J-S82034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY MICHAEL ROSE :
:
Appellant : No. 929 WDA 2017
Appeal from the PCRA Order June 19, 2017
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0017880-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY MICHAEL ROSE :
:
Appellant : No. 946 WDA 2017
Appeal from the PCRA Order June 22, 2017
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0017880-2008
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 15, 2018
Anthony Michael Rose (Appellant) appeals from orders entered on June
19, 2017, and June 22, 2017, denying his petition filed pursuant to the
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm, albeit
on a different basis from the PCRA court.1
We begin with the PCRA court’s factual summary adopted by this Court
in Appellant’s appeal from the denial of his first PCRA petition.
On August 25, 2008, at approximately 5:15 a.m., Doris
Goldston, who runs a daycare out of her home, answered the bell
at the back door of her home. She testified that [] Appellant
identified himself as a police officer. He wore a shirt with the word
“[s]ecurity” written on the chest and he was wearing a badge.1
Ms. Goldston was suspicious and asked him his name and where
his partner was. At that point, Appellant ran out the back door
from which he had entered.
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1 Several of these shirts with “[s]ecurity” imprinted upon
them were subsequently recovered from Appellant’s
residence. A silver gun clip was also recovered from
Appellant’s place of residence.
On August 28, 2008, Appellant again went to the home of
Ms. Goldston. He was in the same attire and asked her to let him
in. She denied him entry, and Appellant left when Ms. Goldston
threatened to call the police.
Appellant a third time went to Ms. Goldston’s residence, this
time on October 8, 2008. He wore the same black shirt with
“security” across it and a badge in the right [corner] of the shirt.
Appellant forced his way into the house, pointed a gun at Ms.
Goldston, and said, “somebody is dying today.” He asked her
“where’s the money?” He dragged her around and held a gun to
her neck for approximately ten to fifteen minutes. After kicking
him in the groin, she was eventually able to activate the security
alarm, causing him to throw her to the floor and run out of the
building.
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1 This Court may affirm a PCRA court’s decision “if there is any basis to support
it, even if we rely on different grounds to affirm.” Commonwealth v.
Williams, 35 A.3d 44, 47 (Pa. Super. 2011).
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Wallace Goldston, Ms. Goldston’s fourteen-year-old
grandson who resides with her, also testified that Appellant was
in Ms. Goldston’s home on October 8, 2008. He testified that
Appellant pointed a silver gun in his direction and said, “Don’t look
at me.” He also said Appellant was wearing a shirt with the word
“[s]ecurity” on it with a badge on the shirt. Mr. Goldston said he
was scared and he feared for both his grandmother and for
himself.
Commonwealth v. Rose, 82 A.3d 1065 (Pa. Super. 2013) (unpublished
memorandum) (citations omitted).
Based on the incidents described above, a jury convicted Appellant of
one count of burglary and two counts of robbery - serious bodily injury. On
June 24, 2009, Appellant was sentenced to an aggregate term of 140 to 280
months’ imprisonment. This Court affirmed Appellant’s judgment of sentence,
and our Supreme Court denied Appellant’s petition for allowance of appeal on
July 12, 2011. Commonwealth v. Rose, 24 A.3d 445 (Pa. Super. 2011)
(unpublished memorandum), appeal denied, 24 A.3d 362 (Pa. 2011).
Appellant timely filed his first PCRA petition in 2011. The PCRA court
dismissed the petition without a hearing on July 12, 2012. This Court affirmed
the dismissal on July 15, 2013, and our Supreme Court denied Appellant’s
petition for allowance of appeal on November 19, 2013. Commonwealth v.
Rose, 82 A.3d 1065 (Pa. Super. 2013) (unpublished memorandum), appeal
denied, 80 A.3d 776 (Pa. 2013).
On December 23, 2014, Appellant filed a habeas corpus petition. The
PCRA court treated the habeas corpus petition as an untimely-filed PCRA
petition, and dismissed it without a hearing on March 27, 2015. Appellant,
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through his privately-retained counsel Eric A. Jobe, Esquire, filed a notice of
appeal on April 27, 2015. The appeal was docketed at 659 WDA 2015. On
January 29, 2016, this Court dismissed the appeal due to Attorney Jobe’s
failure to file a brief.
