J-S39025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DREW COLEMAN
Appellant No. 2739 EDA 2014
Appeal from the PCRA Order September 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0811271-2004
BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED October 6, 2015
Drew Coleman appeals, pro se, from the order entered on September
10, 2014, in the Court of Common Pleas of Philadelphia County, denying him
relief on his second petition filed pursuant the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. § 9541 et seq. The PCRA court denied Coleman relief
because the petition was patently untimely and Coleman had not
demonstrated entitlement to any of the statutory exceptions. On appeal,
Coleman claims the PCRA court erred in not recognizing he presented a
prima facie case that he was subject to a miscarriage of justice. See
Appellant’s Brief at 1. After a thorough review of Coleman’s brief, 1 the
certified record, and relevant law, we affirm on the sound analysis of
____________________________________________
1
The Commonwealth did not file a brief.
J-S39025-15
October 6, 2014 opinion of the Honorable Jeffrey Minehart.2 Additionally, we
decline to reconsider our Court’s order of May 19, 2015 denying Coleman
permission to file an extended brief. However, we grant Coleman’s
application for relief and accept the filing of “Exhibit L”, specifically an
affidavit of Deirdre McPherson, dated May 18, 2015, purporting to provide
newly discovered evidence in support of Coleman’s claims.
On November 1, 2006, a jury found Coleman and co-defendant
Bernard Kennedy, guilty of first-degree murder and conspiracy, regarding
the April 12, 2003 shooting death of Justin Alls. Alls was shot at least three
times with a 9 mm gun; he was struck twice in the legs and once in the back
of the head. Coleman was sentenced on December 20, 2006. The PCRA
court recounts the filing and subsequent denial of relief of both the direct
appeal and the first PCRA petition. The PCRA court notes this PCRA petition
was filed on February 4, 2014, almost five years after his sentence became
final. Judge Minehart reviewed Coleman’s claims and the certified record
before concluding Coleman’s petition was untimely.
Our standard of review for an order denying post-conviction
relief is whether the record supports the PCRA court's
determination and whether the PCRA court's determination is
free of legal error. The PCRA court's findings will not be
disturbed unless there is no support for the findings in the
certified record.
____________________________________________
2
Coleman was tried before a jury and the Honorable Carolyn Engle Temin,
who has since retired.
-2-
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Commonwealth v. Perzel, 116 A.3d 670, 671 (Pa. Super. 2015) (citation
omitted).
We have reviewed the certified record as well as the PCRA court’s
analysis. The factual record supports the PCRA court’s conclusions and we
find no abuse of discretion or error of law therein. Accordingly, we affirm
the denial of relief on the basis of lack of jurisdiction due to the filing of an
untimely petition. We direct the parties to attach a copy of Judge Minehart’s
October 6, 2014, Pa.R.A.P 1925(a) opinion in the event of further
proceedings.
In addition to Judge Minehart’s analysis, we write separately to
confirm that Coleman is not entitled to a hearing on his claim of discovering
exculpatory evidence from public records. These records include
Philadelphia Fire Department dispatch times and 9-1-1 emergency call
times. Coleman obtained these documents by filing Right-To-Know requests
in 2013 and 2014. This information was available from 2003, the time of
the murder. Coleman has provided no explanation why such information
was unavailable to him or could not be obtained by him for 10 years. See
42 Pa.C.S. § 9545(b)(1)(ii),(2)
Additionally, Coleman’s 140-page brief3 contains 26 claims of error.
However, this brief does not explain how the PCRA court erred in
____________________________________________
3
We noted above that Coleman repeatedly sought, and was denied,
permission to file an extended brief. Nonetheless, Coleman filed a 140-page
(Footnote Continued Next Page)
-3-
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determining his petition was untimely. Rather it simply reiterates his claims
of trial court error (including police and prosecutorial misconduct and
evidentiary errors), ineffective assistance of counsel, and the above
mentioned newly discovered evidence.
Finally, we comment on Coleman’s newly filed “Exhibit L”. Affiant
McPherson claims trial witness Sheila Holloway never spoke with Coleman on
the night of the murder. McPherson knows this because she had spoken to
Coleman that night, prior to his going to the bar where the murder took
place, and she never saw the Holloway and Coleman converse. She also
states, “At the time of the trial, someone did call me to testify about what I
had seen the night of the shooting, but when I arrived at court, I was told
that I was no longer needed. Therefore, I never testified.” McPherson
Affidavit, 5/18/2015, at 1.
Rather than constituting newly discovered evidence, McPherson’s
affidavit demonstrates her testimony was known at the time of trial and was
not needed. Our review of witness Sheila Holloway’s testimony of October
26, 2006 shows that Holloway testified in accordance with McPherson’s
affidavit. See N.T. Trial, 10/26/2006, at 177-181. Specifically, Holloway
never testified she spoke with Coleman, but that McPherson was sitting on
_______________________
(Footnote Continued)
brief, which is twice as long as he sought permission for. We do not
condone Coleman ignoring the orders of this Court; however, in light of our
disposition of this matter, and the fact that we do not address the substance
of his claims, the length of his brief is immaterial.
