Com. v. Thompson, J.

J-S29011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JAMES SIMON THOMPSON,

Appellant No. 1000 WDA 2015

Appeal from the Order Entered June 14, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001761-2009

BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 17, 2016

Appellant, James Simon Thompson, appeals pro se from the post-

conviction court’s June 14, 2015 order denying his petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful

review, we vacate the court’s order and remand for further proceedings

consistent with this memorandum decision.

Appellant’s case involves a torturous procedural history, which we are

constrained to set forth in order to fully explain the issues he is raising on

appeal, and the basis for our decision to remand this case for further

proceedings.

____________________________________________

*
Former Justice specially assigned to the Superior Court.
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On April 14, 2009, Appellant was arrested in an apartment located at

1020 Main Street in Republic, Pennsylvania, after officers searched that

apartment and discovered two guns and 17 packets of crack cocaine. Prior

to trial, Appellant filed a motion to suppress, alleging that the warrantless

search of the apartment was illegal, and that inculpatory statements he

made after the search should be suppressed because he had not received

Miranda1 warnings or knowingly, voluntarily, and/or intelligently waived his

Miranda rights.

A suppression hearing was held on November 15, 2010. There, the

Commonwealth’s sole witness was Ryan Reese, a former detective with the

Fayette County Drug Task Force. N.T. Suppression Hearing, 11/15/10, at 3.

Reese testified that on April 14, 2009, he had obtained an arrest warrant for

Appellant in an unrelated matter, and served the arrest warrant for

Appellant at an apartment located at 1020 Main Street in Republic,

Pennsylvania. Id. Reese testified that during the course of arresting

Appellant, they discovered drug paraphernalia in plain sight on a table in the

room, including “needles, spoons, a plate, [and] a mirror….” Id. at 6.

Reese also discovered, in the pocket of a sweatshirt found in the room,

“seventeen individually wrapped rocks of crack cocaine.” Id. at 5.

____________________________________________

1
Miranda v. Arizona, 384 U.S. 436 (1966).

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Reese further testified that Appellant consented to a search of the

entire apartment, and stated that he had not made any promises or threats

to Appellant to garner that consent. Id. at 7, 8. The search led to the

discovery of “a handgun under Appellant’s pillow where he [had been] lying

and[,] several feet from the hooded sweatshirt where the crack cocaine was

found, there was another handgun found.” Id. at 7. Reese elaborated that

the second gun was found “in a drawer almost three feet from where the

hoodie was hanging.” Id. at 8. Reese testified that “[a]fter everything was

found, [Appellant] admitted to [Reese] that the drugs were his and he

admitted that in front of other officers.” Id. at 10. On direct-examination,

Reese claimed that Appellant’s admissions occurred prior to Miranda

warnings being given, but testified that he was not “asking [Appellant] any

questions” when Appellant voluntarily confessed. Id.

However, on cross-examination, Reese was pressed further on the

issue of whether he was questioning Appellant when he admitted the drugs

were his. Id. at 21. At that point, Reese claimed that he had provided

Miranda warnings to Appellant directly after discovering the crack cocaine in

the sweatshirt, and that the warnings were given “prior to [Reese’s] asking

to look around.” Id. Reese testified that Appellant was not asked to sign

any Miranda rights waiver form, but gave “his verbal consent to waive

those rights.” Id. Reese maintained that he did not threaten Appellant in

any manner, or promise him anything, prior to Appellant’s inculpatory

statements. Id.

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On November 18, 2010, the trial court issued an order denying

Appellant’s motion to suppress. Trial was scheduled, but Appellant

ultimately decided to enter a negotiated guilty plea. On May 16, 2011,

Appellant pled guilty to possession with intent to deliver a controlled

substance (PWID), possession of a controlled substance, possession of drug

paraphernalia, and two counts of persons not to possess a firearm. He was

sentenced to an aggregate term of 4 to 8 years’ incarceration. Appellant did

not file a direct appeal.

On July 22, 2014, Appellant filed his first, pro se PCRA petition.

