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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT POWELL,
Appellant No. 1137 MDA 2015
Appeal from the PCRA Order May 12, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000905-1990
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 17, 2016
Robert Powell (“Appellant”) appeals from the May 12, 2015 order
denying his serial petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
Roy Myran (“the victim”) was shot outside Jones’ bar on Wood Street
in Wilkes-Barre, Luzerne County, Pennsylvania, on February 5, 1990.1
Witnesses identified Appellant and his brother, Paul Powell (“Paul”), 2 as
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*
Former Justice specially assigned to the Superior Court.
1
The facts underlying Appellant’s 1991 convictions of first degree murder
and conspiracy are fully set forth in this Court’s memorandum decision of
Appellant’s direct appeal. Commonwealth v. Powell, 660 A.2d 124 (Pa.
Super. filed January 17, 1995) (unpublished memorandum at 1–3).
2
Paul’s appeal is under review by this Court at 1136 MDA 2015.
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responsible for the victim’s death. Appellant was charged with one count of
murder in the first degree, two counts of criminal conspiracy to commit
criminal homicide, and one count of criminal attempt to commit homicide.
Appellant waived his right to a jury trial. Following a bench trial on
October 8, 1991, Appellant was convicted of first degree murder, two counts
of criminal conspiracy to commit first degree murder, and criminal attempt.
On May 20, 1993, the trial court sentenced Appellant to a term of life
imprisonment for first degree murder, a term of imprisonment of two to four
years on each count of criminal conspiracy to commit first degree murder,
and a term of two to four years for criminal attempt. The sentences were
imposed concurrently. This Court affirmed the judgment of sentence, and
the Pennsylvania Supreme Court denied further review. Commonwealth v.
Powell, 660 A.2d 124 (Pa. Super. filed January 17, 1995) (unpublished
memorandum), appeal denied, 665 A.2d 469 (Pa. 1995).
Appellant filed a timely PCRA petition on December 19, 1996.3 The
PCRA court conducted a hearing on October 1, 1997, and denied relief on
March 16, 2000. On March 29, 2000, Appellant filed a pro se notice of
appeal with this Court. In an opinion dated December 4, 2001, this Court
vacated the order dismissing Appellant’s PCRA petition and remanded the
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3
Appellant’s judgment of sentence became final before January 16, 1996,
the effective date of the 1995 PCRA amendments. Thus, Appellant had until
January 16, 1997, to file a timely first PCRA petition. Commonwealth v.
Merritt, 827 A.2d 485 (Pa. Super. 2003).
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matter for appointment of counsel. Commonwealth v. Powell, 787 A.2d
1017 (Pa. Super. 2001).
On January 18, 2002, the trial court appointed an attorney to
represent Appellant. A subsequent PCRA hearing was held on July 17, 2002,
and on August 26, 2002, the PCRA court dismissed Appellant’s PCRA
petition. Appellant filed a pro se appeal on September 30, 2002. This Court
affirmed the PCRA court’s order, and the Pennsylvania Supreme Court
denied allowance of appeal. Commonwealth v. Powell, 841 A.2d 578 (Pa.
Super. filed October 29, 2003) (unpublished memorandum), appeal denied,
864 A.2d 1204 (Pa. 2005).
Through counsel, Appellant sent a serial PCRA petition to the Luzerne
County Clerk of Courts, which was received on December 27, 2013, and
docketed on January 2, 2014. Appellant filed an amended PCRA petition on
May 8, 2014, and, with leave of court, a second amended petition on June
20, 2014. In his serial petition, Appellant claimed that he was eligible for
collateral relief on two grounds. First, Appellant asserted “the unavailability
at the time of trial of exculpatory evidence that has subsequently become
available and would have changed the outcome of the trial if it had been
introduced.” Second Amended PCRA Petition, 6/20/14, at ¶¶ 14–15. That
evidence was a recantation by witness Charles Eckhart. Second, Appellant
raised an ineffective assistance of counsel claim (“IAC”), alleging that
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defense counsel was ineffective for not locating a witness, Stanley Petroski.
Id. at ¶¶ 17–18.
