury. On March 11, 2011, the victim
informed the police that she had spent the weekend with
[Marshall] and that she and [Marshall] had been romantically
involved. She told police that at some point over the weekend,
[Marshall] had appeared jealous and angry and asked her to join
him on a walk in Fisher Park.
At the park, [Marshall] walked behind the victim and
viciously struck her on the back of the head with a hammer
multiple times. Thereafter, [Marshall] stole her belongings from
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her pocket. [Marshall] dragged the victim into the bush, then
drove around the city in the victim’s car.
[Marshall] was arrested and after receiving Miranda
warnings, confessed to bludgeoning and robbing the victim.
[Marshall] admitted that he instructed the victim to go with him
to Fisher Park at dusk because he wanted to steal her car and
money. While they were walking, he told her to walk ahead of
him. With a hammer he had hidden, he struck her in the back of
the head, fracturing her skull. She fell face first onto the path.
Nonetheless, [Marshall] continued to beat and kick her.
Eventually, he ceased this brutal attack and stole [the victim’s]
ATM card, identification, cell phone, and car keys from her
pockets. [Marshall] admitted that he then dragged her away from
view. [Marshall] used her ATM card to withdraw $420 from her
account and changed the phone number on her cellphone so he
could use the phone undetected.
The police investigation produced overwhelming evidence
linking [Marshall] to the attack. Surveillance video was recovered
from a CVS showing [Marshall] at the location where the victim’s
stolen ATM card was used to withdraw $420. Police found the
victim’s stolen dark blue 2010 Honda Civic parked behind
[Marshall’s] house. In [Marshall’s] bedroom, police found a boot
with the victim’s blood, underwear with the victim’s DNA, the
victim’s ATM card, and the victim’s cellphone.
On October 25, 2011, [Marshall] pled guilty to attempted
murder, robbery, and possession of an instrument of crime[.] On
June 18, 2012, this court sentenced [Marshall] to a term of
imprisonment of 20 to 40 years, followed by 10 years of probation,
[Marshall] chose to allocute at his sentencing hearing and claimed
to “have no reason [for] why [he] did it, “ but nevertheless
apologized for committing the crimes for which he pled guilty.
PCRA Court Opinion, 6/29/22, at 1-3 (excess capitalization and citation
omitted).
Following the trial court’s denial of his post-sentence motion, Marshall
filed an appeal to this Court. On November 8, 2013, we agreed with counsel’s
assessment that Marshall’s appeal was frivolous. Commonwealth v.
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Marshall, 91 A.2d 1278 (Pa. Super. 2013) (non-precedential decision). We
therefore affirmed Marshall’s judgment of sentence and permitted counsel to
withdraw. Id. Marshall did not seek further review.
On September 5, 2018, Marshall filed the pro se PCRA petition at issue.
Thereafter, the post-conviction proceedings were protracted. The PCRA court
appointed counsel, but, on November 30, 2018, that attorney was permitted
to withdraw, and new counsel was appointed. New counsel filed an amended
PCRA petition on January 8, 2019, but was later permitted to withdraw.
Current PCRA counsel was appointed on September 27, 2019, and she filed
an amended PCRA petition on July 28, 2020. In this petition, Marshall
asserted newly discovered evidence in the form of an affidavit from Raymond
Brown who asserted that he was an eyewitness to the incident. Marshall
further alleged that trial counsel was ineffective for not investigating Brown,
even though Brown “wrote to the Defender’s Association numerous times to
inform them that he had information that would exonerate” Marshall.
Amended PCRA Petition, 7/28/20 at 2 (unnumbered). Lastly, Marshall
asserted that his guilty plea was involuntary entered based upon trial counsel’s
ineffectiveness.
