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Commonwealth v. Mullins

SUPERIOR COURT OF PENNSYLVANIA
Sep 7, 2016
No. 115 EDA 2016 (Pa. Super. Ct. Sep. 7, 2016)

Opinion

J-S59044-16 No. 115 EDA 2016

09-07-2016

COMMONWEALTH OF PENNSYLVANIA v. LARRY MULLINS Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order December 28, 2015 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1011611-1995 BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J. MEMORANDUM BY FITZGERALD, J.:

Former Justice specially assigned to the Superior Court.

Appellant, Larry Mullins, appeals from the order dismissing his second Post Conviction Relief Act ("PCRA") petition. Appellant claims that newly-discovered evidence from a witness, who was previously interviewed prior to his trial, warrants relief. We affirm.

We adopt the facts and procedural history set forth in the PCRA court's opinion. PCRA Ct. Op., 1/27/16, at 1-3. Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement. Appellant raises the following issue:

Did the PCRA court err when it denied Appellant PCRA relief in the absence of an evidentiary hearing since Appellant is entitled to PCRA relief in the form of a new trial based upon the existence of after-discovered evidence?
Appellant's Brief at 4. Appellant contends he obtained newly-discovered evidence from the victim's girlfriend, Tameka Ledbetter, who was interviewed by the police after the victim's death.

Before addressing the merits of Appellant's claims, our Supreme Court has required this Court to examine whether we have jurisdiction to entertain the underlying PCRA petition. See Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999). "Our standard of review of a PCRA court's dismissal of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and free of legal error." Commonwealth v. Wilson , 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted). A PCRA petition "must normally be filed within one year of the date the judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60 days of the date the claim could have been presented." Commonwealth v. Copenhefer , 941 A.2d 646, 648 (Pa. 2007) (internal citations and footnote omitted).

Jurisdictional time limits go to a court's right or competency to adjudicate a controversy. These limitations are mandatory and interpreted literally; thus, a court has no authority to extend filing periods except as the statute permits. Unlike a statute of limitations, a jurisdictional time limitation is not subject to equitable principles such as tolling except as provided by statute. Thus, the filing period is only extended as permitted; in the case of the PCRA, the time limitations are extended upon satisfaction of the exceptions found in § 9545(b)(1)(i)-(iii) and timely filing pursuant to (b)(2). As it has been established that the PCRA's time restrictions are jurisdictional, we hold that
the period for filing a PCRA petition is not subject to the doctrine of equitable tolling, save to the extent the doctrine is embraced by § 9545(b)(1)(i)-(iii).
Fahy , 737 A.2d at 222 (citations omitted).

The three timeliness exceptions are:

(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. § 9545(b)(1)(i)-(iii).

"[S]ubsection (b)(1)(ii) does not require the petitioner to allege and prove a claim of 'after-discovered evidence.' Rather, it simply requires petitioner to allege and prove that there were 'facts' that were 'unknown' to him and that he exercised 'due diligence.'" Commonwealth v. Bennett , 930 A.2d 1264, 1270 (Pa. 2007) (footnote omitted). "If the petitioner alleges and proves these two components, then the PCRA court has jurisdiction over the claim under this subsection." Id. at 1272.

Instantly, we review whether the PCRA court erred by holding Appellant's second PCRA petition was untimely. See 42 Pa.C.S. § 9545(b)(1); Fahy , 737 A.2d at 222. After careful review of the parties' briefs, the record, and the decision by the PCRA court, we affirm on the basis of the PCRA court's decision. See PCRA Ct. Op. at 4-6 (holding (1) Appellant failed to establish due diligence because witness was known to him in 1993 and thus, he could have raised claims on direct appeal and in prior PCRA petitions; and (2) Appellant failed to establish due diligence of the alleged Brady violation; as our Supreme Court held, even evidence of a Brady violation must be pursued with due diligence by the defendant).

Further, as the PCRA court noted, a prior panel of the Superior Court addressed Appellant's claim with respect to his co-defendant, James Kelly. Commonwealth v. Kelly , 3544 EDA 2013, 2014 WL 10795093 at *3 (Pa. Super. Oct. 10, 2014). The Kelly Court rejected Ledbetter's evidence: "the Commonwealth presented sufficient evidence to establish Kelly's guilt, such that Ledbetter's identification of Sharif Curry as the shooter would not likely have changed the outcome of the trial." Commonwealth v. Kelly , 3544 EDA 2013, 2014 WL 10795093 at *4 (Pa. Super. Oct. 10, 2014). The Kelly panel explained as follows:

We acknowledge the non-precedential designation of this decision.

the Commonwealth presented the testimony of two eyewitnesses who identified Kelly and Mullins. The first, Ernestine Williams, witnessed Kelly hand an object to Mullins, who placed the object inside his jacket and held onto it inside the jacket as he approached the victim; he then removed his hand from his jacket, holding a gun, and
shot the victim multiple times. Williams testified that there was "no doubt in [her] mind" that Kelly and Mullins were the individuals involved in the shooting. N.T. Trial, 8/14/96, at 132. Williams further testified as follows:

[Williams]: I remember seeing [Kelly and Mullins] at the corner of my block making a transaction, and I remember seeing [Mullins] shoot [the victim], I seen him shoot him in his head behind his ear and he fell in his arms and he laid him on the ground and he stood back and he shot him again. I remember that very well. And I'll never forget it.

[Defense Counsel]: You saw these two men doing a transaction?

A: Yes.

Q: What kind of transaction?

A: [Kelly] handed [Mullins] something. And [Mullins] never took his hand out until he got to [the victim].

Id. at 176 (emphasis added).

A second witness, Colie Baxter, testified that he was driving his car at the intersection of 25th and Diamond Streets when he heard "five to six shots." N.T. Trial, 8/15/96, at 8. He pulled his car over and then witnessed two men, who he later identified as Kelly and Mullins, run out of an alleyway, get into a car, and drive away. One of the men was "holding something down by [his] side." Id.
Id. at *4. "Ledbetter's statement, even if true, would neither have exculpated Kelly nor changed the outcome of his trial." Id. at *6. We agree with the reasoning of the Kelly Court and similarly conclude that Ledbetter's statement, even if true, would not have exculpated Appellant, particularly since—unlike Kelly—Appellant was identified as the shooter. Accordingly, having discerned no abuse of discretion or error of law, we affirm. See Wilson , 824 A.2d at 333.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/7/2016

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Summaries of

Commonwealth v. Mullins

SUPERIOR COURT OF PENNSYLVANIA
Sep 7, 2016
No. 115 EDA 2016 (Pa. Super. Ct. Sep. 7, 2016)
Case details for

Commonwealth v. Mullins

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. LARRY MULLINS Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 7, 2016

Citations

No. 115 EDA 2016 (Pa. Super. Ct. Sep. 7, 2016)