The PCRA court scheduled an evidentiary hearing for August 7, 2014,
which was eventually held on December 18, 2014. At the hearing, counsel
testified that the defense theory was intoxication, i.e., Appellant and Paul
were too drunk to form the intent necessary for first degree murder. N.T.,
12/18/14, at 9–19. Additionally, Appellant and Paul testified, as did Stanley
Petroski and Charles Eckhart. Id. at 22, 32, 49, 65. Following the
evidentiary hearing, the PCRA dismissed Appellant’s petition as untimely.
Order, 5/12/15.
This appeal followed.4 Appellant presents the following question for
our consideration: “A. Whether [Appellant] should be granted a new trial on
the basis of after-discovered exculpatory evidence?” Appellant’s Brief at 4.5
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
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4
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
5
Appellant has abandoned the ineffectiveness claim raised in his petition by
failing to present any discussion or argument on that topic in his appellate
brief.
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of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and may not be
ignored in order to reach the merits of the petition. Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000). 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.” 42 Pa.C.S. §
9545(b)(3).
Our review of the record reflects that the trial court imposed a
sentence of life imprisonment on May 20, 1993. This Court affirmed
Appellant’s judgment of sentence on January 17, 1995, and the
Pennsylvania Supreme Court denied further review on September 15, 1995.
Accordingly, Appellant’s judgment of sentence became final on December
14, 1995, ninety days after the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal and the time for filing an appeal
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to the United States Supreme Court expired. 42 Pa.C.S. § 9545(b)(3);
U.S.Sup.Ct.R. 13 (stating that a petition for writ of certiorari must be filed
within ninety days of final judgment). Because Appellant’s judgment of
sentence became final before January 16, 1996, the effective date of the
1995 PCRA amendments, he had until January 16, 1997, to file a timely
PCRA petition. Merritt, 827 A.2d 485. Appellant did not file the instant
PCRA petition until January 2, 2014. Thus, the instant PCRA petition is
patently untimely.
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.6 A petition invoking one of these exceptions must be filed
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6
The exceptions to the timeliness requirement are:
(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.
(Footnote Continued Next Page)
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within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,
1167 (Pa. Super 2001).
The record reflects that Appellant attempted to raise the second time-
bar exception, i.e., that the facts upon which his claim was predicated were
unknown to him at the time of trial. 42 Pa.C.S. § 9545(b)(1)(ii). Regarding
this exception, we have stated the following:
In order to sustain an untimely PCRA petition under the
after-discovered evidence exception, a petitioner must show that
the evidence: (1) has been discovered after the trial and could
not have been obtained prior to the conclusion of the trial by the
exercise of reasonable diligence; (2) is not merely corroborative
or cumulative; (3) will not be used solely for impeachment
purposes; and (4) is of such a nature and character that a
different verdict will likely result if a new trial is granted.
Commonwealth v. Johnson, 841 A.2d 136, 140-141 (Pa. Super. 2003).
In addition, our Supreme Court explained that “the after-discovered facts
exception focuses on facts, not on a newly discovered or newly willing
source for previously known facts[.]” Commonwealth v. Marshall, 947
A.2d 714, 721 (Pa. 2008) (emphasis in original; internal quotation marks
and citation omitted). See also Commonwealth v. Abu-Jamal, 941 A.2d
_______________________
(Footnote Continued)
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
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1263, 1269 (Pa. 2008) (concluding that alleging a new conduit for a
previously known fact “does not transform [the] latest source into evidence
falling within the ambit of § 9545(b)(1)(ii)”) (citation omitted).
On appeal, Appellant claims that he is entitled to PCRA relief on the
basis of after-discovered facts contained in an October 2013 letter Appellant
received from Charles Eckhart and the statement of Stanley Petroski.
According to Appellant, Charles Eckhart stated in his letter, for the first time,
that Appellant was intoxicated on the night of the murder, and that he did
not disclose this information during Appellant’s trial for fear of his own
safety. Appellant’s Brief at 24–27. Regarding Stanley Petroski, Appellant
asserts that the witness “was able to articulate with particularity what he
observed of the Powells.” Id. at 27. Appellant argues that, as strangers to
Appellant with no motive to lie, Charles Eckhart and Stanley Petroski
provided evidence that “was not cumulative to [the other defense
witnesses’] testimony in that it would have been untainted and objective and
not at all like family members and [Appellant and Paul] themselves testifying
that [they] were drunk.” Id. at 29–30.
