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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JABRIL TOMONEY :
:
Appellant : No. 592 EDA 2017
Appeal from the PCRA Order January 13, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009271-2011
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 17, 2018
Jabril Tomoney appeals from the January 13, 2017 order dismissing
his PCRA petition as untimely. We affirm.
On May 18, 2012, Appellant was tried in absentia, after absconding
from the court on the first day of trial, and convicted by a jury of aggravated
assault, criminal conspiracy, and three counts each of firearms not to be
carried without a license and possession of instruments of crime. The
convictions stemmed from the May 11, 2011 gunfight he and a codefendant
engaged in with Carmelo Ortiz in Philadelphia. On May 21, 2012, the trial
court sentenced Appellant in absentia to an aggregate sentence of fifteen to
thirty years imprisonment. Appellant did not file a direct appeal. He
remained a fugitive for four years, until he was arrested following a traffic
stop on February 18, 2016.
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On March 17, 2016, Appellant filed a counseled PCRA petition that
alleged that trial counsel provided ineffective assistance by failing to secure
his post-sentence and appellate rights. Following the Commonwealth’s
motion to dismiss the petition as untimely, Appellant filed an amended PCRA
petition that remolded his argument to invoke the newly-discovered-fact
exception to the PCRA time-bar under 42 Pa.C.S. § 9545(b)(1)(ii). The
Commonwealth renewed its motion to dismiss, and the court issued notice of
its intention to dismiss the PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. It ultimately dismissed Appellant’s petition on January 13,
2017.
Appellant filed a timely notice of appeal and a court-ordered statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). He raised
four issues that he reiterates on appeal as follows:
I. Did the PCRA court err in denying [Appellant’s] request for
an evidentiary hearing and relief on the issue of whether [his]
discovery of prior counsel’s abandonment [satisfied] the 42
Pa.C.S. § 9545(b)(1)(ii) exception to the one-year deadline for
filing a PCRA petition?
II. Did the PCRA court err in not determining that prior
counsel was ineffective for failing to make reasonable efforts to
consult with [Appellant] about his post-sentence and appellate
rights and to take step[s] to preserve these rights where [his]
absence from trial did not constitute a waiver of his right to
effective counsel?
III. Did the PCRA court err in denying [Appellant’s] request for
an evidentiary hearing and in concluding that the discovery of
the existence of an independent witness, who would have
testified that petitioner shot the victim in self-defense, did not
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constitute newly-discovered evidence within the meaning of 42
Pa.C.S. § 9545(b)(1)(ii)?
IV. Did the PCRA court err in concluding that prior counsel was
not ineffective for failing to object to the trial court’s decision to
issue a self-defense instruction to the jury after closing
arguments where the court’s instruction prejudiced [Appellant]
in that it contradicted petitioner’s theory of the case?
Appellant’s brief at 4.
Our standard of review is well settled. “In reviewing the denial of
PCRA relief, we examine whether the PCRA court's determination is
supported by the record and free of legal error.” Commonwealth v.
Mitchell, 141 A.3d 1277, 1283-83 (Pa. 2016) (quotation and citation
omitted).
Appellant’s first three issues pertain to the timeliness of his petition
and therefore implicate our jurisdiction. See Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (“[N]either this Court nor the trial court
has jurisdiction over [an untimely] petition.”). In order for a petition to be
timely under the PCRA, it must be filed within one year of the date when the
petitioner’s judgment of sentence became final. 42 Pa.C.S. § 9545(b)(1).
Appellant’s petition, filed nearly four years after his sentence became final
on June 20, 2012, is patently untimely. Thus, unless Appellant pled and
proved one of the three exceptions to the PCRA time-bar outlined in 42
Pa.C.S. § 9545(b)(1)(i-iii), we cannot address the claims he asserts therein.
The statutory exceptions include interference by government officials, newly-
discovered facts that were unknown to the petitioner and which could not
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have been ascertained with due diligence, and a new constitutional right
held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i-iii).1 Any claim based
on an exception to the time-bar must be filed within sixty days of the date it
could have first been presented. Id. at § 9545 (b)(2).
We address Appellant’s first two assertions regarding counsel’s
ineffective assistance collectively. He contends that his PCRA petition falls
within the timeliness exception for newly-discovered facts.2 Specifically,
Appellant asserts that, upon his arrest on the bench warrant, he discovered
that trial counsel “abandoned” him by failing to zealously represent his post-
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1 These 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).
2 The second aspect of Appellant’s argument concerns the merits of his
ineffective assistance claim. However, since Appellant cannot overcome the
PCRA time-bar, we do not address the merits of that assertion.
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trial and appellate interests. Appellant’s brief at 12-13. For the following
reasons, no relief is due.
The § 9545(b)(1)(ii) exception requires the petitioner to establish (1)
the facts upon which the claim was predicated were unknown, and (2) the
facts could not have been discovered through the exercise of due diligence.
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).
Appellant’s claim fails for two reasons. First, the newly-discovered fact
that Appellant invokes in this case does not support the ineffective
assistance claim upon which his § 9545(b)(ii) exception is predicated. In
Commonwealth v. Deemer, 705 A.2d 827, 829 (Pa.1997), our Supreme
Court addressed whether a fugitive forfeits post-trial and appellate rights per
se and concluded that a defendant’s fugitive status does not automatically
bar review. The High Court explained,
[A] fugitive who has returned to the jurisdiction of the court
should be allowed to exercise his post-trial rights in the same
manner he would have done had he not become a fugitive. If he
became a fugitive between post-trial motions and an appeal and
he returns before the time for appeal has expired and files an
appeal, he should be allowed to appeal. If he returns after the
time for filing an appeal has elapsed, his request to file an
appeal should be denied. . . . In short, a fugitive who returns to
court should be allowed to take the system of criminal justice as
he finds it upon his return: if time for filing has elapsed, he may
not file; if it has not, he may.
