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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DEVELL SHORT
Appellant No. 1074 WDA 2014
Appeal from the PCRA Order June 10, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004651-1990
CP-02-CR-0005386-1990
BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 20, 2015
Appellant, Devell Short, appeals from the order entered June 10,
2014, in the Court of Common Pleas of Allegheny County, which dismissed
his sixth Post Conviction Relief Act1 petition as untimely. We affirm.
A panel of this Court previously summarized the pertinent history of
this case as follows.
Appellant was convicted of first-degree murder on June 28,
1991, based on his actions in shooting Tierenzo Morton. The
court imposed a judgment of sentence of life imprisonment
without parole on that same date. After the appointment of new
counsel and the litigation of post-sentence motions, Appellant
appealed. This Court affirmed the judgment of sentence on
October 20, 1994, and the Supreme Court denied allowance of
appeal. Commonwealth v. Short, 654 A.2d 602 (Pa. Super.
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
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1994) (unpublished memorandum), appeal denied, 657 A.2d
490 (Pa. 1995).
Appellant first sought collateral relief on July 9, 1996. The
court initially appointed the public defender’s office, which
withdrew based on having represented Appellant during litigation
of his post-sentence motions and direct appeal. Thereafter, the
court appointed substitute counsel who filed a motion to
withdraw and no-merit letter. The PCRA court granted counsel’s
request on July 3, 1997, but did not issue a notice of intent to
dismiss until October 30, 1997. In that interim, Appellant filed a
pro se response asserting a new issue, namely, that a witness
received leniency in exchange for his testimony. The PCRA court
then reappointed counsel and directed him to investigate this
allegation. Counsel again filed a no-merit letter. The court
again allowed counsel to withdraw. It subsequently issued a
notice of dismissal and Appellant filed a response. Ultimately,
the court dismissed Appellant’s first petition on November 24,
1998. This Court affirmed, and our Supreme Court denied
allowance of appeal. Commonwealth v. Short, 748 A.2d 1255
(Pa. Super. 1999), appeal denied, 757 A.2d 931 (Pa. 2000).
Thereafter, on April 4, 2001, Appellant filed a second
counseled PCRA petition. Following the submission of an
amended petition by Appellant and the Commonwealth’s answer,
the PCRA court filed a notice of intent to dismiss. A final order
followed and this Court affirmed on appeal. Commonwealth v.
Short, 832 A.2d 543 (Pa. Super. 2003) (unpublished
memorandum).
Appellant again, with the aid of counsel from his second
PCRA proceeding, sought PCRA relief on November 26, 2003.
The court issued a notice of dismissal and a final order. On
appeal, this Court affirmed and the Supreme Court denied
allowance of appeal. Commonwealth v. Short, 880 A.2d 12
(Pa. Super. 2005) (unpublished memorandum), appeal denied,
887 A.2d 769 (Pa. 2005). On July 17, 2007, Appellant, still with
the assistance of counsel from his prior two PCRA matters, filed
his fourth PCRA petition. The court filed a notice of dismissal
and final order and Appellant appealed. This Court again
affirmed and Appellant did not seek further review.
Commonwealth v. Short, 970 A.2d 478 (Pa. Super. 2009)
(unpublished memorandum).
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Appellant, acting pro se, filed his fifth … petition on June 6,
2011. The court issued Pa.R.Crim.P. 907 notice of intent to
dismiss on January 18, 2013. Appellant responded, and the
court filed its final order on February 11, 2013.
Commonwealth v. Short, 96 A.3d 1095 at *1-3 (Pa. Super., filed January
28, 2014) (unpublished memorandum) (footnote omitted). This Court
affirmed on appeal and Appellant did not seek review with our Supreme
Court. See id.
Appellant filed the underlying pro se PCRA petition – his sixth – on
March 9, 2014. Appellant filed a supplemental PCRA petition on March 13,
2014, and the Commonwealth filed a response thereto on May 19, 2014.
The PCRA court subsequently issued notice of its intent to dismiss
Appellant’s petition without a hearing, and on June 10, 2014, the court
issued a final order dismissing Appellant’s petition. This timely appeal
followed.
Appellant raises a single issue for our review: that “[t]he PCRA court
erred when it failed to conduct an evidentiary hearing before it denied
Appellant’s PCRA petition ruling that the[]newly discovered evidence issue
did not have any merit.” Appellant’s Brief at 3.
