Com. v. Brown, C.

J. S52010/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CLIFFORD W. BROWN, : No. 2435 EDA 2015
:
Appellant :

Appeal from the PCRA Order, July 13, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0708081-1996

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 25, 2016

Clifford W. Brown appeals, pro se, from the order of July 13, 2015,

dismissing his third PCRA1 petition without a hearing. We affirm.

In a prior memorandum filed July 8, 2013, affirming the dismissal of

appellant’s second PCRA petition, this court set forth the factual and

procedural history of this case as follows:

We have previously explained the underlying
facts of this case:

In the early hours of August 5, 1995,
[Appellant] was playing “craps” outside
[of] J’s Bigshot Bar with Robert
Richardson (“Richardson”) and the
victim, Vaughn Gaillard (“Gaillard”).
[Appellant] and Gaillard argued

* Retired Senior Judge assigned to the Superior Court.
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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throughout the game, with [Appellant]
insisting that Gaillard bet at least
$100.00. Gaillard responded that
[Appellant could not] tell him how to bet.

Gaillard won the game, collected his
winnings, and walked towards his car.
[Commonwealth witness Dana
Lucas[Footnote 1] testified at trial that,
as Gaillard was walking away, Appellant]
. . . stated to Richardson, “[y]ou’re going
to let him walk away? You ain’t going to
handle your business? You know how we
do. You either put down or lay down.”

[Footnote 1] Dana Lucas is also
known as “Carolyn Eddles.”
See, e.g., Appellant’s First
PCRA Petition, 1/8/03, at ¶ 17.

Richardson kicked off his shoes, walked
into the street, and shot Gaillard three
times in the side and back.
[Commonwealth witness Henry Jones
testified that, after Richardson shot
Gaillard, Appellant yelled] “[s]hoot him
again! Get his money!” Richardson and
[Appellant] then fled. Gaillard was taken
to the hospital and shortly thereafter was
pronounced dead from th[e] gunshot
wounds.

[Appellant] was arrested [and charged
with several crimes related to the
murder. Following Appellant’s jury trial,
Appellant was] found guilty of first
degree murder, possessing instruments
of crime, and criminal
conspiracy.[Footnote 2]

[Footnote 2] 18 Pa.C.S.A.
§§ 2502(a), 907, and 903,
respectively.

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[On July 1, 1997, the trial court
sentenced Appellant] to a term of life
imprisonment for the [first-degree
murder conviction and concurrent terms
of imprisonment for the remaining
convictions].

Commonwealth v. Brown, 754 A.2d 14 (Pa.Super.
2000) (unpublished memorandum) at 1-2.

Appellant filed a direct appeal to this Court and
raised a number of claims, including claims of trial
court error and a claim that his trial counsel provided
him with ineffective assistance. Id. at 3. With
respect to Appellant’s ineffective assistance of
counsel claim, Appellant claimed that counsel was
ineffective for failing to present the testimony of
eyewitness William Hanible. According to Appellant,
Mr. Hanible’s testimony would have established that
“[Appellant] never said anything to Richardson to
incite Richardson to shoot Gaillard, and that
[Appellant] appeared shocked and amazed when
Richardson shot Gaillard.” Id. at 9.

On February 8, 2000, this Court affirmed
Appellant’s judgment of sentence, but remanded the
case so that the trial court could conduct a limited
evidentiary hearing on Appellant’s ineffective
assistance of counsel claim. Id. at 9-10; see, e.g.,
Commonwealth v. Pearson, 685 A.2d 551, 558-
559 (Pa.Super. 1996) (in the time prior to
Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002), where an appellant’s judgment of sentence
was proper on direct appeal, but where the conjoined
ineffective assistance of counsel claim had arguable
merit, this Court was required to “affirm the
judgment of sentence and remand solely for an
evidentiary hearing on [the] ineffectiveness claim;”
if, following remand, this Court affirmed the denial of
the ineffective assistance of counsel claim, the
appellant could then file a petition for allowance of
appeal with our Supreme Court, contesting both the
denial of his ineffective assistance claim and the
affirmance of his judgment of sentence).

