J-S76045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMIE KIRNON
Appellant No. 1101 EDA 2016
Appeal from the PCRA Order March 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0503741-2001
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 21, 2016
Appellant Jamie Kirnon appeals from the order entered in the Court of
Common Pleas of Philadelphia County on March 8, 2016, dismissing as
untimely his third petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 1998, Appellant and his cohort, Rafael Stewart, shot and killed
Darius Cuthbert and seriously wounded Omar Johnson in connection with a
drug-related confrontation. Following a jury trial, on November 4, 2003,
Appellant was convicted of first-degree murder, aggravated assault, criminal
conspiracy, possessing an instrument of crime and carrying a firearm on a
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*
Former Justice specially assigned to the Superior Court.
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public street.1 On November 5, 2003, following the penalty phase of the
trial, the jury sentenced Appellant to life imprisonment on the first-degree
murder conviction, and on December 22, 2003, the trial court imposed
consecutive sentences for the criminal conspiracy and aggravated assault
convictions.
Following the denial of his post-sentence motion, Appellant filed a
timely appeal. This Court affirmed Appellant’s judgment of sentence on
January 13, 2005, and Appellant did not seek further review with our
Supreme Court. On January 13, 2006, Appellant filed, pro se, a timely PCRA
petition. Counsel was appointed, and by order and opinion entered on
October 5, 2006, the PCRA court dismissed Appellant’s petition and
permitted counsel to withdraw. Appellant filed a second petition on June 2,
2011, and the PCRA court dismissed it as untimely on March 5, 2014. On
appeal, this Court affirmed both PCRA orders.
Appellant filed the instant PCRA petition, pro se, on January 30, 2015,
as well as several amended petitions thereafter. Appellant retained counsel
who requested leave to amend. The PCRA court granted that relief on June
2, 2015, and Appellant filed his Amended Motion for Post Conviction Relief
on August 28, 2015. The basis for Appellant’s initial petition and amended,
counseled petition arises from the testimony Mr. Johnson provided at Mr.
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1
18 Pa.C.S.A. §§ 2502, 2702, 903, 6108, and 907, respectively.
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Stewart’s trial in 2014 which Appellant avers constitutes newly discovered
evidence.2
On March 8, 2016, the PCRA court dismissed Appellant’s petition as
untimely, and Appellant filed a timely notice of appeal on April 6, 2016. The
PCRA court did not direct Appellant to file a statement of matters complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did not file one.
The PCRA court filed its Opinion pursuant to Pa.R.A.P. 1925(a) on April 26,
2016, wherein it requested that this Court affirm its order dismissing
appellant’s PCRA petition for the reasons contained in its March 8, 2016,
opinion.
In his brief, Appellant presents the following Statement of the
Question Involved:
Did the PCRA court err and violate Appellant’s Fourth, Sixth and
Fourteenth Amendment rights by finding that the new evidence
petition was untimely filed?
Appellant’s Brief at 4. The text of Appellant’s brief essentially reiterates the
claims he made in his Amended Motion for Post Conviction Relief filed on
August 28, 2015.
Preliminarily, we must determine whether Appellant’s instant PCRA
petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
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2
After the shooting, Mr. Stewart had been “on the run” and was not
apprehended and brought to trial until 2014.
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(Pa.Super. 2000). “Our standard of review is whether the PCRA court’s
order is supported by the record and without legal error.” Commonwealth
v. Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (citation omitted).
Pennsylvania law makes it clear that no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500,
837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective
January 19, 1996, provide that a PCRA petition, including a second or
subsequent petition, shall be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed
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 review.” 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(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 the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
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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).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation
omitted).
In the case sub judice, Appellant was sentenced to life imprisonment
on November 5, 2003, and to consecutive prison sentences for aggravated
assault and criminal conspiracy on December 22, 2003. This Court affirmed
his judgment of sentence on January 13, 2005. Appellant did not file a
petition for allowance of appeal; therefore, Appellant’s judgment of sentence
became final thirty days thereafter, on February 12, 2005, when the time for
seeking allocator with our Supreme Court expired. See 42 Pa.C.S.A. §
9545(b)(3) (providing “a judgment 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[ ]”). Thus, Appellant had until February 13, 2006, to
file a timely PCRA petition; however, Appellant filed the instant PCRA
petition on January 30, 2015; therefore, it is patently untimely under the
PCRA. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Gamboa-
Taylor, 562 Pa. 70, 753 A.2d 780 (2000) (holding a PCRA petition filed
more than one year after judgment of sentence becomes final is untimely
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and the PCRA court lacks jurisdiction to address the petition unless the
petitioner pleads and proves a statutory exception to the PCRA time-bar).
