Com. v. Trice, J.

J. S51043/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JARMAINE Q. TRICE, : No. 2308 EDA 2017
:
Appellant :

Appeal from the PCRA Order, June 29, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0601181-1995

BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 05, 2018

Jarmaine Q. Trice appeals from the June 29, 2017 order filed in the

Court of Common Pleas of Philadelphia County that dismissed his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

The facts, as set forth by a previous panel of this court, are as follows:

[On December 11, 1993, appellant and
co-defendants Gregory] Womack, [] Julius Jenkins,
Atil Finney, and Naree Abdullah [] traveled from
Germantown to North Philadelphia in Womack’s
1979 Oldsmobile station wagon. Demond Jackson,
who asked for a ride, also accompanied them.
Womack parked the car around the corner from
Lily’s Market. [Appellant], Jenkins, Finney, and
Abdullah entered the market while Womack and
Jackson stayed in the car. Once inside the store,
Jenkins pulled out a gun and announced a holdup.
Francisco Azcona, the store owner, was crouched
behind a counter; Azcona’s wife and sister-in-law
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were standing behind the counter where the
perpetrators could see them. When Jenkins went
behind the counter and discovered Mr. Azcona, he
fired a single shot, penetrating the victim’s jaw and
neck. The gunshot wound would cause[] Mr. Azcona
to bleed to death. The four men returned to
Womack’s car, with [appellant] carrying a cash
register. Womack drove the men to Abdullah’s
house, where the money from the cash register was
divided among the cohorts.

[Appellant], Womack, and their co-defendants were
arrested shortly after the robbery. The .45 caliber
gun possessed by Jenkins at the time of his arrest
was subsequently determined to be the same
weapon used in Francisco Azcona’s murder. Womack
and Finney made inculpatory statements to the
police admitting their participation in the
robbery/murder.

The Commonwealth filed notice of its intent to try all
of the co-defendants jointly. [Appellant] filed a
motion for severance, which Womack joined. After
argument was heard on the matter, the motion was
denied. A jury trial was held before the Honorable
John J. Poserina, Jr., and [appellant] and Womack
were found guilty of second-degree murder, three
counts of robbery, and criminal conspiracy.[1]
[Appellant] and Womack were sentenced to life
imprisonment or second degree murder, and were
given consecutive prison terms of five to ten years
for robbery.

Commonwealth v. Trice, No. 1829 PHL 1996, unpublished memorandum

at 1-3 (Pa.Super. filed December 16, 1997) (footnote omitted).

The PCRA court set forth the following procedural history:

[Appellant] appealed and on December 16, 1997, the
Superior Court affirmed his judgment of sentence.
On April 29, 1999, the Pennsylvania Supreme Court

1 18 Pa.C.S.A. §§ 2502(b), 3701(a), and 903, respectively.

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denied allocatur. [Commonwealth v. Trice, 706
A.2d 1259 (Pa.Super. 1997), appeal dismissed as
having been improvidently granted, 727 A.2d
1113 (Pa. 1999).]

On August 3, 1999, [appellant] filed a [PCRA]
petition, which was denied on August 22, 2000. On
December 31, 2003, the Superior Court affirmed its
dismissal. [Commonwealth v. Trice, 844 A.2d
1290 (Pa.Super. 2003), petition for allowance of
appeal denied, 857 A.2d 679 (Pa. 2004).] On
September 22, 2004, [appellant] filed a second PCRA
petition, which the Superior Court denied as untimely
on February 17, 2005.[2]

On November 4, 2004, during the pendency of his
second PCRA petition, [appellant] filed a writ for
habeas corpus with the United States District
Court, Eastern District Pennsylvania, which was
denied on April 2, 2007. [Greene[3] v. Palakovich,
482 F.Supp. 2d 624 (E.D. Pa. 2007).] [Appellant]
appealed and on May 28, 2010, the United States
District Court, Third Circuit affirmed the Eastern
District’s ruling. [Greene v. Palakovich, 606 F.3d
85 (3d Cir. Pa. 2010).] On November 8, 2011, after
granting certiorari, the Supreme Court of the
United States affirmed the Eastern District’s ruling.
[Greene v. Fisher, 565 U.S. 34 (2011).]

On June 14, 2010, during the pendency of his
habeas corpus proceedings, [appellant] filed a third
pro se PCRA petition. It appears that, on
December 1, 2014, [appellant] amended the
petition.[Footnote 3]

[Footnote 3] The instant petition does
not address any of the issues raised in
[appellant’s] 2010 PCRA nor its 2014
supplement. Despite the pendency of

2 A review of the docket entries reveals that the trial court dismissed the
appeal as untimely.

3 Appellant was known as Eric Greene for this litigation.

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the 2010 petition, this Court properly
treats the instant serial filing as a
separate petition. Because there is no
PCRA pending before an appellate court
at the time [appellant] filed the instant
petition, this Court has jurisdiction to
review it.