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Following remand, the trial court rejected
Appellant’s ineffective assistance of counsel claim.
We affirmed the trial court’s order on June 12, 2001
and, on January 11, 2002, our Supreme Court
denied Appellant’s petition for allowance of appeal.
Commonwealth v. Brown, 779 A.2d 1214
(Pa.Super. 2001) (unpublished memorandum) at
1-7, appeal denied, 793 A.2d 904 (Pa. 2002).

Appellant filed his first PCRA petition on
January 8, 2003. The PCRA court dismissed this
petition on June 10, 2003, we affirmed the PCRA
court’s order on May 24, 2004, and our Supreme
Court denied Appellant’s petition for allowance of
appeal on October 26, 2004. Commonwealth v.
Brown, 855 A.2d 128 (Pa.Super. 2004)
(unpublished memorandum) at 1-10, appeal
denied, 862 A.2d 1253 (Pa. 2004).[2]

Appellant filed the current PCRA petition – his
second – on October 10, 2009. Within this pro se
PCRA petition, Appellant acknowledged that he filed
his petition outside of the PCRA’s one-year time-bar.
Appellant’s Second PCRA Petition, 10/10/09, at 7.
Appellant, however, claimed that a man named
Tyrone Williams had recently come forward with
“exculpatory evidence” regarding Appellant’s case.
Id. Appellant thus claimed that his PCRA petition

2
[W]ithin Appellant’s first PCRA petition (which was
filed in 2003), Appellant included and relied upon an
affidavit from an individual named Shareef Cato. In
his 2003 affidavit, Mr. Cato averred that,
immediately before the shooting, Dana Lucas was
watching the outside dice game, but was insulted by
Appellant. Mr. Cato averred that, following the
insult, Ms. Lucas “turned away and went inside the
bar” – and that, after Ms. Lucas was inside of the
bar, the shooting occurred. Affidavit of Shareef
Cato, 12/12/02, at 1-2.

Commonwealth v. Brown, No. 3150 EDA 2012, unpublished memorandum
at 13 (Pa.Super. filed July 8, 2013).

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was timely under the “after-discovered facts”
exception to the PCRA’s one-year
time-bar.[Footnote 3] Id.; see also 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Moreover, attached to Appellant’s
PCRA petition was a sworn affidavit from
Mr. Williams[.]

[Footnote 3] Obviously, in order to
satisfy the “after-discovered facts”
exception to the PCRA’s one-year
time-bar, the petitioner need not plead
or prove that the evidence was
“exculpatory” or that the evidence
“would have changed the outcome of the
trial.” Commonwealth v. Bennett, 930
A.2d 1264, 1270-1272 (Pa. 2007)
(holding that the PCRA’s after-discovered
facts exception “merely requires that the
‘facts’ upon which such a claim is
predicated must not have been known to
appellant, nor could they have been
ascertained by due diligence”) (internal
quotations and citations omitted). Our
reference to the alleged “exculpatory”
nature of Appellant’s evidence simply
reflects our effort to summarize
Appellant’s claim.

Commonwealth v. Brown, No. 3150 EDA 2012, unpublished memorandum

at 1-5 (Pa.Super. filed July 8, 2013) (brackets in original).

According to Appellant’s memorandum in support of
his second PCRA petition, [Williams’] affidavit
demonstrates: “[1) that Appellant] was not the one
engaged in an argument with the decease[d] over a
bet . . . [; 2) that Appellant] did not promote, order,
or instruct the shooter to [shoot] the deceased . . .
[; and, 3) that] the Commonwealth’s key witness
(Dana Lucas) did not actually eyewitness the
shooting, and was inside the bar when the incident
took place and when the shots were fired.”
Appellant’s Memorandum of Law in Support of
Second PCRA Petition, 10/10/12, at 15-16.

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Id. at 6 (brackets in original).

Appellant’s second petition was dismissed on October 15, 2012; and

this court affirmed on July 8, 2013, holding, inter alia, that Williams was

merely a newly discovered or newly willing source for previously known

facts, and that such evidence does not satisfy the PCRA’s after-discovered

facts exception to the jurisdictional one-year time-bar. Id. at 13, citing

Commonwealth v. Marshall, 947 A.2d 714, 720, 722 (Pa. 2008). We

observed that, “Initially, since Appellant was present at the time of the

shooting, Appellant was aware of the alleged ‘fact’ that Appellant ‘was not

the one engaged in an argument with the decease[d] over a bet’ and that

Appellant ‘did not promote, order, or instruct the shooter to [shoot] the

deceased.’” Id. at 12. Furthermore, appellant brought similar claims on

direct appeal and in his first PCRA petition. Id. at 12-14. Appellant simply

reiterated facts that were previously supplied by Hanible and Cato. Id.

