Com. v. Silva, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANNY SILVA :
:
Appellant : No. 948 EDA 2021
Appeal from the PCRA Order Entered April 6, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008101-2009
BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED MAY 18, 2023
Danny Silva (“Silva”) appeals from the order dismissing his second
petition for relief filed pursuant to the Post Conviction Relief Act. 1 We affirm.
On June 21, 2010, Silva entered a negotiated guilty plea to murder of
the third degree and possession of an instrument of crime in connection with
the shooting death of Ayres Robinson. At the plea hearing, the prosecutor
summarized on the record the evidence supporting the charges, including a
statement provided by Hector Lopez, an eyewitness to the shooting, who
implicated Silva as the shooter. On that same date, after Silva admitted to
the shooting and apologized to Robinson’s family for the murder, the trial court
imposed the agreed-upon aggregate sentence of eighteen to thirty-six years
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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in prison. Silva did not file a post-sentence motion or appeal his judgment of
sentence.
In 2015, Silva filed a pro se PCRA petition. The PCRA court appointed
counsel who filed a “no-merit” letter pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). The PCRA court dismissed the petition as untimely
filed. This Court affirmed the dismissal order. See Commonwealth v. Silva,
179 A3d 611 (Pa. Super. 2017) (unpublished memorandum).
On August 17, 2018, Silva filed the instant pro se PCRA petition, his
second. He thereafter filed an amended pro se petition. In his pro se petition
and amended pro se petition, Silva requested an evidentiary hearing and
attached a handwritten note which was unsigned and undated. Silva claimed
that the note was an affidavit from Lopez in which he purportedly claimed that
his statement to police was coerced. The Commonwealth filed a letter brief
advocating for the dismissal of the petition based on the inadequacy of the
unsigned and undated affidavit, as well as the absence of a witness
certification pursuant to 42 Pa.C.S.A. § 9545(d)(1). The PCRA court granted
Silva sixty days to file a signed certification from Lopez. See Pa.R.Crim.P.
907 Notice, 7/23/19, at 2-3.2 Silva filed a responsive letter to the PCRA court
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2The PCRA court indicated that it sent a letter to Silva on February 1, 2019,
and that Silva acknowledged his receipt of that letter in his February 13, 2019
correspondence to the court. See Pa.R.Crim.P. 907 Notice, 7/23/19, at 3.
(Footnote Continued Next Page)
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in which he acknowledged that the copy of the affidavit included in his filings
was devoid of a date and signature, but claimed the copy was “incomplete”
due to it being photocopied at the prison library. See Silva Letter to the PCRA
Court, 2/13/19, at unnumbered 2. In that same letter, Silva enclosed
certifications that he prepared regarding the anticipated testimony of Lopez
and Dolores Rios (Silva’s mother).3 Id. Silva sent subsequent
correspondence to the PCRA court in which he acknowledged that his witness
certifications were required to include the address and date of birth for each
witness, but stated that he was unable to obtain this information for Lopez.
See Silva Letter to PCRA Court, 3/19/19, at 1 (stating, “I must concede that
my efforts in obtaining . . . Lopez’s address and date of birth is at a stand still
[sic]”). The PCRA court then continued the case to permit Silva additional
time in which to locate Lopez. However, despite several more continuances,
Silva was unable to contact Lopez or ascertain his current address and date
of birth. The PCRA court then directed the Commonwealth to provide
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However, the PCRA court’s February 1, 2019 correspondence to Silva is
neither included in the certified record nor reflected on the docket, and our
review of Silva’s February 13, 2019 correspondence to the court does not
reveal any acknowledgement of the court’s February 1, 2019 correspondence.
See id.; see also Silva Letter to PCRA Court, 2/13/19, at 1-2.
3 In his certification for Ms. Rios, Silva claimed that Ms. Rios would testify that
her sister, Nanas, was approached by an unidentified man who handed her a
letter and told her to give it to Silva. Silva maintains that the letter given to
his aunt is the affidavit of Lopez.
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information they had on Lopez, but the Commonwealth was only able to
provide an old address and an incorrect birthdate provided by Lopez.
Ultimately, the PCRA court issued a notice of its intent to dismiss the petition
without an evidentiary hearing pursuant to Rule 907. Silva did not respond
to the notice. On April 6, 2021, the PCRA court entered an order dismissing
the petition. Silva filed a timely counseled notice of appeal and a counseled
court-ordered concise statement pursuant to Pa.R.A.P. 1925(b).4
Silva raises the following issues for our review:
1. Whether the PCRA Court erred in determining the timeliness
exceptions to the PCRA statute were not satisfied?
2. Whether the PCRA Court erred in finding that the underlying
issues were without merit?
Silva’s Brief at 1-2 (numbering added).
