J-S30041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAMIYELL VAUGHTER
Appellant No. 2404 EDA 2015
Appeal from the PCRA Order July 28, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0500732-1998
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 11, 2016
Appellant Damiyell Vaughter (“Appellant”)1 appeals from the order of
the Philadelphia County Court of Common Pleas dismissing as untimely his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§ 9541 et seq. After careful review, we affirm.
The PCRA court set forth the relevant facts and procedural history of
this matter as follows:
On July 10, 2001, a jury found [Appellant] guilty of First
Degree Murder[2] and Conspiracy.[3] On August 9, 2001,
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1
The trial court also refers to Appellant as “Damtyell Vaughter”. See
Docket, CP-51-CR-0500732-1998; see also Trial Court’s Pa.R.A.P. 1925(a)
Opinion, filed October 5, 2015 (“1925(a) Opinion”), p. 1.
2
18 Pa.C.S. § 2502.
3
18 Pa.C.S. § 903.
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[Appellant] was sentenced to life imprisonment. [Appellant]
appealed the judgment to the Superior Court and it was affirmed
on February 13, 2004. No petition for allowance of appeal in the
Supreme Court was filed.
[Appellant] filed a timely pro se PCRA petition on
December 22, 2004. Counsel was appointed and filed an
amended petition as well as an advocate’s brief in support of the
amended petition. On September 13, 2007, the PCRA court
dismissed the petition. On May 4, 2011, the Superior Court
affirmed the dismissal.[4] [Appellant] filed a petition for
allowance of appeal in the Pennsylvania Supreme Court, which,
on November 10, 2011, denied allowance of appeal.
[Appellant] filed the current petition on November 21,
2014, his second PCRA petition. After conducting an extensive
and exhaustive review of [Appellant’s] filings, record, and
applicable case law, th[e PCRA c]ourt found that [Appellant’s]
petition for post[-]conviction collateral relief was untimely
filed.[5] Therefore, th[e PCRA c]ourt did not have jurisdiction to
consider [Appellant’s] PCRA petition. [Appellant] appealed the
dismissal on August 3, 2015.
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4
The delay between the PCRA court’s dismissal of the petition and this
Court’s affirmance of the dismissal was occasioned by the PCRA court
improperly dismissing the petition based on Commonwealth v. Turner,
544 A.2d 927 (Pa.1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super.1988) (en banc). The PCRA court also incorrectly noted that the
PCRA petition was Appellant’s second or serial petition and that Appellant
would therefore have to proceed pro se or with privately-retained counsel.
Upon the discovery of these errors, on March 27, 2009, this Court remanded
the matter to the PCRA court to allow Appellant to file a counseled appeal.
On June 10, 2010, private counsel entered an appearance and began
prosecuting the appeal on Appellant’s behalf. See Commonwealth v.
Vaughter, 2362 EDA 2009.
5
On June 16, 2015, the PCRA court filed a Pa.R.Crim.P. 907 notice of intent
to dismiss Appellant’s second PCRA petition as untimely. Appellant filed a
response to the Rule 907 notice on June 29, 2015. The PCRA court denied
Appellant’s second PCRA petition as untimely on July 28, 2015.
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1925(a) Opinion, pp. 1-2 (original footnotes omitted). The PCRA court filed
its 1925(a) Opinion on October 5, 2015.
Appellant raises the following issues for our review:
I. Whether the PCRA court erred, thereby declining to assume
jurisdiction of the matter finding [Appellant’s] [s]econd PCRA
petition was untimely[ w]here [Appellant] filed his [s]econd
PCRA petition within [s]ixty (60) days of learning the information
from Mr. Dwyer[ and Appellant] acted with [d]ue [d]illigence as
there was no conceivable way for [Appellant] to have discovered
this evidence any sooner[?]
II. [Whether t]he lower [c]ourt erred in dismissing on timeliness
grounds [Appellant’s] amended PCRA petition, [i]n which he
proved that the Commonwealth had failed to disclose the
impeachment evidence of the prosecution[’]s two primary
witnesses[’] criminal histories at trial, when the lower court
failed to consider that: (a) [t]he only reason [Appellant] did not
file his petition any sooner was because the [C]ommonwealth
concealed the very evidence [Appellant] would need to prove the
“After-Discovered Evidence” exception[] to the time bar; (b)
Appellant timely filed the instant PCRA petition within sixty days
of discovering the evidence the [C]ommonwealth failed to
disclose; and (c) Appellant could not have discovered this
evidence any sooner with the exercise of [d]ue [d]iligence
because the law allowed him to rely on the representations of
the [C]ommonwealth that there had been no criminal histories
when later events proved that there had been[?]
Appellant’s Brief, p. 3.
Our well-settled standard of review for orders denying PCRA relief is
“to determine whether the determination of the PCRA court is supported by
the evidence of record and 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.” Commonwealth v. Barndt, 74 A.3d 185, 191-192
(Pa.Super.2013) (internal quotations and citations omitted).
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We must first consider the timeliness of the petition. “It is undisputed
that a PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). “This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of a petition.” Hernandez, 79 A.3d at
651 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A
judgment of sentence “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). However, a facially untimely petition
may be received where any of the PCRA’s three limited exceptions to the
time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote
omitted). These exceptions include:
(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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). As our Supreme Court has repeatedly
stated, the petitioner maintains the burden of pleading and proving that one
of these exceptions applies. Commonwealth v. Abu-Jamal, 941 A.2d
1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,
[a] petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, the petitioner
must plead and prove specific facts that demonstrate his claim
was raised within the sixty-day time frame under section
9545(b)(2).
Hernandez, 79 A.3d at 651-652 (internal quotations omitted).