Our supreme court denied appellant’s petition for allowance of appeal

from this court’s decision affirming the order dismissing his second PCRA

petition. Commonwealth v. Brown, 82 A.3d 1058 (Pa.Super. 2013),

appeal denied, 85 A.3d 481 (Pa. 2014), cert. denied, U.S. , 135

S.Ct. 226 (2014). The instant petition was filed on October 3, 2014. Again,

appellant claimed that the after-discovered facts exception applied, this time

relying on an August 14, 2014 affidavit from Andre Lewis (“Lewis”).

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Therein, Lewis alleged that at the hospital after the shooting, 3 he told Lucas

to implicate appellant:

I pulled [Lucas] to the side and told her, you can’t
just tell them what happened. You have to get
[appellant] locked up with [Richardson]. If you are
going to tell on [Richardson] you have to put
[appellant] in it and get [appellant] off the streets
because if you don’t something is going to happen to
you. [Lucas] asked me how do [sic] she put
[appellant] in it, I told her to tell them that after
[Richardson] shot [the victim] [appellant] told
[Richardson] to shoot him again and take his money.

Affidavit, Andre Lewis, 8/14/14 at 2 (appellant’s brief, Exhibit 1). On

July 13, 2015, the PCRA court dismissed appellant’s petition as untimely

and/or previously litigated. This timely appeal followed. Appellant was not

ordered to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b); however, the PCRA court filed a

Pa.R.A.P. 1925(a) opinion on October 5, 2015.

Appellant has raised the following issues for this court’s review:

1. Given that [appellant] proved the
after-discovered facts exception, did the PCRA
court abuse its discretion when it decided that
[appellant]’s petition is untimely?

2. Given that the PCRA court did not review the
newly-discovered evidence on its merits, did
the court abuse its discretion?

3. Did the PCRA court abuse its discretion when it
denied [appellant]’s request for permission to
amend his PCRA petition?

3
Lewis was a friend of the victim, Gaillard, and drove him to the hospital.
(Appellant’s brief at 15.)

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Appellant’s brief at 4.

“Our standard of review in reviewing an order either granting or

denying post-conviction relief is limited to examining whether the court’s

determination is supported by evidence of record and whether it is free of

legal error.” Commonwealth v. Albrecht, 720 A.2d 693, 698 n.3 (Pa.

1998) (citation omitted).

In 1995, the legislature amended the PCRA to
require that PCRA petitions must be filed within a
certain period of time. These amendments require
that any PCRA petition, “including a second or
subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S.
§ 9545(b)(1). 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.”
42 Pa.C.S. § 9545(b)(3). These timeliness
requirements are jurisdictional. Commonwealth v.
Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999). ‘[A]
court has no authority to extend filing periods except
as the statute permits.’ Id. (citation omitted).

Commonwealth v. Howard, 788 A.2d 351, 353 (Pa. 2002).

This court affirmed appellant’s judgment of sentence on June 12,

2001, and our supreme court denied allocatur on January 11, 2002.

Therefore, appellant’s judgment became final on or about April 11, 2002,

after the time for filing a petition for writ of certiorari with the United

States Supreme Court expired. See U.S.Sup.Ct. Rule 13, 28 U.S.C.A.

Appellant had until April 11, 2003, one year later, to file a timely PCRA

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petition. Since this petition was filed 11½ years after the date on which

appellant’s judgment became final, then it was obviously filed beyond the

one-year time limitation.

