Opinion
J-S16019-17 No. 843 WDA 2016
05-19-2017
COMMONWEALTH OF PENNSYLVANIA v. SEAN D FIELDS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 9, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001178-2003 BEFORE: MOULTON, J., RANSOM, J., and PLATT, J. MEMORANDUM BY RANSOM, J.:
Retired Senior Judge assigned to the Superior Court.
Sean D. Fields appeals from the order entered May 9, 2016, denying as untimely his petition for collateral relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Following the 2002 murder of Rashan Harris, a jury convicted Appellant of first degree murder and possession of an unlicensed firearm. Appellant was sentenced to a mandatory term of life imprisonment. This Court affirmed the judgment of sentence on direct appeal; the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Fields , 888 A.2d 5 (Pa. Super. 2005) (unpublished memorandum), appeal denied, No. 556 WAL 2005.
18 Pa.C.S.A. §2501 and 6106, respectively.
In January 2006, Appellant filed his first petition for collateral relief. In July 2009, Appellant was granted a new trial; this Court subsequently reversed the decision and remanded the case for an evidentiary hearing. Commonwealth v. Fields , 23 A.3d 593 (Pa. Super. 2010) (unpublished memorandum). In July 2011, Appellant was again granted a new trial; this Court reversed the order granting a new trial and reinstated the judgment of sentence. Commonwealth v. Fields , 82 A.3d 470 (Pa. Super. 2013) (unpublished memorandum). In April 2014, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Fields , 89 A.3d 660 (Pa. 2014) (unpublished memorandum).
In June 2014, Appellant pro se filed a Petition for Writ of Habeas Corpus in the United States District Court for the Western District of Pennsylvania, which was denied in August of 2014. Fields v. Giroux , 2014 WL 4079954 (W.D. Pa. 2014). In September 2014, Appellant pro se filed a notice of appeal, which was denied in the United States Court of Appeals for the Third Circuit
In January 2016, Appellant's Petition for Writ of Certiorari in the Supreme Court of the United States was denied. In March 2016, Appellant's motion for Relief of Judgment Civil Rule 60 in the United States District Court for the Western District of Pennsylvania was denied.
In March 2016, Appellant pro se filed the instant PCRA petition, his second, seeking a new trial based on newly discovered, exculpatory evidence. According to Appellant, he had received a notarized affidavit, dated February 20, 2016, stating:
I gave no statement to any detective while I was incarcerated in the Allegheny City Jail. I was talked to by detectives concerning my vehicle 2001 dodge neon. The day of the incident my car not in the possession of a man named Cleve-It was in the possession of another individual that's all I know.Appellant's Brief, Exhibit A (Affidavit attested to by Mr. Steven Bronaugh). Appellant asserts that the information in this statement would have changed the outcome of his trial.
In April 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. In May 2016, the PCRA court dismissed Appellant's petition without a hearing. Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement. The trial court issued a responsive statement.
Appellant raises the following issues on appeal:
1. Whether the Post-Conviction [c]ourt erred in denying (petitioner's) Post-Conviction petition as untimely filed. When (Petitioner) established that his (after discovered evidence) claims are within the (plain language of the timeliness exception set fort at 32 P[a].C.S. §9545(b)(1)(ii) and §9545(B)(2)?
2. Whether petitioner is entitled to a [n]ew trial, or remand for and [sic] [e]videntiary [h]earing based upon the after discovered affidavit of Steve Bronaugh, which states "I gave no statement to any detective while incarcerated in the Allegheny County jail." He further goes on to state about the night of the shooting, "my car was not in possession of the man called "Cleve" in which Mr. Bronaugh is referring to petitioner. It was in the possession of another individual."
3. Petitioner preserved the right to raise any further claims. Another claim presented itself in the form of an affidavit by a Devin Carter in which he states "as I was walking down Fifth Avenue and approaching Thorn Run Rd. I heard several gun shots and I saw people running to their cars as they were running out of Chez Lounge. As I was walking past I saw a man lying on the ground in the parking lot across the street. An older man walked over to the man on the ground and took a chrome gun off the man on the ground. He got into a dark colored suv and sped off." This issue was supplemented with the original Post-Conviction, being submitted to the court on July 10, 2016 after petitioner received the affidavit on July 1, 2016.Appellant's Brief at 18-19 (pages not enumerated).
4. Whether the District Attorney intentionally failed to call Steve Bronaugh as the Commonwealth's witness to suppress exculpatory eveidence [sic]. This violates the fourteenth Amendment Due Process.
The standard of review regarding an order denying a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of the record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). We afford the court's factual findings deference unless there is no support for them in the certified record. Commonwealth v. Brown , 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson , 995 A.2d 1184, 1189 (Pa. Super. 2010)).
Initially, we address the timeliness of Appellant's petition, as it implicates our jurisdiction and may not be altered or disregarded in order to address the merits of his claim. Commonwealth v. Bennett , 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, all petitions seeking collateral relief must be filed within one year of the date the judgment of sentence becomes final. Id. There are three statutory exceptions:
(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 laws of the United States;42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition attempting to invoke one of these exceptions "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
(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.
Here, Appellant does not dispute that his petition is untimely; rather, Appellant acknowledges that he must avail himself of one of the exceptions set forth in section 9545(b)(1)(i)-(iii) in order for this Court to have jurisdiction to reach the merits of his claims.
Appellant's judgment of sentence became final on December 20, 2005, when the 90 day period for filing a writ of certiorari with the United States Supreme Court expired. See 42 Pa.C.S. §9545(b)(3). The instant PCRA petition was filed on March 7, 2016, more than eleven years after the judgment became final. --------
Appellant asserts the "newly-discovered fact" timeliness exception. Under 42 Pa.C.S. § 9545(b)(1)(ii), Appellant must prove that (1) this fact was unknown to him and (2) that he could not have ascertained this fact previously by the exercise of due diligence. Commonwealth v. Bennett , 930 A.2d 1264, 1270-72 (Pa. Super 2007); see also Commonwealth v. Breakiron , 781 A.2d 94, 98 (Pa. 2001) (noting that a petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence). Due diligence requires that the petitioner make reasonable steps to protect his own interest. Commonwealth v. Carr , 768 A.2d 1164, 1168 (Pa. Super. 2001).
Appellant's "newly discovered fact" is the previously stated affidavit, indicating that Mr. Bronaugh did not provide a statement to detectives. Although not called to testify, Mr. Bronaugh was listed on the Commonwealth's witness list and thus known to Appellant at the time of trial in 2003. Appellant had the opportunity to investigate this witness prior to trial. The fact that the Commonwealth failed to call Mr. Bronaugh as witness did not prohibit Appellant from interviewing him to obtain any beneficial information.
Appellant fails to explain why he could not have ascertained this information previously with the exercise of due diligence. Thus, Appellate fails to meet the requirements of 9545(b)(1)(ii). Commonwealth v. Breakiron , 781 A.2d 94 (Pa. 2001); Commonwealth v. Carr , 768 A.2d 1164 (Pa. Super. 2001).
Appellant's petition is untimely, and he has not satisfied a timeliness exception to the requirements of the PCRA. Consequently, the PCRA court was without jurisdiction to review the merits of Appellant's claim and properly dismissed his petition. See Ragan , 932 A.2d at 1170.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/19/2017