Com. v. Coto, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAMONE STEPHAN COTO :
:
Appellant : No. 1309 WDA 2020
Appeal from the PCRA Order Entered November 6, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0005494-2005
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAMONE STEPHAN COTO :
:
Appellant : No. 1310 WDA 2020
Appeal from the PCRA Order Entered November 6, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0005352-2005
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: JANUARY 6, 2022
Ramone Stephan Coto (Appellant) appeals from the order dismissing his
second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. After careful consideration, we affirm.
On “various dates from June of 2007 to February of 2008,” Appellant
and three co-defendants (Erik Surratt, Alfon Brown, and Richard Cunningham)
were tried, non-jury, for “a myriad of offenses arising out of the shooting
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deaths of [two individuals], and the wounding of [a third victim].”
Commonwealth v. Coto, 1379 WDA 2008, at *1 (Pa. Super. Apr. 14, 2010)
(unpublished memorandum), appeal denied, 20 A.3d 483 (Pa. 2011).
On February 8, 2008, the trial court found Appellant guilty of two counts
of second-degree murder1 and one count of burglary. On April 18, 2008, the
court sentenced Appellant to two concurrent terms of life imprisonment
without parole for murder, and a consecutive 3 - 6 years for burglary. This
Court affirmed the judgment of sentence and the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal. Id.On February 14, 2012, Appellant filed a timely PCRA petition.2 The PCRA
court denied relief, and Appellant appealed. This Court affirmed Appellant’s
convictions, but found his 3 - 6 year sentence for burglary merged with
second-degree murder because “burglary was the underlying felony on
which [Appellant’s] conviction for second degree felony murder was
predicated.” Commonwealth v. Coto, 24 WDA 2013, at *3 (Pa. Super. Feb.
28, 2014) (unpublished memorandum), appeal denied, 97 A.3d 818 (Pa.
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1 “In Pennsylvania, felony murder and second-degree murder refer to the
same offense, codified at 18 Pa.C.S. § 2502(b), and are [often] referred to
interchangeably in our jurisprudence[.]” Commonwealth v. Rivera, 238
A.3d 482, 489 n.2 (Pa. Super. 2020).
2 The trial court judge has continued to preside in Appellant’s post-conviction
proceedings. See Commonwealth v. Abu-Jamal, 720 A.2d 79, 90 (Pa.
1998) (“Generally, it is deemed preferable for the same judge who presided
at trial to preside over the post-conviction proceedings since familiarity with
the case will likely assist the proper administration of justice.”).
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2014). We vacated Appellant’s burglary sentence, but affirmed his life
sentences for murder.
On February 9, 2018, Appellant pro se filed his second PCRA petition.
Privately-retained counsel entered her appearance and filed an amended
petition on March 27, 2020. The Commonwealth filed a response on May 12,
2020. On August 7, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of
intent to dismiss the petition without a hearing. The court concluded the
petition “was untimely filed” and “there are no meritorious issues.” See Notice
of Intention to Dismiss, 8/7/20, at 2, 8. Appellant filed a response on August
26, 2020. The PCRA court dismissed the petition without a hearing on
November 6, 2020. Appellant timely appealed. Although the PCRA court did
not direct Appellant to file a Pa.R.A.P. 1925(b) concise statement, the court
issued an opinion on February 18, 2021, incorporating the reasons for
dismissal set forth in its Rule 907 notice.
Appellant presents four questions in this appeal:
1. Whether the post-conviction relief act petition – filed within 60
days of the date on which codefendant Surratt first waived his fifth
amendment rights and took full responsibility for the crime – was
timely filed under the after-discovered fact exception.
2. Whether the PCRA court committed clear error by dismissing
the petition without a hearing where codefendant Surratt’s recent
confession and exoneration of [Appellant] would likely compel a
different result if presented to a neutral finder of fact.
3. Whether the case should be remanded for PCRA discovery of
the evidence bearing on [the victim]’s identification where the
PCRA court, in its notice of intention to dismiss, placed in issue
the reliability of the identification but failed to rule on [Appellant]’s
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consequent request for disclosure of the documents relevant to
the identification.
4. Whether a mandatory sentence of life without parole is
unconstitutional and disproportionate when applied to [Appellant]
who was barely 20 years old and the least culpable of the four
defendants, and where the trial judge expressly recognized the
gross injustice of the mandatory life sentence in this case.
