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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEVIN J. LOWRY
Appellant No. 1458 EDA 2015
Appeal from the PCRA Order April 30, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0704141-1982
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 16, 2016
Appellant Kevin J. Lowry appeals pro se from the Order entered in the
Court of Common Pleas of Philadelphia County on April 30, 2015, dismissing
as untimely his second petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 1983, Appellant was convicted of first-degree murder, criminal
conspiracy and possessing an instrument of crime. On April 12, 1984,
Appellant was sentenced to life imprisonment on the murder conviction
along with consecutive prison terms of five (5) years to ten (10) years on
the conspiracy conviction and two and one-half (2½) years for the weapons
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*
Former Justice specially assigned to the Superior Court.
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offense. This Court affirmed Appellant’s judgment of sentence on
September 6, 1985, and Appellant did not file a petition for allowance of
appeal with our Supreme Court.
On April 6, 1987, Appellant filed his first petition pursuant to the Post
Conviction Hearing Act, pro se, which was later withdrawn without prejudice
on May 12, 1988. Appellant filed a pro se PCRA petition on November 28,
1995, and counsel was appointed. After a thorough review of the record,
counsel filed a “no-merit” letter pursuant to Turner/Finley1 on October 23,
1996, wherein he advised the PCRA court that the issues Appellant had
raised in his pro se petition lacked merit and that, in his view, there were no
others of arguable merit which could be raised in an amended petition. On
December 11, 1996, the PCRA court denied Appellant’s petition, and this
Court affirmed on April 6, 1998. On September 10, 1998, our Supreme
Court denied Appellant’s petition for allowance of appeal.
On August 13, 2012, Appellant filed a second PCRA petition. 2 On
November 24, 2014, Appellant filed an amended PCRA petition wherein he
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1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988).
2
Therein, Appellant claimed he was entitled to relief under the newly
recognized constitutional right exception to the PCRA time-bar in light of the
United States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct.
2455 (2012). See 42 Pa.C.S.A. § 9545(b)(1)(iii). Although the PCRA court
considered the merits of this claim in its Rule 1925(a) opinion, Appellant has
abandoned it on appeal. See Commonwealth v. Bullock, 948 A.2d 818,
(Footnote Continued Next Page)
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claimed he was entitled to relief in light of newly-discovered evidence in the
form of recantation testimony by a key Commonwealth witness, Mr. John
Johnson. He further asserted he was entitled to relief due to governmental
interference as a result of the Commonwealth’s failure to inform him that Mr.
Johnson had been promised leniency at his sentencing in an unrelated
armed robbery matter in exchange for his testimony at Appellant’s trial. In
support of these claims, Appellant attached to his amended PCRA petition a
certification of an individual affiliated with the Pennsylvania Innocence
Project at Temple University Beasley School of Law, Mr. Nick Kato. Therein,
Mr. Kato related that Mr. Johnson had informed him during an interview on
November 5, 2014, he had fabricated his identification of Appellant in an
effort to receive a lighter sentence in his pending criminal matter.
On April 30, 2015, the PCRA court entered its order dismissing the
petition as untimely filed, and Appellant filed a timely notice of appeal on
May 7, 2015. Thereafter, the PCRA court filed a letter with this Court
requesting that the matter be remanded for appointment of counsel and
reassignment. In a Per Curiam Order of February 1, 2016, this Court
directed the PCRA court to certify and transmit the record after determining
Appellant’s eligibility for court appointed counsel and to file an opinion
pursuant to Pa.R.A.P. 1925(a). On February 7, 2016, the PCRA court
_______________________
(Footnote Continued)
823 (Pa.Super. 2008) (stating an issue identified on appeal but not
developed in an appellant’s brief is abandoned and, therefore, waived).
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entered an order denying Appellant’s motion for the appointment of counsel,
and on May 9, 2016, it filed its Memorandum Opinion pursuant to Pa.R.A.P.
1925(a).
In his brief, Appellant presents the following Statement of the
Questions Involved:
Did the PCRA court while violating due process erroneously deny
Appellant an evidentiary hearing thus ignoring the protocol set
[sic] Com. v. Pander and PA. Rule of Criminal 902(A)(15)?
