Opinion
2555 EDA 2022 J-S20035-23
05-16-2024
COMMONWEALTH OF PENNSYLVANIA v. MARQUIS THOMAS Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered September 28, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001721-2011.
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.[*]
MEMORANDUM
DUBOW, J.
Appellant Marquis Thomas seeks review of the Order dismissing as untimely his request for relief under the Post Conviction Relief Act ("PCRA"). Appellant contends the PCRA court erred in dismissing his Petition without a hearing. After careful review, we affirm.
A.
In 2012, a jury convicted Appellant of Robbery and Conspiracy for participating with Corey Johnson in the 2010 robbery of Keith Edmonds in Edmonds' residence. The court sentenced him on July 17, 2012, to 25 to 50 years' imprisonment. This Court affirmed the Judgment of Sentence on July 15, 2013. Commonwealth v. Thomas, 2013 WL 11259082 (Pa. Super. 2013)(unpublished memorandum). Appellant did not seek further review.
Appellant filed his first PCRA petition in 2016, which the PCRA court dismissed without a hearing as untimely, and this Court affirmed. Commonwealth v. Thomas, 217 WL 3528789 (Pa. Super. 2017).
On September 7, 2021, Appellant filed the instant petition, his second, claiming that he had newly discovered evidence that supported his claim of innocence and demonstrated prosecutorial misconduct. Appellant annexed to the petition a handwritten statement signed by Keisha Anderson, an eyewitness to the crime who had testified at trial, which Appellant stated she provided to a private investigator on May 5, 2021. In her statement, Ms. Anderson stated, among other things, that she was "recanting the fabricated statement I gave regarding [Appellant]." PCRA Petition, App'x at 1.
In her recanting statement, Ms. Anderson provided a narrative about the extent of Appellant's involvement in the crime that differed from her trial testimony and stated that police investigators told her she "could get in trouble if [she] didn't tell them everything [she] knew, and that that could keep me from getting custody of my daughter." PCRA Petition, App'x at 3. She also stated that the DA's office told her to defy a sequestration order to hear the other eyewitness's testimony "so she would know what to say." Id. Further, she stated that the ADA told her that "if [she] cooperated [she] could get full custody of [her] daughter, which did not happen." Lastly, Ms. Anderson alleged that the ADA told her that she "had to say that [Appellant] had a gun and that he would not let [second eyewitness] or me leave the kitchen." Id.
Appellant cited the PCRA's timeliness exception set forth in 42 Pa.C.S. § 9545(b)(1)(ii) but did not explain what efforts he took to obtain Ms. Anderson's statement in the eight years following his judgment of sentence.
The court filed a Pa.R.Crim. P. 907 notice concluding, inter alia, that it did not have jurisdiction to address Appellant's untimely petition. Rule 907 Notice, 7/12/11, at 2-4. Appellant responded by quoting 42 Pa.C.S. § 9545(b)(1)(ii), the newly discovered fact exception to the PCRA's timeliness requirements; however, Appellant included no explanation or other analysis to explain how his Petition met this exception, before he concluded that the "the fact that the recantation fell within the newly discovered evidence exception, the [c]ourt would have jurisdiction to address it." Response to Rule 907 Notice, dated 8/30/22, at 3-4 (unpaginated).
Notwithstanding its conclusion that it did not have jurisdiction to address Appellant's untimely petition, the PCRA court opined that Ms. Anderson's recanting statement was not credible and could not meet the after-discovered evidence requirements. See Rule 907 Notice, dated 7/12/22, at 2-3.
On September 28, 2022, the PCRA court dismissed the petition after it acknowledged Appellant's response to the Rule 907 Notice, again concluding, inter alia, that the petition is untimely. PCRA Court Order, 9/28/22, at 1.
Appellant timely appealed and both Appellant and the PCRA court complied with Pa.R.A.P. 1925. This Panel filed a Memorandum and Dissenting Statement, which we withdrew after granting the Commonwealth's application for reconsideration. See Order, dated Feb. 28, 2023 (granting panel reconsideration after concluding previously-granted en banc reargument had been improvidently granted).
We now turn to the appeal anew.
B.
In his appellate brief, Appellant presented the following issues in his "Statement of the Question Presented."
1. Did the lower Court err in not conducting a hearing to test the veracity of Defendant's meritorious claims when Defendant had claims of actual innocence and severe prosecutorial misconduct and denying the PCRA?