On September 27, 2016, Appellant filed pro se the PCRA petition that is
the subject of this appeal. In the petition, inter alia, he averred that Attorney
Jobe was ineffective for failing to file a brief at 659 WDA 2015 and sought,
inter alia, reinstatement of his right to appeal the March 24, 2015 denial of
PCRA relief. On September 29, 2016, the PCRA court set a deadline for
amendment of Appellant’s petition and appointed counsel on Appellant’s
behalf.
After obtaining an extension of time to amend Appellant’s petition,
Appellant’s counsel filed an amended petition on December 29, 2016. The
amended petition alleged that Appellant was entitled to a new trial based upon
after-discovered evidence. Specifically, Appellant claimed that a fellow
inmate, Devele Reid, claimed responsibility for the commission of the offenses
of which Appellant was convicted. PCRA Petition, 12/29/2016, at ¶¶ 14-16.
Appellant acknowledged that on its face his petition was untimely filed,2 but
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2 “For purposes of [the PCRA], 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.” 42 Pa.C.S. § 9545(b)(3). Thus, Appellant’s
judgment of sentence became final on October 10, 2011, and he had one year,
or until October 10, 2012, to file timely a PCRA petition.
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asserted the applicability of the newly-discovered fact time-bar exception. Id.
at ¶ 17. See 42 Pa.C.S. § 9545(b)(1)(ii) (“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 … 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.”). Appellant averred that he became aware of Reid’s
acknowledgement of responsibility while his prior PCRA appeal was pending.
PCRA Petition, 12/29/2016, at ¶ 17. He further averred that he did not learn
that this Court had dismissed his appeal at 659 WDA 2015 until on or after
August 3, 2016, because Attorney Jobe had abandoned him. Id.
Appellant attached two affidavits from Reid to his petition. See id. at
Exhibit A-2, A-15. In the July 6, 2015 affidavit, Reid stated that he met
Appellant while incarcerated at SCI Fayette in July 2015, and after learning
the details of the crimes for which Appellant was convicted, Reid confessed to
Appellant that Reid was actually the one who committed such crimes. Id. at
Exhibit A-2. In the September 30, 2016 affidavit, Reid elaborated on his
participation in the crimes for which Appellant was convicted. Id. at Exhibit
A-15.
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On January 17, 2017, the PCRA court issued an order granting
Appellant’s petition and reinstating his appellate rights.3 Order, 1/17/2017.
On January 25, 2017, Appellant filed a motion for reconsideration, clarifying
that he was no longer seeking reinstatement of appellate rights based upon
Attorney Jobe’s ineffective assistance of counsel because it would prevent his
after-discovered evidence claim from being considered,4 and requesting that
the court review the after-discovered evidence claim on the merits. The next
day, the PCRA court granted Appellant’s motion for reconsideration and
vacated its January 17, 2017 order.5
The PCRA court conducted a hearing on Appellant’s petition on June 13,
2017. Following the hearing, the PCRA court issued an order on June 19,
2017, indicating that it was dismissing Appellant’s petition as untimely filed
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3 The order also purported to reinstate Appellant’s post-sentence rights, which
Appellant had requested in his pro se petition along with his request for
reinstatement of his appellate rights. It is unclear why the PCRA court granted
this request, as Appellant averred that counsel did not abandon him until after
his appeal was filed.
4 A PCRA claim arising while a PCRA appeal is pending cannot be raised until
the resolution of review of the pending PCRA petition by the highest state
court in which review is sought, or upon the expiration of the time for seeking
such review, and the claim must be raised in a subsequent PCRA proceeding
commended within 60 days after the conclusion of the pending appeal.
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).
5 Appellant had filed a notice of appeal following the reinstatement of his
appellate rights, but withdrew it after the PCRA court vacated its January 17,
2017 order.
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because he did not meet what the court referred to as the “after-discovered
evidence timeliness requirement.”6 Order, 6/19/2017. The PCRA court issued
an amended order three days later, clarifying that it was dismissing
Appellant’s petition because it was untimely filed and Appellant failed to
establish the newly-discovered fact exception to the time bar pursuant to
subsection 9545(b)(1)(ii).
Appellant timely filed one notice of appeal from the June 19, 2017 and
June 22, 2017 orders, and this Court docketed separate appeals from each
order. Following Appellant’s application for consolidation, this Court
consolidated both appeals. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant sets forth two issues on appeal.
1. Whether the [PCRA court] erred in determining [Appellant’s]
PCRA [petition] was untimely [filed] with respect to [his] after-
discovered evidence claim?