Appellant’s Brief at 3.
In reviewing the PCRA court’s denial of relief, “we examine whether
the PCRA court’s determination is supported by the record and free of legal
error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
“The scope of review is limited to the findings of the PCRA court and the
evidence of record, viewed in the light most favorable to the prevailing party
at the trial level.” Id.It is well-settled that,
the PCRA court has the discretion to dismiss a petition without a
hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by any further proceedings.” Pa.R.Crim.P.
909(B)(2). “[T]o obtain reversal of a PCRA court’s decision to
dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor,
would have entitled him to relief, or that the court otherwise
abused its discretion in denying a hearing.” Commonwealth v.
D’Amato, 856 A.2d 806, 820 (Pa. 2004).
Commonwealth v. Hanible, 30 A.3d 426, 452 (Pa. 2011).
Instantly, the PCRA court concluded that Appellant’s petition was
untimely. See Notice of Intention to Dismiss, 8/7/20, at 2; see also id. at 3
(explaining Appellant’s judgment of sentence became final on July 4, 2011,
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and Appellant had until July 4, 2012 to file a timely petition). When
a PCRA petition is untimely, “neither this Court nor the trial court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.” Commonwealth v. Reid,
235 A.3d 1124, 1143 (Pa. 2020) (citations omitted).
Appellant concedes his petition is untimely, but argues he satisfied an
exception to the time-bar. See Appellant’s Brief at 19. Appellant has the
burden of pleading and proving a statutory exception. He must allege:
(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.A. § 9545(b)(1)(i)-(iii). A petition invoking an exception “shall be
filed within one year of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2).
Appellant claims he met the “unknown facts” exception to the time-bar
set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii). He asserts:
The relevant facts became known no earlier than December 6,
2017, when codefendant Surratt testified that he was responsible
for the crimes. During a January 25, 2018 interview, Surratt first
provided the specific facts exculpating [Appellant], which Surratt
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memorialized in an affidavit signed February 1, 2018. [Appellant]
mailed his pro se petition on February 2, 2018; within the then-
60-day filing deadline. Therefore, it was timely filed under Section
9545(b)(2).
Appellant’s Brief at 19.3
He further states,
[Appellant] is serving a sentence of life without possibility of
parole for second degree felony murder. The predicate felony was
a burglary, during which two men were fatally shot and another
seriously wounded. Newly discovered evidence establishes that
while codefendants Surratt and Brown were plotting the crime by
phone with their girlfriends, [Appellant] was passed out from
drugs and alcohol, unaware of the codefendants’ plan and
incapable of assisting. Additional new evidence rebuts the trial
evidence that [Appellant] was armed. Together the new evidence
raises doubts about [Appellant]’s knowledge and criminal intent,
satisfying all requirements for relief under the Post Conviction
Relief Act. 42 Pa.C.S. § 9543(a)(2). The PCRA court’s dismissal
of the petition without an evidentiary hearing was clear error.
Id. at 19-20.
Appellant’s argument is unconvincing. To meet the newly-discovered
facts exception, a petitioner must establish (1) he did not know the facts upon
which he based his petition, and (2) he could not have learned those facts
earlier with the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii).
Both components “must be alleged and proven as an initial jurisdictional
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3 As Appellant implies in referencing “the then-60-day filing deadline,” the
PCRA was amended to extend the 60-day limit to one year. See 42 Pa.C.S.A.
§ 9545(b)(2); Act of Oct. 24, 2018, P.L. 894, No. 146, § 2 (effective Dec. 24,
2018).
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threshold.” Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa. Super.
2019) (citation omitted).
Appellant claims as new facts the testimony of his co-defendant, Erik
Surratt, when Mr. Surratt was resentenced on December 6, 2017, and Mr.
Surratt’s affidavit, executed on February 1, 2018. Appellant asserts “newly
discovered evidence establishes that while codefendants . . . were plotting the
crime . . . [he] was passed out from drugs and alcohol, unaware of the
codefendants’ plan and incapable of assisting. Additional new evidence rebuts
the trial evidence that [Appellant] was armed.” Appellant’s Brief at 19.
In response, the Commonwealth argues, “Surratt’s statements
amount only to Surratt being a ‘new source’ of facts that were
previously known to Appellant because Appellant himself already
articulated the substance of those facts in his own statement to the police
following the crime.” Commonwealth Brief at 35-36 (emphasis added). We
agree.