Although a hearing in this case was scheduled for December 11, 2020,
it was later continued until March 26, 2021. On June 21, 2021, the
Commonwealth filed a motion to dismiss Marshall’s petition, in which it argued
that Marshall’s actual claim involved the ineffectiveness of trial counsel which
does not constitute a time-bar exception. The Commonwealth further
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asserted that, even if timely, Marshall’s claim would fail given the
overwhelming evidence of his guilt.
On June 28, 2021, the PCRA court entered an order continuing the
matter for ninety days in order to afford Marshall the ability to respond. In
his response, Marshall asserted that his “claims are a hybrid of newly-
discovered evidence and ineffective assistance of counsel that cannot be
extricated. The attorney’s ineffectiveness, [was] in fact, also the newly
discovered evidence.” Response, 9/16/21, at 3 (unnumbered). Marshall also
referenced two letters that Brown sent to the Defender Association of
Philadelphia. Finally, Marshall challenged the Commonwealth’s conclusion
that the evidence of his guilt was overwhelming.
The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Marshall’s amended PCRA petition without a hearing. However, on December
7, 2021, the court entered an order continuing the matter, and stating that a
new Rule 907 notice would be issued. On January 10, 2022, the PCRA court
issued its new Rule 907 notice. In this notice, the court explained to Marshall
that “[d]espite formulating your claim in terms of the discovery of new facts
not previously known, your claim, in essence, is challenging prior counsel’s
ineffectiveness for failing to investigate Mr. Brown’s statement, which was
sent to your trial counsel.” Rule 907 Notice, 1/10/22, at 2 (unnumbered).
The court then cited cases holding that ineffective assistance of counsel do
not establish a time-bar exception. Id. Lastly, the PCRA court opined that,
even if Brown’s statement qualified as a newly-discovered fact, Marshall failed
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to demonstrate that “this information was previously unascertainable with the
exercise of due diligence.” Id.Marshall did not file a response. By order entered February 22, 2022,
the PCRA court dismissed Marshall’s amended petition. This timely appeal
followed. Both Marshall and the PCRA court have complied with Pennsylvania
Rule of Appellate Procedure 1925.
Marshall raises one question for our review:
I. Did the PCRA Court err by dismissing [Marshall’s] PCRA
Petition without first holding an evidentiary hearing when
[Marshall] raised a claim of newly discovered evidence, in
the form of a previously unknown eyewitness, who purports
to have been present for the crime in question, that
[Marshall] was not the perpetrator of the crime and that he
sent several letters to the Defender Association of
Philadelphia to notify them that he had information about
the incident but was never contacted by [Marshall’s]
attorney[?]
Marshall’s Brief at 2.
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.
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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).
The PCRA court dismissed Marshall’s petition without a hearing because
the petition was untimely, and Marshall did not plead and prove a time-bar
exception. We agree.
The timeliness of a PCRA petition is jurisdictional. Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for
relief under the PCRA, 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. 42 Pa.C.S.A. § 9545(b)(1).
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)). To meet the “newly discovered
facts” exception of Section 9545(b)(1)(2), a petitioner must:
allege and prove that there were facts that were unknown to him
and that he could not have ascertained those facts by the exercise
of due diligence. The focus of the exception is on the newly
discovered facts, not on a newly discovered or newly willing source
for previously known facts.
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Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (quotations,
brackets, citations, and emphasis deleted). The alleged ineffective assistance
of prior counsel is not a “newly discovered fact” under this exception.
Commonwealth v. Mitchell, 141 A.3d 1277, 1284–85 (Pa. 2016) (following
Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 785 (Pa. 2000)).
A PCRA petitioner must file his petition “within one year of date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). If a PCRA petition
is untimely and the petitioner has not pled and proven an exception, “neither
this Court nor the [PCRA] court has jurisdiction over the petition. Without
jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Derrickson, 923 A.2d 466, 468
(Pa. Super. 2007) (citation omitted).
Here, Marshall’s judgment of sentence became final on December 9,
2013, at the expiration of the period for seeking review by the Supreme Court
of Pennsylvania. Pa.R.A.P. 1113(a); see 1 Pa.C.S.A. § 1908. Therefore,
Marshall had until December 9, 2014, to file a timely petition. 42 Pa.C.S.A.