2. Is the Defendant entitled to a PCRA relief on allegations of severe prosecutorial misconduct that led to the eventual recantation of witness testimony that was crucial for obtaining a conviction at trial?Appellant's Br. at 5 (verbatim).
"We review the denial of a PCRA petition to determine whether the record supports the PCRA court's findings and whether its order is free of legal error." Commonwealth v. Kelsey, 206 A.3d 1135, 1139 (Pa. Super. 2019). However, before we review the issues raised on appeal, we must determine whether Appellant's petition satisfies our jurisdictional requirements.
It is well-established that the timeliness of a PCRA petition is jurisdictional; if a PCRA petition is untimely, courts lack jurisdiction over the claims and cannot grant relief. Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005). A PCRA court's finding "with regard to the timeliness of a PCRA petition will not be disturbed unless there is no support for those findings in the certified record." Commonwealth v. Williamson, 21 A.3d 236, 240 (Pa. Super. 2011).
To be timely, a PCRA petition, including a second or subsequent petition, must be filed within one year of the date that a petitioner's judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). "[A] judgment 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." 42 Pa.C.S. § 9545(b)(3). The PCRA's jurisdictional time bar "is constitutionally valid." Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004). Here, Appellant's PCRA petition, filed nearly 8 years after his judgment of sentence became final, is patently untimely.
The PCRA also provides, in relevant part, that "[a]ny 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 . . . (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[.]" 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis added). Any petition invoking a timeliness exception "shall be filed within one year of the date the claim could have been presented." Id. at § 9545(b)(2).
The mere assertion that a petitioner only recently learned of the existence of newly discovered evidence does not satisfy the Section 9545(b)(1)(ii) timeliness exception. See generally Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017) (comparing Section 9545(b)(1)(ii)'s newly discovered fact exception to Section 9543(a)(2)(vi) which pertains to claims of newly discovered exculpatory evidence raised in a timely PCRA petition). Rather, the timeliness exception requires a petitioner "to demonstrate [that] he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence." Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (emphasis added). Thus, 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." Id. (internal citation omitted; emphasis added).
The Burton court reiterated that an after-discovered evidence claim can be addressed only if raised in a PCRA petition that meets the jurisdictional timeliness requirements. See Burton, 158 A.3d at 629 ("[o]nce jurisdiction has been properly invoked (by establishing either that the petition was filed within one year of the date judgment became final or by establishing one of the three exceptions to the PCRA's time-bar) the relevant inquiry becomes whether the claim is cognizable under Section 9543 of the PCRA.") (citation and internal brackets omitted).
"Without jurisdiction, we simply do not have the legal authority to address the substantive claims." Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). See also Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011) (reiterating that "[i]f the petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition.") (citation omitted).
Finally, it is an appellant's burden to persuade the Superior Court that the PCRA court erred, and that relief is due. Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013).
In his brief to this Court, Appellant argues that Ms. Anderson's May 2021 statement and the information contained within demonstrates prosecutorial misconduct that supports his claims of actual innocence so the PCRA court should have held a hearing. Appellant's Br. at 9-11. Appellant makes no attempt to acknowledge the PCRA court's finding that it lacked jurisdiction or otherwise explain to this Court how he has met the PCRA's timeliness exception.
Moreover, we agree with the PCRA court that Appellant did not satisfy the Section 9545(b)(1)(ii) timeliness exception. In his PCRA Petition, Appellant submitted the following statement:
[S]uch evidence could not have been ascertained at the time of trial by the exercise of due diligence because the witness's new statement comes forward after revealing the prosecution required the witness to violate the judge's sequestration order [imposed during the preliminary hearing] in order to get custody of her daughter.PCRA Petition, filed 9/7/21/ at ¶ 16 (emphasis added).
The PCRA's timeliness exception requires a petitioner to plead why he could not have obtained that statement prior to the passage of the eight years following his conviction. Appellant did not do that. Without an explanation as to how the recantation statement could not have been ascertained sooner by the exercise of due diligence, Appellant's PCRA petition contains only a bald statement that Appellant learned of the existence of the statement. This does not satisfy the requirements necessary to establish the applicability of the Section 9545(b)(ii) exception. Commonwealth v. Sanchez, 204 A.3d 524, 526-27 (Pa. Super. 2019).
