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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RODNEY WELLS :
:
Appellant : No. 2113 EDA 2022
Appeal from the PCRA Order Entered August 5, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0734932-1985
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 28, 2023
Appellant, Rodney Wells, appeals pro se from the August 5, 2022 order
entered in the Court of Common Pleas of Philadelphia County dismissing as
untimely his writ of habeas corpus, which the court deemed Appellant’s fifth
petition for collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.
As the PCRA court explained, Appellant was convicted in 1988 of one
count each of third-degree murder, aggravated assault, corrupt organizations,
criminal conspiracy, and simple assault, along with two counts of possession
of an instrument of crime.1 The trial court imposed a life sentence for the
murder conviction with consecutive terms of five to ten years for conspiracy
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1 18 Pa.C.S.A. §§ 2502, 2702, 911, 903, 2701, and 907, respectively.
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and aggravated assault. No further penalty was imposed on the remaining
convictions, including the conviction for corrupt organizations under the
Pennsylvania Corrupt Organization Act (“PCOA”). On June 18, 1990, his
judgment of sentence was affirmed and on October 30, 1990, our Supreme
Court denied allocatur. See Commonwealth v. Wells, 579 A.2d 421 (Pa.
Super. 1990) (unpublished memorandum), appeal denied, 592 A.2d 44 (Pa.
1990). PCRA Court Opinion, 10/18/22, at 1.
Appellant subsequently filed four petitions under the PCRA, all of which
were dismissed, with each dismissal being affirmed on appeal. See
Commonwealth v. Wells, 241 A.3d 467 (Pa. Super. 2020) (unpublished
memorandum), appeal denied, 253 A.3d 682 (Pa. 2021); Commonwealth v.
Wells, 953 A.2d 842 (Pa. Super. 2008) (unpublished memorandum);
Commonwealth v. Wells, 804 A.2d 63 (Pa. Super. 2002) (unpublished
memorandum), appeal denied, 813 A.2d 841 (Pa. 2002); Commonwealth v.
Wells, 737 A.2d 813 (Pa. Super. 1999) (unpublished memorandum). Id. at
1-2.
As the PCRA court further observed:
[Appellant] has been challenging his PCOA conviction [for which
no additional sentence was imposed], the behavior of [the
prosecutor at trial], the absence of his arrest warrant, and the
grand jury proceedings, in his multiple claims for relief during the
more than 34-year period since his conviction. As the Superior
Court noted in affirming the dismissal of [Appellant’s] Fourth
Petition, [Appellant] “raised substantially similar claims in each of
his prior PCRA petitions.” Wells, 241 A.3d 467, at *1 n. 4
(unpublished memorandum). Specifically, as to the PCOA
conviction, the Superior Court noted that [Appellant] “has
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engaged in a tireless, decades-long attack[.] [Appellant]
continues to consume judicial resources re-litigating this frivolous
claim.” Id. at *6 n. 7.[2]
Id. at 3.
On November 10, 2021, Appellant filed the pro se writ of habeas corpus
at issue here. As stated above, the PCRA court treated the petition as
Appellant’s fifth PCRA petition. The Commonwealth filed a response on April
27, 2022, and the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907 on
May 13, 2022 of its intention to dismiss the petition as untimely filed.
On May 23, 2022, Appellant filed an amended petition raising additional
claims, again referring to it as a writ of habeas corpus, and also filed a motion
to stay proceedings pending our Supreme Court’s disposition of the “Motion
for Assumption of Jurisdiction and Extraordinary Relief” that Appellant filed in
that Court on March 21, 2022. The Supreme Court denied that motion on July
18, 2022. On August 3, 2022, the Commonwealth filed a response to
Appellant’s amended fifth PCRA petition. By order entered August 5, 2022,
the PCRA court denied Appellant’s motion to stay as moot and dismissed
Appellant’s fifth PCRA petition. This timely appeal followed. Both Appellant
and the PCRA court complied with Pa.R.A.P. 1925.
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2 In Footnote 7, this Court also reiterated “that the sentencing court
imposed no sentence on the corrupt organizations conviction. Nevertheless,
Appellant, who is serving life in prison for his murder conviction,” has
continued to pursue an attack on his PCOA conviction. Id. at *6 n.7 (emphasis
in original) (citation omitted).
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Appellant presents the following issues for our consideration, which we
repeat here verbatim:
1. Whether the lower court’s dismissal of Petitioner’s Writ of
Habeas Corpus AD Subjudiciendum and his Amended Petition
for Writ of Habeas AD Subjudiciendum, which this Court
deemed to be a Petition pursuant to the Post Conviction Relief
Act (“PCRA”) is supported by the evidence of record and free of
legal error?
2. Whether the lower court is in violations of Section One, Article
One of the PA. Constitution, Article One, Section 8,9,11, and
Article One Section 14 of the PA. Constitution, “…and the
privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in case of rebellion or invasion the Public safety
may require it”
3. Was the Appellant unlawfully convicted of the Pennsylvania
Corrupt Organization Act (“PCOA”) as defined at the time of his
conviction?
4. Can the Appellant obtain relief via the PCRA from the
consequences of the PCOA conviction when the conviction has
resulted in a suspended sentence?
