J-S53037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MUHAMMED LEACH :
:
Appellant : No. 592 EDA 2018
Appeal from the PCRA Order January 24, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0806991-2006
BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 17, 2018
Appellant, Muhammed Leach, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas, which dismissed Appellant’s
serial petition brought under the Post Conviction Relief Act (“PCRA”).1 We
affirm.
The relevant facts and procedural history of this case are as follows. On
March 8, 2002, Appellant and three cohorts planned to rob Victim at gunpoint.
During the robbery, one of Appellant’s accomplices fatally shot Victim. The
Commonwealth subsequently charged Appellant with criminal homicide,
criminal conspiracy, robbery, possessing an instrument of crime (“PIC”), and
related offenses. Appellant proceeded to a jury trial on October 24, 2007.
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1 42 Pa.C.S.A. §§ 9541-9546.
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* Retired Senior Judge assigned to the Superior Court.
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The PCRA court summarizes the evidence presented at trial as follows:
On March 8, 2002, [Appellant] and his accomplices, Kareem
Kellam, Lamonte Green, and Tyree Cartwright, waited in a
vehicle until [Victim] left the home of his girlfriend, Ms.
Joyce Mack. Prior to entering the vehicle, [Appellant] told
another co-conspirator, Robert White, in the presence of
Vincent Mack, “I need to hold your gun. I need to get some
money.” At some point while [Appellant] and his
accomplices were driving, [Appellant] gave the gun to Mr.
Cartwright who planned to use it to rob [Victim].
At approximately 8:30 p.m., [Victim] left the house and
began driving to the Melrose Bar, which was located at 7 th
Street and Girard Avenue. Unbeknownst to [Victim],
[Appellant] and his accomplices were following him and as
[Victim] exited his vehicle, Cartwright attempted to rob him
and shot him in the stomach. [Victim] made his way into
Melrose Bar and declared, “I’ve been shot.” The barmaid,
Pam Kellam, heard [Victim] make this statement before he
collapsed on the ground. [Victim] died as a result of the
gunshot wound.
Rosa Gonzalez witnessed the incident and gave testimony
indicating that she saw two men outside the bar and heard
the gunshot. Following the incident, she provided a general
description of the shooter that matched Cartwright.
The day after the shooting, White, who was Kellam’s cousin
and knew [Appellant], had a conversation with [Appellant]
during which [Appellant] told him that Cartwright shot
[Victim] while [Appellant] remained in the vehicle. White
and [Appellant] agreed that, if questioned by police, they
would blame Leonard Edwards for the murder. Later in the
week, White spoke to Kellam, who also said that Cartwright
shot [Victim]. Both men also agreed to place the blame on
Edwards.
Months later, White was arrested in an unrelated matter.
Homicide detectives told him that he was being accused of
having murdered [Victim] herein. White denied the
allegation and informed the detectives that [Appellant],
Cartwright, and Greene were involved. White gave a second
statement a week later implicating his cousin, Kellam. He
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also told detectives that after the murder, Cartwright had
used the gun he shot [Victim] with to shoot Greene’s
television set.6
6 Vincent Mack, who was interviewed by Homicide and
testified at trial, gave an account of the incident that
corroborated White’s version of it.
The investigation stalled for three years until detectives
from the Cold Case squad interviewed White, then in
custody for federal bank robbery charges. In his third
statement to police he made inculpatory remarks that led to
his arrest. He eventually was permitted to plead guilty to
robbery, conspiracy, and weapons charges in exchange for
his testimony against [Appellant] and the other participants.
At trial, White testified seeing [Appellant] and his
accomplices pull off in a car after hearing the gunshot. He
also testified that he expected that the gun would be used
in the robbery, but did not expect [Appellant] to hand the
gun to Mr. Cartwright, or expect that his gun would be used
for a murder.
Other evidence established that police were aware that
[Appellant] lived in a half-way house just a few blocks from
the Melrose Bar. A check of the sign-in sheet kept at the
half-way house indicated that [Appellant] had signed out
prior to the murder and that he signed back in within twenty
minutes of the murder.
(PCRA Court Opinion, filed February 21, 2018, at 3-5) (some internal footnotes
omitted).
On November 6, 2007, the jury convicted Appellant of one count each
of second-degree murder (accomplice liability), conspiracy to commit murder,
robbery, and firearms not to be carried without a license. The court sentenced
Appellant on March 3, 2008, to life imprisonment without the possibility of
parole (“LWOP”). This Court affirmed the judgment of sentence on July 22,
2009. Appellant sought no further direct review.
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On July 27, 2009, Appellant timely filed his first pro se PCRA petition.
The PCRA court appointed PCRA counsel, who filed an amended PCRA petition
on July 26, 2010. In his petition, Appellant requested a new trial based on
after-discovered evidence in the form of an allegedly exculpatory statement
of Dione Tate. Appellant attached to his petition an affidavit of Mr. Tate, in
which Mr. Tate alleged he heard Mr. White admit to shooting Victim. The PCRA
court issued Rule 907 notice on May 6, 2011, and dismissed Appellant’s
petition on September 28, 2011. This Court affirmed on October 31, 2012.
