J-S59044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LARRY MULLINS
Appellant No. 115 EDA 2016
Appeal from the PCRA Order December 28, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-1011611-1995
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 07, 2016
Appellant, Larry Mullins, appeals from the order dismissing his second
Post Conviction Relief Act1 (“PCRA”) petition. Appellant claims that newly-
discovered evidence from a witness, who was previously interviewed prior to
his trial, warrants relief. We affirm.
We adopt the facts and procedural history set forth in the PCRA court’s
opinion. PCRA Ct. Op., 1/27/16, at 1-3. Appellant timely appealed and
timely filed a court-ordered Pa.R.A.P. 1925(b) statement. Appellant raises
the following issue:
Did the PCRA court err when it denied Appellant PCRA
relief in the absence of an evidentiary hearing since
Appellant is entitled to PCRA relief in the form of a new
trial based upon the existence of after-discovered
evidence?
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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Appellant’s Brief at 4. Appellant contends he obtained newly-discovered
evidence from the victim’s girlfriend, Tameka Ledbetter, who was
interviewed by the police after the victim’s death.
Before addressing the merits of Appellant’s claims, our Supreme Court
has required this Court to examine whether we have jurisdiction to entertain
the underlying PCRA petition. See Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999). “Our standard of review of a PCRA court’s dismissal of a
PCRA petition is limited to examining whether the PCRA court’s
determination is supported by the evidence of record and free of legal error.”
Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en
banc) (citation omitted). A PCRA petition “must normally be filed within one
year of the date the judgment becomes final . . . unless one of the
exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60
days of the date the claim could have been presented.” Commonwealth v.
Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (internal citations and footnote
omitted).
Jurisdictional time limits go to a court’s right or
competency to adjudicate a controversy. These limitations
are mandatory and interpreted literally; thus, a court has
no authority to extend filing periods except as the statute
permits. Unlike a statute of limitations, a jurisdictional
time limitation is not subject to equitable principles such as
tolling except as provided by statute. Thus, the filing
period is only extended as permitted; in the case of the
PCRA, the time limitations are extended upon satisfaction
of the exceptions found in § 9545(b)(1)(i)-(iii) and timely
filing pursuant to (b)(2). As it has been established that
the PCRA’s time restrictions are jurisdictional, we hold that
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the period for filing a PCRA petition is not subject to the
doctrine of equitable tolling, save to the extent the
doctrine is embraced by § 9545(b)(1)(i)-(iii).
Fahy, 737 A.2d at 222 (citations omitted).
The three timeliness exceptions are:
(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.C.S. § 9545(b)(1)(i)-(iii).
“[S]ubsection (b)(1)(ii) does not require the petitioner to allege and
prove a claim of ‘after-discovered evidence.’ Rather, it simply requires
petitioner to allege and prove that there were ‘facts’ that were ‘unknown’ to
him and that he exercised ‘due diligence.’” Commonwealth v. Bennett,
930 A.2d 1264, 1270 (Pa. 2007) (footnote omitted). “If the petitioner
alleges and proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection.” Id. at 1272.
Instantly, we review whether the PCRA court erred by holding
Appellant’s second PCRA petition was untimely. See 42 Pa.C.S. §
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9545(b)(1); Fahy, 737 A.2d at 222. After careful review of the parties’
briefs, the record, and the decision by the PCRA court, we affirm on the
basis of the PCRA court’s decision. See PCRA Ct. Op. at 4-6 (holding (1)
Appellant failed to establish due diligence because witness was known to him
in 1993 and thus, he could have raised claims on direct appeal and in prior
PCRA petitions; and (2) Appellant failed to establish due diligence of the
alleged Brady violation; as our Supreme Court held, even evidence of a
Brady violation must be pursued with due diligence by the defendant).
Further, as the PCRA court noted, a prior panel of the Superior Court
addressed Appellant’s claim with respect to his co-defendant, James Kelly.