Our standard of review of an order dismissing a PCRA petition is well-
settled:
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
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4 We note with disapproval that the PCRA court did not author a Rule 1925(a)
opinion or, in the alternative, specify in writing the place in the record where
the reasons for its dismissal order may be found. See Pa.R.A.P. 1925(a).
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petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Any PCRA petition must be filed within one year of the date the judgment
becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
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. Id.
§ 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,
and a court may not address the merits of the issues raised if the PCRA petition
was not timely filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010).
In the instant matter, Silva did not appeal his judgment of sentence.
Therefore, his judgment of sentence became final on July 21, 2010, upon the
expiration of the time in which he could have filed a notice of appeal. See 42
Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 903 (providing that the notice of
appeal must be filed within thirty days after the entry of the order from which
the appeal is taken). Silva had until July 21, 2011, to file the instant PCRA
petition, but did not do so until August 17, 2018. Thus, Silva’s petition is
facially untimely under the PCRA.
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Pennsylvania courts may consider an untimely PCRA petition if the
petitioner explicitly pleads and proves one of three exceptions set forth under
section 9545(b)(1), which provides:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) 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 or laws of the United States;
(ii) 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; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1). Any petition attempting to invoke one of these
exceptions must “be filed within one year of the date the claim could have
been presented.” Id. § 9545(b)(2).
The PCRA requires that, where a petitioner requests an evidentiary
hearing, “the petition shall include a certification signed by each intended
witness stating the witness’s name, address, date of birth and substance of
testimony and shall include any documents material to that witness’s
testimony.” 42 Pa.C.S.A. § 9545(d)(1)(i). Alternatively, “[i]f a petitioner is
unable to obtain the signature of a witness under subparagraph (i), the
petitioner shall include a certification, signed by the petitioner or counsel,
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stating the witness’s name, address, date of birth and substance of
testimony.” Id. § 9545(d)(1)(ii); see also Pa.R.Crim.P. 902(A)(15)
(providing that “[t]he request for an evidentiary hearing shall include a signed
certification as to each intended witness, stating the witness’s name, address,
and date of birth, and the substance of the witness’s testimony”). However,
“it is improper to affirm a PCRA court’s decision on the sole basis of inadequate
witness certifications where the PCRA court did not provide notice of the
alleged defect.” Commonwealth v. Pander, 100 A.3d 626, 642 (Pa. Super.
2014) (en banc). Thus, when a PCRA court is presented with a PCRA petition
that is defective in form or content, the judge should notify the petitioner of
the nature of the defects and provide an opportunity for the petitioner to
amend the petition. See Pa.R.Crim.P. 905(B), Comment.
Here, Silva sought to invoke the “new fact” exception provided by
section 9545(b)(1)(ii) to the PCRA’s time bar.5 Silva claims that he is
innocent, but his attorney advised him to enter a guilty plea based on evidence
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5 In his brief, Silva also attempts to invoke the timeliness exception provided
by section 9545(b)(1)(i). However, Silva did not invoke section 9545(b)(1)(i)
in either his pro se PCRA petition or his amended pro se PCRA petition. Thus,
as the exception provided by section 9545(b)(1)(i) was not raised before the
PCRA court, Silva failed to preserve it for our review. See Pa.R.A.P. 302(a)
(providing that issues not raised in the lower court are waived and may not
be raised for the first time on appeal). The fact that Silva discussed 42
Pa.C.S.A. § 9543(a)(2)(i) in his pro se petition is of no moment, as that
subsection pertains to eligibility for relief under the PCRA and does provide an
exception to the PCRA’s time bar.
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fabricated by the prosecution team, including the police, which made it
impossible for Silva to prevail at trial. Silva asserts that the statement
provided by Lopez was perjured and that he “submitted an affidavit stating
that police smacked him around, intimidated him and forced him to sign a
statement indicating he observed . . . Silva shoot . . . Robinson.” Silva’s Brief
at 12. Silva claims that his guilty plea was not knowing, intelligent, or
voluntary, and that he would not have pleaded guilty but for the perjured
statements obtained by police.6 Silva argues that “the statement of . . . Lopez
that he was coerced to give the statement, is Brady material . . ..”7 Id. at
15. Silva argues that “[t]he facts could not have been ascertained until . . .
Lopez came forward and told his story.” Id. Silva asserts that he “came
forward promptly with an affidavit from . . . Lopez.” Id.8
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6 Notably, a defendant is bound by the statements he makes during his plea
colloquy. See Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super.
2018). Thus, Silva is bound by the representations he made to the trial court
that he committed the murder, that the statements provided by the
Commonwealth witnesses were accurate, and that his guilty plea was entered
voluntarily, knowingly, and intelligently. See N.T., 6/21/10, at 5-26.
7 Brady v. Maryland, 373 U.S. 83 (1963). To establish a Brady violation,
an appellant must demonstrate: (1) the prosecution concealed evidence; (2)
the evidence was either exculpatory or impeachment evidence favorable to
him; and (3) he was prejudiced. See Commonwealth v. Treiber, 121 A.3d
435, 460-61 (Pa. 2015).