§ 9545(b)(1). Because Marshall filed his petition in 2018, it is untimely unless
he has satisfied his burden of pleading and proving that one of the enumerated
exceptions applies. Brandon, supra.In his amended petition, Marshall asserted that he could establish the
newly-discovered fact exception to the PCRA’s time bar based upon Brown’s
August 14, 2018 “Affidavit” and two letters Brown purportedly sent to the
Defender Association. We cite verbatim Brown’s affidavit, as follows:
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“Affidavit of Raymond Brown LT6439”
On 3-7-11, I saw an incident in Fisher Park in Philadelphia.
I Marshall and a female come into the park. Later another male
came up to them and hit the female in the head, she felt down.
Marshall step in the middle of them. The female had blood coming
from somewhere, she push Marshall back and said its okay just
go, so he did. This other guy just went crazy on this female hitting
her as she was on the ground. I went to my car and came back
with my gun. I pointed at the guy and when I notice the female
was not there I back away and went my way. I was going down
5th Street and saw Marshall walking.
I later was arrested for an unrelated event and housed in
the Philadelphia Prison System for 2011-2014. In April 2011 I
talked to a Public Defender and told him I had information about
3-7-11 event at Fisher Park, he told me to write his office May
2011 I wrote his office bearing the same information and my
willingness to testify if need be, and that I have the time to do so.
March 2012, I wrote another letter indicating the same I never got
an interview or response. At all times, and now I was willing and
able to testify. I was at SCI-Huntingdon talk to another inmate
when Marshall over heard me talking about it. I informed him of
my knowledge and attempt to contact the Philadelphia Public
Defenders, see Attachments 1 and 2.
Brown also attached the two letters he referred to in his affidavit. In
the first, dated May 10, 2011, Brown merely stated that he had information
about the March 7, 2011, incident. In the second, dated March 14, 2012,
Brown referenced his prior letter and provided a more detailed summary of
his proposed testimony.
Relying on Brown’s affidavit and the letters, Marshall contends that he
is entitled to relief based on “after-discovered evidence.” Marshall’s Brief at
6–11 (citing Commonwealth v. Peoples, 319 A.2d 679 (Pa. 1974), and
Commonwealth v. Pagan, 950 A.2d 270 (Pa. 2008)). In doing so, Marshall
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conflates a substantive basis for relief with a timeliness exception. As this
Court has stated:
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.
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations
omitted).
In its Rule 907 Notice, the PCRA court noted that Marshall failed to
demonstrate that he could not have learned of Brown’s statement earlier in
the exercise of due diligence. Marshall provides no such argument in his
appellate brief. We could, therefore, affirm the denial of post-conviction relief
on this basis alone.
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Nonetheless, even if we assume Marshall met a timeliness exception,
the PCRA court concluded, in its Rule 1925(a) opinion, that Marshall’s
substantive claim of after-discovered evidence did not entitle him to relief in
the form of a new trial.
To review the PCRA court’s determination, we first note the test applied
to after-discovered evidence under the PCRA. When discussing the test in the
context of a PCRA appeal, our Supreme Court recently summarized:
[W]e have viewed this analysis in criminal cases as
comprising four distinct requirements, each of which, if
unproven by the petitioner, is fatal to the request for a new
trial. As stated, the four-part test requires the petitioner to
demonstrate the new evidence: (1) could not have been
obtained prior to the conclusion of 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. The test applies
with full force to claims arising under Section 9543(a)(2)(vi)
of the PCRA. In addition, we have held the proposed new
evidence must be producible and admissible.
Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).