Id. Accordingly, under the Deemer Court’s framework, a fugitive must
accept the procedural posture of the case as he finds it upon his
apprehension.
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Instantly, Appellant forfeited his post-appeal and appellate rights
because he absconded from the court’s jurisdiction for four years, well
beyond the period to file post-trial motions or a direct appeal. See
Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa.Super. 2006),
(“Pursuant to Deemer, Appellant’s claim that trial counsel was ineffective
for failing to file a timely direct appeal is, thus, meritless because Appellant
was not captured until after the 30-day period to file an appeal had
expired.”). Hence, Appellant’s discovery of counsel’s purported inaction in
failing to pursue appellate rights that Appellant forfeited does not render the
instant petition timely.
More importantly, even if we ignore the disconnect between the newly-
discovered fact that Appellant alleges and the argument he raised to excuse
his untimely filed PCRA petition, the claimed timeliness exception fails
because Appellant neglected to demonstrate that he exercised due diligence
pursuant to § 9545(b)(1)(ii). See Bennett, supra. As we stated in
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations
omitted), “[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.”
We addressed a similar situation in Commonwealth v. Carr, 768
A.2d 1164 (Pa.Super. 2001), and concluded that the PCRA petitioner’s
failure to exercise due diligence precluded him from relying upon
§ 9545(b)(1)(ii) to circumvent the PCRA’s time requirements. In that case,
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a petitioner invoked the newly-discovered-fact exception to the time bar by
claiming that counsel ignored his request to file an appeal from the
judgment of sentence. Since the judgment of sentence became final during
1995, and the PCRA petition was not filed until 1999, the trial court
dismissed the petition as untimely. We affirmed, holding that the petitioner
did not establish that he acted with due diligence during the interceding
four-year period to discover his counsel’s inaction. Specifically, we
observed, “[a] phone call to his attorney or the clerk of courts would have
readily revealed that no appeal had been filed. Due diligence requires that
Appellant take such steps to protect his own interests.” Id. at 1168. The
same rationale applies in the case at bar.
Assuming that counsel abandoned Appellant by failing to pursue his
post-sentence and direct appeal rights, this claim fails because the
abandonment could have been uncovered through the exercise of due
diligence. Like the scenario we addressed in Carr, the fact of counsel’s
abandonment was easily ascertainable. Notwithstanding Appellant’s status
as a fugitive from justice, he or his designated friends or family members
could have contacted his attorney, the clerk of courts, or the Superior Court
Prothonotary to determine whether an appeal was filed on his behalf.
Appellant did not pursue any of these reasonable options to protect his own
interests. Instead, for more than four years, Appellant did nothing to
investigate the status of his case until after he was apprehended on a bench
warrant. This prolonged idleness belies any suggestion that Appellant
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exercised due diligence to uncover the purported fact of counsel’s
abandonment. Thus, Appellant failed to establish the grounds to assert the
newly-discovered-fact exception to the timeliness requirements.
Appellant’s third contention is that the PCRA court erred in failing to
conduct an evidentiary hearing to address a newly-discovered-fact claim
regarding the discovery of an independent witness, Melvin Smith, who
submitted an affidavit stating that he observed Appellant shoot at Carmelo
Ortiz in self-defense and that he was prevented from coming forward earlier
due to his subsequent imprisonment until May 2016. The implication of
Appellant’s claim is that he could not have determined that Mr. Smith
witnessed the shootout through due diligence. Appellant continues that,
since he filed the instant petition within sixty-days of the date that Mr. Smith
made himself known as a witness, his claim qualifies as an exception to the
time-bar. For the following reasons, we disagree.
Appellant’s reliance upon Mr. Smith’s testimony is unavailing. Plainly,
the “fact” that forms the basis of Appellant’s assertion is not Mr. Smith’s
presence at the shootout with Ortiz; rather, Appellant seeks to invoke
Smith’s testimony that Appellant acted in self-defense. However, the latter
fact does not satisfy § 9545(b)(1)(ii). Indeed, as the circumstances of the
gunfight were obvious to Appellant when it occurred, Appellant knew at the
time of trial whether or not he had acted in self-defense. Thus, Appellant’s
newly-discovered-fact claim is not premised upon a previously unknown fact,
but rather, a newly discovered source of reporting a previously known fact.
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Accordingly, no relief is due. Commonwealth v. Robinson, 185 A.3d
1055, 1063-64 (Pa.Super. 2018) (en banc) (rejecting newly-discovered-fact
exception premised upon third-party affidavit noting trial counsel
ineffectiveness because “Appellant always ‘knew’ that his counsel supplied
ineffective advice, and he has failed to show why he could not have learned
these newly-discovered facts at an earlier time”).
For the foregoing reasons, we affirm the PCRA court’s determination
that Appellant’s PCRA petition was untimely.3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/18
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3 As Appellant’s PCRA petition is untimely and without exception to the PCRA
time bar, we lack jurisdiction to address the merits of his remaining claim
concerning trial counsel’s ineffectiveness for failing to object to the trial
court’s jury instruction on self-defense.
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