Therein, he asserted, inter alia, that he had discovered new evidence,

namely a letter from a woman named Dawn Millholland, dated July 11,

2014, which Appellant attached to his petition. In the letter, Ms. Millholland

begins by stating, “You don’t know me but I know you.” See Exhibit

Attached to PCRA Petition, 7/22/14, at 1. She then tells Appellant that the

guns and drugs recovered from the apartment at 1020 Main Street in

Republic, Pennsylvania, belonged to her ex-boyfriend, Robert Williams, who

had hidden the drugs there when he was evicted from the apartment the

day before Appellant was arrested. Id. More specifically, Ms. Millholland

claimed that on April 13, 2009, “the day [Williams] got evicted from … the

apartment at 1020 Main Street, [she] saw him pack small amounts of crack

cocaine into 17 mini baggie[s] [and] place them in another bigger baggie

and then hide them in a childs [sic] hoodie [and] hung [sic] it on a wooden

coat rack.” Id. at 3. Ms. Millholland alleged that Mr. Williams returned to

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the apartment to retrieve the guns and drugs later in the evening of April

13th, but the locks on the apartment door had been changed. Id. at 4.

Finally, Ms. Millholland said that she “felt compelled to come forward [and]

to tell the truth” in order to “clear [her] conscious [sic]” and to help

Appellant “clear [his] name.” Id. at 5.

On July 29, 2014, the PCRA court appointed James Natale, Esq., to

represent Appellant. Attorney Natale filed a petition to withdraw from

representing Appellant on November 5, 2014. Therein, counsel stated that

Appellant’s petition was untimely under 42 Pa.C.S. § 9545(b)(1) (requiring a

PCRA petition to be filed within one year of the date the judgment becomes

final), and that Appellant’s claim failed to meet any of the exceptions to the

PCRA’s one-year time bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).2 Attorney

Natale explained:

____________________________________________

2
That section states:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:

(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;
(Footnote Continued Next Page)

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[Ms. Millholland’s] letter is irrelevant, because [Appellant] plead
[sic] guilty [to] possessing the cocaine, handguns, and drug
paraphernalia. In addition, even assuming that the letter is true,
it does not prove that [Appellant] is innocent of these charges.
Dawn Millholland writes that the cocaine and handguns were left
behind when her ex-boyfriend, Robert Williams, was evicted
from the apartment on April 13, 2009, the day before
[Appellant] was arrested inside of the apartment on April 14,
2009. Based on Dawn Millholland’s [letter], [Appellant] had an
entire day in which to take possession of the cocaine and
handguns. During this time, [Appellant] gained access to the
apartment, and based on his own admissions,[3] he located the
cocaine and handguns and took possession of them. Therefore,
[Appellant’s] claim is without merit.

Petition to Withdraw, 11/5/14, at 8-9 (unnumbered).

On November 21, 2014, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition, and also issued an order

granting Attorney Natale’s petition to withdraw. Appellant filed a pro se

request for an extension of time to respond to the court’s Rule 907 notice,

which the PCRA court granted. On December 16, 2014, Appellant filed a
_______________________
(Footnote Continued)

(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).
3
Attorney Natale provided no citation to where in the record Appellant
admitted to taking possession of the cocaine and handguns. We assume
that counsel was considering Appellant’s guilty plea as constituting such
admissions.

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“Pro Se Motion for Reconsideration,” challenging Attorney Natale’s

effectiveness and claiming that Attorney Natale misrepresented the record

when stating that Appellant had an entire day to take possession of the

drugs and guns ostensibly left by Mr. Williams. Appellant explained that he

arrived at 1020 Main Street at some point between 2:00 and 4:00 a.m. on

April 14, 2009, and asked the owner of the house in which the apartment

was located for a ride home. The building owner stated that he did not have

enough gas to drive Appellant home, and told Appellant he could sleep in the

basement apartment, i.e., the apartment from which Mr. Williams had just

been evicted, until the gas station opened. According to Appellant, he fell

asleep in that apartment and officers arrived shortly thereafter - around

6:00 a.m. - to arrest him. Therefore, he contended that he did not take

possession of the drugs and guns left in the apartment by Mr. Williams, and

that Attorney Natale was ineffective for withdrawing on this basis. Appellant

also claimed that he did not know about Ms. Millholland’s existence, or “what

she knew about the cocaine and handguns[,]” until he received her letter,

and that had he known about Ms. Millholland, he would not have pled guilty.