Credibility determinations are an integral part of determining whether a
PCRA petitioner has presented after-discovered evidence that would entitle
him to a new trial. See, e.g., Small, 189 A.3d at 978-79 (remanding for the
PCRA court to make relevant credibility determinations). We have stated,
prior to granting a new trial based on after-discovered evidence, “a court must
assess whether the alleged after-discovered evidence is of such a nature and
character that it would likely compel a different verdict if a new trial is
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granted.” Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super.
2010). “In making this determination, 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.”
Id.Applying the Small test to Marshall’s claim, the PCRA court found it to
lack merit for several reasons. As the court first explained:
Mr. Brown’s suspect affidavit does not justify a new trial, nor
would it lead to “a different outcome.” Given that [Marshall] and
the victim were “romantically involved” and she had “spent the
weekend at his house,” which [Marshall] does not dispute, Mr.
Brown’s depiction of the assault in Fisher Park is simply
incredulous.
In the affidavit, Mr. Brown states that he saw “another male
come up to them [Marshall and the victim] and hit the female”
causing the victim to fall to the ground and start bleeding.
[Marshall’s] response, according to Mr. Brown, was not to stop
this unknown man from hitting his girlfriend, but merely to “step
in the middle” and do nothing else. Next, according to Mr. Brown,
the victim, who had just been assaulted and was on the ground,
bleeding profusely, apparently told [Marshall] “it’s okay just go.”
There is no logical reason for the victim to respond to a random,
unprovoked assault that way, nor is there any reason for the
victim to tell her romantic partner that the situation was “okay”
and he should “just go.” [Marshall] did not check to see how badly
she was hurt or from where she was bleeding. [Marshall] did not
call the police, or call an ambulance, he simply walked away. And
the attacker, according to the affidavit, “just went crazy on the
female hitting her as she was on the ground.” [Marshall] thus did
nothing to aid his romantic partner who was viciously and violently
assaulted.
PCRA Court Opinion, 6/29/22, at 7-8.
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The PCRA court then noted that Brown’s affidavit conflicted with the
overwhelming evidence of Marshall’s guilt, including Marshall’s own
confession:
Beyond the absurdity of Mr. Brown’s affidavit, the weight of
the evidence also overwhelmingly implicates [Marshall], such that
even if the [after-]discovered evidence was introduced, it would
not change the outcome of the case. First, after being arrested
and receiving Miranda warnings, [Marshall] confessed to the
crime. In his post-arrest interrogation, [Marshall] admitted that
he viciously assaulted and then robbed the victim. [Marshall] also
confessed to the police that he armed himself with a hammer and
took [the victim] to the park under the pretense of taking her for
a walk and then struck her in the head with a hammer. He
admitted to striking her in the head again and repeatedly kicking
her while she lay on the ground. He told police he stole her car
keys and cellphone, the pulled her body into the grass off the trail
and left her there. He also told the police that he drove her car
to the ATM and took $420 from her bank account. In his
allocution, [Marshall] also apologized “for the pain and suffering I
caused mentally and physically” and stated that he “can’t even
give myself a reason why I did it.”
Other evidence corroborates [Marshall’s] confession. A
surveillance video which was recovered from CVS shows
[Marshall] at the location where the victim’s stolen ATM card was
used to withdraw $420. The victim was also found dragged off
and hidden from the path by police, a detail [Marshall] could not
have known had he left the park when Mr. Brown’s affidavit says
he did. Police found the victim’s stolen dark blue 2010 Honda
Civic parked behind [Marshall’s] house. Inside [Marshall’s]
bedroom, police found a boot with the victim’s blood, underwear
with the victim’s DNA, as well as the victim’s ATM card and
cellphone. The overwhelming weight of the evidence against
[Marshall] shows that the affidavit would not affect the outcome
of the case.
PCRA Court Opinion, 6/29/22, at 8-9 (excess capitalization and citations
omitted).