-4-
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Holloway’s front porch and McPherson had spoken to Coleman. Accordingly,
the McPherson affidavit does not represent newly discovered evidence that
satisfied the PCRA exception to the time bar. 42 Pa.C.S. § 9545(b)(1)(ii),
(2).
Order affirmed. Motion for reconsideration denied. Motion to
supplement the record with “Exhibit L” is granted. Parties are directed to
attach a copy of Judge Minehart’s October 6, 2014 Pa.R.A.P. 1925(a) opinion
in the event of further proceedings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2015
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TRIAL DIVTSION-CRlMINAL SECTION
CO:tvfMONWEALTH OF PENNSYLVANIA
v. CP-51-CR-0811271 -2004
DRESV COLEMAN
MEMORANDUM OPINION
MINEHART,J October 6, 2014
PROCE-DIJRAL :HISTORY
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On November I, 2006, following a jury trial before the Honorable Carolyn E. Temin,
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Petitioner was found guilty of First Degree Murder and Conspiracy to Commit Murder, On
December 20, 2006, Petitioner received concurrent sentences of life imprisonment and six (6) to
twelve (12) years' incarceration on the first-degree murder and conspiracy convictions
respectively. Petitioner appealed, and the Superior Court affirmed the judgment of sentence on
July 30, 2008. The Pennsylvania Supreme Court subsequently denied allocatur on December
31, 2008.
On March 4, 2010, Petitioner filed his first petition pursuant to the Post-Conviction
Relief Act, 42 Pa.C.S. § 9541 et seq., (PCRA). which was dismissed on February 25, 2011.
Petitioner appealed, and on February 23, 2012, the Superior Court affirmed the dismissal. The
Pennsylvania Supreme Court subsequently denied allocatur on August 7, 2012.
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Petitioner filed the instant PCRA petition, his second, on February 4, 2014, and two
supplemental petitions on March 18, 2014, and May 28, 2014. After conducting an extensive
and exhaustive review of these filings, the record, and applicable case law, this Court determined
that the instant petition was untimely filed and that none of the timeliness exceptions applied.
Pursuant to Pa.R.Crim.P. 907, on August 5, 2014, this Court provided Petitioner with notice of
its intent to dismiss his petition without a hearing, and subsequently dismissed the petition on
September 10, 2014. Petitioner filed a notice of appeal from that order.
n. DISCUSSION
Under the Post Conviction Relief Act (P.C.R.A.), a defendant has one year from the date
a judgment becomes final to file a petition for collateral relief. 42 Pa.C.S. § 9545(b)(l).
Because the P.C.R.A. 's filing time limit is jurisdictional, it is mandatory, and "a court bas no
authority to extend filing periods except as the statute permits." Commonwealth v. Fahy, 737
A.2d 214, 222 (Pa. 1999). Thus, a P.C.R.A. petition filed more than a year after a judgment
becomes final can only be considered if the petitioner pleads and proves one of the three
. .- . , .. enumerated statutory exceptions to the filing requirements:
(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.~.S. § 9545(b)(l)(i)-(iii). Petitioners bear the burden of establishing that one of the
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timeliness exceptions apply. Commonwealth v. Beaslev. 741 A.2d 1258. 126 J (Pa J 9991
Additionally, a petition invoking one or more of these exceptions must establish that it was filed
within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
Petitioner's judgment became final on March 31, 2009 - ninety days after the
Pennsylvania Supreme Court denied allocatur on his direct appeal - when the time for filing a
petition for a writ of certiorari to the United States Supreme Court expired. 1 As a result,
Petitioner had until March 3 l, 2010, to file a timely P.C.R.A. petition. Because the instant
petition was filed on February 4, 2014, it was clearly untimely, and could not be considered
unless Petitioner pled and proved that one of the three timeliness exceptions applied to excuse
the late filing of bis most recent petition. Petitioner failed in this endeavor.
Petitioner's initial P.C.R.A. petition and two supplemental petitions contained twenty-six
(26) claims and fourteen (14) exhibits. The claims can be classified into four categories: 1)
allegations of police and prosecutorial misconduct; 2) allegations of ineffective assistance of
counsel; 3) allegations that the trial court abused its discretion in admitting certain evidence at
trial; and 4) alleged after-discovered evidence.
Petitioner - in his claims numbered 18-21 and 26 - attempted to invoke the after-
discovered evidence exception enumerated at 42 Pa.C.S. § 9545 (b)(l)(ii). This exception
requires a petitioner to establish two elements: 1) that the facts upon which the claim is
predicated were previously unknown; and 2) that the facts could not have been previously
ascertained by the exercise of due diligence. See Commonwealth v. Bennett, 930 .~_.2c 1264,
1272 (Pa. 2007). If a petitioner alleges and proves these two elements, then, and only then, will
this court have jurisdiction to hear the claim. See id.
I
See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1 l l3(a); U.S. Sup.Ct.R. 13.
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consisted of five exhibits: Three responses to Petitioner's "Right-to-Know Act" requests for call
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