Did the PCRA court err in dismissing Petitioner’s PCRA as
untimely and denied an evidentiary hearing when it was filed
within sixty days upon discovery of governmental interference?
Appellant’s Brief at 8 (unnecessary capitalization omitted).
Preliminarily, we must determine whether Appellant’s instant PCRA
petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
(Pa.Super. 2000). “Our standard of review is whether the PCRA court’s
order is supported by the record and without legal error.” Commonwealth
v. Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (citation omitted).
Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500,
837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective
January 19, 1996, provide that a PCRA petition, including a second or
subsequent petition, shall be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed
final “at the conclusion of direct review, including discretionary review in the
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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.A. §
9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must 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 Constitution
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
the time period provided in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation
omitted). Additionally, as this Court often has explained, all of the time-bar
exceptions are subject to a separate deadline.
The statutory exceptions to the timeliness requirements of
the PCRA are also subject to a separate time limitation and must
be filed within sixty (60) days of the time the claim could first
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have been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty
(60) day time limit . . . runs from the date the petitioner first
learned of the alleged after-discovered facts. A petitioner must
explain when he first learned of the facts underlying his PCRA
claims and show that he brought his claim within sixty (60) days
thereafter.
Commonwealth v. Williams, 35 A.3d at 44, 53 (Pa.Super. 2011) (citation
omitted).
In the case sub judice, Appellant was sentenced on April 12, 1984, and
this Court affirmed his judgment of sentence on September 6, 1985.
Appellant did not file a petition for allowance of appeal; therefore,
Appellant’s judgment of sentence became final thirty days thereafter, on
October 6, 1985, when the time for seeking allocator with our Supreme
Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (providing “a judgment
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[ ]”). In
Appellant’s case, a timely first petition for post-conviction relief would have
had to have been filed by January 16, 1997, pursuant to the grace period
provided for petitioners whose judgments of sentence became final prior to
the effective date of the amended PCRA. Commonwealth v. Davis, 916
A.2d 1206, 1208-09 (Pa.Super. 2007) (explaining that the 1995
amendments to the PCRA provide that if a judgment of sentence became
final before the January 16, 1996, the effective date of the amendments, a
PCRA petition will be considered timely if filed within one year of the
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effective date of the amendments, or by January 16, 1997; however, this
grace period applies only to first PCRA petitions). Appellant filed the instant
PCRA petition, his second, on August 13, 2012; therefore, it is patently
untimely. As such, the PCRA court could not address the merits of
Appellant’s petition unless a timeliness exception applies.
Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Appellant explains that in June of 2009, “field
investigators” with the Pennsylvania Innocence Project at Temple University
Beasley School of Law agreed to examine his case at which time “it was
discovered that the one and only eye-witness in [Appellant’s] murder
conviction had initially identified another man as the perpetrator. See N.T.
12/8/82 pg. 1388.” Brief of Appellant at 11 (emphasis in original).3
Appellant states that upon further investigation, that witness, Mr. Johnson,
was interviewed at his home on November 5, 2014, at which time he
revealed to Mr. Kato and Mr. Dan Giordano he was not sure whom the
perpetrator had been and stated that he had identified Appellant only
because he had been promised leniency by both police and prosecutors
concerning pending armed robbery charges against him. Id. at 12, 15.
Appellant maintains that there was no possibility for him to have obtained
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3
We note that the transcript from this date spans only 32 pages and
pertains to Appellant’s “petition to modify an extension of Rule 1100.” N.T.,
12/8/82, at 2.
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the exculpatory evidence sooner, in light of the Commonwealth’s withholding
from the defense that Mr. Johnson had been offered and received leniency.
Id. at 14.4 As such, Appellant asserts the PCRA court erred in dismissing his
petition without first holding an evidentiary hearing.
