Com. v. Perkins, E. ( 2015 )

J-S30037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMMITT PERKINS
Appellant No. 3507 EDA 2014
Appeal from the PCRA Order November 27, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0736521-1985
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JUNE 04, 2015
Emmitt Perkins, who is serving a life sentence for first degree murder,
appeals from an order dismissing his third petition seeking relief under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.
The factual and procedural history of this case is as follows: In June
1985, Perkins told Calvin Hill, who ran the C&L Lounge, that he believed that
Deborah Highter, a bartender at the Lounge, was interfering with his
relationship with Lynette "Cookie" Thrones. Perkins told Hill to warn both
women that if that did not show him proper respect, he would kill them. On
the night of July 8, 1985, Highter was working at the Lounge and heard
Thrones and Perkins argue. Perkins left, but he returned a few minutes
later, pulled out a gun and fired repeatedly at Thrones. He then grabbed
Highter and tried to shoot her, but the gun did not fire. He put the gun to
her chest and again attempted to shoot her; again, the gun failed to fire.
J-S30037-15
Perkins’ sister pulled him away. Thrones fled toward a nearby firehouse.
Perkins caught her there and fatally shot her in the chest and back in the
presence of three firefighters.
Following a bench trial, the trial court found Perkins guilty of first
degree murder,1 aggravated assault2 and possession of an instrument of
crime.3 The court sentenced Perkins to an aggregate term of life
imprisonment plus 4-10 years’ imprisonment. On direct appeal, the Superior
Court rejected Perkins’ challenge to the sufficiency of the evidence but
remanded for a hearing to determine whether trial counsel had a reasonable
basis for not calling Perkins’ sister as a witness. During an evidentiary
hearing on February 23, 1988, the Commonwealth introduced Perkins’
sister’s pretrial statement incriminating Perkins. Trial counsel testified that
he spoke with Perkins’ sister before trial, who told him that she saw Perkins
fire his gun at and chase Thrones. The court credited the Commonwealth’s
evidence, rejected Perkins’ ineffective assistance claim and reimposed his
sentence. On September 12, 1988, the Superior Court affirmed his
judgment of sentence. He did not file a petition for allowance of appeal.
____________________________________________
1
18 Pa.C.S. § 2502(a).
2
18 Pa.C.S. § 2702(a)(1).
3
18 Pa.C.S. § 907.
-2-
J-S30037-15
On June 7, 1991, Perkins filed his first PCRA petition alleging that trial
counsel was ineffective for failing to call witnesses who allegedly would have
testified that Perkins was intoxicated at the time of the murder. The PCRA
court denied relief without a hearing. This Court affirmed, Commonwealth
v. Perkins, 652 A.2d 409 (Pa.Super.1994) (table), and the Pennsylvania
Supreme Court denied allocatur. Commonwealth v. Perkins, 655 A.2d
986 (Pa.1995).
Following the denial of a petition for writ of habeas corpus in federal
court, Perkins filed a second PCRA petition on November 17, 2008. He
voluntarily withdrew that petition on February 2, 2010.
On August 12, 2010, Perkins filed a petition for writ of habeas corpus
in the court of common pleas alleging that: 1) he was tried for manslaughter
but improperly convicted of first degree murder;4 2) his acquittal of
possessing an instrument of crime barred his murder conviction; 5 3) pretrial
counsel was ineffective for failing to seek suppression of unspecified
evidence; and 4) he was intoxicated and therefore should have been
____________________________________________
4
Perkins is incorrect. The trial court advised Perkins at the beginning of trial
that he was on trial for both first and third degree murder, and that the
penalty for a first degree murder conviction was “life … in prison or death by
electrocution.” N.T., 2/11/86, pp. 14-15.
5
Perkins is incorrect. The docket reflects that the court found Perkins guilty
of several counts of possession of an instrument of crime but did not impose
further penalty. Docket, CP-51-CR-0736521-1985, pp. 2-3.
-3-
J-S30037-15
convicted of voluntary manslaughter. The docket indicates that the habeas
corpus motion remains pending in the court of common pleas.
On May 8, 2012, Perkins filed his third PCRA petition, repeating his
claim that he was improperly convicted of an uncharged crime, and claiming
that he timely raised his claim under Martinez v. Ryan, -- U.S. --, 132
S.Ct. 1309 (2012). The PCRA court dismissed the petition on November 17,
2014. This appeal followed.
Perkins raises three issues in this appeal:
1. Whether the lower court erred when it dismissed
appellant’s successive PCRA petition as untimely
whereas as a corrective venue issues presented
warranted reasonable review upon matters
complained upon.
