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NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KHALID ANDERSON
Appellant No. 542 EDA 2015
Appeal from the PCRA Order January 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP- 51 -CR- 0900791 -2002
BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 24, 2016
Khalid Anderson ( "Appellant ") appeals, pro se, from the order entered
in the Court of Common Pleas of Philadelphia County dismissing his patently
untimely, serial petition for collateral relief pursuant to the Post Conviction
Relief Act ( "PCRA "), 42 Pa.C.S.A. § 9541 et seq. Appellant contends that the
PCRA court erroneously failed to conduct an evidentiary hearing on his
petition, which sought reinstatement of his first PCRA appeal rights, nunc
pro tunc, on grounds that a breakdown in the courts prevented him from
filing the appeal timely. Also raised in Appellant's brief is an after -
discovered evidence claim, not previously raised before the PCRA court,
asserting that recantation statements proffered by his co- conspirators
* Former Justice specially assigned to the Superior Court.
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overcomes the time -bar that would otherwise apply to the present petition.
We affirm.
A complete factual and procedural history pertinent to the present
matter appears in this Court's memorandum decision Commonwealth v.
Anderson, No. 1354 EDA 2010, (Pa.Super. filed June 7, 2011) (unpublished
memorandum), such that we need not repeat it. For present purposes,
suffice it to say that Appellant currently serves a term of twenty -six to fifty -
two years' incarceration for convictions of Murder of the Third Degree,
Robbery, and Conspiracy. His convictions arise from a drug transaction gone
awry in a buyer's home, wherein either he or a fellow co- conspirator fatally
shot the buyer, but not before the buyer stabbed each of them multiple
times. The second co- conspirator drove his two cohorts to the hospital for
emergency care, and he later provided authorities with a statement
implicating Appellant as the gunman. On direct appeal, this Court affirmed
judgment of sentence and the Pennsylvania Supreme Court denied
allowance of appeal.
In his first PCRA petition, filed pro se on August 10, 2008, Appellant
alleged that trial counsel was ineffective for failing to raise the defense of
self- defense at trial and challenge the weight of the evidence and the length
of his sentence in post- sentence motions. Appointed counsel initially filed an
amended PCRA petition on August 27, 2009, but she followed that with a
"no- merit" letter and a petition to withdraw served upon the court and
Appellant, and the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to
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dismiss without a hearing. On March 18, 2010, after receiving no response
from Appellant, the court granted counsel's petition to withdraw and
dismissed Appellant's petition. On April 8, 2010, Appellant filed an
Application for Appointment of Counsel on Appeal with the PCRA court but
did not file Notice of Appeal until May 13, 2010.
This Court ultimately quashed his PCRA appeal as untimely,
determining, first, that the record demonstrated Appellant had received
ample notice of his right to proceed pro se or with privately retained counsel
following PCRA counsel's request to withdraw but prior to the PCRA court's
order. After Appellant filed no response to counsel's petition, the PCRA court
entered its order dismissing Appellant's PCRA petition and, again, informed
Appellant of his right to appeal on a pro se basis or with retained counsel,
we found.
On appeal, we found no merit to Appellant's assertion that he filed a
belated notice of appeal because both PCRA counsel and the PCRA court
deprived him of notice of his rights following counsel's motion to withdraw.
Specifically, we observed that counsel's motion to withdraw was
accompanied by a certificate of Proof of Service listing Appellant as an
intended recipient of the motion. Additional evidence that Appellant was
properly notified of his rights, we determined, lay in his timely filing of an
application for appointment of PCRA appellate counsel following the dismissal
of his petition. We, therefore, held that Appellant was aware of his rights
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throughout the first PCRA proceedings and "simply failed to assert them in a
timely manner." Id. at 6.
On January 16, 2013, Appellant filed, pro se, the present second PCRA
petition. In his petition, he alleged that he was entitled to nunc pro tunc
relief from this Court's quashal of his PCRA appeal because he never
received "legal mail informing him of the [PCRA] court[']s actions in a timely
manner due too [sic] D.O.C. procedures [namely, his transfer to a new
institution]. Appellant also challenged the legality of his consecutive
sentence, arguing that merger should apply, and the sufficiency of evidence
that he intended on participating in a conspiracy to commit robbery or
homicide. On March 27, 2013, Appellant filed an amended PCRA petition
reiterating his claim for nunc pro tunc relief. On April 3, 2014 and, again, on
April 21 2014, Appellant filed with the PCRA court a motions to compel
discovery of blood evidence for DNA testing. The PCRA court, however,
discerned no merit with the issues raised by Appellant and entered an order
on January 16, 2015, dismissing his petition. This timely appeal followed.
Appellant presents five questions for our review:
I. IN VIOLATION OF THE U.S.C.A. 5,6, AND 14, AS WELL AS
THE DUE PROCESS CLAUSES OF THE PENNSYLVANIA
PCRA: DID NOT THE PCRA COURT ERR AND COMMIT
REVERSIBLE ERROR, WHEN THEY [SIC] FAILED TO
CONDUCT AN EVIDENTIARY HEARING TO PROPERLY
ANALYZE THE PETITION AND CONSTRUCT A LAWFULLY
RECOGNIZED CONCLUSION AND JUDICIAL OPINION AS
TO WHY THE PETITIONER IS NOT ENTITLED TO THE
REQUESTED RELIEF WITHIN THE CURRENT PETITION?
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II. DID NOT THE PCRA COURT ERR AND COMMIT REVERSIBLE
ERROR, WHEN THEY [SIC] FAILED TO RECOGNIZE THAT
PETITIONER'S CURRENT PCRA PETITION INVOKED AN
EXCEPTION TO THE TIME BAR REQUISITE AND FURTHER
INVOKED THE COURT[']S JURISDICTION TO ENTERTAIN
THE PETITION?
