J-S30043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL CARTER
Appellant No. 1996 EDA 2015
Appeal from the PCRA Order June 8, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1213321-1992
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 06, 2016
Appellant Daniel Carter appeals from the June 8, 2015 order of the
Philadelphia Court of Common Pleas dismissing as untimely his petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We
affirm.
This Court has summarized the factual history of this case as follows:
On July 3, 1992, at approximately 1:30 a.m., [Appellant]
and one Jamal Jones arrived at the home of Daniel
Witherspoon at 711 Mercy Street in Philadelphia.
Appellant requested to speak with Shawn “Ali” Bain, who
was Witherspoon’s step-son and resided with him.
Appellant asked Bain if he could borrow his twelve gauge
sawed-off shotgun. Bain agreed and retrieved the
shotgun, loaded with three shells, from his bedroom.
Appellant and [Jones] left with the shotgun and met one
Wayne “Hawk” Witherspoon. The three men proceeded to
a playground, approximately one and one-half blocks from
[Daniel] Witherspoon’s house. Once inside the playground,
[Appellant] approached the victim, Darryl Chinn, who was
sitting on a park bench facing the basketball court.
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Appellant fired a single, fatal shot into Chinn’s groin and
pelvis from approximately two yards away.
***
On October 31, 1992, [Appellant] was arrested and
charged with the murder of Darryl Chinn.
Commonwealth v. Carter, 661 A.2d 390, 391-92 (Pa. Super. 1995).
This Court has summarized the procedural history of this case as
follows:
At the conclusion of a two-day bench trial, the trial court
found Appellant guilty of first-degree murder, possession
of an instrument of crime, [possession of prohibited
offensive weapon,] and criminal conspiracy.[1]
Subsequently, the trial court sentenced Appellant to life in
prison for his murder conviction, and a suspended
sentence on the remaining convictions. Appellant filed a
timely [notice of] appeal to this Court. On June 6, 1995, a
divided panel affirmed Appellant’s judgment of sentence.
Carter, supra. On April 9, 1996, our Supreme Court
denied Appellant’s petition for allowance of appeal.
Commonwealth v. Carter, 675 A.2d 1242 (Pa. 1996).
On July 7, 1997, Appellant filed a pro se PCRA petition.
The PCRA court appointed counsel, and PCRA counsel filed
an amended petition. The PCRA court held two days of
evidentiary hearings. By opinion and order dated January
5, 1999, the PCRA court denied relief. Appellant filed a
timely appeal to this Court. In an unpublished
memorandum filed on March 7, 2000, we adopted the
PCRA court’s opinion as our own in affirming its denial of
post-conviction relief. Commonwealth v. Carter, 757
A.2d 990 (Pa. Super. 2000) (unpublished memorandum).
On July 5, 2000, our Supreme Court denied Appellant’s
petition for allowance of appeal. Commonwealth v.
Carter, 785 A.2d 87 (Pa. 2000).
____________________________________________
1
18 Pa.C.S. §§ 2502, 907, 908, and 903, respectively.
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On September 21, 2010, Appellant filed a second PCRA
petition. The PCRA court appointed counsel, and PCRA
counsel filed an amended petition. While acknowledging
that his serial petition was untimely, Appellant asserted
that he filed it within sixty days of obtaining . . . new
evidence. The PCRA court summarized the claim within the
amended petition as follows:
In this Amended Petition, [Appellant] claimed that on
July 20, 2010, a woman named Raynell[e] Allen
wrote [Appellant] a letter in which she informed him
that her then-boyfriend [Jamal Jones], had
confessed to her on the night of the shooting at issue
in this case that he, and not [Appellant,] committed
the murder of which [Appellant] was convicted.
[Jamal Jones] passed away on December 22, 2005.
PCRA Court Opinion, 11/7/13, at 2 (footnote and citations
omitted).
The PCRA court then explained the subsequent procedural
history as follows:
On November 16, 2012, Judge Temin ordered that
an evidentiary hearing be held on [Appellant’s]
[newly]-discovered evidence claim. Due to Judge
Temin’s retirement from the bench, this PCRA
[petition] was then reassigned to the [PCRA court].