The PCRA court explained:
[Appellant’s] PCRA petition alleges that he was outside of the
house and never entered the residence. [Appellant] claims he was
too intoxicated to have entered the house where the shooting
occurred.
The instant petition was untimely filed. . . .
***
[Appellant] claims the instant PCRA petition qualifies as an after-
discovered evidence exception to the PCRA timeliness
requirements due to the testimony of co-defendant Erik Surratt at
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a resentencing hearing before this [c]ourt on December 6, 2017,
and an affidavit executed by Erik Surratt on February 1, 2018.
[Appellant] claims that during the resentencing hearing his co-
defendant Erik Surratt stated that he alone was responsible for all
the crimes committed. Surratt’s testimony during his
resentencing hearing of December 6, 2017 did not exclude
[Appellant] from being in the house during the shooting. Surratt
admitted he committed the murders and stated that he did not
know what he was going to do before the shooting occurred.
Moreover, even if Surratt had stated that he was the sole
participant in the shooting, it would not have qualified as
newly discovered evidence because [Appellant] would
have known before trial that Surratt was the sole
participant.
The after-discovered evidence exception requires newly
discovered facts, not a newly discovered or newly willing source
for previously known facts. Commonwealth v. Burton, 158
A.3d 618, 629 (Pa. 2017). [Appellant] has not shown any new
facts that were unknown and could not have been ascertained
through the exercise of due diligence.
[Appellant] claims the newly discovered evidence or after
discovered evidence was Surratt’s willingness to incriminate
himself and exonerate [Appellant]. However, Surratt’s affidavit
exonerating [Appellant] is newly available evidence, not newly
discovered evidence.
In Surratt’s affidavit, he stated [Appellant] was at a party and was
intoxicated and went in the van because he wanted a ride home
and [Appellant] fell asleep in the van and Surratt never saw him
leave the van.
To obtain relief based on after-discovered evidence, [Appellant]
must demonstrate that the evidence: (1) 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 to impeach the credibility
of a witness; and (4) would likely result in a different verdict if a
new trial were granted. Commonwealth v. Randolph, 873 A.2d
1277, 1283 (2005); Commonwealth v. McCracken, 659 A.2d
541, 545 (1995). Evidence does not qualify as after-discovered
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evidence where it will be used solely to impeach the credibility of
a witness. Commonwealth v. Pagan, 950 A.2d 270 (Pa. 2008).
Affidavits that are submitted by co-defendants after sentencing
have long been held to be unreliable, since the co-defendant
making the statement has nothing to lose by attempting to aid his
accomplice’s cause. Commonwealth v. Frey, 517 A.2d 1265,
1268-1269 (Pa. 1986). Post-sentence accomplice testimony is
viewed with skepticism. Commonwealth v. Scott, 470 A.2d 91,
94) (Pa. 1983).
Here, co-defendant Surratt had already been convicted and
sentenced at the time he provided his affidavit. He had nothing
to lose from the claims made in his affidavit. Furthermore,
Surratt’s affidavit does not exclude [Appellant] from being in the
house. Surratt claims he did not see [Appellant] leave the van or
have a gun and he believes that all the shots fired were from his
gun, but there is ample evidence that contradicted these claims.
Additionally, Surratt’s testimony would be used solely to impeach
witness credibility. During the trial, Helen McCorkle testified that
she knew [Appellant] because they had attended the same middle
school. McCorkle identified [Appellant] as one of the men who
walked past her as she was leaving the residence. Although
McCorkle did not see [Appellant] actually enter the house, she saw
him in the doorway just before entering the house and she saw he
carried a gun as he walked passed her. (Transcript at 284 — 289).
This [c]ourt found McCorkle’s testimony to be credible.
Notice of Intention to Dismiss, 8/7/20, at 2-5 (paragraph numbering omitted,
bold emphasis added, underline in original).
