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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN BUTTS,
Appellant No. 2207 EDA 2013
Appeal from the PCRA Order July 11, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0800501-1994
BEFORE: GANTMAN, P.J., JENKINS, J., and FITZGERALD, J.*
MEMORANDUM BY JENKINS, J.: FILED AUGUST 20, 2014
John Butts appeals from an order entered on July 11, 2013 dismissing
1
petition as untimely. We affirm.
A jury found Butts guilty of first degree murder and possession of an
instrument of crime.2 On April 3, 1996, the trial court sentenced him to life
imprisonment without the possibility of parole. Butts appealed, and on April
8, 2001, this Court affirmed his judgment of sentence. He did not appeal to
the Pennsylvania Supreme Court.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. § 9541 et seq.
2
18 Pa.C.S. §§ 2502(a), 907, respectively.
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On June 14, 2005, Butts filed a PCRA petition, and on April 6, 2006, he
filed an amended PCRA petition. Both petitions alleged after-discovered
evidence consisting of an affidavit from Jaquoy Johnson claiming that she
witnessed the victim holding a firearm moments before the shooting. Trial
the crime, and that her affidavit constitutes after-discovered evidence, an
-year statute of limitations. Id.
On November 11, 2008, the PCRA court issued a notice of intent to
dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
Id. at 1-2.3 Butts did not file a response. The notice of intent advised Butts
that the PCRA court intended to dismiss the petition without a hearing on
December 10, 2008, but the record reflects that the court did not file an
order of dismissal.4
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3
The Clerk of Court did not enter this Pa.R.Crim.P. 907 notice to dismiss
without a hearing on the docket. However, Butts concedes he received the
notice. See Petition Under PCRA to Allow Appeal Nunc Pro Tunc, Exhibit A,
d
Pennsylvania Rule of Criminal Procedure 907, stating that the PCRA that I
filed on behalf of my client, Ishmael Jones [also known as John Butts]
).
4
Pa.R.Crim.P. 907 imposes two duties on a PCRA court dismissing a petition
without a hearing: (1) delivery of the notice of intent to dismiss without a
hearing to petitioner; and (2) delivery of the order of dismissal. See
Pa.R.Crim.P. 907(1),(4). The trial court delivered to Butts only the notice of
intent to dismiss without a hearing.
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On April 4, 2011, Butts filed a PCRA petition to allow an appeal nunc
pro tunc, even though the court had not yet dismissed his petition. The court
September 4, 2012, Butts re-filed his PCRA petition, alleging that the same
after-
PCRA counsel sent a letter to the PCRA court stating Butts was still awaiting
the 907 notice and the official dismissal of the petition. Id. at 2. On May 3,
2013, the PCRA court sent a Pa.R.Crim.P. 907 notice of its intent to dismiss
the April 4, 2011 and September 4, 2012 PCRA petitions as time-barred and
devoid of merit. Butts did not file a response, and on July 11, 2013, the
PCRA court orally dismissed all three of the PCRA petitions in open court.5
N.T. 7/11/2013, pp. 3-4; Pa.R.Crim.P. 114(B)(3)(b) (service of order may
appeal, and both Butts and the trial court complied with Pa.R.A.P. 1925.
Butts filed a timely appeal in which he raises a single issue:
I. WHETHER THE PCRA COURT ERRED IN DISMISSING
THE PCRA PETITION AS UNTIMELY AND WITHOUT
HOLDING AN EVIDENTIARY HEARING ON THE
NEWLY DISCOVERED EVIDENCE OF ACTUAL
INNOCENCE?
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7/11/2013, p. 3. We construe this broad language to dismiss all three of the
petitions pending before the court, those filed on April 6, 2006, April 4,
2011, and September 4, 2012.
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As a preliminary matter, Butts confuses the burden of proof for PCRA
genuine issue of fact exists [and] it did not satisfy that burden[. Therefore,]
the PCRA [c]ourt erred when it dismissed the PCRA petition without an
had the burden of proving by a preponderance of the evidence that he is
entitled to relief under the PCRA and that his petition is timely. See 42
Pa.C.S. § 9543(a); Commonwealth v. Jones, 54 A.3d 14, 17
the one-year limitation).
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Hackett
Id. A PCRA petition must be filed within one year of the date on which the
judgment of sentence becomes final, unless the petitioner meets one or
more of the limited exceptions set forth in 42 Pa.C.S. § 9545(b)(1). 6 A
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These 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
(Footnote Continued Next Page)
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discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking
exceptions must be filed within sixty days of the date the claim first could
have been presented. 42 Pa.C.S. § 9545(b)(2).
Butt
on direct appeal affirming his judgment of sentence. See Pa.R.A.P. 1113(a)
(appellant must file a Petition for Allowance of Appeal to the Supreme Court
had one year, until May 8, 2002, to file a timely PCRA petition. 42 Pa.C.S. §
9545(b)(1). He filed his original petition on June 14, 2005, approximately
three years after the expiration of time for seeking review, and filed the
present petition on April 4, 2011, approximately nine years after the
expiration of time. Therefore, both petitions are untimely.
_______________________
(Footnote Continued)
(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).
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atisfies the after-
discovered evidence exception to the one-year statute of limitations.7 See
42 Pa.C.S. § 9545(b)(1)(ii) (excusing late- the
facts upon which the claim is predicated were unknown to the petitioner and
could not ha
Specifically, Butts asserts that on the night of the shooting, Johnson
thereafter exit the home holding the same firearm. Trial Court Opinion, at 3.