2. Whether [Appellant] is entitled to a new trial based upon the
after-discovered evidence of Develle Reid who claims
responsibility for the commission of the offenses of which
[Appellant] was convicted in this matter?
Appellant’s Brief at 3 (PCRA court’s answers omitted).
We begin our review by noting the relevant legal principles. “This
Court’s standard of review regarding an order dismissing a petition under the
PCRA is whether the determination of the PCRA court is supported by evidence
of record and is free of legal error.” Commonwealth v. Weatherill, 24 A.3d
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6 As discussed infra, this terminology is incorrect.
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435, 438 (Pa. Super. 2011). Before a court may consider the merits of a
petition, the court must determine whether the petition was filed timely, as
the timeliness of a post-conviction petition is jurisdictional. Commonwealth
v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011) (quoting Commonwealth
v. Abu–Jamal, 941 A.2d 1263, 1267–68 (Pa. 2008) (“[O]ur Supreme Court
has stressed that ‘[t]he PCRA’s timeliness requirements are jurisdictional in
nature and must be strictly construed; courts may not address the merits of
the issues raised in a petition if it is not timely filed.’”)).
Any PCRA petition, including second and subsequent petitions, must
either (1) be filed within one year of the judgment of sentence becoming final,
or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b). The
statutory exception relevant to this appeal is the newly-discovered fact
exception which requires proof that “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)(1)(ii).
Furthermore, the petition “shall be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
There is no dispute that Appellant’s September 27, 2016 PCRA petition
is facially untimely, as he had until October 10, 2012 to file a timely PCRA
petition. Thus, the dispute centers upon whether Appellant established the
newly-discovered fact exception in his petition.
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Appellant argues he learned that Reid admitted to confessing the crimes
in May 2015, which was a newly-discovered fact he could not have ascertained
any earlier by the exercise of due diligence. Appellant’s Brief at 17-18.
According to Appellant, he met Reid while the two were incarcerated at SCI
Fayette, and Reid told Appellant that Reid was the one who actually committed
the crimes for which Appellant was convicted. Id.
Appellant contends he was unable to file his petition within 60 days of
learning about Reid’s admission because the appeal of the denial of his second
PCRA petition still was pending. Id. at 18-19. Appellant directs our attention
to Lark, in which our Supreme Court held that a claim arising while a PCRA
appeal is pending must be raised in a subsequent PCRA proceeding
commenced within 60 days after conclusion of the pending appeal. 746 A.2d
at 588. Although the appeal at 659 WDA 2015 was dismissed in January 2016,
Appellant argues that he was still unable to file the claim within 60 days of the
dismissal because his counsel abandoned him and did not notify him that the
appeal had been dismissed due to counsel’s failure to file a brief. Id. 19-23.
Appellant claims that after he told his counsel about Reid’s confession, his
counsel told him in June 2016 that they were in a “waiting game” for the PCRA
court to issue its opinion and then for the Superior Court to issue a briefing
schedule. Id. After not being able to get in touch with counsel for an extended
period of time, Appellant states that he wrote to this Court in July 2016 to
determine the status of his appeal, and after learning on or about August 1,
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2016, that this Court had dismissed his appeal, he filed a PCRA petition on
September 29, 2016. Id. Thus, Appellant asserts that he filed his claim within
60 days of the date when the claim could have been presented in satisfaction
of subsection 9545(b)(2). Id.
The PCRA court’s first order dismissing the petition, issued on June 19,
2017, indicated that Appellant failed to establish the “after-discovered
evidence timeliness requirement” because the testimony of Reid was neither
credible nor persuasive and the “evidence was not of such a nature and
character that a different outcome was likely.” Order, 6/19/2017.
Our Supreme Court has instructed courts to refer to the time-bar
exception at subsection 9545(b)(1)(ii) as the newly-discovered fact exception
to avoid confusing the exception with the after-discovered evidence eligibility-
for-relief provision set forth in subsection 9543(a)(2). Commonwealth v.
Burton, 158 A.3d 618, 628–29 (Pa. 2017). Our Supreme Court has explained
the difference between the two as follows.
To qualify for an exception to the PCRA’s time limitations under
subsection 9545(b)(1)(ii), a petitioner need only establish that the
facts upon which the claim is based were unknown to him and
could not have been ascertained by the exercise of due diligence.
However, where a petition is otherwise timely, to prevail on an
after-discovered evidence claim for relief under subsection
9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory
evidence has been discovered after trial and 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.