“Pro Se Motion for Reconsideration,” 12/16/14, at 8-9.

On February 11, 2015, the PCRA court issued a second Rule 907 notice

of its intent to dismiss Appellant’s petition, reasoning that Appellant had

made no attempt to explain why he could not have discovered earlier, with

the exercise of due diligence, Ms. Millholland’s letter/statement. See

Pa.R.Crim.P. 907 Notice, 2/11/15, at 2.

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Before the PCRA court issued an order dismissing Appellant’s petition,

however, he filed a pro se, amended PCRA petition on March 5, 2015.

Therein, Appellant presented a new claim of after-discovered evidence based

on corruption allegations against Ryan Reese, the officer who had arrested

Appellant and testified at the pretrial suppression hearing in this case.

Attached to his petition Appellant included three articles, the first stating

that Reese had been placed on administrative leave from the police force,

and the second stating that the city council had accepted Reese’s resignation

in light of an ongoing, criminal investigation regarding Reese. Neither of

those articles provided details on the criminal allegations against Reese. In

the third article, dated February 18, 2015, the newspaper quoted the

Fayette County District Attorney (D.A.) as stating that “the Commonwealth

does not intend to call Ryan Reese to testify” in any future cases, and was

reviewing prior cases where Reese was substantially involved. See

Appellant’s Amended PCRA Petition, 3/5/15, Attached Article (Susy Kelly,

County DA Plans to Drop Charges Against Alleged Drug Dealer, Herald-

Standard, Feb. 18, 2015, at 1, A3). That article also reported that the D.A.

was dropping charges against a man accused of drug possession because

the only witness to the charged offense was Reese.4
____________________________________________

4
A recent, online newspaper article details the up-to-date charges against
Ryan Reese, revealing that he is now awaiting trial in three separate cases
involving sexual assault offenses. See Ashlie Hardway & Sheldon Ingram,
Former Connellsville Cop Accused of Forcing Woman Into Sex After Arrest
(Footnote Continued Next Page)

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On March 20, 2015, the PCRA court issued a third Rule 907 notice,

stating that Appellant’s after-discovered evidence claim based on Reese was

not filed within 60 days of the date that claim could have first been

presented. See 42 Pa.C.S. § 9545(b)(2) (“Any petition invoking an

exception provided in paragraph (1) shall be filed within 60 days of the date

the claim could have been presented.”). The court noted that the earliest of

the news articles presented by Appellant was dated December 26, 2015, and

Appellant’s petition was not filed until March 5, 2015, 69 days after that

article was published.

On April 2, 2015, Appellant filed a pro se response to the court’s Rule

907 notice, stating that he did not discover Reese’s corruption until February

23, 2015, when he received a letter from his sister containing the newspaper

articles. Appellant also contended that even if he did know about the

December 26, 2014 newspaper article, it was not until the article published

on February 18, 2015, that Appellant became aware of the fact that Reese’s

_______________________
(Footnote Continued)

Must Stand Trial, Pittsburgh’s Action News 4 (May 4, 2016, 6:17 PM),
http://www.wtae.com/news/former-connellsville-cop-faces-new-sex-
charges/38277230. In one case, Reese is alleged to have forced a woman,
who he arrested in 2012, to engage in sex acts in exchange for reducing her
charges or not filing charges at all. In another case, Reese is accused of
accepting sexual favors from a minor in exchange for not filing drug charges
against her. That young woman also alleged that Reese raped her and told
her that “no one would believe her because she was a ‘junkie whore.’” Id.
In the third case, Reese is charged with threatening to jail a Fayette County
woman, who was the subject of a drug investigation, if the woman did not
perform sex acts with him.