To the extent that [appellant’s] 2010
Petition and 2014 supplement are raised
before this Court, they are denied. This
Court cannot address the issues raised in
[appellant’s] 2010 petition, as copies of
it no longer exist. In his 2014
supplement, [appellant] raised an
unlawful sentence claim under Alleyne
v. United States, [570 U.S. 99 (2013)],
claiming timeliness under the
newly-recognized constitutional right
exception to the PCRA time bar. Since
Alleyne does not apply retroactively to
cases on collateral review, the 2014
supplement is untimely, as his claim
does not fall into any exception.

On February 12, 2017, [appellant], through counsel,
filed the instant PCRA Petition. On March 7, 2017,
the matter was assigned to this Court. On May 10,
2017, the Commonwealth filed its response. On
May 25, 2017, upon independent review, this Court
found [appellant’s] claims meritless and issued a
Notice of Intent to Dismiss pursuant to
Pa.R.Crim.P. 907. On June 14, 2017, [appellant]
filed his Objection to this Court’s Notice of Intent to
Dismiss, but raised no new issues.

PCRA court opinion, 6/29/17 at 1-2 (citations omitted).

On December 17, 2016, appellant’s counsel received a letter from

appellant’s co-defendant, Gregory Womack (“Womack”), which claimed that

an inmate in his prison block, Abdul Hardy (“Hardy”), had received a letter

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that indicated that Demond Jackson (“Jackson”) testified in both Hardy’s

homicide trial and in appellant’s trial. Appellant claimed in the petition that

the Commonwealth’s failure to disclose that Jackson testified in Hardy’s trial

violated Brady v. Maryland, 373 U.S. 83 (1963), and that had this

evidence been disclosed, it may have been used to impeach Jackson’s

testimony, to establish Jackson’s motive to lie, and to establish his status as

a police informant. The PCRA court dismissed the PCRA petition and issued

its opinion on June 29, 2017. Appellant filed a notice of appeal on July 18,

2017. The PCRA court did not order appellant to file a concise statement of

errors complained of on appeal.

Appellant raises the following issues for this court’s review: “1. Did

the Commonwealth violate due process of law of [sic] when it failed to

disclose significant impeachment evidence to trial counsel? 2. Was the

Petition timely submitted pursuant to two exceptions to the PCRA time bar?”

(Appellant’s brief at 1-2.)

In Brady, the Supreme Court of the United States held that “the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the

prosecution.” Brady, 373 U.S. at 87. Thus, “a Brady violation only exists

when the evidence is material to guilt or punishment, i.e., when there is a

reasonable probability that, had the evidence been disclosed to the defense,

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the result of the proceeding would have been different.” Commonwealth

v. Tedford, 960 A.2d 1, 30 (Pa. 2008) (citation, internal quotation marks,

and footnote omitted); see also Commonwealth v. Roane, 142 A.3d 79,

89 (Pa.Super. 2016) (stating, when a Brady claim is advanced under the

PCRA, an appellant can only obtain relief by establishing that the alleged

violation “so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.” (citation and

internal quotation marks omitted)).

In order to establish the existence of a Brady violation, a defendant

must demonstrate that: “(1) evidence was suppressed by the prosecution;

(2) the evidence, whether exculpatory or impeaching, was favorable to the

defendant; and (3) prejudice resulted.” Commonwealth v. Cousar, 154

A.3d 287, 301 (Pa. 2017) (citation omitted).

Prejudice is demonstrated where the evidence
suppressed is material to guilt or innocence.
Further, [f]avorable evidence is material, and
constitutional error results from its suppression by
the government, if there is a reasonable probability
that, had the evidence been disclosed to the
defense, the result of the proceeding would have
been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.

Commonwealth v. Koehler, 36 A.3d 121, 133 (Pa. 2012) (citations and

internal quotation marks omitted).

Before addressing the question of whether there was a violation of

Brady, we will address the question of whether the PCRA court properly

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dismissed the petition as untimely. Subsequent PCRA petitions beyond a

petitioner’s first petition are subject to the following standard:

A second or subsequent petition for post-conviction
relief will not be entertained unless a strong
prima facie showing is offered to demonstrate that
a miscarriage of justice may have occurred.
Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
1999). A prima facie showing of entitlement to
relief is made only by demonstrating either that the
proceedings which resulted in conviction were so
unfair that a miscarriage of justice occurred which no
civilized society could tolerate, or the defendant’s
innocence of the crimes for which he was charged.
Id. at 586. Our standard of review for an order
denying post-conviction relief is limited to whether
the trial court’s determination is supported by
evidence of record and whether it is free of legal
error. Commonwealth v. Jermyn, 709 A.2d 849,
856 (Pa. 1998).

A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final.
42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
final for purposes of the PCRA “at the conclusion of
direct review, including discretionary review in the
Supreme Court of the United States and the
Supreme Court of Pennsylvania, or the expiration of
time for seeking the review.” 42 Pa.C.S.[A.]
§ 9543(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
737 A.2d 214 (Pa. 1999). Accordingly, the “period
for filing a PCRA petition can be extended only if the
PCRA permits it to be extended, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time-bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014).

