Com. v. Breeden, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIAM BREEDEN :
:
Appellant : No. 715 EDA 2020
Appeal from the PCRA Order Entered February 5, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009137-2007
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED APRIL 27, 2021
Appellant, William Breeden, appeals from the order denying his serial
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
On December 12, 2006, Appellant and his co-conspirator, Brian “Dutch”
Burns, robbed Azeem Jordan and Anthony DeShields. During the incident,
Dutch shot and killed Mr. Jordan. On May 15, 2008, at the conclusion of a
nonjury trial, Appellant was convicted of second-degree murder, robbery,
conspiracy, and possession of an instrument of crime (“PIC”).1 The trial court
sentenced Appellant to serve a term of life imprisonment for the second-
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(b), 3701(a)(1)(ii), 903(a)(1), and 907(a), respectively.
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degree murder conviction, concurrent terms of incarceration of ten to twenty
years for the robbery and conspiracy convictions, and a concurrent term of
incarceration of two and one-half to five years for the conviction of PIC. On
June 25, 2010, this Court affirmed Appellant’s judgment of sentence, and our
Supreme Court denied Appellant’s petition for allowance of appeal on
December 1, 2010. Commonwealth v. Breeden, 4 A.3d 699, 1592 EDA
2008 (Pa. Super. filed June 25, 2010) (unpublished memorandum), appeal
denied, 13 A.3d 474 (Pa. 2010).
Appellant filed a timely PCRA petition on August 22, 2011. The PCRA
court dismissed the petition on March 1, 2013. On January 23, 2014, this
Court affirmed the PCRA court order, and our Supreme Court denied
Appellant’s petition for allowance of appeal on June 20, 2014.
Commonwealth v. Breeden, 96 A.3d 1090, 694 EDA 2013 (Pa. Super. filed
January 23, 2014) (unpublished memorandum), appeal denied, 94 A.3d 1007(Pa. 2010).
Appellant filed his second PCRA petition on January 5, 2016. On April
5, 2017, the PCRA court dismissed the petition. On April 12, 2017, Appellant
received an affidavit from Mr. DeShields, in which the affiant recanted his
identification of Appellant. On April 20, 2017, Appellant filed a timely notice
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of appeal from the PCRA court’s order disposing of his second PCRA petition.2
This Court affirmed the PCRA court’s decision on October 23, 2018.
Commonwealth v. Breeden, 200 A.3d 598, 555 EDA 2018 (Pa. Super. filed
October 23, 2018) (unpublished memorandum).
On April 3, 2019, Appellant filed the instant PCRA petition. The PCRA
court filed a Pa.R.Crim.P. 907 notice of intent to dismiss on December 5, 2019.
Appellant filed a response in opposition to the PCRA court’s notice. On
February 5, 2020, the PCRA court dismissed Appellant’s petition. This timely
appeal followed. The PCRA court did not order Appellant to file a Pa.R.A.P.
1925(b) statement. On February 26, 2020, the PCRA court filed an opinion
pursuant to Pa.R.A.P. 1925(a).
Appellant presents the following issues for our review:
1. Did the PCRA court abuse its discretion in dismissing
[Appellant’s] claim without [an] evidentiary hearing where he
properly pled and proved he was entitled to relief based on newly
and after discovered evidence of [Mr.] DeShields’s recantation and
statement?
2. Did the PCRA court abuse its discretion in dismissing
[Appellant’s] claim as time-barred where he raised prior appellate
counsel’s ineffectiveness for failing to raise and preserve his
meritorious claim?
Appellant’s Brief at 2.
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2 During the pendency of the appeal, Appellant filed, pro se, a third PCRA
petition, and counsel filed an amended petition. Due to the pending appeal,
the PCRA court dismissed that petition for lack of jurisdiction.
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When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment
of sentence “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). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651
(Pa. Super. 2013).
Our review of the record reflects that Appellant’s judgment of sentence
was affirmed by this Court on June 25, 2010, and our Supreme Court denied
Appellant’s petition for allowance of appeal on December 1, 2010. Breeden,
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1592 EDA 2008, 4 A.3d 699 (Pa. Super. filed June 25, 2010) (unpublished
memorandum), appeal denied, 13 A.3d 474 (Pa. 2010). Appellant did not file
a petition for writ of certiorari with the United States Supreme Court.
Accordingly, Appellant’s judgment of sentence became final on March 1, 2011,
ninety days after the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal and the time for filing a petition for review with the
United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3)
(providing that “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”); U.S.Sup.Ct.R. 13. Thus, the instant PCRA petition, filed on April
3, 2019, is patently untimely.
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii), is met.3 If a petitioner asserts one of these exceptions, he must file his
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3 The exceptions to the timeliness requirement are:
(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;
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petition within one year of the date that the exception could be asserted.4 42
Pa.C.S. § 9545(b)(2).
The exception to the one-year time bar claimed in Appellant’s PCRA
petition is that the facts upon which the claim were based were unknown to
Appellant, pursuant to 42 Pa.C.S. § 9545(b)(1)(ii). In his PCRA petition,
Appellant makes the following averments:
36. In the instant matter, [Appellant] avers that he meets
an exception to the timeliness requirement based on newly
discovered evidence.
37. When [Appellant] received Mr. DeShields’ statement on
April 12, 2017, his second PCRA was pending appeal. The
Superior Court affirmed dismissal of [Appellant’s] second PCRA
[on] October 23, 2018. …
PCRA Petition, 1/31/19, at 5-6.
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(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), (ii), and (iii).