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credibility was so gravely diminished that the D.A. was no longer willing to

call Reese to testify, and was dropping charges against a defendant where

Reese was the only witness in the case. Appellant stressed that in his case,

Reese was the only witness to testify at the suppression hearing regarding

Appellant’s purported confession to possessing the drugs and guns, and

Appellant’s alleged consent to search the apartment. Appellant denied

making either of these statements, and averred that had he known Reese

was corrupt, he would not have pled guilty but proceeded to trial to

challenge Reese’s credibility. Appellant argued that he had entered the

guilty plea “falsely, and only because a corrupt lone arresting and charging

officer falsified his affidavit of probable cause and falsely claimed [Appellant]

confessed….” Response to Rule 907 Notice, 4/2/15, at 10.

Before the court ruled on Appellant’s claim regarding Reese, he filed a

third, pro se amended petition, challenging the legality of his sentence under

Alleyne v. United States, 133 S.Ct. 2151 (2013), and decisions by this

Court filed after Alleyne and ruling certain mandatory minimum sentencing

statutes unconstitutional in light thereof. See Commonwealth v.

Valentine, 101 A.3d 801 (Pa. Super. 2014) (deeming unconstitutional 42

Pa.C.S. §§ 9721 and 9723); Commonwealth v. Cardwell, 105 A.3d 748

(Pa. Super. 2014) (deeming unconstitutional 18 Pa.C.S. § 7508). On April

6, 2015, the PCRA court issued a fourth Rule 907 notice of its intent to

dismiss, relating only to Appellant’s illegality of sentencing claim.

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Appellant filed a motion seeking a continuance to file a response to the

court’s April 6, 2015 Rule 907 notice. On April 23, 2015, the PCRA court

granted that motion, giving Appellant until May 15, 2015 to file a response.

On May 8, 2015, Appellant filed another request for an extension of time,

attaching another newspaper article regarding Ryan Reese that was

published on April 23, 2015, stating that Reese had now been indicted on

criminal charges. The article also quoted the D.A. as stating that several

cases involving Reese had already been dismissed, and that the D.A.’s office

planned to dismiss, or nol pros, other cases where Reese was a key witness.

The PCRA court granted Appellant’s second request for an extension of

time to file a response, giving Appellant “until June 10, 2015 to amend his

PCRA.” Order, 5/13/15. The court also granted Appellant’s subsequent

request for a transcription of the record of his pretrial motion to suppress

hearing at which Reese was the sole witness. However, Appellant did not

file an amended petition by June 10, 2015, and on June 19, 2015, the PCRA

court issued an order dismissing his petition. Therein, the court discussed

its reasons for dismissing Appellant’s claim of after-discovered evidence

regarding Reese’s corruption, first stating that “Reese’s alleged criminal

conduct” would only be used by Appellant as impeachment evidence, thus

failing to meet the “after-discovered evidence test.”5 Order Dismissing
____________________________________________

5
The PCRA court utilized the after-discovered evidence test reiterated by
this Court in Commonwealth v. Foreman, 55 A.3d 532 (Pa. Super. 2012):

(Footnote Continued Next Page)

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Petition, 6/19/15, at 3. The court also stressed that “[e]ven if the after-

discovered evidence against Reese was significant, [Appellant] has

absolutely no argument under the fourth prong of the test because his

sentence is the result of a guilty plea. There was no trial.” Id. Finally, the

court noted that “the criminal charges against Reese are still pending” and,

“[t]hus, any perceived misconduct at this time is ‘pure conjecture’ and would

not compel any different result in [Appellant’s] case.” Id. (citing Foreman,

55 A.3d at 538) (finding there would not be a different jury verdict where a

police officer was found not guilty on all criminal charges subsequent to the

PCRA proceedings).

Additionally, the PCRA court ruled that the information regarding

Reese’s corruption was “publicly available” as of December 26, 2014, the

date of the earliest newspaper article discovered by Appellant’s sister. Id. at

4. Because Appellant’s petition was not filed until March 5, 2015, the court

found that Appellant had failed to timely raise this claim within 60 days of

when he could have first discovered it. Id.