Commonwealth v. Kelly, 3544 EDA 2013, 2014 WL 10795093 at *3 (Pa.
Super. Oct. 10, 2014).2 The Kelly Court rejected Ledbetter’s evidence:
“the Commonwealth presented sufficient evidence to establish Kelly’s guilt,
such that Ledbetter’s identification of Sharif Curry as the shooter would not
likely have changed the outcome of the trial.” Commonwealth v. Kelly,
3544 EDA 2013, 2014 WL 10795093 at *4 (Pa. Super. Oct. 10, 2014). The
Kelly panel explained as follows:
the Commonwealth presented the testimony of two
eyewitnesses who identified Kelly and Mullins. The first,
Ernestine Williams, witnessed Kelly hand an object to
Mullins, who placed the object inside his jacket and held
onto it inside the jacket as he approached the victim; he
then removed his hand from his jacket, holding a gun, and
2
We acknowledge the non-precedential designation of this decision.
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shot the victim multiple times. Williams testified that
there was “no doubt in [her] mind” that Kelly and Mullins
were the individuals involved in the shooting. N.T. Trial,
8/14/96, at 132. Williams further testified as follows:
[Williams]: I remember seeing [Kelly and Mullins] at
the corner of my block making a transaction, and I
remember seeing [Mullins] shoot [the victim], I seen
him shoot him in his head behind his ear and he fell
in his arms and he laid him on the ground and he
stood back and he shot him again. I remember
that very well. And I’ll never forget it.
[Defense Counsel]: You saw these two men doing a
transaction?
A: Yes.
Q: What kind of transaction?
A: [Kelly] handed [Mullins] something. And [Mullins]
never took his hand out until he got to [the victim].
Id. at 176 (emphasis added).
A second witness, Colie Baxter, testified that he was
driving his car at the intersection of 25th and Diamond
Streets when he heard “five to six shots.” N.T. Trial,
8/15/96, at 8. He pulled his car over and then witnessed
two men, who he later identified as Kelly and Mullins, run
out of an alleyway, get into a car, and drive away. One of
the men was “holding something down by [his] side.” Id.
Id. at *4. “Ledbetter’s statement, even if true, would neither have
exculpated Kelly nor changed the outcome of his trial.” Id. at *6. We agree
with the reasoning of the Kelly Court and similarly conclude that Ledbetter’s
statement, even if true, would not have exculpated Appellant, particularly
since—unlike Kelly—Appellant was identified as the shooter. Accordingly,
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having discerned no abuse of discretion or error of law, we affirm. See
Wilson, 824 A.2d at 333.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2016
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Circulated 08/24/2016 10:02 AM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF CP-51-CR-1011611-1995
PENNSYLVANIA
v. FIL~D
LARRY MULLINS JAN 2 / 201&
OPINION PostTrial Unit
BRONSON,J. January 27, 2016
I. PROCEDURALBACKGROUND
On August 21, 1996, following a jury trial before the Honorable James A. Lineberger of
this Cou11, defendant Larry Mullins was convicted of one count of first-degree murder ( 18
Pa.C.S. § 2502) and one count of criminal conspiracy (18 Pa.C.S. § 903). On January 16, 1997,
Judge Lineberger imposed a life sentence on the murder charge and a sentence of four to eight
years imprisonment on the conspiracy charge. 1 Defendant was represented at trial and at
sentencing by Charles Mirarchi, Esquire.
On December 12, 1997, the Superior Court affirmed defendant's judgment of sentence.
The Pennsylvania Supreme Court denied allocator on July 13, 1998. Defendant then filed a pro
se petition ("First Petition") under the Post-Conviction Relief Act ("PCRA") on July 21, 1999.