The PCRA court did not abuse its discretion. As noted above, the PCRA
court has presided in this case for more than a decade, and was the factfinder
at Appellant’s non-jury trial. The court thus possesses “familiarity with the
case [to] likely assist the proper administration of justice” in post-conviction
proceedings. Commonwealth v. Abu-Jamal, 720 A.2d at 90. Moreover,
the PCRA court’s findings are supported by the record, and its decision to
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dismiss Appellant’s petition is free of legal error. Accordingly, Appellant’s first
two issues — concerning the timeliness of his petition and the dismissal of the
petition without a hearing — do not merit relief. “If the petition is untimely
and the petitioner has not pled and proven an exception, the petition must
be dismissed without a hearing because Pennsylvania courts are without
jurisdiction to consider the merits of the petition.” Commonwealth v.
Woods, 179 A.3d 37, 42 (Pa. Super. 2017) (citation omitted). “Our courts
have strictly interpreted [the timeliness] requirement as creating a
jurisdictional deadline, [and a] court may not address the merits of the issues
raised if the PCRA petition was not timely filed.” Commonwealth v.
Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019) (citations omitted).
The above notwithstanding, the PCRA court expressly disputed
Appellant’s third issue, in which Appellant claims “the PCRA court . . . placed
in issue the reliability of the [victim’s] identification” of Appellant. Appellant’s
Brief at 3. The PCRA court stated that the claim “is incorrect.” Notice of
Intention to Dismiss, 8/7/20, at 6. The court explained that while it “did not
find beyond a reasonable doubt that [Appellant] shot [the victim],” it
“accepted [the victim]’s identification of [Appellant] as having been in the
house when the shooting occurred.” Id.4
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4 The PCRA court further found that Appellant’s felony murder convictions
“were supported by the identification of [Appellant] in the house by [the
(Footnote Continued Next Page)
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Likewise, Appellant’s fourth issue, even if timely, would not merit relief.
Appellant challenges his mandatory life without parole sentences on the basis
they are “unconstitutional and disproportionate when applied to [Appellant]
who was barely 20 years old and the least culpable of the four defendants,
and where the trial judge expressly recognized the gross injustice of the
mandatory life sentence in this case.” Appellant’s Brief at 3, see also id. at
20, 53-54 (citing Miller v. Alabama, 567 U.S. 460 (2012) (mandatory life
imprisonment without parole is unconstitutional for crimes committed when a
defendant was under 18 years of age), made retroactive by Montgomery v.
Louisiana, 577 U.S. 190 (2016)). Appellant concedes he does not
“technically fall within the scope of Miller,” but argues “he was still a minor
and de facto similarly situated with defendants entitled to relief under Miller.”
Appellant’s Brief at 53-54. Appellant raises the claim “in the event the
Pennsylvania or United States Supreme Court expands the reach of Miller[.]”
Id. at 54.
While this argument is rational, it is not original. Pennsylvania courts
have repeatedly held that Miller does not apply to defendants over the age
of 18. Both parties cite Commonwealth v. Lee, 206 A.3d 1 (Pa. Super.
2019) (en banc), in which the appellant, Ms. Lee, requested that the Superior
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victim] and at the doorway with a gun by McCorkle.” Notice of Intention to
Dismiss, 8/7/20, at 6.
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Court apply the holding in Miller to grant post-conviction relief. Ms. Lee was
18 years and 9 months old on November 2, 1979, when she participated in an
attempted robbery that resulted in a shooting death. Id. at 2. She was
convicted of second-degree murder and sentenced to life in prison without
parole. Id. Thirty-five years later, on March 24, 2016, Ms. Lee filed her sixth
PCRA petition based on Miller and Montgomery. Id. at 6. She cited
“‘immature brain’ studies”, id. at 9, and asserted she was a “virtual minor” at
the time of her crime. Id. at 3. Ms. Lee argued “the rationale underlying
the Miller holding, including consideration of characteristics of youth and age-
related facts identified as constitutionally significant by the Miller Court,
provides support for extending the benefit of Miller to her case.” Id. The 9-
member en banc panel of this Court disagreed. We explained:
It is not this Court’s role to override the gatekeeping function of
the PCRA time-bar and create jurisdiction where it does not exist.
The PCRA’s time limitations “are mandatory and interpreted
literally; thus, a court has no authority to extend filing periods
except as the statute permits.” The period for filing a PCRA
petition “is not subject to the doctrine of equitable tolling.”
If this matter were one of first impression and on direct appeal,
we might expound differently. However, we are an error-
correcting court. Until the United States Supreme Court or the
Pennsylvania Supreme Court recognizes a new constitutional right
in a non-juvenile offender, we are bound by precedent. We
conclude . . . that age is the sole factor in determining
whether Miller applies to overcome the PCRA time-bar and we
decline to extend its categorical holding.