On July 26, 2013, following an evidentiary hearing
and supplemental pleadings by both parties, the
[c]ourt entered an order dismissing [Appellant’s]
PCRA petition. [PCRA counsel] subsequently
withdrew from representation, and [Appellant]
requested permission to proceed pro se. The PCRA
court held a Grazier[2] hearing and permitted
[Appellant] to represent himself.
PCRA Court Opinion, 11/7/13, at 2 (footnote omitted).
____________________________________________
2
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
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Memorandum at 1-4, Commonwealth v. Carter, No. 2446 EDA 2013
(Pa.Super. filed Nov. 7, 2014) (unpublished memorandum).
During the pendency of the appeal of Appellant’s second PCRA
petition, he filed an application for remand requesting a remand to the trial
court to review the declaration received from prior counsel, who had
represented Appellant during federal post-conviction proceedings. The
declaration stated that counsel does not recall seeing the statement that
Raynelle Allen provided to police after the shooting. This Court deferred
determination of the application to the merits panel. Order,
Commonwealth v. Carter, No. 2446 EDA 2913 (Pa.Super. filed May 28,
2014.
Ms. Allen’s statement to the police included that she found the victim,
whom she did not know, at the playground, and called the police. PCRA
Petition, at Exh. H. She also stated that there was no one at the playground
when she found the victim, but a “girl named Yatta” was sitting on the steps
of “609 Mercy St. and there was somebody else sitting there with her.” Id.
She also stated that “Allan” had told her he heard gunshots and that she
walked to the playground with “Allan[,] Marvetta, John and Mark.” Id. She
also stated that Yatta said she heard the gunshots. Id. When asked
whether she knew anyone who had ever fired a gun around the playground,
Ms. Allen responded “[a] lot of them young boys be shooting around there,”
“[o]ne of them lives on 7th and Mercy, his name is Ali,” and “[a]nother boy
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lives at 6th and McKean but I don’t know his name.” Id. She said “[h]e
lives in a shackey looking house that I think is green.” Id.3
On November 7, 2014, this Court affirmed the PCRA court’s order
dismissing Appellant’s second PCRA petition as untimely.
On December 29, 2014, Appellant filed the instant PCRA petition, his
third. On May 15, 2015, the PCRA court issued notice of its intent to dismiss
the PCRA petition without a hearing pursuant to Pennsylvania Rule of
Criminal Procedure 907. On June 6, 2015, Appellant filed a response to the
notice of intent to dismiss.4 On June 8, 2015, the PCRA court dismissed the
petition as untimely.
On June 17, 2015, Appellant filed a timely notice of appeal. Both
Appellant and the PCRA court complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant raises the following issues on appeal:
I. Did the PCRA court err in finding that the Appellant’s
current serial PCRA petition was not timely filed?
II. Was [p]rior PCRA counsel ineffective for failing to
interview and subpoena witnesses for the PCRA evidentiary
hearing?
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3
At the June 21, 2013, evidentiary hearing, Ms. Allen testified that her
boyfriend, James Jones, told her that he shot the victim.
4
This response was dated June 6, 2015, and stamped as filed on June 8,
2015.
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III. Did the Commonwealth commit a Brady[5] violation
when it failed to provide a pretrial statement given by
Raynelle Allen?
Appellant’s Brief at 4.
Pursuant to Pennsylvania law, no court has jurisdiction to hear an
untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079
(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,
1161 (Pa.2003)). The PCRA provides that a petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at
1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A
judgment is 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).
Three exceptions to the PCRA’s time-bar exist. The exceptions allow
for limited circumstances under which a court may excuse the late filing of a
PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. To
establish that an exception to the PCRA time-bar applies, a petitioner must
allege and prove:
(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
____________________________________________
5
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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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). When invoking an exception to the PCRA
time-bar, the petition must “be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s judgment of conviction became final on July 8, 1996, when
the time to seek review by the Supreme Court of the United States expired. 6
He had one year from that date, i.e., July 8, 1997, to file a timely PCRA
petition. Therefore, his current petition, filed on December 29, 2014, is
facially untimely.