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Id. at 629. See also Commonwealth v. Brown, 111 A.3d 171, 178 (Pa.
Super. 2015) (“The substantive merits-based analysis [of the after-discovered
evidence claim] is more stringent than the analysis required by the ‘new facts’
exception to establish jurisdiction.”). When determining whether a petitioner
established a newly-discovered fact exception at subsection 9545(b)(1)(ii),
the PCRA court is not required to conduct a merits analysis of an underlying
after-discovered-evidence claim. Id. at 177. Thus, because the two analyses
are distinct, a petition may invoke jurisdiction via the newly-discovered fact
exception but fail on the merits of the underlying after-discovered evidence
claim.
Here, in addition to using the wrong nomenclature, it is clear that the
PCRA court improperly conflated the analysis for the newly-discovered fact
exception with the analysis for the after-discovered evidence eligibility-for-
relief provision. Specifically, instead of examining whether Appellant pled and
proved facts that were unknown to him and could not have been ascertained
by the exercise of due diligence, the PCRA court incorrectly grafted an
additional requirement of proving that the newly-discovered fact would
change the outcome.
The PCRA court attempted to rectify its error when it issued its amended
order three days later. This time, the PCRA court stated it was dismissing the
petition because Appellant failed to meet “his evidentiary burden under the
one-year time limitation set forth in § 9545(b)(1)(ii) in order to invoke the
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[PCRA court’s] jurisdiction.” Order, 6/22/2017. The court stated that it did
not find Reid’s testimony to be credible “as to the date that his testimony was
first discovered,” but did not specify why or discuss whether it found
Appellant’s testimony that he learned about Reid’s confession on a different
date to be credible.7 Id. The court also concluded that even if Appellant’s
petition was timely filed, Appellant “failed to raise a cognizable claim under 42
Pa.C.S. § 9543 (a)(2)(vi),” because Reid’s testimony was neither credible nor
persuasive and a different outcome at trial was not likely. Id.
In its Rule 1925(a) opinion, the PCRA court explained at length why it
did not find Reid’s testimony to be credible. PCRA Court Opinion, 9/28/2017,
at 5-7. However, it again appears that the PCRA court conflated the analysis
for the newly-discovered fact exception with the analysis for the after-
discovered evidence eligibility-for-relief provision. Most of the reasons stated
by the PCRA court relate to the merits of whether Reid’s testimony constitutes
exculpatory evidence that would likely compel a different verdict, not to
whether Appellant pled and proved a newly-discovered fact that was unknown
to him and could not have been ascertained by the exercise of due diligence.
The PCRA court focused on inconsistencies between the details of Reid’s two
affidavits, Reid’s motives for confessing, the inconsistencies between Reid’s
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7 Appellant testified that Reid confessed to him in May 2015, whereas Reid
testified that he confessed to Appellant in June 2015. Reid gave a different
date in his July 5, 2015 affidavit; there, he stated that he confessed to
Appellant in July 2015.
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account of the crimes and the victim’s, and Reid’s inability to identify the
victim at the PCRA hearing. Id. These issues with Reid’s testimony do not
relate to whether Reid’s confession was a newly-discovered fact unknown to
Appellant. Thus, the PCRA court erred by considering the merits of Appellant’s
after-discovered evidence claim for relief in its analysis of whether Appellant’s
petition qualified for a timeliness exception pursuant to the newly-discovered
fact exception set forth at subsection 9545(b)(1)(ii).
Notwithstanding the PCRA court’s error, we affirm the orders dismissing
Appellant’s petition. Even if we were to assume arguendo that Appellant
satisfied the newly-discovered fact time-bar exception at subsection
9545(b)(1)(ii) and the 60-day filing requirement at subsection 9545(b)(2),
Appellant clearly failed to prove the merits of his after-discovered evidence
claim for relief. As the PCRA court points out, the victim identified Appellant
multiple times and had no doubt about his identity as her assailant. PCRA
Court Opinion, 9/28/2017, at 7. Moreover, the t-shirt matching the
description of the t-shirt worn by the assailant was recovered from Appellant’s
home. Id. Given the multiple inconsistencies between Reid’s statements in
his testimony and his affidavits and the other evidence establishing Appellant’s
identity as the perpetrator, the PCRA court did not err in holding that Appellant
failed to prove that Reid’s confession “would likely compel a different verdict”
as required by subsection 9543(a)(2)(vi).
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2018
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