_______________________
(Footnote Continued)

To obtain relief based on after-discovered evidence, [an]
appellant must demonstrate that the evidence: (1) could not
have been obtained prior to the conclusion of the trial by the
exercise of reasonable diligence; (2) is not merely corroborative
or cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in a different
verdict if a new trial were granted.

Id. at 537 (citation omitted).

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The PCRA court also rejected Appellant’s challenge to the legality of his

sentence under Alleyne, Valentine, and Cardwell, concluding that

Appellant “did not receive a mandatory minimum sentence. Rather, the

[c]ourt sentenced [Appellant] based on aggravating factors as outlined in

the Pennsylvania Sentencing Guidelines, which is still constitutional under

Valentine and Cardwell.” Id. at 5.

Finally, the PCRA court briefly commented on its basis for dismissing

Appellant’s after-discovered evidence claim regarding Ms. Millholland’s letter,

simply stating that it “still agrees with [Attorney] Natale regarding the

letter’s [lack of] relevance, … and [is] not swayed by any further argument

from [Appellant] on this issue.” Id. at 4.

On June 26, 2015, Appellant filed a timely, pro se notice of appeal.

Herein, he raises five issues for our review:

1. Whether the PCRA court erred in adopting counsel’s petition to
withdraw?

2. Whether the court erred in not granting an evidentiary
hearing to explore the factual underpinnings of []the Dawn
Millholland Letter[]?

3. The court’s February 10, 2015, “Notice of Intent to Dismiss”
invited further litigation by suggesting [Appellant] made no
attempt to explain why []the Dawn Millholland Letter[] could not
have been obtained earlier by “the exercise of due diligence[.]”[]

Accordingly, did the court err in granting counsel’s motion
to withdraw prior to its raising the “due diligence” inquiry with
Appellant (now proceeding pro se)?

4. [Appellant’s] pro se second amended PCRA petition asserted
newly discovered evidence, namely that the arresting officer,
and only witness against [Appellant], i.e.[,] [] Ryan Reese, had

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been completely discredited and disabled from testifying in any
future criminal prosecutions involving drug task force matters.

Accordingly, did the court apply the wrong legal standard
by invoking the 60-day rule stating that Appellant “did not bring
this claim within 60 days as required by §9545([b])(2)[?”]

5. Following counsel’s withdrawal, counsel sent a letter to
Appellant informing him that he had an additional ground for
relief based on the U.S. Supreme Court’s Alleyne decision.

Appellant submitted a new filing with the court raising the
specific claim for relief identified in counsel’s letter of March 12,
2015.

Accordingly, did the PCRA court err by dismissing
Appellant’s ground for relief on the premise that the sentence
was not based on “aggravating factors” as outlined in the
Pennsylvania Sentencing Guidelines?

Appellant’s Brief at 5-6 (unnecessary capitalization and emphasis omitted).

Before we evaluate these issues, we address Appellant’s failure to file

a Rule 1925(b) statement with the PCRA court, as on that basis the court did

not file an opinion in this case. See Statement in Lieu of Opinion, 8/4/15.

The certified record reveals that an order for Appellant to file a Rule 1925(b)

statement was issued by the court on July 7, 2015. However, that order

was not entered on the trial court’s docket until July 13, 2015; thus, under

Rule 1925(b)(2), Appellant had until August 3, 2015 to file a timely Rule

1925(b) statement. See Pa.R.A.P. 1925(b)(2) (“The judge shall allow the

appellant at least 21 days from the date of the order’s entry on the

docket for the filing and service of the Statement.”) (emphasis added).

Problematically, on July 23, 2015, the PCRA court issued another order

stating that Appellant had until that day - July 23rd - to file a timely Rule

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1925(b) statement.6 See Order, 7/23/15 (stating “This Court has already

filed a 1925(b) Order, dated July [7], 2015, by which [Appellant] was given

twenty-one (21) days, or until today, July 23, 2015, to mail his concise

statement of errors complained of on appeal.) (emphasis added). The

court’s July 23rd order demonstrates that the court incorrectly calculated the

Rule 1925(b) deadline by utilizing the date on which it had issued the Rule

1925(b) order, i.e., July 7, 2015, rather than the docketing date of that

order, i.e., July 13, 2015. The court’s error was further compounded by the

fact that the July 23rd order was not served on Appellant until July 24, 2015;

thus, by the time Appellant received the July 23rd order, he would have

reasonably (but erroneously) concluded that the time for filing his Rule

1925(b) statement had lapsed.