On June IO, 2003, the PCRA Court denied defendant's First Petition and the Superior Court
dismissed defendant's subsequent appeal on September 19, 2003. Defendant filed a second pro
se PCRA petition ("Second Petition") on March 12, 2006, which the PCRA Court dismissed as
untimely on July 14, 2006. On December 31, 2012, defendant filed a Petition for Writ of
I
Defendant was tried with his co-defendant James Kelly, who was also convicted of first-degree murder and
criminal conspiracy at docket number CP-51-CR-1011621-1995, Kelly was sentenced to life in prison on August
21, 1996.
Habeas Corpus, seeking relief due to newly discovered evidence ("Third Petition"). As Judge
Lineberger had retired from the bench, the matter was reassigned to the undersigned trial judge.
Janis Smarro, Esquire was appointed to represent defendant on March 26, 2014. On October 8,
2014, Ms. Smarro filed an Amended PCRA Petition ("Amended Petition") raising the sole claim
that defendant was entitled to a new trial due to newly discovered evidence in the form of a
statement by Tameka Ledbetter, the girlfriend of the decedent. Amended Petition at~~ 14-23.
On November 10, 2015, after reviewing defendant's PCRA Petition and the Commonwealth's
Motion to Dismiss, this Court ruled that the claims set forth in defendant's petition were without
merit. That day, pursuant to Pa.R.Crim.P. 907, the Court issued notice of its intent to dismiss
the petition without a hearing ('~907 Notice"). On December 28, 2015, the Court entered an
order dismissing defendant's PCRA Petition. This appeal followed.
Defendant has now appealed the Court's dismissal of his PCRA Petition, alleging that: 1)
the PCRA Court erred in denying an evidentiary hearing regarding witness Tameka Ledbetter
since Ledbetter's statement was newly discovered evidence and; 2) that the Commonwealth's
failure to inform defendant at the time of trial that Ledbetter had made a different identification
to police constituted governmental interference. Concise Statement of Errors Complained of on
Appeal. ("Statement of Errors") at pp. 1-2. For the reasons set forth below, defendant's claims
are without merit, and the PCRA Court's order dismissing his PCRA Petition should be affirmed.
II. FACTUAL BACKGROUND
The facts of this case are summarized in the Superior Court's opinion of July 9, 1999,
affirming the trial court's judgment of sentence in co-defendant Kelly's direct appeal as follows:
On January 1, 1993, at about 7:30 p.m., [James] Kelly and Larry
Mullins ... were walking along N011h Bambry Street in North Philadelphia. At that
time, the victim, Travis Hughston, was visiting his girlfriend, Tamika Ledbetter,
at the home of her uncle. Mullins and Kelly were walking toward the home of
Ledbetter's uncle, which Ledbetter frequented. Before they reached her uncle's
house, Kelly passed a brown bag to Mullins, who placed the bag inside his coat.
2
Moments later, after Hughston exited the house, Mullins shot Hughston, hitting
him once in the arm and shoulder, and then once in the head. Both Kelly and
Mullins immediately ran away. Rescue workers took Hughston to Allegheny
University Hospital Medical College of Pennsylvania, where the doctors
pronounced him dead from a gunshot wound to the back of his head.
Superior Court Opinion, Commonwealth v. Kelly, No. 1799 Philadelphia 1998, filed 7/9/99 at pp.
1-2.
III. DISCUSSION
An appellate court's review of a PCRA court's grant or denial ofrelief "is limited to
determining whether the court's findings are supported by the record and the court's order is
otherwise free of legal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996)
(citing Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super. 1995)). The reviewing court "will
not disturb findings that are supported by the record." Id.
Under the PCRA, all petitions, "including a second or subsequent petition," must be filed
within one year of the date thatjudgment on the case became final. 42 Pa.C.S. § 9545(b); see
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). This time limit is jurisdictional, and
a court may only review an untimely petition if one of the three statutory exceptions to the
timeliness requirement applies. 42 Pa.C.S. § 9545(b)(l); Commonwealth v. Murray, 753 A.2d
20 l, 203 (Pa. 2000). Furthermore, the statutory exceptions are themselves subject to a timeliness
requirement, and must be invoked "within sixty days of the date the claim could have been
presented." 42 Pa.C.S. § 9545(b)(2); see Bennett, 930 A.2d at 1267-68.