The PCRA court found that Appellant’s serial petition was filed within
sixty days of receiving Charles Eckhart’s letter; however, it found no merit to
Appellant’s substantive claims:
Pursuant to Section 9545, the PCRA petition would have
been due within 60 days of October 30, 2013, when [Appellant]
received a letter from Charles Eckhart, or by December 29,
2013. At the PCRA hearing, the defense presented evidence,
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specifically, a receipt from Fed-Ex indicating that the PCRA
petition was sent by priority delivery overnight and received on
December 2[7], 2013 at 10:00 a.m. by John with the sender
being Gerald A. Lord, Esquire. See Transcript from PCRA
evidentiary hearing on December 18, 2014 at page 6.
Pursuant to Pa. R.C.P. 903(A) the Clerk of Courts shall
promptly time stamp the Petition for Post Conviction Relief.
Because the petitions were received at 10:00 a.m. on December
27, 2013, a prompt time stand would and should have the same
date. The Court finds the Petition was filed within sixty days.
However, [Appellant] must prove one of the exceptions
pursuant to §9545 and what cannot be ignored is that the facts
upon which [Appellant’s] claims are predicated were known to
[him] at the time of the trial. The record reveals that while Mr.
Petroski was unavailable to both the Commonwealth and the
defedants at the time of the trial, the trial court allowed the
defendants to present the written statement of Mr. Petroski. Mr.
Eckhart was available and testified at the trial of this matter.
The statement he provided in October 2013 and his testimony at
the [PCRA hearing] is merely corroborative or cumulative of the
other testimony already presented to the fact finder.
PCRA Court Opinion, 5/12/15, at 5–6.
Upon review of the certified record, we discern no basis on which to
disturb the PCRA court’s order dismissing Appellant’s petition. The record
supports the PCRA court’s finding that Appellant filed his PCRA petition
within sixty days of Charles Eckhart’s letter. N.T., 12/18/14, at 99, Defense
Exhibit 1.
The record also supports the PCRA court’s conclusions that Appellant
had the benefit of Stanley Petroski’s written statement at trial and that
Charles Eckhart’s 2013 statement was cumulative evidence of Appellant’s
intoxication defense. Specifically, at the December 2014 hearing, defense
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counsel testified that “just about all of those ten [defense] witnesses
testified in some form or other about intoxication,” “we had the officer who
issued the public drunkenness citation to [Appellant] and to [Paul],” and the
“forensic toxicologist . . . opined that the blood alcohol was . . . high;
between .20 and .25.” N.T., 12/18/14, at 11–13. Additionally, Appellant
and/or Robert confirmed at the hearing that their defense was intoxication;
their witnesses “stated that we were intoxicated;” the toxicologist testified to
high blood alcohol levels; and Stanley Petroski’s statement was admitted
into evidence at trial. Id. at 23–32; 34–47. Also, Charles Eckhart testified
that he assumed Appellant and Paul were intoxicated, and he explained his
reasons for not disclosing his opinion at the time of Appellant’s trial. Id. at
65–77, 86–96. As to the weight of Charles Eckhart’s and Stanley Petroski’s
proffered testimony, we note that the police officer, the toxicologist, and
Stanley Petroski’s written statement provided the fact finder with objective
evidence of Appellant’s intoxication.
Based on the foregoing, we agree with the PCRA court that Charles
Eckhart’s proffered testimony was corroborative and cumulative evidence of
Appellant’s intoxication and that the outcome of Appellant’s trial would not
have been different if Charles Eckhart and Stanley Petroski had testified.
Thus, Appellant failed to prove that these witnesses’ statements constituted
after-discovered facts that could render Appellant’s serial petition timely. 42
Pa.C.S. § 9545(b)(1)(ii); Johnson, 841 A.2d at 140-141.
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Appellant’s PCRA petition was untimely, and he failed to plead and
prove an exception to the time-bar. Therefore, the PCRA court lacked
jurisdiction to accept Appellant’s petition and grant relief. See
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we
lack the authority to address the merits of any substantive claims raised in
the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency
to adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2016
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