As such, the PCRA court could not address the merits of Appellant’s petition
unless a timeliness exception applies.
Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A.
§ 9545(b)(1)(ii) by claiming the testimony provided by Mr. Johnson during
Mr. Stewart’s trial constitutes newly discovered evidence. Appellant alleges
he first became aware of Mr. Stewarts’s trial from a newspaper article
published on November 19, 2014, but he was unable to obtain the trial
transcripts until April 15, 2015. See Amended Motion for Post Conviction
Relief at 6-7 (unnumbered). Appellant maintains that upon reading the
notes of testimony he learned Mr. Johnson had committed the crime of
perjury as to “key material issues” when he testified at Appellant’s trial, a
fact which he could not establish until Mr. Johnson testified in Mr. Stewart’s
case. Id. at 9, 11 (unnumbered).
Appellant avers that while Mr. Johnson testified at Appellant’s trial that
the shooting occurred in response to the victim’s having attempted to take
over a “coke house,” he stated at Mr. Stewart’s trial that Appellant and
Stewart shot him because he and Mr. Cuthbert had robbed the “drug house,”
which went to the motive for the crime. Id. at 11. Appellant further notes
that while at the first trial Mr. Johnson had indicated he and others had been
merely standing on the corner prior to the shooting, at the Stewart trial he
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stated he and others had been selling drugs on the corner. Id. at 12.
Finally, Appellant stresses that Mr. Johnson maintained at Appellant’s trial an
individual nicknamed “Nasty”3 had not been on the corner with them that
evening, and in reliance upon this testimony, the defense did not call Mr.
Arthur to testify as an eyewitness to the shooting. To the contrary, at Mr.
Stewart’s trial, Mr. Johnson indicated “Nasty” was standing on the corner at
the time of the shooting, which Appellant argues would have made his
testimony as an eyewitness to the shooting vital at trial. Id. at 13-14.
Although he acknowledged that “Johnson’s recantation still inculpates
[Appellant] as Stewart’s accomplice,” Appellant baldly posits “the prejudicial
impact that Johnson’s perjury had on [Appellant’s] verdict is of constitutional
dimension.” Id. at 14.
Our Supreme Court previously has stressed that the newly discovered
evidence exception in Section 9545(b)(1)(ii) requires a petitioner to allege
and prove that there were “facts” that were “unknown” to him and that he
could not have ascertained those facts by the exercise of “due diligence.”
Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270-72
(2007). To do so, an Appellant must prove that “(1) the evidence has been
discovered after trial and it could not have been obtained at or prior to trial
through reasonable diligence; (2) the evidence is not cumulative; (3) it is
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3
“Nasty’s” given name is Lester Arthur.
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not being used solely to impeach credibility; and (4) it would likely compel a
different verdict.” Commonwealth v. D’Amato, 579 Pa. 490, 519, 856
A.2d 806, 823 (2004). Moreover, “[d]ue diligence demands that the
petitioner take reasonable steps to protect his own interests. A petitioner
must explain why he could not have learned the new fact(s) earlier with the
exercise of due diligence. This rule is strictly enforced.” Commonwealth
v. Williams, 35 A.3d 44, 53 (Pa.Super. 2011) (citations omitted). Further,
“[t]he focus of the exception is on the newly discovered facts, not on a
newly discovered or newly willing source for previously known facts.”
Commonwealth v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 720 (2008)
(emphasis in original).
Additionally, as this Court has often explained, all of the time-bar
exceptions are subject to a separate deadline.
The statutory exceptions to the timeliness requirements of
the PCRA are also subject to a separate time limitation and must
be filed within sixty (60) days of the time the claim could first
have been presented. See 42 Pa.C.S.A. § 9545(b)(2). The sixty
(60) day time limit . . . runs from the date the petitioner first
learned of the alleged after-discovered facts. A petitioner must
explain when he first learned of the facts underlying his PCRA
claims and show that he brought his claim within sixty (60) days
thereafter.
Williams, 35 A.3d at 53 (citations omitted).
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In the case sub judice, assuming, arguendo, Appellant met the initial
60-day threshold,4 we conclude the trial court did not abuse its discretion in
finding Mr. Johnson’s testimony did not provide “unknown facts.”5 In this
regard, when determining that it lacked jurisdiction over Appellant’s third
PCRA petition, the PCRA court reasoned as follows:
The newly-discovered evidence-- Mr. Johnson’s testimony in the
Stewart trial-- are [sic] only minor inconsistencies from his
original testimony in [Appellant’s] case. The variations between
the statements would merely be used to impeach Mr. Johnson’s
credibility,6 which fails to qualify as after discovered evidence.