On August 21, 2013, Appellant filed his second pro se PCRA petition,
requesting leave to file a petition for allowance of appeal nunc pro tunc from
this Court’s October 31, 2012 disposition. On December 15, 2015, the PCRA
court granted Appellant relief and reinstated his right to file a petition for
allowance of appeal nunc pro tunc from this Court’s decision affirming the
dismissal of Appellant’s first PCRA petition. Appellant filed a petition for
allowance of appeal nunc pro tunc on January 4, 2016.
While Appellant’s petition for allowance of appeal was pending,
Appellant filed his third and current pro se PCRA petition on April 21, 2016.2
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2 Under prevailing law, the PCRA court should have dismissed Appellant’s April
21, 2016 PCRA petition for lack of jurisdiction. See Commonwealth v. Lark,
560 Pa. 487, 746 A.2d 585 (2000) (holding court has no jurisdiction to review
subsequent PCRA petition that is filed while appeal from previous PCRA
petition is still pending). See also Commonwealth v. Davis, 816 A.2d 1129,
1134 (Pa.Super. 2003), appeal denied, 576 Pa. 710, 839 A.2d 351 (2003)
(stating appellant is precluded from filing additional PCRA petition while prior
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In his petition, Appellant alleged he learned in April 2016, that an individual
named Kinte Ford claimed to have been present at the scene on the night of
the shooting. Appellant attached to his petition a signed affidavit of Mr. Ford,
in which Mr. Ford states he saw two men, Mr. White3 and another male Mr.
Ford did not recognize, approach the scene of the shooting and then flee in
different directions after Mr. Ford heard a gunshot. Mr. Ford also stated he
alerted nearby police officers that a shooting had occurred, and an officer took
his name and questioned him at the scene.
The PCRA court issued Rule 907 notice as to Appellant’s current PCRA
petition on May 17, 2017. Appellant filed a pro se response to the Rule 907
notice on May 24, 2017. On May 30, 2017, Appellant filed a second pro se
response to the Rule 907 notice, in which he raised for the first time a Brady4
claim. The PCRA court dismissed Appellant’s current petition as untimely on
January 24, 2018. On February 5, 2018, Appellant timely filed a pro se notice
of appeal. The PCRA court did not order Appellant to file a concise statement
of errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant filed
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PCRA petition is pending on appeal). The PCRA court, however, allowed
Appellant’s current PCRA petition to linger on the docket until the Supreme
Court denied Appellant’s petition for allowance of appeal nunc pro tunc
concerning his previous petition on May 10, 2016. Thus, we deem Appellant’s
current petition as filed on May 10, 2016.
3 In his affidavit, Mr. Ford refers to Mr. White as “Robert Boone.” The record
indicates Robert White is an alias of Robert Boone.
4 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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none.
Appellant raises two issues for our review:
DID THE PCRA COURT ERR IN DENYING [APPELLANT]’S
PCRA PETITION AS UNTIMELY WHEN [APPELLANT]
ESTABLISHED THAT HIS AFTER DISCOVERED FACTS CLAIM
WAS WITHIN THE PLAIN LANGUAGE OF THE TIMELINESS
EXCEPTION PURSUANT TO 42 PA.C.S.A. § 9545(B)(1)(II)
AND SECTION 9545(B)(2)?
DID THE PCRA COURT ERR IN FAILING TO HOLD THAT THE
COMMONWEALTH VIOLATED BRADY V. MARYLAND[, 373
U.S. 83, 83 S.CT. 1194, 10 L.ED.2D 215 (1963)] BY
WITHHOLDING AND SUPPRESSING EVIDENCE IN
VIOLATION OF ARTICLE 1, SECTION 9 OF THE
PENNSYLVANIA CONSTITUTION AND [APPELLANT]’S DUE
PROCESS RIGHTS PURSUANT TO THE 5TH AND 14TH
AMENDMENTS OF THE UNITED STATES CONSTITUTION?
(Appellant’s Brief at 3).
As a preliminary matter, the timeliness of a PCRA petition is a
jurisdictional requisite. Commonwealth v. Hackett, 598 Pa. 350, 359, 956
A.2d 978, 983 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174
L.Ed.2d 277 (2009). 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 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
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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 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.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must
present his claimed exception within sixty days of the date the claim first could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA
petition is not filed within one year of the expiration of direct review, or not
eligible for one of the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date that the claim could have
been first brought, the [PCRA] court has no power to address the substantive
merits of a petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor,
562 Pa. 70, 77, 753 A.2d 780, 783 (2000).
The timeliness exception set forth in Section 9545(b)(1)(ii) requires a
petitioner to demonstrate he did not know the facts upon which he based his
petition and could not have learned those facts earlier by the exercise of due
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diligence. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
1271 (2007). Due diligence demands that the petitioner take reasonable
steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164,
1168 (Pa.Super. 2001). A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence.
Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98
(2001). This rule is strictly enforced. Commonwealth v. Monaco, 996 A.2d
1076, 1080 (Pa.Super 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210
(2011). Additionally, the focus of this 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). “[A] witness’ admission of evidence previously
available to a petitioner cannot resurrect an untimely PCRA claim.”