Because Appellant failed to plead and prove the applicability of one of the PCRA's timeliness exceptions, the PCRA court did not have the authority to address the substantive merits of Appellant's claims, and neither does this Court.
Order affirmed.
Judge Kunselman joins the memorandum.
Judge Colins files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
COLINS, J.
Because I disagree with the learned majority's conclusion that Appellant failed to sufficiently plead that he can satisfy the timeliness exception for newly discovered facts provided by Section 9545(b)(1)(ii) of the Post Conviction Relief Act (PCRA), I respectfully dissent.
Appellant's PCRA petition, filed on September 7, 2021, sought relief based on a handwritten May 5, 2021 statement signed by a prosecution witness recanting her trial testimony. The date of the witness's statement, signed less than five months before the PCRA petition was filed, is well within the one-year period within which a PCRA petition based on newly discovered facts must be filed. 42 Pa.C.S. § 9545(b)(2).
Absent evidence that the witness had previously admitted that her trial testimony was not truthful or that Appellant had reason to know prior to September 7, 2020, one year before he filed the PCRA petition, that she would admit to testifying falsely, such a recantation is sufficient to satisfy the PCRA's timeliness exception for newly discovered facts. Commonwealth v. Diggs, 220 A.3d 1112, 1116, 1118 (Pa. Super. 2019) (Section 9545(b)(1)(ii) newly discovered fact exception applied to PCRA claim that witness recanted testimony where witness signed affidavit recanting testimony one month before defendant filed PCRA petition asserting a claim based on that recantation); Commonwealth v. Medina, 92 A.3d 1210, 1214, 1216-18 (Pa. Super. 2014) (en banc), appeal dismissed as improvidently granted, 140 A.3d 675 (Pa. 2016) (PCRA claim that witness recanted testimony was timely under Section 9545(b)(1)(ii) where witness, less than 60 days before defendant filed PCRA petition, revealed to defendant that he lied at trial); Commonwealth v. Parks, 2031 EDA 2021, slip op. at 3, 7-12 (Pa. Super. May 16, 2023) (unpublished memorandum) (reversing dismissal without a hearing where PCRA petition was based on recantation shortly before the PCRA petition was filed). There is nothing in the record from which it can be concluded that the witness recanted her trial testimony more than a year before Appellant filed the PCRA petition on September 7, 2021, that the witness ever indicated to anyone before September 7, 2020 that she had testified falsely at trial, or that Appellant could have learned such information before that date.
As the majority correctly notes, Section 9545(b)(1)(ii)'s timeliness exception requires not only that the new facts were recently discovered but that the defendant could not have discovered the facts earlier if he had exercised due diligence. 42 Pa.C.S. § 9545(b)(1)(ii); Diggs, 220 A.3d at 1117; Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019). The mere assertion that the defendant only recently learned of documents, facts or witnesses that were in existence and capable of being discovered long before the PCRA petition was filed is therefore not sufficient to make a PCRA petition timely where there is no explanation why the defendant could not have learned that information earlier. Sanchez, 204 A.3d at 526-27; Commonwealth v. Pew, 189 A.3d 486, 489-90 (Pa. Super. 2018); Commonwealth v. Priovolos, 746 A.2d 621, 625-26 (Pa. Super. 2000). Here, however, the new facts are a change in a witness's testimony that occurred sometime after Appellant's trial, not a pre-existing document or the identity of witness that could have been discovered by exercising diligence. It cannot be concluded such a change in testimony could have been discovered earlier through the exercise of due diligence where there is no evidence that the witness gave any indication at any earlier date that the prior testimony was false or that the defendant had any prior reason to believe that the witness would admit to having lied at trial. Medina, 92 A.3d at 1216-18; see also Commonwealth v. Davis, 86 A.3d 883, 890-91 (Pa. Super. 2014) (due diligence does not require that the defendant to assume that the Commonwealth has caused a witness to commit perjury).