Additionally, whether Lester Arthur was with Mr. Johnson
at the corner of the shooting, or a city block away, does not
amount to newly discovered evidence. As the Supreme Court of
Pennsylvania clarified in Commonwealth v. Bennet, 930 A.2d
1264, 1272 (Pa. 2007), a defendant “must also prove that the
facts were ‘unknown’ to him and that he could not uncover them
with the exercise of ‘due diligence.’” [Appellant] states that he
relied upon Mr. Johnson’s testimony as to Mr. Arthur’s view of
the incident, and chose not to call Mr. Arthur as a witness on the
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4
Appellant asserts that his sister, Margaret Shaw, acquired the notes of
testimony from Mr. Stewart’s trial on March 18, 2015, and mailed them to
Appellant at SCI Dallas where they were allegedly confiscated by the
correctional institute as contraband and were not released to Appellant until
April 15, 2015. Appellant’s Brief at 11-12.
5
It is noteworthy that although Appellant cites to and references Mr.
Johnson’s testimony from Mr. Stewart’s’ trial to support his claims, he has
failed to provide us with a complete trial transcript; therefore, our review of
the testimony is limited to the excerpts thereof which Appellant attached to
his pro se PCRA petition filed on May 12, 2015. We remind Appellant that
“[i]t is black letter law in this jurisdiction that an appellate court cannot
consider anything which is not part of the record in the case. It is also well-
settled in this jurisdiction that it is Appellant's responsibility to supply this
Court with a complete record for purposes of review.” Commonwealth v.
Martz, 926 A.2d 514, 524–525 (Pa.Super. 2007) (citations omitted) appeal
denied, 940 A.2d 363 (Pa. 2008).
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belief that he would not provide any helpful information. See
Amended Petition, at[] 13. Rather than conducting due diligence
at the time of trial and question Mr. Arthur as to what he
witnessed, [Appellant] waited until Mr. Johnson’s testimony
eleven years after the fact to consider whether Mr. Arthur has
any relevant information.[7]
More importantly, any differences between the two
testimonies cannot overcome the pivotal fact which Mr. Johnson
reiterated in the Stewart trial- that [Appellant] was one of the
shooters. There is no basis to conclude that the inconsistencies
would likely compel a different outcome.
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6
For example, this court cannot imagine that the jury would hold
Mr. Johnson’s testimony in a different light had they [sic] been
informed that Mr. Johnson, along with Messrs. Cuthbert and
Gissentanner, were selling drugs immediately before the
shooting. Not only had Mr. Johnson testified during [Appellant’s]
trial that he sold drugs from 1996 to 1998 and was arrested for
selling drugs in 2001, the jury was also informed that Mr.
Johnson was in custody awaiting trial for murder in New York.
7
In fact, [Appellant] did not attach a sworn affidavit from Mr.
Arthur, and again relies on Mr. Johnson’s memory if Mr. Arthur
might have witnessed the murder.
Trial Court Opinion, filed 3/8/16, at 4-5.
Upon our review of the excerpts of Mr. Johnson’s testimony which
Appellant has provided for our review, we agree with the PCRA court’s
finding that Appellant has failed to demonstrate such testimony satisfies the
newly discovered evidence exception to the PCRA time bar. Rather than
demonstrate Johnson committed perjury at Appellant’s trial, the
inconsistencies in his testimony at the two proceedings, which were
separated by ten years, pertain to such details as where individuals were
standing and what they were doing at the time of the shooting. While one’s
memory of such details is likely to be affected by the passage of time,
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significantly, Mr. Johnson never wavered in his identification of Appellant as
a shooter at Appellant’s trial, and he reaffirmed Appellant shot repeatedly at
him at Mr. Stewart’s trial. N.T. Stewart Trial, 11/13/14, at 23-25.6 As
such, Mr. Johnson’s testimony cannot be viewed as exculpatory evidence,
but rather its use would be solely to impeach his prior testimony.
Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa.Super. 2010) (“a
defendant seeking a new trial must demonstrate he will not use the alleged
after-discovered evidence solely to impeach the credibility of a witness”).
Accordingly, because Appellant has not established any of the
timeliness exceptions to the PCRA time-bar, the PCRA court lacked
jurisdiction to address his claim, and we affirm the dismissal of Appellant's
instant untimely PCRA petition.
Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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6
In addition, another eyewitness, Danny Gissentanner, unequivocally
identified Appellant as one of the shooters at Appellant’s trial, and his
testimony was corroborated by ballistics evidence.
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Com. v. Kirnon, J.
Combined Opinion