At the outset, we note that the Commonwealth asserts Appellant has
waived the claims he presents herein for failure to raise them properly
below. Commonwealth’s Brief at 7 n. 6. Indeed, our Supreme Court has
stated that:
Notwithstanding the PCRA court's indulgence in addressing all of
Appellant's claims, it was Appellant's duty to identify where in
the record the supplemental petitions were authorized and/or
reconstruct the record if such authorization was provided off the
record. Appellant has failed to do so, even though this defect
was raised by both the PCRA court and the Commonwealth. This
Court has condemned the unauthorized filing of supplements and
amendments to PCRA petitions, and has held that such claims
raised in such supplements are subject to waiver. See
Commonwealth v. Elliott, 80 A.3d 415 (Pa. 2013);
Commonwealth v. Roney, ––– Pa. ––––, 79 A.3d 595, 615
(2013); Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 12
(2012). Thus, although the vast majority of Appellant's claims
were raised in his first counseled Amended Petition, certain
claims, which are discussed below, were raised for the first time
in an apparently unauthorized supplemental petition;
accordingly, we find those claims to be waived.
Commonwealth v. Reid, 627 Pa. 78, 94–95, 99 A.3d 427, 437 (2014).
Herein, the claims Appellant sets forth for this Court’s review were
raised in his amended PCRA petition filed over two years after he filed his
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4
In setting forth this claim, Appellant purports to invoke 42 Pa C.S.A.
9545(b)(1)(i), supra.
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second PCRA petition, and the record is devoid of evidence the PCRA court
authorized the filing of the amended petition. Notwithstanding, to the extent
Appellant raised the after-discovered evidence exception to the PCRA time
bar by supplementing his second PCRA petition within 60 days of his alleged
discovery of the purported newly-discovered evidence and of the alleged
governmental interference, we will consider the merits of these claims.
Our Supreme Court previously has stressed that the newly-discovered
evidence exception in Section 9545(b)(1)(ii) requires a petitioner to allege
and prove that there were “facts” that were “unknown” to him and that he
could not have ascertained those facts by the exercise of “due diligence.”
Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270-72 (2007).
The Supreme Court unequivocally has explained the exception set forth in
subsection (b)(1)(ii) does not require a merits analysis of the underlying
claim. Commonwealth v. Abu–Jamal, 596 Pa. 219, 941 A.2d 1263, 1268
(2008). Rather, the exception requires a petitioner to prove only that the
facts were unknown to him and he exercised due diligence in discovering
those facts. Bennett, 593 Pa. at 393, 930 A.2d at 1270; See also
Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98
(2001) (rejecting attempt to invoke Section 9545(b)(1)(ii) because appellant
failed to offer any evidence that he exercised due diligence in obtaining facts
upon which his claim was based).
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To invoke Section 9545(b)(1)(ii), a petitioner, must prove 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, 579
Pa. 490, 519, 856 A.2d 806, 823 (2004) (citations omitted). Moreover,
“[d]ue diligence demands that the petitioner take reasonable steps to
protect his own interests. A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence. This rule
is strictly enforced.” Commonwealth v. Williams, 35 A.3d 44, 53
(Pa.Super. 2011) (citations omitted). 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, 596 Pa.
587, 596, 947 A.2d 714, 720 (2008) (emphasis in original).
Our Supreme Court also has stated that when a petitioner seeks a new
trial based upon alleged after-discovered evidence in the form of recantation
testimony, that petitioner must establish:
(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. Johnson, 600 Pa. 329,
966 A.2d 523, 541 (2009); Commonwealth v. Washington,
592 Pa. 698, 927 A.2d 586, 595-96 (2007); Commonwealth v.
D'Amato, 579 Pa. 490, 856 A.2d 806, 823 (2004);
Commonwealth v. Wilson, 538 Pa. 485, 649 A.2d 435 (1994).
Further, the proposed new evidence must be producible and
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admissible. [Commonwealth v. Scott, 470 A.2d 91, 93 (Pa.
1983)].
Commonwealth v. Smith, 609 Pa. 605, 629, 17 A.3d 873, 887 (2011),
cert. denied, 133 S.Ct. 24 (2012). The Court further has instructed that:
Recantation testimony is extremely unreliable. Commonwealth
v. McCracken, 540 Pa. 541, 659 A.2d 541 (1995);
Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979);
Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649
(1970). When the recantation involves an admission of perjury,
it is the least reliable form of proof. Coleman. The trial court
has the responsibility of judging the credibility of the
recantation. Nelson. Unless the trial court is satisfied that the
recantation is true, it should deny a new trial. Nelson;
Coleman. An appellate court may not disturb the trial court's
determination absent a clear abuse of discretion. Nelson.