8 Silva devotes a significant portion of his argument to a claim of PCRA court
error in relation to another Commonwealth witness, Fabion Pabon. Notably,
in his first PCRA petition, Silva claimed that the affidavit of Pabon constituted
newly discovered evidence which satisfied the PCRA’s timeliness exception set
(Footnote Continued Next Page)
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In its Rule 907 notice, the PCRA court explained the reasons for its
dismissal order as follows:
[Silva] asserts a number of claims, all of which center
around the assertion that . . . Lopez, a Commonwealth witness
. . ., now recants his prior statement to police and indicates that
he was physically intimidated by police and forced to tell them
that he saw [Silva] shoot the victim. [Silva] provided an unsigned
statement that he purports was written and provided by . . .
Lopez. However, despite having been provided months upon
months to locate [Lopez], including some assistance from the
Commonwealth, [Silva] has been unable to provide the court with
a viable address or signed statement from . . . Lopez. The court
is, therefore, constrained to evaluate [Silva’s] petition without
what [Silva] claims to be . . . Lopez’s statement. Without . . .
Lopez’s alleged statement, [Silva] provides no facts to support his
bald claim that the Commonwealth withheld evidence. As [Silva]
provides no viable exception to the timeliness requirement of the
PCRA, this court lacks jurisdiction to hear his petition.
Pa.R.Crim.P. 907 Notice, 7/23/19, at 4-5 (footnote and unnecessary
capitalization and omitted).
Viewing the record in the light most favorable to the Commonwealth, as
the prevailing party below, we conclude that the PCRA court’s determination
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forth at section 9545(b)(1)(ii). See Silva, 179 A3d 611 (unpublished
memorandum at *2-*3). Therein, Silva argued that that the PCRA court erred
by dismissing his first PCRA petition without conducting an evidentiary hearing
to assess the credibility and significance of Pabon’s recantation of his
statement to police. Id. (unpublished memorandum at *3). This Court
affirmed the PCRA court’s determination that Silva failed to establish the new
fact exception provided by section 9545(b)(1)(ii). Id. As the question of the
credibility and significance of Pabon’s recantation of his statement to police
was previously raised in Silva’s fist PCRA, the allegation of PCRA error in
relation thereto has been previously litigated or waived. See 42 Pa.C.S.A.
§ 9543(a)(3); see also 42 Pa.C.S.A. § 9544(a), (b).
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is supported by the record. Silva bore the burden of pleading and proving the
timeliness exception set forth in section 9545(b)(1)(ii). In attempting to
satisfy that burden, Silva provided the PCRA court with a handwritten note
which bore no date and no signature. Despite Silva’s representation that the
date and signature were omitted from the copy provided to the PCRA court
due to the prison library photocopier, Silva did not subsequently provide the
court with a complete copy of the affidavit purportedly dated and signed by
Lopez. Indeed, although Silva represented that he had provided the court
with a complete copy, he merely provided another undated and unsigned
version of the handwritten note. See Silva Letter to the PCRA Court, 2/13/19,
at unnumbered 2. Thus, the only “new fact” provided by Silva to satisfy his
evidentiary burden under section 9545(b)(1)(ii) was an unsubstantiated and
unsupported allegation. See Commonwealth v. Marshall, 947 A.2d 714,
721 (Pa. 2008) (holding that a petitioner does not meet his burden of proving
the time-bar exception where he offers only general allegations, unsupported
by evidence); see also Commonwealth v. Yarris, 731 A.2d 581, 588 (Pa.
1999) (holding that “vague and unsupported” allegations are inadequate to
establish the PCRA’s time-bar exception).
Moreover, after receiving notice that his witness certifications were
inadequate, Silva failed to provide the PCRA court with Lopez’s current address
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and date of birth, despite numerous continuances.9 As Silva was unable to
locate or contact Lopez and was unable to produce him as a witness at an
evidentiary hearing, the record supports the PCRA court’s determination that
Silva failed to plead and prove the new fact exception to the PCRA’s time bar.
Accordingly, we affirm the PCRA court’s dismissal order.
Order affirmed.
Judge Kunselman joins this decision.
Judge Murray concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2023
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9 While we are mindful that it is improper to affirm a PCRA court’s decision on
the sole basis of inadequate witness certifications where the PCRA court did
not provide notice of the alleged defect, see Pander, 100 A.3d at 642, Silva
was on notice of the alleged defects in his witness certifications, the PCRA
court gave him ample opportunity to cure the defects, and, in any event, the
PCRA court did not dismiss Silva’s petition on the sole basis of an inadequate
witness certification. Instead, the court dismissed the petition on the basis
that Silva provided no evidence to support his bald claim that the
Commonwealth withheld evidence. See Pa.R.Crim.P. 907 Notice, 7/23/19, at
5.
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