J-S37003-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAREEM BLOUNT :
:
Appellant : No. 1801 EDA 2022
Appeal from the PCRA Order Entered July 6, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0307941-2002
BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 08, 2024
Appellant, Kareem Blount, appeals from the post-conviction court’s July
6, 2022 order dismissing, as untimely, his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
The PCRA court summarized the facts of Appellant’s case, as follows:
On December 6, 2001, victims … Kareema Freeman and … Heather
Franklin were sitting in their parked vehicle outside of a
McDonald’s Restaurant at the intersection of Broad Street and
Allegheny Street. [Appellant] and a confederate[, Kassim
Hackett,] entered the vehicle in the back seat, pointing two guns
at the women. The co-conspirators demanded that the women
surrender their possessions to them. They also demanded that
the women leave the vehicle. The co-conspirators fled the scene
in the stolen vehicle. The next day, the police spotted the stolen
vehicle running a red light on Broad Street. [Appellant] was
operating the vehicle.[1] [Appellant] did not stop when the officer
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1 According to Appellant, Hackett was also in the car, as well as a third man,
Carl Hardman. See Appellant’s Brief at 3.
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activated his car’s lights and sirens, and a chase began. The chase
lasted around thirty (30) seconds, at which point [Appellant] lost
control of the vehicle, which hit a tree. [Appellant] and [Hackett]
were then taken into custody and brought to the police station.
At the station, both victims of the robbery identified [Appellant] in
a lineup.
PCRA Court Opinion (PCO), 10/4/22, at 2-3.
Appellant was ultimately charged with two counts of robbery and one
count each of robbery of a motor vehicle, criminal conspiracy, theft by
unlawful taking, and simple assault. Following a jury trial, he was convicted
of all charges. On May 27, 2003, the court sentenced Appellant to an
aggregate term of 30 to 60 years’ incarceration. He filed a timely direct appeal
and, after this Court affirmed his judgment of sentence, our Supreme Court
denied his subsequent petition for allowance of appeal on April 19, 2005. See
Commonwealth v. Blount, 858 A.2d 1271 (Pa. Super. 2004) (unpublished
memorandum), appeal denied, 872 A.2d 1197 (Pa. 2005).
Over the next decade, Appellant litigated two unsuccessful PCRA
petitions. On October 30, 2020, he filed another, pro se PCRA petition, and a
pro se amended petition on February 12, 2021. Appellant subsequently
retained counsel, who entered his appearance and filed another amended
petition on Appellant’s behalf on September 24, 2021. Therein, Appellant
averred:
10. On September 17, 2020, Hackett came forward and signed an
affidavit in which he took responsibility for the robbery, explained
that [Appellant] was not present for the robbery, and that he had
sold the car to [Appellant] without telling him it was stolen. See,
Exhibit ‘A.’
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11. On December 29, 2020, Hackett signed another affidavit and
revealed who the second robber was (Charles Smith). See,
Exhibit ‘B.’
12. [Appellant] mailed his second amended PCRA petition for filing
on February 12, 2021.
13. In March, 2021, Lashonda Sutton, [Appellant’s] friend, finally
indicated a willingness to come forward and explain that
[Appellant] was with her on December 6, 2021[,] at the time of
the crime, and that he was not at the scene of the crime.
14. Sutton has been interviewed by an investigator and her
affidavit is forthcoming.
Amended PCRA Petition, 9/24/21, at 3-4 (footnote omitted). Appellant
thereafter filed another amended PCRA petition attaching Sutton’s affidavit in
which she claimed she was with Appellant on the night of the robbery. See
Amended Petition, 12/10/21, at Exhibit C.
On May 11, 2022, the PCRA court issued a Pa.R.Crim.P. 907 notice of
its intent to dismiss Appellant’s petition without a hearing on the basis that it
was untimely and met no timeliness exception. Appellant filed a pro se
response on June 1, 2022, but on July 6, 2022, the court issued an order
dismissing his petition. Appellant filed a timely notice of appeal, and he also
timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The court issued a Rule 1925(a)
opinion on October 4, 2022. Herein, Appellant states two issues for our
review:
1. Did the PCRA [c]ourt err by summarily dismissing [Appellant’s]
PCRA claim of newly and after[-]discovered evidence in the
form of one of the perpetrators’ exculpation of [Appellant]?
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2. Did the PCRA [c]ourt err by summarily dismissing [Appellant’s]
PCRA claim of newly and after[-]discovered evidence in the
form of an alibi witness who was not willing to come forward
until the instant proceedings?
Appellant’s Brief at 2.
Initially, we note that this Court’s standard of review regarding an order
denying a petition under the PCRA is whether the determination of the PCRA
court is supported by the evidence of record and is free of legal error.
Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin
by addressing the timeliness of Appellant’s petition, because the PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded in
order to address the merits of a petition. See Commonwealth v. Bennett,
930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-
conviction relief, including a second or subsequent one, must be filed within
one year of the date the judgment of sentence becomes final, unless one of
the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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
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(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). Additionally, any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on July 18, 2005,
ninety days after our Supreme Court denied his petition for allowance of
appeal. See 42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.