Commonwealth v. Henry, 550 Pa. 346, 363, 706 A.2d 313, 321 (1997).
Furthermore, we emphasize that:
A PCRA court is only required to hold a hearing where the
petition, or the Commonwealth's answer, raises an issue of
material fact. When there are no disputed factual issues, an
evidentiary hearing is not required. If a PCRA petitioner's offer of
proof is insufficient to establish a prima facie case, or his
allegations are refuted by the existing record, an evidentiary
hearing is unwarranted.
Commonwealth v. Eichinger, 631 Pa. ___, ____, 108 A.3d 821, 849
(2014) (internal citations omitted). Also, for a petitioner to be entitled to an
evidentiary hearing pertaining to an exculpatory witness’s testimony, he
must include in his PCRA petition a signed certification as to each intended
witness stating the witness's name, address, date of birth and substance of
testimony and include any documents material to that witness’s testimony.
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Commonwealth v. Reid, 627 Pa. 78, 96, 99 A.3d 427, 438 (2014); See
also, 42 Pa.C.S.A. § 9545(d)(1); Pa.R.Crim.P.902(A)(15).
Upon our review of the record, we conclude the PCRA court did not
abuse its discretion in finding Appellant failed to offer after-discovered
evidence or to demonstrate that government officials obstructed the
presentation of his claims. In the first instance, the sole evidence Appellant
presented along with his amended, second PCRA petition to support his
claims is a signed certification of Nick Kato relaying Mr. Johnson’s purported
proposed testimony. Appellant does not attach an affidavit or certification of
Mr. Giordano, another investigator allegedly involved in the matter, although
Appellant states numerous times in his appellate brief that Mr. Johnson
informed both men he had engaged in perjury at Appellant’s trial. Brief for
Appellant at 12. Most importantly, Appellant has failed to attach either a
signed certification or an affidavit of Mr. Johnson, nor does he propose to call
Mr. Johnson to testify were he granted an evidentiary hearing.
It is well-established that a claim based upon inadmissible hearsay
does not satisfy the newly-discovered evidence exception. See Abu-Jamal,
supra, 596 Pa. at 230, 941 A.2d at 1269. In this regard, our Supreme
Court has stated the following:
Any evidence relevant to the impeachment issue may be used
against a witness, except that which is prohibited by the rules of
evidence. Pa.R.E. 607(b). Hearsay, which is a statement made
by someone other than the declarant while testifying at trial and
is offered into evidence to prove the truth of the matter
asserted, is normally inadmissible at trial. Pa.R.E. 801(c) & 802.
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Impeaching a witness through the introduction of an inconsistent
out-of-court statement will not be considered hearsay if the
statement is: (1) under oath subject to the penalty of perjury at
a trial, hearing, other proceeding, or deposition; (2) in writing
and adopted by the declarant; and (3) a verbatim
contemporaneous recording of the oral statement. Pa.R.E.
803.1(1).
Commonwealth v. Carson, 590 Pa. 501, 561, 913 A.2d 220, 254–55
(2006) (footnote omitted).
Appellant relies upon this Court’s holding in Commonwealth v.
Pander, 100 A.2d 626 (Pa.Super. 2014) to support his conclusion the PCRA
court committed reversible error when relying upon the fact that Appellant
had failed to attach an affidavit from Mr. Johnson in denying him an
evidentiary hearing and in holding that Appellant failed to show he could not
have obtained the “witness recantation” evidence prior to the conclusion of
trial through the exercise of reasonable diligence. Brief for Appellant at 13.