Finally, a heightened standard applies to a second or subsequent PCRA
petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). “A second or
subsequent request for relief under the PCRA will not be entertained unless
the petitioner presents a strong prima facie showing that a miscarriage of
justice may have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248,
1251 (Pa.2006). Additionally, in a second or subsequent post-conviction
proceeding, “all issues are waived except those which implicate a
defendant’s innocence or which raise the possibility that the proceedings
resulting in conviction were so unfair that a miscarriage of justice which no
civilized society can tolerate occurred”. Commonwealth v. Williams, 660
A.2d 614, 618 (Pa.Super.1995).
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Here, because Appellant did not file a petition for allowance of appeal
to our Supreme Court, Appellant’s judgment of sentence became final on
March 15, 2004, thirty days after this Court affirmed his convictions. 6 See
42 Pa.C.S. § 9545(b)(3). Accordingly, Appellant had until March 15, 2005 to
timely file a PCRA petition.
Appellant filed the instant petition, his second, on November 21, 2015,
over ten and one-half years after the expiration of his PCRA limitations
period. Accordingly, Appellant’s petition is facially untimely. Thus, he must
plead and prove that his petition falls under one of the Section 9545
exceptions set forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
To overcome the PCRA’s time bar, Appellant first asserts the unsworn
affidavit of fellow prisoner Timothy Dwyer amounts to after-discovered
evidence that provides him with a time-bar exception. He is incorrect.
To be eligible for PCRA relief based on after-discovered evidence, a
petitioner must plead and prove by a preponderance of the evidence “[t]he
unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the
trial if it had been introduced.” 42 Pa.C.S. § 9543 (a)(2)(vi). The petitioner
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6
The actual 30th day fell on March 13, 2004, a Saturday. Therefore,
Appellant had until the following Monday, March 15, 2004, to timely file a
petition for allowance of appeal in the Supreme Court. See 1 Pa.C.S. §
1908. Accordingly, Appellant’s judgment of sentence became final on March
15, 2004.
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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 802, 823 (Pa.2004) (quoting
Commonwealth v. Abu-Jamal, 720 A.2d 79, 94 (Pa.1998)). The
petitioner must explain why he could not have learned the after-discovered
fact earlier with the exercise of due diligence. Commonwealth v.
Breakiron, 781 A.2d 94, 98 (Pa.2001). Further, “[t]he focus of the
exception is on the newly discovered facts, not on a newly discovered or
newly willing source for previously known facts.” Commonwealth v.
Marshall, 947 A.2d 714, 720 (Pa.2008) (internal quotations, brackets, and
citation omitted; emphasis in original).
In the affidavit in question, Mr. Dwyer describes a shooting he alleges
he witnessed in February 1998. See Timothy Dwyer Affidavit, October 31,
2014 (“the Affidavit”), pp. 1-4. The Affidavit does not recount the date,
time, or location of the shooting. Id. Instead, the Affidavit vaguely tells a
tale of gunshots in February and concludes that Appellant was not the
passenger in the car from which a driver and passenger emerged to commit
the shooting. Id.
The trial court disposed of Appellant’s attempt to invoke the after-
discovered evidence time-bar exception based on the Affidavit as follows:
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. . . [Appellant] fails to state what due diligence, if any, he took
to secure Mr. Dwyer’s testimony. According to the affidavit,
[Appellant] and Mr. Dwyer know each other through prayer
service at prison. It is unclear whether they knew each other
prior to prison, or if they are from the same neighborhood.
[Appellant] did not state what attempts, if any, he took to locate
possible witnesses, including Mr. Dwyer, who may have seen him
that night. [Appellant] does not explain why he could not have
discovered the witness on an earlier date, through the use of a
private investigator or otherwise. [Appellant], therefore, fails to
establish he could not have obtained any alleged new facts at an
earlier time with the exercise of due diligence.
1925(a) Opinion, pp. 3-4. The PCRA court did not err in determining the
affidavit did not afford Appellant an exception to the PCRA time-bar.7
Appellant also claims his belated discovery of the criminal histories of
certain Commonwealth witnesses provides an exception to the PCRA time-
bar. Appellant is again incorrect.
The criminal histories of witnesses are a matter of public record. “[Our
Supreme] Court has addressed the meaning of ‘facts’ as that term is
employed in Section 9545(b)(1)(ii) and held that, to constitute such ‘facts,’
the information may not be part of the public record.” Commonwealth v.
Edmiston, 65 A.3d 339, 352 (Pa.2013). As such, the criminal histories
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7
Even if the Affidavit could be viewed as overcoming the PCRA’s
jurisdictional time limits, we agree with the Commonwealth’s observation
that the affidavit would not entitle Appellant to relief because it was not
exculpatory. See Commonwealth’s Brief, pp. 9-10. The affidavit does not
provide the date, time, or location of the shooting described in the affidavit.
See Affidavit, pp. 2-3. Instead, the affidavit merely states that Mr. Dwyer
remembered he was present for what he believed was a shooting sometime
in February. Id. at 3.
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Appellant alleges to have recently discovered cannot form the basis of a
newly discovered facts exception to the PCRA’s time-bar.
Further, Appellant has not explained why he could not have discovered
this information at the time of trial, or, even assuming prosecutorial
misconduct, at any time in the more than a decade following his conviction.
The PCRA court did not err in determining Appellant’s alleged
discovery of the criminal histories of certain Commonwealth trial witnesses
constituted an exception to the PCRA time-bar, and Appellant’s second PCRA
petition remains untimely.
Because Appellant filed the instant PCRA petition over ten years after
the expiration of the PCRA limitations period and cannot avail himself of any
time-bar exceptions, the PCRA court did not err in dismissing this petition as
untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2016
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Com. v. Vaughter, D.
Combined Opinion