[T]he 1995 amendments afford three narrow
exceptions to the one-year time limitation for
seeking PCRA relief. One of the exceptions provides
that a party is excused from the general one-year
filing requirement of the PCRA if “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.” 42 Pa.C.S.A.
§ 9545(b)(1)(ii). This exception has come to be
known as the after-discovered evidence exception.
See Commonwealth v. Yarris, 557 Pa. 12, 731
A.2d 581, 592 (1999) (characterizing 42 Pa.C.S.A.
§ 9545(b)(ii) as “the after-discovered evidence
exception to the timeliness requirement”);
Commonwealth v. Peterkin, 554 Pa. 547, 722
A.2d 638, 643 (1998) (stating that “the exceptions
to [PCRA] filing period encompass government
misconduct, after-discovered evidence, and
constitutional changes”). Furthermore, as a
secondary proviso, the amendments mandate that
when a petitioner alleges entitlement to an exception
to the one-year time limitation, the petition will only
be addressed on substantive grounds if it is “filed
within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). Thus, a
petitioner relying on the after-discovered evidence
exception is further required to file his or her PCRA
petition within 60 days of the discovery of the new
evidence proffered in support of relief.

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

The timeliness exception set forth in
Section 9545(b)(1)(ii) requires a petitioner to
demonstrate he did not know the facts upon which
he based his petition and could not have learned
those facts earlier by the exercise of due diligence.
Commonwealth v. Bennett, 593 Pa. 382, 395, 930

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A.2d 1264, 1271 (2007). Due diligence demands
that the 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 fact(s) earlier with the exercise of due diligence.
Commonwealth v. Breakiron, 566 Pa. 323,
330-31, 781 A.2d 94, 98 (2001); Commonwealth
v. Yarris, 557 Pa. 12, 29, 731 A.2d 581, 590
(1999). This rule is strictly enforced. See
[Commonwealth v. Vega, 754 A.2d 714, 718
(Pa.Super. 2000)].

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010),

appeal denied, 20 A.3d 1210 (Pa. 2011).

We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. [Commonwealth v.
Abu-Jamal, 941 A.2d 1263 (Pa. 2008)]. In
addition, a petition invoking any of the timeliness
exceptions must be filed within 60 days of the date
the claim first could have been presented.
42 Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy
the 60-day requirement of Section 9545(b) if he or
she fails to explain why, with the exercise of due
diligence, the claim could not have been filed earlier.
Commonwealth v. Breakiron, 566 Pa. 323, 781
A.2d 94, 98 (2001).

Marshall, 947 A.2d at 719-720.

First, we observe that Lewis’ affidavit was dated August 14, 2014, and

appellant filed his petition on October 3, 2014, within 60 days. However,

appellant does not allege when he first became aware of the information in

Lewis’ affidavit, i.e., that Lewis told Lucas to tell police that appellant urged

Richardson to shoot the victim and take his money. Appellant claims that

his wife sent him Lewis’ affidavit on September 2, 2014. (Appellant’s brief

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at 10; appellant’s reply brief at 4.) However, appellant failed to plead when

he first became aware of the facts alleged in Lewis’ affidavit, as required by

42 Pa.C.S.A. § 9545(b)(2). The operative date is not the date of Lewis’

affidavit, nor when appellant received the affidavit in the mail. See

Commonwealth v. Holmes, 905 A.2d 507, 510-511 (Pa.Super. 2006),

appeal denied, 917 A.2d 845 (Pa. 2007) (“While Holmes’ petition was

admittedly filed within sixty days of the date of the Fauntleroy affidavit,

there is absolutely no indication that Mr. Fauntleroy drafted the affidavit on

the same day that he first approached Appellant and revealed to him the

new information. Thus, Holmes failed to demonstrate the predicate

requirement that the instant claim was raised within sixty days of the date it

first could be presented, and, therefore, he did not sustain his burden of

pleading and proving that the after-discovered evidence exception permits

him to circumvent the statutory time-bar.”).

Furthermore, appellant has failed to demonstrate why this evidence

could not have been obtained earlier, with the exercise of due diligence.

According to appellant, Lewis was a friend of the victim and drove the victim

to the hospital after the shooting. (Appellant’s brief at 15.) The alleged

conversation between Lewis and Lucas took place in the emergency room of

Germantown Hospital. (Id.; Lewis affidavit, 8/14/14 at 1.) Initially, Lewis

also gave a statement to police inculpating appellant. (Appellant’s brief at

15.) Lewis did not testify at trial. (Id.) However, appellant does not allege

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that he was unaware of Lewis’ existence or could not have uncovered this

evidence prior to trial through the exercise of reasonable diligence.