Appellant’s petition remains untimely unless his PCRA petition alleged
and proved a PCRA time-bar exception. His petition raises an ineffective
assistance of counsel claim and a Brady claim.
____________________________________________
6
Appellant had 90 days from the date the Pennsylvania Supreme Court
denied his petition for allowance of appeal to file a petition for a writ of
certiorari with the Supreme Court of the United States. See U.S. Sup. Ct. R.
13; Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.Super.1998)
(applying Rule 13 to judgment of sentence entered May 15, 1996).
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Allegations of ineffective assistance of counsel do not establish a time-
bar exception. Commonwealth v. Wharton, 584 A.2d 1120, 1127
(Pa.2005).7 Appellant’s Brady claim also fails to establish an exception to
the PCRA time-bar.
Where a petitioner alleges a Brady claim in a PCRA petition filed more
than one-year after a judgment of sentence became final, the petitioner
must establish the claim qualifies under the newly-discovered evidence
exception to the PCRA time bar. Commonwealth v. Bennett, 930 A.2d
1264, 1271-72 (Pa.2007). To establish the newly-discovered evidence
exception, the petitioner must establish 1) “the facts upon which the claim
was predicated were unknown” and 2) the facts “could not have been
ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii);
Bennett, 930 A.2d at 1272.
Appellant’s PCRA petition alleges that he learned of the statement
Raynelle Allen provided to the police following the shooting when the
Commonwealth used it to cross-examine Ms. Allen at the 2013 evidentiary
hearing. PCRA Petition at 8. He maintains he had no knowledge of this
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7
Appellant raised PCRA counsel ineffectiveness claims in his appeal of the
denial of his second PCRA petition, including a PCRA counsel ineffectiveness
claim for failing to investigate the alleged Brady violation. Memorandum at
9, Commonwealth v. Carter, No. 2446 EDA 2013 (Pa.Super. filed Nov. 7,
2014) (unpublished memorandum); Brief at 58, Commonwealth v. Carter,
No. 2446 EDA 2013 (Pa.Super. filed Apr. 7, 2014). This Court found those
claims waived, because Appellant raised them for the first time on appeal.
Memorandum at 9, Carter, No. 2446 EDA 2013.
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statement prior to the hearing. He further maintains that following the
hearing he wrote letters to his prior counsel and hired an investigator to
determine whether they had reviewed the statement. Id. at 9-10.
Appellant received a declaration and verified statement from the counsel
who represented him during this federal habeas corpus proceedings, which
stated counsel had not been presented with the statement and she had no
recollection of having seen it, or any reference to Ms. Allen or her statement,
in the case notes she reviewed. Id.8 Appellant’s PCRA petition, however,
fails to state what facts in Ms. Allen’s statement he did not know, or could
not have known with due diligence. In his appellate brief, he asserts the
statement would tend to establish that there were other individuals in the
area that had been known for shooting guns. However, this is not a fact
that was unknown to Appellant or that could not have been ascertained with
due diligence.9
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8
The declaration and verified statement from Appellant’s prior counsel is
dated April 16, 2014, and Appellant filed an application for remand on May
8, 2014. He then filed the instant petition on December 29, 2014, within 60
days of this Court’s order affirming the dismissal of his prior PCRA petition.
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.2000) (when appellant’s
PCRA appeal is pending, a subsequent petition cannot be filed until the
resolution of review of pending PCRA petition by highest state court in which
review is sought, or upon the expiration of the time for seeking such review;
the subsequent petition must be filed within 60 days of date of order which
finally resolves the previous PCRA petition).
9
Although there are other facts, including names of potential witnesses, in
the statement, Appellant does not assert that he did not know those facts, or
that he did not know of the existence of the witnesses, at an earlier time.
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Accordingly, Appellant has failed to allege and prove any exception to
the PCRA time bar, and the PCRA court properly dismissed his third PCRA
petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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Com. v. Carter, R.
Combined Opinion