Under these circumstances, we decline to find waiver of Appellant’s

issues. The court’s July 23, 2015 order directed that Appellant’s Rule

1925(b) statement was due that day, which was only nine days after the

court’s Rule 1925(b) order was docketed on July 13, 2015. Effectively, then,

the court violated Rule 1925(b)’s clear mandate that the appellant be

provided at least 21 days from the docketing of the Rule 1925(b) order to

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6
That order was issued in response to Appellant’s filing of a second notice of
appeal, and was intended to clarify the status of Appellant’s initial appeal
filed on June 26, 2015.

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file a timely statement. See Pa.R.A.P. 1925(b)(2). Therefore, we will not

deem Appellant’s issues waived.7

Proceeding to an assessment of Appellant’s claims, we preliminarily

note that this Court’s standard of review regarding an order denying a

petition under the PCRA is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

We must first examine the timeliness of Appellant’s petition, because

the PCRA time limitations implicate our jurisdiction and may not be altered

or disregarded in order to address the merits of a petition. Commonwealth

v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition

for post-conviction relief, including a second or subsequent one, must be

filed within one year of the date the judgment of sentence becomes final,

unless one of the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii)

applies. Additionally, we reiterate any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

____________________________________________

7
We also point out that the issues presented by Appellant on appeal were
adequately addressed in the various Rule 907 notices filed by the PCRA
court. Accordingly, the lack of a Rule 1925(a) opinion by the court does not
hamper our meaningful review of Appellant’s claims, or necessitate remand
for the filing of a Rule 1925(b) statement and opinion.

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Here, Appellant’s judgment of sentence became final in 2011 and thus,

his petition, filed on July 22, 2014, is facially untimely. For this Court to

have jurisdiction to review the merits thereof, Appellant must prove that he

meets one of the exceptions to the timeliness requirements set forth in 42

Pa.C.S. § 9545(b). In this vein, Appellant argues that he meets the after-

discovered evidence exception of section 9545(b)(1)(ii) based on both Ms.

Millholland’s letter and the allegations of corruption and criminal charges

lodged against Ryan Reese.

In Bennett, our Supreme Court stressed the difference between an

after-discovered evidence claim under 42 Pa.C.S. § 9543(a)(2)(vi) and an

after-discovered evidence claim under the timeliness exception set forth in

42 Pa.C.S. § 9545(b)(1)(ii). Bennett, 930 A.2d at 1271. The Court

clarified that “the exception set forth in (b)(1)(ii) does not require any

merits analysis of the underlying claim[,]” but only “requires that the ‘facts’

upon which such a claim is predicated must not have been known to

appellant, nor could they have been ascertained by due diligence.” Id. at

1271-72 (quoting Commonwealth v. Lambert, 884 A.2d 848, 852 (Pa.

2005) (internal quotation marks omitted)).

Here, with regard to Appellant’s after-discovered evidence claim

premised on Ms. Millholland’s letter, the PCRA court seemingly rejected the

merits of that claim without first examining whether Appellant satisfied a

timeliness exception. Notably, in its order dismissing Appellant’s petition,

the PCRA court stated that it “still agrees with [Attorney] Natale regarding

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the letter’s relevance, … and [is] not swayed by any further argument from