Id. at 11 (footnote and citations omitted). In addition, the Pennsylvania
Supreme Court denied Ms. Lee’s petition for allowance of appeal.
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Commonwealth v. Lee, 218 A.3d 851 (Pa. 2019). More recently, Supreme
Court Justice Dougherty, joined by Justice Mundy, commented:
Indeed, the Superior Court has on multiple occasions recognized
the limited applicability of th[e Miller and Montgomery]
decisions, and has correctly rejected attempts by prisoners to
extend their holdings — under the guise of the newly-recognized
constitutional right exception — to challenge their adult murder
convictions. The reason these holdings are correct is simple: “the
right[s] asserted” in those cases were new rights sought to be
created, not old rights already “recognized by the Supreme Court
of the United States ... [that have] been held by that court to
apply retroactively.”
Commonwealth v. Cobbs, 256 A.3d 1192, 1221 (Pa. 2021) (Dougherty, J.,
dissenting).
Finally, we address the issue raised by Appellant in his supplemental
brief, regarding the Pennsylvania Supreme Court’s recent decision in
Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021). On October 25,
2021, Appellant requested until December 10, 2021 to file a supplemental
brief addressing Bradley, which was decided on October 20, 2021,
subsequent to Appellant filing his appellate brief. See Application for
Extension of Time, 10/25/21, at 1-2 (stating Bradley is “a seminal decision
which dramatically alters the procedure by which an incarcerated defendant
may raise claims of ineffective assistance of PCRA counsel (PCRA-IAC).”). We
granted Appellant’s request.5
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5On December 21, 2021, the Commonwealth filed an Application for Extension
of Time to File a Reply Brief, which we deny as moot.
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Citing Bradley, Appellant now argues that “remand is warranted where
there are material facts at issue concerning initial PCRA counsel’s stewardship
and relief ‘is not plainly unavailable as a matter of law.’” Appellant’s Reply
Brief at 14. Appellant claims “remand for further development of the record
is warranted into claims of ineffective assistance of initial PCRA counsel.” Id.
at 15.
In Bradley, the Pennsylvania Supreme Court expanded the opportunity
for a PCRA petitioner to raise claims of PCRA counsel’s ineffectiveness.
Previously, “the sole method by which a petitioner c[ould] challenge the
ineffectiveness of PCRA counsel [wa]s by filing of a response to the PCRA
court’s Rule 907 dismissal notice.” Id. at 386. The Bradley Court abandoned
that approach, holding “that a PCRA petitioner may, after a PCRA court denies
relief, and after obtaining new counsel or acting pro se, raise claims of PCRA
counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.”
Id. at 401.
Here, Appellant did not raise PCRA counsel’s ineffectiveness “at the first
opportunity to do so.” Id. Notably, Appellant did not raise the issue of
counsel’s ineffectiveness until after Bradley was decided, when he filed his
December 10, 2021 reply brief. Appellant claims that until Bradley, he “had
no opportunity at all to raise claims of PCRA counsel ineffectiveness.”
Appellant’s Reply Brief at 17 (emphasis in original). We disagree. In 2014,
this Court decided Appellant’s appeal from the dismissal of his first PCRA
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petition, and the Pennsylvania Supreme Court denied allowance of appeal.
Commonwealth v. Coto, 24 WDA 2013, at *3 (Pa. Super. Feb. 28, 2014)
(unpublished memorandum), appeal denied, 97 A.3d 818 (Pa. 2014). After
being denied relief, Appellant could have raised counsel’s ineffectiveness “at
the first opportunity,” but did not. Appellant states the “record before this
Court raises questions about initial PCRA counsel’s stewardship, where initial
PCRA counsel failed to raise any of several claims [].” Id. at 14. However,
Appellant did not raise these questions in prior filings, including the underlying
pro se petition and counseled amended petition. Accordingly, he may not
invoke Bradley to challenge the effectiveness of prior PCRA counsel.
In sum, and for the reasons discussed above, we affirm the dismissal of
Appellant’s second PCRA petition. Accordingly, we deny the Commonwealth’s
application to file a reply brief as moot.
Order affirmed. Commonwealth application denied.
The decision was reached prior to the retirement of Judge Musmanno.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2022
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