She allegedly saw Butts standing on the outside of the property on the
Id. Butts claims that neither he nor his defense team knew
testimony at the time
defeats the finding of first degree murder, because if her testimony is
which the jury could rationally conclude that [Butts] formed a plan to kill
Id. at 12, 13.
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hearing argument by the Commonwealth, to secure an affidavit for the
witness (Jaquoy Johnson) who was to supposedly provide exculpatory
evidence in this case. The [PCRA] court granted the defense sixty (60) days
did not secure an affidavit from Johnson detailing the contours of her
recollection of the events leading up to the shooting, on April 6, 2006, the
verified the accuracy of the information contained in the petition.
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To obtain relief based upon newly-discovered evidence under the
PCRA,
a petitioner must establish that: (1) the evidence
has been discovered after trial and it could not have
been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it
is not being used solely to impeach credibility; and
(4) it would likely compel a different verdict.
Commonwealth v. D'Amato, 856 A.2d 806, 823-24 (2004) (internal
citations omitted).
his petition within 60 days of the date his claim of newly discovered evidence
could have been presented. See 42 Pa.C.S. § 9545(b)(2). In his original and
subsequent petitions, Butts failed to specify precisely when the exculpatory
evidence became available and why the evidence was not available at the
time of trial through the exercise of reasonable due diligence. See Petition
Under PCRA to Allow Appeal Nunc Pro Tunc, ¶¶ 8-11. The record is
acknowledgement of receipt of a subpoena dated February 23, 2006, the
affidavit signed by Johnson is dated April 6, 2006. On appeal, however,
Butts asserts:
Johnson dated April 2, 2004. The PCRA petition was
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filed June 14, 2005 which is within 60 days of the
discovery of the new information on April 2, 2004.
information on April 2, 2004, rendering the instant petition untimely under
14, 2005 petition was still filed more than 60 days later. Thus, Butts failed to
file the PCRA petition within 60 days of
information. See 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Jones, 54
A.3d 14, 17 (Pa.Super.2012) (PCRA petitioner has the burden to plead and
prove exception to the one-year limitation).
Nor does Butts demonstrate why he could not have discovered
due diligence. Butts does not state when or how he acted with due diligence
in ascertaining the new information, i.e., what actions he took prior to or
d
testimony. This alone constitutes a basis for denying relief. See, e.g.,
Commonwealth v. Yarris, 731 A.2d 581, 588-91 (Pa.1999) (claim failed
because appellant did not make sufficient proffer of why it took so long to
present claim and therefore did not show that he acted with due diligence).
Butts cites to authorities from other jurisdictions that expound on the due
diligence requirement for prisoners. See -13. These
decisions are not binding; nor does he apply their rationale to his case. Id.
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Butts was not incarcerated at the time of trial; thus, these holdings are
patently irrelevant. In short, Butts fails to establish he acted with due
diligence in obtaini
relief would fail because, as the PCRA court reasons, the newly discovered
evidence would not likely compel a different verdict. ,
856 A.2d at 823-24. Trial Court Opinion, at 5.
In Commonwealth v. Holmes, the petitioner claimed the after-
discovered evidence exception applied to his proffer of an affidavit of an
eyewitness who claimed he saw another individual, not the petitioner,
commit the crime. 905 A.2d 507, 511-512 (Pa.Super.2006). Because the
a reasonable doubt, we held that the affidavit would not have compelled a
different verdict, and thus the evidence failed to satisfy the requirements of
the exception to the PCRA time-bar.
Here, the PCRA court reasoned:
[A]s in the Holmes
supposed newly discovered evidence would not have
compelled a different verdict. In his statement on
gun with the victim and the sound of gunshots
coming from the steps of the property are
admitted
at trial was adequate and sufficient to convict
[Butts].
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Trial Court Opinion, at 5 (no quote citation in original). Moreover, when we
appeal, we opined:
[Butts] fired at least four shots at the fleeing
victim, who was struck by two of them, one at such
an angle as to pass through both thighs, and the
the bullet whi
determined by the kickback of the gun caused by the
first, lower shot, there is no definitive means of
ascertaining which bullet struck first. However, this
conclusion.
In Commonwealth v. Wyche, 467 A.2d 636,
637 (Pa. Super. 1983), this Court held that even
though the fatal bullet penetrated a non-vital part of
properly infer specific intent to kill from the fact that
the appellant fired multiple shots at the victim. Here,
as in Wyche, multiple shots were fired. Moreover,
the lethal shot did in fact strike a vital part of the
to fire as the victim ran clearly meant that it should
do. Thus, the evidence was clearly sufficient to
support the verdict.
Commonwealth v. Butts, 1190 EDA 2000, at *3 (Pa.Super.2001)
reasoning that the evidence was sufficient to support his conviction for first-
different verdict.
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Order affirmed.8
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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evidence was insufficient to convict him of first-degree murder because the
prosecution failed to prove he acted with malice when he shot the victim.
Trial Court Opinion, at 5. Butts does not present this argument on appeal
and thus we find it abandoned. Moreover, this issue was previously litigated
before this Court and, thus, not cognizable. See Commonwealth v. Butts,
1190 EDA 2000 (Pa.Super.2001) (unpublished memorandum); 42 Pa.C.S. §
9543(a)(3); Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa.2009)
(issue previously l n issue has been previously
42 Pa.C.S. § 9544(a)(2)).
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