[Appellant] on this issue.” Order Dismissing Petition, 6/19/15, at 4. Aside

from the fact that the court’s merits analysis was not appropriate, the

court’s cursory rejection of this after-discovered evidence claim is flawed in

another regard. In Attorney Natale’s petition to withdraw, he explained that

Ms. Millholland’s letter was inconsequential because Appellant “plead [sic]

guilty [to] possessing the cocaine, handguns, and drug paraphernalia[,]” and

because Appellant “had an entire day in which to take possession of the

cocaine and handguns.” Petition to Withdraw, 11/5/14, at 8-9

(unnumbered). In the PCRA court’s March 20, 2015 Rule 907 notice, it

adopted Attorney Natale’s rationale and rejected Appellant’s claim regarding

Ms. Millholland’s letter. See Rule 907 Notice, 3/20/15, at 1 (stating

“Attorney Natale … provided adequate reasoning for why [Ms. Millholland’s]

letter is irrelevant …, yet [Appellant] continues to allege it to no one’s

reassurance but his own. This court agrees with Attorney Natale’s reasoning

and will consider this issue no further.”).

However, the PCRA court ignored, in its March 20, 2015 Rule 907

notice (and in its order dismissing the petition), the arguments and factual

contentions raised by Appellant in his amended petition filed on December

16, 2014. In that amended petition, filed after Attorney Natale’s petition to

withdraw was granted, Appellant challenged Attorney Natale’s conclusion

that Appellant had an entire day to take possession of the drugs and guns

ostensibly left by Mr. Williams. Appellant explained that he had only been in

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the apartment for approximately 2 to 4 hours before officers arrived to

arrest him. Additionally, Appellant claimed that Ms. Millholland’s letter was

not ‘irrelevant’ simply because he had pled guilty. Appellant maintained

that, had he known of Ms. Millholland’s existence and her knowledge of this

case, he would not have entered that plea. See “Pro Se Motion for

Reconsideration,” 12/16/14, at 8-9. Despite accepting Appellant’s amended

petition, which presented these additional arguments and factual

contentions, the PCRA court did not assess them in rejecting his after-

discovered evidence claim premised on Ms. Millholland’s letter. Thus, the

court erred.

Additionally, we reiterate that the PCRA court erred by not first

determining whether Appellant’s after-discovered evidence claim satisfied

section 9545(b)(1)(ii). We acknowledge that the PCRA court did state, in

its February 11, 2015 Rule 907 notice, that Appellant failed to act with due

diligence, which is a requirement of demonstrating the timeliness exception

of section 9545(b)(1)(ii). On appeal, Appellant attacks the PCRA court’s

conclusion, pointing to the “factual contentions” presented in his December

19, 2014 response to the court’s November 21, 2014 Rule 907 notice.8

Appellant’s Brief at 22.

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8
We point out that this response to the court’s Rule 907 notice was timely,
as the PCRA court granted Appellant an extension of time, directing him to
respond to its November 21, 2014 Rule 907 notice by January 30, 2015.

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In that response, Appellant stated that he did not know about Ms.

Millholland’s existence, or “what she knew about the cocaine and

handguns[,]” until he received her letter. Pro Se Motion for Reconsideration,

12/16/14, at 8-9. Ms. Millholland’s letter also indicated that Appellant had

no knowledge of her, as she began by stating, “You don’t know me but I

know you.” See Ms. Millholland’s Letter, 7/11/14, at 1 (attached to

Appellant’s PCRA Petition filed 7/22/14).

In the court’s February 11, 2015 Rule 907 notice, the PCRA court did

not specifically address these factual claims, or analyze whether they

amounted to due diligence. Instead, the court cursorily stated that

Appellant had made ‘no attempt’ to explain why he could not have

discovered, with the exercise of due diligence, Ms. Millholland’s

letter/statement earlier. See Pa.R.Crim.P. 907 Notice, 2/11/15, at 2.

Additionally, the PCRA court did not evaluate whether Appellant knew the

information contained in Ms. Millholland’s letter prior to receiving it and filing

his PCRA petition. In these regards, the PCRA court’s analysis of whether

Appellant satisfied the timeliness exception of section 9545(b)(1)(ii) based

on Ms. Millholland’s letter is flawed and/or incomplete. Thus, remand is

required.