The majority concludes that Appellant did not satisfy Section 9545(b)(1)(ii)'s timeliness exception because it is the defendant's burden to plead that the facts could not have been discovered earlier and Appellant did not set forth in his PCRA petition that he could not have learned of the witness's recantation more than a year before he filed the PCRA petition. I would agree that this pleading deficiency would permit dismissal of the PCRA petition without a hearing if the PCRA court had advised Appellant in its Pa.R.Crim.P. 907 notice that the PCRA petition was barred as untimely because Appellant had not pled when the witness first recanted her testimony and Appellant, following such notice, had failed to cure the defect by specifically pleading that the witness did not recant her trial testimony before September 7, 2020 or that he had no notice before that date that she had ever indicated to anyone that her testimony at trial concerning Appellant's actions was false. The PCRA court's Rule 907 notice, however, did not advise Appellant of any such pleading defect. Rather, the Rule 907 notice stated with respect to timeliness only that the court concluded that the recantation "does not constitute 'newly discovered evidence'" without suggesting that the deficiency was a pleading flaw, and the court specifically accepted that the recantation occurred "nine years after trial." Rule 907 Notice, 7/12/22, at 3-4.
Because there is no basis in the record to find that it is undisputed that Appellant could have learned of the witness's change in testimony more than a year before he filed the PCRA petition and the PCRA court's Rule 907 notice did not state inadequate pleading of inability to learn of the recantation as a ground for holding the PCRA petition untimely, I believe that the PCRA court's summary dismissal of the PCRA petition as untimely was improper. I therefore would remand this case for a hearing on the issues of whether Appellant could have learned of the witness's recantation before September 7, 2020 and Appellant's due diligence in seeking that information. See Commonwealth v. D. Williams, 244 A.3d 1281, 1288-89 (Pa. Super. 2021); Parks, 2031 EDA 2021, slip op. at 7-12.
The PCRA court alternatively held even if the PCRA petition was timely, dismissal was proper on the ground that Appellant's claim for relief lacked merit. PCRA Court Opinion, 1/20/23, at 11-14. I believe that this likewise is not a sufficient basis on which the dismissal without a hearing can be sustained.
The majority, having concluded that the PCRA petition was properly held untimely without a hearing, does not address this issue.
Recantation evidence is generally an exceedingly unreliable type of evidence, particularly when, as here, it constitutes an admission of perjury. Commonwealth v. D'Amato, 856 A.2d 806, 825 (Pa. 2004); Commonwealth v. McCracken, 659 A.2d 541, 545 (Pa. 1995); Commonwealth v. Loner, 836 A.2d 125, 135 (Pa. Super. 2003) (en banc). That fact, however, does not make all such recantations ipso facto incredible. Commonwealth v. R. Williams, 732 A.2d 1167, 1180 (Pa. 1999); McCracken, 659 A.2d at 545-46 (upholding grant of new trial based on witness recantation where trial court heard recanting witness's testimony and found recantation credible); Medina, 92 A.3d at 1218-21 (affirming grant of new trial based on witness recantation where PCRA court heard recanting witness's testimony and found recantation credible). A PCRA court therefore cannot automatically reject a recantation as incredible and must assess its credibility based on factors beyond the mere fact that it contradicts the witness's prior testimony before it can deny relief on the ground that the claim based on the recantation lacks merit. D'Amato, 856 A.2d at 825-26; R. Williams, 732 A.2d at 1180-81. Loner, relied on by the PCRA court, is not to the contrary. In Loner, the PCRA court rejected the victim's recantation of her trial testimony after observing her testimony concerning the recantation at a PCRA hearing. 836 A.2d at 139-41.
Here, the PCRA court did not point to anything in the content of the May 5, 2021 statement that is facially impossible or that is incredible for any reason other than the fact that it differs from the witness's trial testimony. Rather, the basis that the PCRA court articulated for finding the new statement incredible was that it was a recantation and involved an admission of perjury. PCRA Court Opinion, 1/20/23, at 7-8, 12-13. Moreover, the PCRA court not only did not have the benefit of observing the witness and judging the credibility of her recantation at a PCRA hearing, it had no opportunity to observe her trial testimony, as the PCRA judge did not preside over Appellant's trial. Under these circumstances, I believe that it was error for the PCRA court to conclude that the recantation was not credible without holding a hearing. See Parks, 2031 EDA 2021, slip op. at 10-12; Commonwealth v. Smith, 436 EDA 2020, slip op. at 12-15 (Pa. Super. July 30, 2021) (unpublished memorandum).
For the foregoing reasons, I would hold that the PCRA court erred in concluding that there were no genuine issues of material fact and in determining that the PCRA petition was untimely and lacked merit without conducting an evidentiary hearing. I would therefore remand this case with instructions that the PCRA court hold a hearing on both the timeliness and merits of Appellant's claim for PCRA relief.
[*] Retired Senior Judge assigned to the Superior Court.