Super. 1998) (directing that under the PCRA, a petitioner’s judgment of
sentence becomes final ninety days after our Supreme Court rejects his or her
petition for allowance of appeal, since the petitioner had ninety additional days
to seek review with the United States Supreme Court). Thus, Appellant had
until July 18, 2006, to file a timely petition, and his petition filed in October of
2020 is patently untimely. Accordingly, for this Court to have jurisdiction to
review the merits thereof, Appellant must prove that he meets one of the
exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
Instantly, Appellant argues that he meets the newly-discovered fact
exception of section 9545(b)(1)(ii) based on the affidavits he obtained from
Hackett and Sutton. In rejecting Appellant’s claim and dismissing his petition,
we note that the PCRA court incorrectly discussed the requirements for relief
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under 42 Pa.C.S. § 9543(a)(2), and repeatedly referred to Appellant’s claim
as one of after-discovered evidence. See PCO at 4, 5-7. As our Supreme
Court has clarified,
the newly-discovered facts exception to the time limitations of the
PCRA, as set forth in subsection 9545(b)(1)(ii), is distinct from the
after-discovered evidence basis for relief delineated in 42 Pa.C.S.
§ 9543(a)(2). To qualify for an exception to the PCRA’s time
limitations under subsection 9545(b)(1)(ii), a petitioner need only
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. However, where a petition is otherwise
timely, to prevail on an after-discovered evidence claim for relief
under subsection 9543(a)(2)(vi), a petitioner must prove that (1)
the exculpatory evidence has been discovered after trial and could
not have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel
a different verdict. Commonwealth v. D’Amato, … 856 A.2d
806, 823 ([Pa.] 2004); see [Commonwealth v.] Cox, 146 A.3d
[221,] 227–28 [(Pa. 2016)] (“Once jurisdiction has been properly
invoked (by establishing either that the petition was filed within
one year of the date judgment became final or by establishing one
of the three exceptions to the PCRA’s time-bar), the relevant
inquiry becomes whether the claim is cognizable under [Section
9543] of the PCRA.”).
Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017).
Nevertheless, this Court is permitted to affirm the lower court “on any
valid basis, as long as the court came to the correct result….” Wilson v.
Transport Ins. Co., 889 A.2d 563, 577 n.4 (Pa. Super. 2005) (citations
omitted). Here, we agree with the PCRA court’s dismissal of Appellant’s
petition because we conclude, for the reasons stated infra, that he has failed
to meet the due diligence requirement of the newly-discovered fact exception
of section 9545(b)(1)(ii). We have explained:
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“Due diligence demands that the petitioner take reasonable steps
to protect his own interests. A petitioner must explain why he
could not have learned of the new fact(s) earlier with the exercise
of due diligence.” Commonwealth v. Williams, 35 A.3d 44, 53
(Pa. Super. 2011).
Commonwealth v. Myers, 303 A.3d 118, 121–22 (Pa. Super. 2023).
In this case, Hackett claimed in his affidavit that Appellant was not
present during the robbery, and Appellant was only driving the victim’s car
because Hackett had sold it to Appellant without telling him it was stolen.
Additionally, Sutton provided an affidavit claiming that Appellant was with her
at the time of the robbery. If Hackett’s and Sutton’s claims are true, then
Appellant knew, at the time of the commission of the robbery, that he had an
alibi in Sutton, and that Hackett could confirm that Appellant did not
participate in the robbery and had no knowledge that the vehicle he was
driving was stolen. Nevertheless, Appellant fails to explain what, if any, steps
he took to obtain this exonerating information from Hackett and/or Sutton
over the course of the nearly 20 years between the robbery in 2001 and
Hackett’s and Sutton’s providing Appellant with their affidavits in 2020 and
2021, respectively.
More specifically, in regard to Hackett, Appellant only cursorily claims
that Hackett invoked his Fifth Amendment right to remain silent and, thus,
“[t]here [was] … no conceivable way for [Appellant] to have proffered Hackett
until Hackett was willing to waive that right.” Appellant’s Brief at 9. However,
Appellant does not explain why he could not have obtained the exonerating
affidavit from Hackett after Hackett was tried, convicted, and his judgment
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of sentence became final. Moreover, Appellant offers no explanation for what
finally compelled Hackett to come forward to offer this information nearly 20
years after both men were arrested, tried, and convicted in this case. Notably,
in Hackett’s September 17, 2020 affidavit, he states that he “was recently
contacted by [Appellant’s] family and [he] told them [he] was willing to come
forward to tell the truth.” Amended Petition, 12/10/21, at Exhibit A. Appellant
offers no explanation for why he or his family could not have contacted Hackett
earlier and obtained his statement exonerating Appellant. Therefore, he has
failed to prove that he exercised due diligence.
The same is true for Sutton’s alibi statement. Again, Appellant does not
discuss what efforts he made to encourage Sutton to come forward with the
information that Appellant was with her at the time of the robbery. Instead,
he only baldly claims that “Sutton was not willing to come forward to serve as
[Appellant’s] alibi witness until March [of] 2021….” Appellant’s Brief at 15.
Even if true, Appellant must still explain what steps he took over the 20 years
between 2001 (when the robbery occurred and he allegedly knew that Sutton
could provide him with an alibi) and 2021 (when Sutton finally provided him
with her alibi statement) in order to demonstrate that he acted with due
diligence. Because he fails to do so, he has not met his burden of proving
that the newly-discovered fact exception applies to his untimely petition.2
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2 We also note that Appellant focuses a good deal of his argument on asserting
that the PCRA court erred by not conducting a hearing to assess the credibility
(Footnote Continued Next Page)
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Order affirmed.
Date: 2/8/2024
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of Hackett’s and Sutton’s claims. See Appellant’s Brief at 8-10, 12-14, 16.
However, even if we accept the truth of their information, Appellant still failed
to plead sufficient facts in his PCRA petition, or on appeal, that would raise a
genuine issue of fact regarding whether he exercised due diligence in obtaining
the information from Hackett or Sutton at the earliest possible time.
Therefore, we discern no error in the PCRA court’s decision not to conduct an
evidentiary hearing.
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