Even if appellant could demonstrate that he met the 60-day

requirement and that the evidence was not discoverable earlier, with due

diligence, he would still not be entitled to relief. As described thoroughly

above, this is at least the fourth witness that appellant has found to say

essentially the same thing, i.e., that appellant did not order Richardson to

shoot the victim. See Marshall, 947 A.2d at 720 (“The focus of the

exception is ‘on [the] newly discovered facts, not on a newly discovered or

newly willing source for previously known facts.’”), quoting Commonwealth

v. Johnson, 863 A.2d 423, 427 (Pa. 2004) (emphasis in Johnson)

(footnote omitted). This court observed on appeal from dismissal of

appellant’s second PCRA petition,

Unquestionably, Appellant has long been aware of all
three of the alleged “facts” that are contained in
Mr. Williams’ affidavit. Initially, since Appellant was
present at the time of the shooting, Appellant was
aware of the alleged “fact” that Appellant “was not
the one engaged in an argument with the decease[d]
over a bet” and that Appellant “did not promote,
order, or instruct the shooter to [shoot] the
deceased.” Appellant’s Memorandum of Law in
Support of Second PCRA Petition, 10/10/12, at
15-16. Therefore, with respect to these two aspects
of Mr. Williams’ affidavit, Appellant’s after-discovered
facts claim immediately fails.

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Brown, No. 3150 EDA 2012 at 12. Appellant keeps finding new witnesses

to submit affidavits containing the same averments of fact. This is not new

evidence.

Finally, we address appellant’s argument that he should have been

granted leave to amend his PCRA petition, after receiving Rule 9074 notice,

to include his investigator’s interview of Lewis. (Appellant’s brief at 20.)

Pennsylvania Rule of Criminal Procedure 905 provides, “(A) The judge may

grant leave to amend or withdraw a petition for post-conviction collateral

relief at any time. Amendment shall be freely allowed to achieve substantial

justice.” Pa.R.Crim.P. 905(A). The transcript of the investigator’s interview

with Lewis does not add anything material to Lewis’ affidavit. (Appellant’s

brief at 11-12.) Lewis does not actually exonerate appellant. At the end of

the interview, Lewis states that, “[The victim] was winning but then he

crapped out and tried to leave without paying the fade. [The victim] went to

the passenger side of his car and that’s when [Richardson] shot him.” (Id.

at 12.) Lewis does not allege that Lucas’ statement to police was false, only

that he urged her to “put [appellant] in it.” Lewis’ allegations did not

constitute after-discovered evidence for PCRA purposes, and the PCRA court

did not abuse its discretion in denying appellant leave to amend his petition

to include the transcript provided by appellant’s investigator. Certainly,

appellant was not prejudiced by the PCRA court’s denial of leave to amend.

4
Pa.R.Crim.P. 907.

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Lastly, we address appellant’s “Application for Post-Submission

Communication,” filed June 16, 2016. Appellant avers that on June 6, 2016,

during the pendency of this appeal, he received an affidavit from Lucas.

According to appellant, Lucas confirms what was said by Lewis and also

contradicts her own trial testimony. (Id. at 2.) At trial, Lucas testified that

she heard appellant tell Richardson to shoot the victim, not that she was

instructed to say so by Lewis. (Id.) Appellant seeks a remand to amend his

PCRA petition to include Lucas’ affidavit. (Id.) Appellant also notes that he

has dispatched an investigator to interview Lucas and seeks permission to

include any additional exculpatory evidence provided by Lucas.

(“Memorandum of Law in Support of Application for Relief,” 6/16/16 at

2 n.1.)

On July 15, 2016, appellant filed a “Supplemental Application for

Post-Submission Communications,” alleging that his investigator interviewed

Lucas on June 29, 2016. Appellant attaches a notarized, handwritten

question-and-answer sheet in which Lucas exonerates appellant.

(“Supplemental Application for Relief,” 7/15/16, Exhibit 1.)

We decline appellant’s invitation to remand to amend the instant PCRA

petition, his third, to include yet another claim of after-discovered evidence

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based on Lucas’ affidavit. Appellant will have to raise any such claim in a

serial PCRA petition.5

Order affirmed. Appellant’s application and supplemental application

for post-submission communication are denied.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/25/2016

5
The PCRA court observed that in his October 10, 2009 PCRA petition,
appellant claimed to have after-discovered evidence that Lucas fabricated
her trial testimony and that she did not actually witness the shooting.
(PCRA court opinion, 10/5/15 at 4.)

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