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As noted above, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

This court has held the following regarding when a judgment becomes final:

The plain language of the PCRA provides that a
judgment of sentence becomes final at the
conclusion of direct review or when the time seeking
direct review expires. See 42 Pa.C.S.A.
§ 9545(b)(3). In fixing the date upon which a
judgment of sentence becomes final, the PCRA does
not refer to the conclusion of collateral review or the
time for appealing a collateral review determination.
Thus, the plain language of the PCRA statute shows
that a judgment of sentence becomes final
immediately upon expiration of the time for seeking
direct review, even if other collateral proceedings are
still ongoing. As this result is not absurd or
unreasonable, we may not look for further
manifestations of legislative intent. See
Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
2013) (internal quotation marks omitted) (We may
“look beyond the plain language of the statute only
when words are unclear or ambiguous, or the plain
meaning would lead to a result that is absurd,
impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).

In the instant case, the trial court sentenced appellant on May 13,

1996. He appealed to this court, which affirmed on December 16, 1997. On

April 29, 1999, the Supreme Court of Pennsylvania denied the petition.

Appellant’s sentence became final on July 28, 1999, when the 90-day period

for petitioning for certiorari with the Supreme Court of the United States

ended. See 42 Pa.C.S.A. § 9545(b)(3); see also U.S.Sup.Ct.R. 13.

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Appellant filed the current PCRA petition on February 12, 2017, more than

16 years after the PCRA time-bar. See 42 Pa.C.S.A. § 9545(b)1).

As noted above, the PCRA does enumerate exceptions to the one-year

time limit. A petitioner must plead and prove that he meets one of the

following exceptions to the time requirement:

(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). Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

Here, appellant asserts that he meets two of the timeliness exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i) and (ii). Appellant asserts that his

untimely petition comes under the first or governmental interference

exception because the Commonwealth failed to disclose the exculpatory

impeachment evidence that demonstrated that Jackson had previously

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cooperated with the Commonwealth. Appellant argues that the

Commonwealth was obliged to disclose the information to trial counsel and

that the failure to do so constituted governmental interference. Appellant

also asserts that the information contained in the letters constitutes newly

discovered facts that he could not have previously ascertained with due

diligence, so the second exception applies as well.

Although a Brady violation may fall within the
governmental interference exception, the petitioner
must plead and prove that the failure to previously
raise these claims was the result of interference by
government officials, and that the information could
not have been obtained earlier with the exercise of
due diligence. The newly-discovered evidence
exception requires that the facts upon which the
Brady claim is predicated were not previously known
to the petitioner and could not have been
ascertained through due diligence.

Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (citations

omitted.)

With respect to the governmental interference exception, appellant

asserts that he did not have the opportunity to raise an alleged violation of

Brady until his counsel received the letter from Womack which included the

letter from Attorney Sturm which indicated that a person named

“Demond Jackson” had testified at the homicide trial of Abdul Hardy prior to

testifying in the trial of Womack and appellant. The significance of this being

that Jackson allegedly lied under oath about a prior court appearance as a

witness. Appellant claims that the Commonwealth violated Brady because it

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failed to disclose that Jackson had previously testified on behalf of the

Commonwealth in another matter. Appellant asserts in his PCRA petition

that the fact that a witness also testified in another case for the

Commonwealth constitutes impeachment evidence that must be provided to

the defense.

At trial, Jackson responded affirmatively when asked whether he had

testified previously. (Notes of testimony, 3/4/96 at 56.) Jackson also

testified that he had previously testified against someone and that he had

not previously testified in a homicide trial. (Id. at 57.) Later, on

cross-examination, Jackson testified that he testified “like two years ago,”

that he was a witness, and “[t]hey asked me two questions.” (Id. at

85-86.)

Appellant must plead and prove that governmental interference

prevented him from learning about the claimed Brady violation until now

and that he could not have learned about it, if he exercised due diligence.

Our supreme court has articulated that due diligence “does not require

perfect vigilance and punctilious care, but merely a showing the party has

put forth reasonable effort to obtain the information upon which a claim is

based.” Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation

and quotation marks omitted).

Appellant became aware at trial that Jackson had previously testified

in a prior case. Appellant does not allege any interference on the part of any

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government entity after the failure to disclose at trial. As the trial took place

in 1996, appellant had ample time to investigate further Jackson’s

relationship to the police and his role as a witness in another case. The

letter from Womack that included a letter from Attorney Sturm to Hardy did

not appreciably change appellant’s knowledge of the events at trial, except

to inform him that the other trial in which Jackson testified was a homicide.

The record does not support a determination that appellant could not raise

this claim until now due to governmental interference.

Similarly, the record does not support the newly discovered facts

exception to the timeliness requirements as appellant was aware in 1996

that Jackson testified as a witness in another trial. Because appellant knew

about the basic facts in question, they were neither new nor recently known

and do not come under the exception. See Commonwealth v. Bennett,

930 A.2d 1264, 1267 (Pa. 2007). Further, appellant did not act with due

diligence when he learned of the situation at trial in 1996. Appellant has not

successfully pled or proved that he meets the exception to the timeliness

requirements of the PCRA.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/5/18

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