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As a final reason for rejecting Marshall’s substantive after-discovered
claim, the PCRA court noted that Brown’s affidavit conflicted with the two
letters Brown purportedly sent to the Defender Association. The court
explained:
First, Mr. Brown does not mention the supposed third man
in his initial letter to the Public Defender’s Office, nor does he
provide any information beyond stating that he saw “an assault
on March 7, 2011 in Fisher Park.” Only in the second letter does
he mention what occurred. Even in the second letter. Mr. Brown
does not provide any information or detail beyond him seeing “a
second man walk up to them” and “[hit] the woman in the head.”
He does not explain how he knew which man was [Marshall] or
how he knew the man hitting the woman was not [Marshall].
Despite noting in his affidavit that he had seen [Marshall] after
the assault on 5Th Street, Mr. Brown does not mention this at all
in either of his letters. Also, neither the affidavit nor the letters
mention use of a hammer in the assault.
Additionally, in his affidavit, Mr. Brown states that “I,
Marshall, and [a female] came into the park” implying that all
three came in together or around the same time. However, in the
second letter he purportedly sent to the Defender Association, he
states that “I was in Fisher park and saw a guy and a women [sic]
come in.” This statement indicates that Mr. Brown was already in
the park before [Marshall] and the victim entered.
Further, in his affidavit, Mr. Brown states that he “went to
[his] car and came back with [his] gun” and “pointed it at the
guy.” Mr. Brown does not state how this interaction ended, where
the alleged third person went after Mr. Brown pointed a gun at
him, [or] what the alleged third person looked like. Mr. Brown
also fails to explain how [Marshall] gained possession of the
victim’s wallet, credit card, car keys, or phone. Finally, the
affidavit’s description of the events is plainly contradicted by both
[Marshall’s] confession to police and the other physical evidence.
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PCRA Court Opinion, 6/29/22, at 9-10.1
Given the above reasons, the PCRA court concluded: “The
overwhelming weight of the evidence against [Marshall], the lack of logic and
credibility of Mr. Brown’s affidavit, and the inconsistencies in Mr. Brown’s
recollection demonstrate that the affidavit would not affect the outcome of the
case[.]” Id. at 10.
Our review of the record supports the PCRA court’s conclusion. Given
the above-cited comments, the PCRA court properly considered the credibility
and integrity of Marshall’s after-discovered evidence claim and concluded that
Marshall was not entitled to a new trial. Contrary to Marshall’s claim, an
evidentiary hearing is not required before this credibility and integrity
assessment is made. See Small, supra; Commonwealth v. Johnson, 966
A.2d 523, 540 (Pa. 2009) (stating that our Supreme Court has made it clear
that when the PCRA court declines to hold a hearing on after-discovered
evidence, the PCRA court must make specific credibility determinations).
Moreover, while Marshall claims that the PCRA court was “simply making
assumptions based on nothing other than conjecture, Marshall’s Brief at 9, he
does no more than make contrary assumptions, claim that trial counsel was
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1 The Commonwealth reads Brown’s affidavit as stating that Brown “was with
[Marshall] at the scene. Commonwealth’s Brief at 9. The Commonwealth
correctly concludes that, if this were true, Marshall would have known of
Brown’s existence prior to entering his guilty plea and he would not be entitled
to relief. We agree. See Brown, 111 A.3d at 176 (explaining that “the focus
of this exception is on the newly discovered facts, not on a newly discovered
or newly willing source for previously known facts”).
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ineffective for failing to follow up with Brown’s letters, and ignores his detailed
confession to the crime. See id.Finally, as noted by the PCRA court, Marshall’s true claim involves the
ineffectiveness of counsel for failing to act on these letters dated several years
ago. It is now well-settled that claims of ineffective assistance of defense
counsel does not meet a time-bar exception to the PCRA. See generally
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000).
In sum, the PCRA court correctly concluded that Marshall’s PCRA petition
was untimely and that he did not establish a time-bar exception.
Alternatively, the court correctly considered the integrity and credibility of
Marshall’s after-discovered evidence and determined it did not warrant relief
in the form of a new trial.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2023
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