2. Whether the lower court erred when it dismissed
appellant’s current PCRA petition without conducting
a full evidentiary hearing and appointing counsel to
show cause why relief sought should not be granted.
3. The wording ‘time-barred’ is an over-used and
abused method to dismiss meritorious out-of-time
PCRA petitions.
Brief for Appellant, p. 4 (with minor grammatical revisions). We do not
reach the merits of these issues, because we lack jurisdiction over this
appeal due to the untimeliness of Perkins’ PCRA petition.
No court has jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.2003)). The PCRA
provides that a petition “including a second or subsequent petition, shall be
-4-
J-S30037-15
filed within one year of the date the judgment becomes final.” 42 Pa.C.S. §
9545(b)(1); accord Monaco, 996 A.2d at 1079; Commonwealth v. Bretz,
830 A.2d 1273, 1275 (Pa.Super.2003). A judgment is 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).
Three exceptions to the PCRA’s time bar provide for very limited
circumstances under which a court may excuse the late filing of a PCRA
petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The late
filing of a petition will be excused if a petitioner alleges and proves:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition invoking an exception to the
PCRA time-bar must “be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
-5-
J-S30037-15
Perkins’ judgment of sentence became final on October 12, 1988, the
final day for filing a petition for allowance of appeal with the Supreme Court.
See 42 Pa.C.S. § 9545(b)(3) (judgment is final at the conclusion of direct
review or at the expiration of time for seeking review). Perkins did not file
the present PCRA petition until May 2012, over 23 years later. Therefore,
his petition is untimely on its face.6
Perkins does not satisfy any of the three exceptions to the one year
statute of limitations. His PCRA petition did not allege governmental
interference, newly discovered evidence, or retroactive application of a
constitutional right. The thrust of this disjointed petition is that Perkins was
tried improperly for murder instead of manslaughter, which not only is
factually incorrect, see n. 4, supra, but does not fit within any of the three
exceptions to the statute of limitations.
Perkins suggests that his petition is timely because it was filed within
sixty days of the Supreme Court’s decision in Martinez v. Ryan, -- U.S. --,
____________________________________________
6
For the sake of completeness, we observe that “[a] petition where the
judgment of sentence became final before the effective date of the [1995]
amendments [to the PCRA] shall be deemed timely if the petitioner’s first
petition was filed within one year of the effective date of the [1995]
amendments [to the PCRA].” Commonwealth v. Thomas, 718 A.2d 326,
328 (Pa.Super.1998); Act of November 17, 1995, P.L. 1118, No. 32 (Spec.
Sess. No. 1), § 3(1). “Because the effective date of the amendments is
January 16 1996, the operative deadline for first-time PCRA petitions is
January 16, 1997.” Commonwealth v. Crider, 735 A.2d 730, 732
(Pa.Super.1999) (citations omitted). These precepts do not apply to
Perkins, because he filed his first PCRA petition in 1991, prior to the January
1996 amendments to the PCRA.
-6-
J-S30037-15
132 S.Ct. 1309 (2012) (petitioner was entitled to seek federal habeas corpus
relief based on ineffectiveness of postconviction counsel). We have held,
however, that Martinez does not control whether petitions are timely filed
under the PCRA. Commonwealth v. Saunders, 60 A.3d 162, 165
(Pa.Super.2013) (“while Martinez represents a significant development in
federal habeas corpus law, it is of no moment with respect to the way
Pennsylvania courts apply the plain language of the time bar set forth in
section 9545(b)(1) of the PCRA”).7
Perkins’ PCRA petition is untimely, and he has not established any
exception to the PCRA time bar. Accordingly, we lack jurisdiction to address
his petition, and we affirm the order dismissing his petition.
Order affirmed.
President Judge Emeritus Ford Elliott joins in the memorandum.
President Judge Gantman concurs in the result.
____________________________________________
7
We add, as an academic observation, that we might lack jurisdiction
because Perkins’ habeas corpus petition remains undecided in the court of
common pleas. It is well-settled that a subsequent PCRA petition cannot be
filed until the resolution of a pending PCRA petition by the highest state
court in which review is sought. Commonwealth v. Ligons, 971 A.2d
1125, 1140 (Pa.2009). Analogously, the law might also prohibit a
subsequent PCRA petition until the resolution of any pending habeas corpus
petition -- although we know of no case that addresses this question. We
need not address it here, because we have already determined that we lack
jurisdiction for the other reasons provided above.
-7-
J-S30037-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/2015
-8-