Additionally, we conclude that remand is warranted for further

examination of Appellant’s after-discovered evidence claim pertaining to the

corruption allegations and criminal charges pending against Ryan Reese. We

need not delve into the merits of Appellant’s attack on the PCRA court’s

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rejection of this after-discovered evidence claim, because it is apparent from

the record that Appellant was denied his right to counsel in litigating this

issue, which was raised in an amendment to his first petition for post-

conviction relief.9 See Pa.R.Crim.P. 904(C) (stating “when an unrepresented

defendant satisfies the judge that the defendant is unable to afford or

otherwise procure counsel, the judge shall appoint counsel to represent the

defendant on the defendant's first petition for post-conviction collateral

relief”); see also Commonwealth v. Smith, 572 Pa. 572, 818 A.2d 494,

500–01 (2003) (holding that “an indigent petitioner, whose first PCRA

petition appears untimely, is entitled to the assistance of counsel in order to

determine whether any of the exceptions to the one-year time limitation

apply”). At the point when Appellant first raised this claim, Attorney Natale

had been permitted to withdraw and Appellant was representing himself.

Thus, the PCRA court should have appointed new counsel to assess the

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9
The PCRA court acknowledged the “disordered record in this matter,” and
the various, pro se filings of Appellant during the course of the PCRA
proceedings below. See Order Dismissing Petition, 6/19/15, at 1 n.1. The
court essentially considered all of Appellant’s filings as amendments to his
initial PCRA petition filed on July 22, 2014. Id. Notably, the court stated
that “all issues addressed here are of the same PCRA[,]” and then assessed
both Appellant’s after-discovered evidence claim pertaining to Ms.
Millholland’s letter, as well as the after-discovered evidence claim regarding
Ryan Reese’s corruption and criminal charges. Id.

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merits of the after-discovered evidence claim regarding Reese.10

Accordingly, we must remand Appellant’s case to remedy this error.

In sum, Appellant has presented two claims of after-discovered

evidence that warrant further examination. The torturous record in this

case, as evidenced by our lengthy discussion supra, reveals that Appellant

filed numerous amendments to his PCRA petition and responses to the

court’s repeated Rule 907 notices. Because Appellant’s claim of after-

discovered evidence based on Reese’s corruption and criminal charges

necessitates the appointment of counsel, we direct the PCRA court to

appoint Appellant counsel on remand. We further order the PCRA court to

permit counsel to file an amended petition presenting, in one document, all

of Appellant’s arguments pertaining to both of his after-discovered evidence

claims involving Ms. Millholland’s letter and Reese’s corruption/criminal

charges. Finally, there is enough in the record before us to demonstrate

genuine issues of material fact concerning both of these after-discovered

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10
Appellant does not assert that he was denied his right to counsel in
litigating this after-discovered evidence claim. However, this Court has
expressly held “that where an indigent, first-time PCRA petitioner was
denied his right to counsel - or failed to properly waive that right - this Court
is required to raise this error sua sponte and remand for the PCRA court to
correct that mistake.” Commonwealth v. Stossel, 17 A.3d 1286, 1290
(Pa. Super. 2011).

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evidence claims; thus, the PCRA court shall conduct an evidentiary hearing

regarding those two issues.11

Order vacated. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/17/2016

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11
Appellant presents other claims involving Attorney Natale’s
ineffectiveness, and challenges the PCRA court’s denial of his legality of
sentencing claim premised on Alleyne, Valentine, and Cardwell.
However, neither of these claims necessitates further review. “It is well
settled that allegations of ineffective assistance of counsel will not overcome
the jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations omitted). Additionally,
claims challenging the legality of sentence are subject to review within the
PCRA, but must first satisfy the PCRA’s time limits. See Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999). Appellant offers no discussion of what
exception his illegal sentence claim satisfies. In any event, he would not be
able to satisfy the most obviously applicable exception, i.e., section
9545(b)(1)(i), because this Court has already held that Alleyne does not
satisfy that exception, see Commonwealth v. Miller, 102 A.3d 988, 995
(Pa. Super. 2014), and neither Valentine nor Cardwell announced new
constitutional rules. Accordingly, the PCRA court properly denied these
claims.

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