Commonwealth v. Abu-Jamal, 596 Pa. 219, 226, 941 A.2d 1263, 1267
(2008), cert. denied, 555 U.S. 916, 129 S.Ct. 271, 172 L.Ed.2d 201 (2008).
The timeliness exception set forth at Section 9545(b)(1)(ii) has often
mistakenly been referred to as the “after-discovered evidence” exception.
Bennett, supra at 393, 930 A.2d at 1270. “This shorthand reference was a
misnomer, since the plain language of subsection (b)(1)(ii) does not require
the petitioner to allege and prove a claim of ‘after-discovered evidence.’” Id.
Rather, as an initial jurisdictional threshold, Section 9545(b)(1)(ii) requires a
petitioner to allege and prove that there were facts unknown to him and that
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he exercised due diligence in discovering those facts. See 42 Pa.C.S.A. §
9545(b)(1)(ii); Bennett, supra. Once jurisdiction is established, a PCRA
petitioner can present a substantive after-discovered-evidence claim. See 42
Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be eligible for relief under PCRA,
petitioner must plead and prove by preponderance of evidence that conviction
or sentence resulted from, inter alia, unavailability at time of trial of
exculpatory evidence that has subsequently become available and would have
changed outcome of trial if it had been introduced). In other words, the “new
facts” exception at:
[S]ubsection (b)(1)(ii) has two components, which must be
alleged and proved. Namely, the petitioner must establish
that: 1) the facts upon which the claim was predicated were
unknown and 2) could not have been ascertained by the
exercise of due diligence. If the petitioner alleges and
proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection.
Bennett, supra at 395, 930 A.2d at 1272 (internal citations omitted)
(emphasis in original). Thus, the “new facts” exception at Section
9545(b)(1)(ii) does not require any merits analysis of an underlying after-
discovered-evidence claim. Id. at 395, 930 A.2d at 1271.
Instantly, the court sentenced Appellant on March 3, 2008, and this
Court affirmed the judgment of sentence on July 22, 2009. Appellant sought
no further direct review. Therefore, the judgment of sentence became final
on August 21, 2009, upon expiration of the time to file a petition for allowance
of appeal with our Supreme Court. See Pa.R.A.P. 1113. Appellant filed the
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current PCRA petition on May 10, 2016, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). In his petition, Appellant attempts to invoke the new
facts exception to the PCRA time bar based upon the statement of Kinte Ford,
which Appellant appended to his petition. See 42 Pa.C.S.A. § 9545(b)(1)(ii).
In his affidavit, Mr. Ford states he was near Melrose Bar on the night of the
shooting. Mr. Ford alleges he saw two men, one of whom was Mr. White,
approach the bar and then flee in different directions after a gunshot. Mr.
Ford added he alerted police officers to the shooting and answered officers’
questions at the scene. Notably, Appellant unsuccessfully sought relief in his
first PCRA petition based upon a similar allegation that Mr. White shot Victim.
Namely, Appellant attached to his prior PCRA petition the affidavit of Dione
Tate, in which Mr. Tate claimed he had heard Mr. White admit shooting Victim.
Based upon the foregoing, Appellant sought relief in both his first and
current PCRA petitions based upon the premise that someone other than Mr.
Cartwright, namely Mr. White, shot Victim. Appellant does not present a new
fact in his current PCRA petition; Appellant merely relies upon a different
witness’ statement to assert Mr. White killed Victim.5 See Marshall, supra.
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5 Appellant was convicted under a theory of accomplice liability, not as the
shooter. This affidavit from Mr. Ford, like the previous affidavit from Mr. Tate,
does not exonerate Appellant. Moreover, we observe that the PCRA court
addressed the merits of Appellant’s claim before it determined if Appellant had
satisfied the new facts exception to the PCRA time bar. We emphasize that
when a PCRA petitioner files an untimely petition and attempts to invoke the
new facts exception to the PCRA timeliness requirement, the PCRA court first
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Thus, Appellant’s current claim does not satisfy the new facts exception to the
PCRA time bar. See id. Therefore, Appellant’s current petition remains time
barred, and the PCRA court lacked jurisdiction to review it.6 See Hackett,
supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/18
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must determine, as a jurisdictional threshold, whether the petition satisfies
the new facts exception, which requires the court to assess if (a) the “new
fact” really is a “new fact” and, if so, (b) the petitioner’s due diligence in
ascertaining the purported “new fact.” This initial assessment does not include
a merits-based analysis of the underlying after-discovered evidence claim.
See Bennett, supra at 395, 930 A.2d at 1271. Here, the PCRA court took a
reverse approach, which is fundamentally incorrect.
6 Appellant raised his Brady claim for the first time in his second pro se
response to the PCRA court’s Rule 907 notice, which the court deemed a
supplemental PCRA petition, filed without leave of court. In any event,
Appellant failed to plead and prove his Brady claim as an exception to the
PCRA timeliness requirement. As a result, and in light of our disposition, we
decline to address Appellant’s “Brady” issue on appeal.
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