5. Should all the evidence obtained from the Investigating Grand
Jury process seeking a presentment based upon violations of
the PCOA be deemed inadmissible as the direct product of
constitutional violations in each of the Appellant’s convictions?
6. Was the Appellant’s convictions upon issuance of a warrant
without production of an affidavit of probable cause in his PCOA
Conviction Constitutionally infirm, mandating immediate
release?
7. Are each of the convictions for which the Appellant is currently
confined the result of the fruit of the poisonous tree legal
theory, violative of the State a Federal Constitutions?
8. Should the Commonwealth be ordered to immediately release
the Appellant from custody?
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Appellant’s Brief at 3-4 (verbatim).
We review an order denying a petition for collateral relief to determine
whether the PCRA court’s decision is supported by the evidence of record and
free of legal error. See, e.g., Commonwealth v. Jarosz, 152 A.3d 344, 350
(Pa. Super. 2016). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.”
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).
Here, the PCRA court first considered whether Appellant’s claims are
cognizable under the PCRA, despite his contention to the contrary. The court
determined:
[Appellant’s] claims for relief, which are premised upon the
legality of his PCOA conviction, prosecutorial misconduct, his
arrest warrant affidavit, and the grand jury process, are all
grounded on alleged violations of the federal and state
constitutions. Such challenges are explicitly covered by the PCRA.
See 42 Pa.C.S. § 9543(a)(2)(i) (providing for eligibility for relief
under the PCRA for a ”violation of the Constitution of this
Commonwealth or the Constitution or laws of the United States[.]”
Therefore, [Appellant’s] “sole means of obtaining collateral relief”
is the PCRA and habeas corpus is not available. See 42 Pa.C.S.
§ 9542; [Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa.
Super. 1998)].
PCRA Court Opinion, 10/18/22, at 5-6. We find the PCRA court’s conclusion
in this regard to be free of legal error. Therefore, we next consider whether
Appellant is due any relief under the PCRA.
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All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final,” 3 unless an
exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1).4 “The PCRA’s
time restrictions are jurisdictional in nature. Thus, if a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. (Frank) Chester, 895
A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted)
(overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267
(Pa. 2020)). As timeliness is separate and distinct from the merits of
Appellant’s underlying claims, we first determine whether this PCRA petition
was timely filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa.
2008). If not, we cannot address the substantive claims raised in the
petition. Id.
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3 Appellant’s judgment of sentence became final on January 28, 1991, 90 days
after our Supreme Court denied allocatur. See U.S.Sup.Ct. Rule 13.1.
Therefore, he had until January 28, 1992 to file a timely petition. Here,
Appellant filed his petition on November 10, 2021, more than 30 years after
his judgment of sentence became final. Appellant’s petition is facially
untimely.
4 The one-year time limitation can be overcome if a petitioner (1) alleges and
proves one of the three exceptions set forth in Section 9545(b)(1)(i)-(iii) of
the PCRA, and (2) files a petition raising this exception within one year of the
date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
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The PCRA court considered whether Appellant satisfied any exception to
the PCRA’s timeliness requirements and determined that Appellant did not
assert any timeliness exceptions with respect to claims premised upon his
PCOA conviction, his arrest warrant affidavit, or the grand jury process. PCRA
Court Opinion, 10/18/22, at 7. The court acknowledged that Appellant
attempted to invoke the newly-discovered facts exception with regard to his
prosecutorial and police misconduct claims. Id. The court explained:
To qualify for the newly-discovered facts exception, a petitioner
must 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.” Commonwealth v. Burton, 153 A.3d
618, 629 (Pa. 2017). Due diligence demands that a 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 obtained
the new facts earlier through the use of due diligence.
Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). This
rule is strictly enforced. Commonwealth v. Vega, 754 A.2d 714,
718 (Pa. Super. 2000).
Id. at 7-8.
The court considered Appellant’s proffer of news articles and unrelated
cases involving the prosecutor and detective from Appellant’s trial. The court
correctly recognized that “[t]he proposed new evidence must be ‘producible
and admissible.’” Id. at 8 (quoting Commonwealth v. Griffin, 137 A.3d
605, 608 (Pa. Super. 2016) (in turn quoting Commonwealth v.
Chamberlain, 30 A.3d 381, 414 (Pa. 2011)). However, as this Court held
in Griffin, assertions in a newspaper article are not admissible evidence.
Further, neither an indictment nor a lawsuit against an officer is evidence.
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Id. (citing Griffin, 137 A.3d 609-10). Because Appellant did not offer any
admissible evidence in support of his claims, the newly-discovered facts
exception did not apply and the court lacked jurisdiction to entertain
Appellant’s claims. Id. Therefore, this Court similarly lacks jurisdiction and
does not have the legal authority to address Appellant’s substantive claims.
Chester, 895 A.2d at 522.
We find that the PCRA court’s dismissal of Appellant’s fifth PCRA
petition as untimely is supported by the evidence of record and free of legal
error. Therefore, we shall not disturb it.
Order affirmed.
Judge Olson joins the memorandum.
Judge McLaughlin concurs in the result.
Date: 11/28/2023
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