In Pander, this Court indicated that there is no requirement for a petitioner
to file an affidavit to be entitled to an evidentiary hearing and noted it is
improper to affirm a PCRA court’s decision on the sole basis of inadequate
witness certification in instances where the PCRA court failed to provide
notice of the alleged defect. Commonwealth v. Pander, 100 A.3d 626,
643 (Pa.Super. 2014), appeal denied, 631 Pa. 712, 109 A.3d 679 (2015)
citing Pa.R.Crim.P. 905(B); however, that case is not dispositive herein, for
it did not involve the newly-discovered evidence exception to the PCRA time-
bar, as the PCRA petition at issue therein had been timely filed. In addition,
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the PCRA court determined that were Appellant to offer the certification of
Nick Kato at an evidentiary hearing, such evidence would constitute an out-
of-court statement by Mr. Johnson relied upon for its truth; therefore,
Appellant has failed to produce evidence that would be admissible at an
evidentiary hearing to support his claim.
Moreover, even had Appellant presented an affidavit or certification of
Mr. Johnson, he would not be entitled to relief for his failure to show he
exercised due diligence in setting forth this claim. In an effort to explain
why there was “no possibility” for him to have discovered Mr. Johnson’s
recantation at an earlier date, Appellant generally maintains that he began
working with investigators in 2009, because he suffered from a “lack of
resources” prior thereto. In 2009, the investigators allegedly set forth a
“nationwide search” and after “several months” “tracked, located and found
[Mr. Johnson] still living in Philadelphia.” Brief for Appellant at 11.
Appellant does not clarify why Messrs. Kato and Giordano did not meet with
and interview Mr. Johnson until November of 2014, over five years after his
whereabouts became known. Thus, Appellant failed to meet his burden to
prove he was duly diligent in obtaining the alleged recantation testimony of
Mr. Johnson, or that he filed his amended PCRA petition within 60 days of
obtaining this claimed new evidence. As such, the PCRA court did not err in
dismissing the untimely PCRA petition without a hearing.
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Also, Appellant has failed to establish the instant PCRA petition was
filed within 60 days of his discovery of alleged governmental interference.
Mr. Johnson was questioned on both direct examination and on cross-
examination at Appellant’s trial in 1983 regarding the pending criminal
charges against him. Through the Commonwealth’s questioning, the jury
was made aware that Mr. Johnson had been charged with armed robbery in
two, separate incidents and that his trial in those matters had been
scheduled. N.T. Trial, 3/8/1983, at 678. Mr. Johnson indicated that no one
in the District Attorney’s office had made any promises to encourage him to
testify, but did indicate that, at most, the prosecutor had told Mr. Johnson
that if he were ultimately convicted of any crime, he would “tell the Judge
that [Mr. Johnson] in fact had testified and cooperated in this case.” Id. at
670. Appellant admits in his appellate brief that he was able to glean from
police reports that Mr. Johnson pled guilty on June 7, 1983, and received
probation. Brief for Appellant at 11-12. While he baldly states that he
suffered from a “lack of resources” until 2009, he fails to explain why he was
unable to ascertain with the exercise of due diligence the sentence which Mr.
Johnson received in June of 1983 until almost three decades later. Indeed,
contrary to Appellant’s assertions, the fact that Mr. Johnson pled guilty and
received a five years of probation does not evince that he made a
clandestine deal with police and the prosecution in exchange for his
testimony against Appellant. Brief for Appellant at 21.
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In light of the foregoing, Appellant has failed to show the
Commonwealth obstructed his ability to obtain the allegedly exculpatory
evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
(1963).5 Accordingly, as Appellant's petition is patently untimely and he has
failed to plead and prove the applicability of any exception to the PCRA's
time-of-filing requirements, the PCRA court lacked jurisdiction to consider
the merits of the issue Appellant raised in the petition and did not err in
dismissing it without an evidentiary hearing.
Order affirmed.
Judge Bowes joins the memorandum.
Judge Moulton concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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5
Specifically, a Brady claim requires a petitioner to show “(1) the
prosecutor has suppressed evidence, (2) the evidence, whether exculpatory
or impeaching, is helpful to the defendant, and (3) the suppression
prejudiced the defendant.” Commonwealth v. Carson, 590 Pa. 501, 913
A.2d 220, 244 (2006).
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Com. v. Lowry, K.
Combined Opinion