Before we may address the merits of a PCRA petition, we must first
consider the petition’s timeliness because it implicates the jurisdiction of
both this Court and the PCRA court. See Commonwealth v. Williams, 35
A.3d 44, 52 (Pa. Super. 2011), appeal denied, 50 A.3d 121 (Pa. 2012).
“Pennsylvania law makes clear no court has jurisdiction to hear an untimely
PCRA petition.” Id. (citation omitted). The PCRA “confers no authority upon
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this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).
This is to “accord finality to the collateral review process.” Id. (citation
omitted). “A petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. §
9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v. Harris, 972 A.2d
1196, 1199-1200 (Pa. Super. 2009). A petitioner asserting a timeliness
exception must file a petition within 60 days of the date the claim could have
been presented. See 42 Pa.C.S.A. § 9545(b)(2).
There is no dispute that the instant PCRA petition is untimely.
However, Appellant claims that he benefits from the newly discovered facts
exception to the PCRA timebar under Section 9545(b)(1)(ii). We note that,
[t]he timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate 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. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
1271 (2007). Due diligence demands that the petitioner take
reasonable steps to protect his own interests. Commonwealth
v. Carr, 768 A.2d 1164, 1168 (Pa.Super.2001). A petitioner
must explain why he could not have learned the new fact(s)
earlier with the exercise of due diligence. Commonwealth v.
Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001);
Commonwealth v. Monaco, 996 A.2d 1076, 1080
(Pa.Super.2010), appeal denied, 610 Pa. 607, 20 A.3d 1210
(2011). This rule is strictly enforced. Id. Additionally, the focus
of this exception “is on the newly discovered facts, not on a
newly discovered or newly willing source for previously known
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facts.” Commonwealth v. Marshall, 596 Pa. 587, 596, 947
A.2d 714, 720 (2008) (emphasis in original).
Commonwealth v. Brown, 111 A.3d 171, 177 (Pa. Super. 2015).
Appellant maintains that an affidavit from a juror who participated in
his 1991 trial meets the newly discovered fact exception. The affidavit,
dated November 18, 2013, is from James S. Held. The statement indicates
the following exchange occurred between Held and a private investigator.
Q: Did the Jury Foreman, Mr. Robert Milliken bring information
in, into the Jury in the back, while you were deliberating?
A: Actually he brought it in, while the trial was still going on. I
think it was about midway. It seemed like it was midway
through the trial.
Q: And the Judge was mad about this afterwards?
A: Oh, yea, definitely.
Q: So this was during deliberations, he allegedly brought in, uh,
the definition of intent?
A: Um hmm.
Q: Yes or no?
A: Yes, yes.
Q: Ok, OK, and also this did affect quite possibly the Jurors’
deliberation?
A: Very possible, sure.
Q: Sir uh, let me ask you one other question, also after the
deliberation was over, did the Judge get, go into the Defendant’s
background?
A: Yes well, initially he thanked us you know, for, for, doing the
job that we did, and he did, made a comment that uh, that they
were looking to get him for some time.
See PCRA Petition, Exhibit 1, Held Affidavit.
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Appellant acknowledges that the issue regarding the juror was known
at the time of trial, and in fact, was the basis for Appellant’s motion for a
mistrial, which the trial court ultimately denied. Appellant now argues that
the affidavit disproves the foreman’s contention at trial that he did not share
the outside legal definitions with other jurors, and that Appellant should
therefore be warranted a new trial. See Appellant’s Brief at 13. We
disagree.
The affidavit fails to satisfy the newly discovered fact exception on
multiple levels. Although Appellant avers that the affidavit “has just recently
become available,” Appellant’s Brief at 23, he does not demonstrate that he
“could not have learned those facts earlier by the exercise of due diligence.”
See Brown, supra. Quite simply, Appellant does not explain why he was
unable to uncover these facts in the preceding 24 years since his conviction.
Appellant further fails to establish that he filed his PCRA petition based on
this evidence within 60 days of the date the claim could have been
presented. See 42 Pa.C.S.A. § 9545(b)(2). The affidavit in question, which
is dated November 18, 2013, memorializes a conversation which occurred on
November 11, 2013. Appellant did not file the instant PCRA petition until
March 9, 2014 – well over 60 days past the date on which the conversation
occurred.
For these reasons, Appellant fails to satisfy the newly discovered facts
exception to the PCRA timebar, and his petition is patently untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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