In the instant case, defendant's petition was clearly untimely, as it was filed more than
fourteen years after defendant's judgment of sentence became final. Therefore, in order for this
Court to have jurisdiction to review the merits of defendant's claim, defendant must plead and
prove that one of the three statutory exceptions to the timeliness requirement applies to his case,
and he must have filed his petition within sixty days of when the claim could have been
3
presented. See, e.g., Commonwealth v. Geer, 936 A.2d 1075, 1077 (Pa. Super. 2007), appeal
denied, 948 A.2d 803 (Pa. 2008). Defendant now avers that his petition is timely under both the
newly discovered evidence exception to the PCRA and as a result of governmental interference.
Statement of Errors at pp. 1-2.
A. After Discovered Evidence
The PCRA provides for an exception to its timeliness requirement when "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." 42 Pa.C.S. § 9545(b)(l)(ii). Accordingly, to
properly rely upon this exception, defendant must demonstrate that his Third Petition is premised
upon facts that were newly discovered by defendant within sixty days of when he filed the Third
Petition, and he must establish that he could not have discovered such facts previously through
the exercise of due diligence. "To obtain a new trial based on after-discovered evidence, the
petitioner must explain why he could not have produced the evidence in question at or before
trial by the exercise of reasonable diligence .... A defendant cannot claim he has discovered new
evidence simply because he had not been expressly told of that evidence. Likewise, a defendant
who fails to question or investigate an obvious, available source of information, cannot later
claim evidence from that source constitutes newly discovered evidence." Commonwealth v.
Padillas, 997 A.2d 356, 363 (Pa. Super.), app. denied, 14 A.3d 826 (Pa. 2010) (internal citations
omitted). Further, when a defendant had been aware of a potential witness's identity, but failed
to reasonably investigate that witness's version of the facts, the subsequent discovery of
favorable evidence from that witness does not constitute newly-discovered evidence.
Commonwealth v. Kubis, 808 A.2d 196, 201 (Pa. Super.), app. denied, 813 A.2d 839 (Pa. 2002).
Here, the newly discovered evidence upon which defendant relies consists of a statement
by witness Tameka Ledbetter. Defendant asserts that Ledbetter, who was interviewed by a
4
private investigator on co-defendant Kelly's behalf on September 18, 2012, has provided facts
that could not have been obtained by the exercise of due diligence by defendant, who was
notified of Ledbetter's interview on November 15, 2012.2 Amended Petition at 1~ 14-23.
Ledbetter was the girlfriend of defendant's victim, Travis Hughston, who was killed immediately
after leaving Ledbetter's home on January 1, 1993. See Amended Petition at~ 11. Police
interviewed Ledbetter less than two hours after Hughston's murder, and she stated that she did
not witness the shooting and was unable to identify anyone involved. See Exhibit E to Amended
Petition. More than 19 years later, co-defendant Kelly sent a private investigator to interview
Ledbetter. See Amended Petition at 1~ 16-21. Ledbetter informed the investigator that on the
night of the murder, immediately after she heard gunshots, she ran onto her porch and saw a man
whom she knew, Anthony "Sharif' Curry, walking away from the victim with a gun in his hand.
See Amended Petition at~ 17; Exhibit D to Amended Petition. Ledbetter told Kelly's
investigator that when she had given her statement to police in 1993, she had informed them that
Curry, who passed away on January 13, 1995, was the shooter, but police never wrote down the
name and insisted that the shooter was someone else. See Exhibit F to Amended Petition.
Despite filing post-sentence motions, an appeal, and two prior PCRA petitions, defendant
never investigated Ledbetter's account of the shooting and proffers as '