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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARCUS UPSHAW :
:
Appellant : No. 1198 WDA 2021
Appeal from the PCRA Order Entered September 14, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001280-2009
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: September 12, 2022
Marcus Upshaw (“Upshaw”) appeals pro se from the order dismissing
his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
In 2008, Upshaw and his co-conspirators, including Darryl Reese, were
involved in a robbery during which Charles Hall was shot and killed. Before
trial, Reese provided affidavits exonerating Upshaw. However, upon taking
the witness stand at Upshaw’s 2011 trial, Reese retracted those
representations, claimed that they were procured under duress, and identified
Upshaw as one of the perpetrators. At the conclusion of trial, a jury convicted
Upshaw of second-degree murder and related offenses in connection with the
robbery and homicide. On February 2, 2011, the trial court imposed an
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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aggregate sentence of life in prison without the possibility of parole, followed
by a consecutive sentence of eighteen to thirty-six months in prison.
In October 2011, following the nunc pro tunc reinstatement of Upshaw’s
appellate rights, he filed a timely appeal to this Court wherein he sought
remand to permit the trial court to conduct an evidentiary hearing based on
after-discovered evidence to determine if a new trial was warranted. The
after-discovered evidence consisted of letters prepared by Reese wherein he
declared, similar to the affidavits he disavowed at Upshaw’s trial, that police
officials coerced his testimony that Upshaw participated in the robbery and
homicide. Relying on the newly-produced letters, Upshaw alleged that Reese
recanted his trial testimony that Upshaw was involved in the conspiracy. This
Court granted the requested relief, dismissed the appeal, and remanded for a
hearing on the after-discovered evidence.
Upon remand, the trial court conducted a hearing at which Reese
testified. Reese disavowed the letters and indicated that they, like the
affidavits, had been executed under duress. Reese additionally represented
that his trial testimony identifying Upshaw as one of the perpetrators was
truthful. The trial court determined that the letters were identical to the
affidavits signed by Reese and produced at trial, and that Reese’s testimony
at the evidentiary hearing tracked his trial testimony. The trial court found
that Reese’s letters, as well as the affidavits produced at trial, were written
under duress, noting that Upshaw and his mother had written eight letters to
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Reese after the trial pressuring Reese to recant. Based on the testimony
presented at the hearing, the trial court concluded that the letters were
cumulative to the evidence presented at trial, and that a new trial was not
warranted. See Trial Court Opinion, 6/29/12, at 9-10.
On further appeal to this Court, Upshaw claimed, inter alia, that the trial
court erred by denying his request for a new trial due to the after-discovered
evidence of Reese’s letters. This Court disagreed and affirmed the trial court’s
determination that Reese’s letters were merely cumulative to other evidence
already presented to the jury. See Commonwealth v. Upshaw, 2014 Pa.
Super. Unpub. LEXIS 3289, 2014 WL 10965838 (Pa. Super. 2014)
(unpublished memorandum at *16). On this basis, this Court affirmed the
judgment of sentence on March 28, 2014. Id. Upshaw did not seek review
in our Supreme Court.
In 2014, Upshaw filed a PCRA petition, his first. Therein, Upshaw
claimed, inter alia, that the trial court erred when it denied his motion for a
new trial in light of after-discovered evidence in the form of a new letter from
Reese wherein he stated that Upshaw was not present at the time of the
robbery and homicide. The PCRA court appointed counsel to represent Reese.
After conferring with his client, counsel for Reese filed a verification which
stated that Reese was being pressured by Upshaw and his family to recant his
testimony, and that the testimony Reese provided at trial and at the after-
discovered evidence hearing was accurate. See Commonwealth v.
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Upshaw, 170 A.3d 1249 (Pa. Super. 2017) (unpublished memorandum at *5-
6). The PCRA court determined that the claim had been previously litigated
in Upshaw’s prior appeal and dismissed the petition. This Court affirmed the
dismissal on the basis that Reese’s most recent letter contained the same
substance as his prior after-discovered letters which Upshaw had previously
litigated pursuant to 42 Pa.C.S.A. §§ 9543(a)(3) and 9544(a)(2).2 See
Upshaw, 170 A.3d 1249 (unpublished memorandum at *10-*11) (noting that
“[w]e have already determined that [Upshaw] was not entitled to relief on the
same purported after-discovered evidence”).