III. DID NOT THE PCRA COURT ERR AND COMMIT REVERSIBLE
ERROR WHEN THE FACT -FINDER CONFLATED A MERITS
ANALYSIS PURSUANT TO 42 C.S.A. § 9543(A)(2)(VI) WITH
THAT OF A JURISDICTIONAL ANALYSIS AS DETERMINED
WITHIN THE DUE PROCESS CLAUSES OF 42 Pa.C.S.A. §
9545(B)(1)(i -iii)?
IV. DID NOT THE SENTENCING COURT ABUSE ITS
DISCRETION IN SENTENCING THE APPELLANT TO A FAR
GREATER TERM OF INCARCERATION, THAN HIS
CONFEDERATE, WHERE IT WAS CLEARLY ESTABLISHED
THAT APPELLANT'S CONFEDERATE WAS THE ACTUAL
PERPETRATOR OF THE CRIMINAL ACT?
V. DID NOT THE PCRA COURT IMPROPERLY DISMISS THE
APPELLANT'S PRIOR PCRA PLEADINGS, BY FAILING TO
ISSUE A PROPER RULE 907 NOTICE, AND DISMISSING
THE PETITION IN VIOLATION OF PETITIONER'S DUE
PROCESS RIGHTS?
Appellant's brief at 15 -16.
"Our standard of review of the denial of PCRA relief is clear; we are
limited to determining whether the PCRA court's findings are supported by
the record and without legal error." Commonwealth v. Wojtaszek, 951
A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).
We will not entertain a second or subsequent request for PCRA relief unless
the petitioner makes a strong prima facie showing that a miscarriage of
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justice may have occurred." Commonwealth v. Marshall, 947 A.2d 714,
719 (Pa. 2008).
Pennsylvania law mandates that no court has jurisdiction to hear an
untimely PCRA petition. Commonwealth v. Robinson, 837 A .2d 1157
(Pa. 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 the 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 a 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 the time
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period provide in this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(I)(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, 947 A.2d 714, 719 (Pa.
2008) (citations omitted).
There is no dispute that Appellant failed to file the instant second PCRA
petition within the one -year PCRA time -bar. See 42 Pa.C.S. § 9545(b)(1).
To the extent Appellant attempts to overcome the time -bar by asserting, in
his first three questions presented, that newly- acquired recantation
statements made by his two co- conspirators meets the newly- discovered
fact exception, he fails, for he did not raise this claim before the PCRA court
in either his initial petition or consolidated amended petition and may not,
therefore, present it for the first time on appeal. Our Supreme Court has
held that the PCRA "makes clear that where ... the petition is untimely, it is
the petitioner's burden to plead in the petition and prove that one of the
exceptions applies." Commonwealth v. Beasley, 741 A.2d 1258, 1261
(Pa. 1999) (emphasis added); accord Edmiston, supra at 346.
Furthermore, "[t]hese exceptions must be specifically pleaded or they may
not be invoked." Commonwealth v. Liebensperger, 904 A.2d 40, 46
(Pa.Super. 2006), citing Beasley, supra. We have also stated that
generally "[a] new and different theory of relief may not be successfully
advanced for the first time on appeal." Commonwealth v. Santiago, 980
A.2d 659, 666 n. 6 (Pa.Super. 2009) (citation omitted); see also Pa.R.A.P.
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302(a) (stating, "[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal[ ] "). This claim, accordingly,
fails to trigger the newly- discovered evidence exception to the PCRA time -
bar.'
In his fourth question presented, Appellant raises a challenge to the
discretionary aspects of his sentence, which does not, of course, overcome
the timeliness requirements of the PCRA. Insofar as the claim may be
construed to raise a challenge to the legality of his sentence, it still
commands no merits review, for "[a]lthough legality of sentence is always
subject to review within the PCRA, claims must still first satisfy the PCRA's
time limits or one of the exceptions thereto." Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999). See also Commonwealth v. Jackson, 30
A.3d 516 (Pa.Super. 2011).
For Appellant's fifth and final issue, Appellant contends he was denied
due process when the PCRA court dismissed his first PCRA petition under
Pa.R.Crim.P. 907 without supplying him with proper notice, an event which
' Setting aside the question of whether such recantation statements
represent newly- discovered facts or simply a newly discovered source of
facts, see, e.g., Commonwealth v. Bennett, 930 A.2d 1264, 1270 -1272
(Pa. 2007) (explaining newly discovered fact exception in Section
9545(b)(1)(ii) "requires 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), we observe that, even if we were in a
position to review the present claim for the first time on appeal, we would
find that Appellant makes no showing that he exercised due diligence in
ascertaining such "facts" and presenting them to the court.
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caused him to file a belated appeal which this Court, ultimately, quashed.
He fails to explain, however, how the purported lack of Rule 907 notice
prevented him from filing a timely first PCRA appeal, particularly where this
Court conducted a thorough review of the proceedings before the first PCRA
court and concluded that Appellant possessed ample notice of his right to file
an appeal. To the extent Appellant seemingly offers this claim as a
governmental interference exception to the PCRA time -bar, therefore, we
find it meritless.2
Order is affirmed.
Judgment Entered.
J:seph Seletyn,
D.
Prothonotary
Date: 10/24/2016
2 Ifwe were to review the claim on its merits, we would find it previously
litigated, as well, as this Court rejected Appellant's attempt to attribute his
belated appeal to a lack of due notice regarding the dismissal of his claim,
the withdrawal of counsel, and his appellate rights.
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Com. v. Anderson, K.
Combined Opinion