On May 10, 2021, Upshaw filed the instant pro se PCRA petition, his
second. Therein, Upshaw claimed that a new trial was warranted based on
after-discovered evidence which consisted of an affidavit of Dawnae Jones,
who has a daughter by Reese. In the affidavit, Jones attested that Reese told
her that Upshaw had nothing to do with the robbery or the homicide. The
PCRA court dismissed the petition without a hearing on September 14, 2021,
on the basis that the petition was untimely and no exception to the timeliness
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2 No relief is available under the PCRA where the issue has been previously
litigated. See 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue has been previously
litigated if: . . . the highest appellate court in which the petitioner could have
had review as a matter of right has ruled on the merits of the issue.” 42
Pa.C.S.A. § 9544(a)(2).
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requirement applied. Upshaw filed a timely notice of appeal, and both he and
the PCRA court complied with Pa.R.A.P. 1925.3
Upshaw raises the following issues for our review:
I. Did the PCRA court err when denying [Upshaw’s] requested
relief under the [PCRA] on the basis that his petition was
untimely filed and no exception to the timeliness
requirement applies, where [Upshaw] demonstrates that his
petition was properly pled and properly cognizable under 42
Pa.C.S.[A.] § 9545(b)(1)(ii) and § 9545(b)(2).
II. Did the PCRA court misinterpret the language of 42
Pa.C.S.[A.] § 9545(b)(1)(ii) and § 9545(b)(2) and deny
[Upshaw’s PCRA] petition based on this misinterpretation.
III. Did the PCRA court err in denying [Upshaw’s] request for an
evidentiary hearing relative to the after[-]discovered facts
raised in [Upshaw’s] petition.
Upshaw’s Brief at 3 (unnecessary capitalization omitted).
Our standard of review of an order dismissing a PCRA petition is well-
settled:
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error. This
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3 The PCRA court ordered Upshaw to file a Rule 1925(b) concise statement of
errors complained of on appeal. When Upshaw failed to do so, the PCRA court
authored a Rule 1925(a) opinion in which it determined that Upshaw’s issues
on appeal were waived for failure to comply with the Rule 1925(b) order. This
Court determined that the clerk of courts failed to serve Upshaw with a copy
of the Rule 1925(b) order and to note such service on the docket pursuant to
Pa.R.Crim.P. 114(C). Accordingly, this Court remanded for the issuance of a
new Rule 1925(b) order and compliance with Rule 114(C). After these
directives were complied with, Upshaw filed a concise statement and the PCRA
court authored a new Rule 1925(a) opinion.
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Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Any PCRA petition must be filed within one year of the date the judgment
becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
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. Id.
§ 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,
and a court may not address the merits of the issues raised if the PCRA petition
was not timely filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010).
In the instant matter, this Court affirmed Upshaw’s judgment of
sentence on March 28, 2014, and Upshaw did not seek allowance of appeal in
our Supreme Court. Therefore, his judgment of sentence became final on
April 28, 2014, upon the expiration of the time in which he could have filed a
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petition for allowance of appeal.4 See 42 Pa.C.S.A. § 9545(b)(3); see also
Pa.R.A.P. 1113 (providing that a petition for allowance of appeal shall be filed
with the prothonotary of the Pennsylvania Supreme Court within thirty days
of the entry of the Superior Court order). Upshaw had until April 28, 2015, to
file the instant PCRA petition, but did not do so until May 10, 2021. Thus,
Upshaw’s petition is facially untimely under the PCRA.
Pennsylvania courts may consider an untimely PCRA petition if the
petitioner explicitly pleads and proves one of three exceptions set forth under
section 9545(b)(1), which provides:
(b) Time for filing petition.--
(1) 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:
(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
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4 The thirtieth day after March 28, 2014, fell on Sunday, April 27, 2014.
Therefore, Upshaw had until Monday April 28, 2014, to file a timely petition
for allowance of appeal. See 1 Pa.C.S.A. § 1908 (providing that “[w]henever
the last day of any such period shall fall on Saturday or Sunday, or on any
day made a legal holiday by the laws of this Commonwealth or of the United
States, such day shall be omitted from the computation”).
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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). Any petition attempting to invoke one of these
exceptions must “be filed within one year of the date the claim could have
been presented.” Id. § 9545(b)(2).
As Upshaw’s first two issues are related, we will address them together.
Upshaw asserts that he invoked the timeliness exception set forth in section
9545(b)(1)(ii), which permits an exception to the PCRA’s time bar when the
petitioner alleges and proves that there were facts that were unknown to him,
and that he could not have ascertained those facts by the exercise of due
diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii); see also Commonwealth v.
Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The due diligence inquiry is
fact-sensitive and dependent upon the circumstances presented. See
Commonwealth v. Burton, 121 A.3d 1063, 1070 (Pa. Super. 2015) (en
banc). The focus of the exception found at section 9545(b)(1)(ii) is on newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts. See Commonwealth v. Lopez, 249 A.3d 993, 1000
(Pa. 2021).
Upshaw contends that the information contained in Jones’s affidavit
constitutes after-discovered evidence of which he was unaware and could not
have discovered by the exercise of due diligence. Upshaw claims that he did
not become aware of Jones’s information until September of 2020, and he
filed the instant petition eight months later, in May of 2021. Upshaw maintains
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that the only basis for dismissal identified by the PCRA court was that his
petition was untimely. Upshaw insists that, pursuant to sections
9545(b)(1)(ii) and 9545(b)(2), his petition is timely because it was filed within
one year after he discovered Jones’s information.
The PCRA court addressed Upshaw’s first two issues and concluded that
they lacked merit. The PCRA court reasoned as follows:
Upshaw alleges subsection [9545(b)](ii) applies to him.
[Upshaw] is incorrect. [Upshaw’s] “new fact” is a new witness,
. . . Jones, who would impeach the testimony of . . . Reese and
support his purported recantation. The issue of the veracity of
Reese’s testimony is not new. In fact, [Upshaw] alleged at trial,
on direct appeal, [and] in his first PCRA petition . . . that Reese
had not testified truthfully at trial. The present PCRA merely
promulgates an additional source of information, not a newly
discovered fact. . . . This issue is not new as it relates to
subsection [9545(b)](ii) and this court correctly found that this
exception does not apply.
PCRA Court Opinion, 8/1/22, at 4 (unnecessary capitalization omitted).
Here, facts upon which Upshaw’s current after-discovered evidence
claim is based, i.e., that Reese has at times made out-of-court statements
that Upshaw was not involved in the robbery or homicide, have been known
to Upshaw since at least 2011. Upshaw makes no argument that the
information provided by Jones regarding verbal statements by Reese differs
in any meaningful way from affidavits and letters previously authored by
Reese. Thus, the information contained in Jones’s affidavit is not a newly
discovered fact. Rather, it is merely a newly discovered or newly willing source
that corroborates a previously known fact. See Lopez, 249 A.3d at 1000.
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Accordingly, the timeliness exception provided by section 9454(b)(1)(ii) does
not apply. Id.
Moreover, the issue of whether Reese’s after-discovered statements
entitle Upshaw to a new trial has been previously litigated. See Upshaw,
2014 Pa. Super. Unpub. LEXIS 3289, 2014 WL 10965838 (Pa. Super. 2014)
(unpublished memorandum at *16) (affirming the trial court’s denial of a new
trial based on Reese’s after-discovered letters on the basis that they were
merely cumulative to other proof already presented to the jury); see also
Upshaw, 170 A.3d 1249 (unpublished memorandum at *10-*11) (holding
that “[w]e have already determined that [Upshaw] was not entitled to relief
on the same purported after-discovered evidence”). Therefore, PCRA relief
was unavailable for Upshaw’s current after-discovered evidence claim. See
42 Pa.C.S.A. § 9543(a)(3), 9544(a)(2). Accordingly, as the PCRA court lacked
jurisdiction over Upshaw’s petition, his first two issues do not entitle him to
relief.
In his final issue, Upshaw claims that the PCRA court abused its
discretion by dismissing his petition without first conducting an evidentiary
hearing. Pennsylvania Rule of Criminal Procedure 907 provides that the PCRA
court has the discretion to dismiss a petition without a hearing when the court
is satisfied “that there are no genuine issues concerning any material fact and
that the defendant is not entitled to post-conviction collateral relief, and no
purpose would be further served by any further proceedings.” Pa.R.Crim.P.
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907(1). To obtain relief, the appellant must show that he or she “raised a
genuine issue of fact which, if resolved in his favor, would have entitled him
to relief, or that the court otherwise abused its discretion in denying a
hearing.” Commonwealth v. Paddy, 15 A.3d 431 (Pa. 2011).
Upshaw claims that the issues he raised in his petition are not patently
frivolous and involve a material fact supported by the record. On this basis,
he argues that he was entitled to an evidentiary hearing on the after-
discovered evidence he presented to the PCRA court.
As explained above, Upshaw’s petition was untimely filed and he failed
to present the PCRA court with any fact that was previously unknown to him
within the scope of section 9545(b)(1)(ii). As Upshaw failed to identify any
genuine issue of material fact that would entitle him to relief, the PCRA court
did not abuse its discretion by dismissing the petition without a hearing.
Order affirmed.
President Judge Panella joins this decision.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/12/2022
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Com. v. Upshaw, M.
Combined Opinion