4 On October 24, 2018, the General Assembly amended section 9545(b)(2),
extending the time for filing a petition from sixty days to one year from the
date the claim could have been presented. 2018 Pa. Legis. Serv. Act 2018-
146 (S.B. 915), effective December 24, 2018. The amendment applies to
claims arising one year before the effective date of this section, which is
December 24, 2017, or thereafter. Here, as discussed infra, because
Appellant had a pending appeal of a prior PCRA petition, we apply the one-
year requirement under the amendment.
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As previously noted, Appellant must file a PCRA petition raising a newly
discovered evidence within one year of the date that the claim could have
been presented, i.e., within one year from the date of this Court’s disposition
of Appellant’s pending appeal. In Commonwealth v. Lark, 746 A.2d 585,
588 (Pa. 2000), our Supreme Court established the following procedural rule
governing serial PCRA petitions:
When an appellant’s PCRA appeal is pending before a court, a
subsequent PCRA petition cannot be filed until the resolution of
the pending PCRA petition by the highest state court in which
review is sought, or upon the expiration of the time for seeking
such review. If the subsequent petition is not filed within one year
of the date when the judgment became final, then the petition
must plead and prove that one of the three exceptions to the time
bar under 42 Pa.C.S.A 9545(b)(1) applies. The subsequent
petition must also be filed within [one year] of the date of
the order which finally resolves the previous petition,
because this is the first “date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).
Lark, 746 A.2d at 588 (emphasis added).
The Court in Lark explained that the appellant could not have filed his
second PCRA petition in the court of common pleas while the appeal from the
dismissal of his first PCRA petition remained pending before the Supreme
Court. Lark, 746 A.2d at 588. Instantly, Appellant had one year after the
appeal of his second PCRA petition’s dismissal.
Our review reflects that this Court affirmed the PCRA court’s dismissal
of Appellant’s second PCRA petition on October 23, 2018. Accordingly,
Appellant had until October 23, 2019, to file a PCRA petition invoking an
exception to the timeliness requirements. Appellant filed the instant PCRA
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petition on April 3, 2019. Thus, Appellant met the one-year time limit with
regard to an exception raising newly discovered evidence. However, we
conclude that no relief is due.
To qualify for an exception to the PCRA’s time limitations under
Subsection 9545(b)(1)(ii), a petitioner need only establish that the facts upon
which the claim is based were unknown to him and could not have been
ascertained by the exercise of due diligence. Commonwealth v. Burton,
158 A.3d 618, 629 (Pa. 2017). “Due diligence demands that the petitioner
take reasonable steps to protect his own interests. A petitioner must explain
why he could not have obtained the new fact(s) earlier with the exercise of
due diligence.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
Super. 2010) (citations omitted). Our Supreme Court has articulated that due
diligence “does not require perfect vigilance and punctilious care, but merely
a showing the party has put forth reasonable effort to obtain the information
upon which a claim is based.” Commonwealth v. Cox, 146 A.3d 221, 230
(Pa. 2016) (citation and quotation marks omitted).
We observe that Appellant failed to establish that he exercised due
diligence by putting forth effort to obtain this information in the form of an
affidavit from Mr. DeShields. The PCRA court offered the following apt
discussion regarding Appellant’s lack of due diligence:
Instantly, the record indicates that [A]ppellant knew of Mr.
DeShields after he was charged and when he was tried because
DeShields’ name was mentioned in discovery materials and during
the trial. In fact, his proposed testimony was introduced by way
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of a stipulation. (N.T. 5/15/18). Therefore, [A]ppellant could
have sought out Mr. DeShields at any time during the many years
between his conviction and the date on which Mr. DeShields
provided the affidavit and obtained the information contained in
his affidavit. For this reason, this [c]ourt determined that
[A]ppellant’s petition was not timely filed. It is submitted that no
error occurred in so finding.
PCRA Court Opinion, 2/26/20, at 7-8. In addition to the relevant point made
by the PCRA court, we further note that Mr. DeShields attested to the following
in his affidavit:
At no time was I ever contacted by an Attorney, an Investigator
or anyone advising that they were working for the defense for a
man by the name of [Appellant] until recently.
DeShields’ Affidavit, 4/12/17, at 1 ¶4. Accordingly, because Appellant knew
of the existence of Mr. DeShields from the time of his trial, and because
Appellant took no steps in the intervening years prior to Mr. DeShields
submitting his affidavit, Appellant cannot establish that he exercised due
diligence. Hence, the attempt to invoke the second exception fails.
In his second issue, Appellant argues that the PCRA court abused its
discretion in dismissing the petition as time-barred. Appellant’s Brief at 21-
27. He contends that he presented a meritorious claim that prior PCRA
counsel was ineffective for failing to raise an allegation of trial counsel’s
alleged ineffective assistance. However, Appellant concedes that this claim
has been untimely raised. Specifically, Appellant states the following:
[Appellant] avers that he is entitled to relief … because his
prior [PCRA] counsel, Ms. Smarro, failed to raise in his first timely
PCRA that [trial counsel,] Mr. Laver[,] was ineffective for failing to
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argue [Appellant’s] confession was involuntary at trial, causing
[Appellant’s] meritorious ineffectiveness claim to be waived.
[Appellant’s] claim of Ms. Smarro’s ineffectiveness is
untimely. See RR067-68. Ms. Smarro represented [Appellant]
during his first PCRA, where his claim of Mr. Laver’s
ineffectiveness would have been properly raised. [Appellant’s]
first PCRA was denied, [Appellant] appealed, and the Superior
Court affirmed [Appellant’s] judgement of sentence on January
23, 2014. [Appellant’s] judgement of sentence became final after
30-days, on February 24, 2014. [Appellant] had 1–year from that
date to timely raise his claim of Ms. Smarro’s ineffectiveness.
[Appellant] did not do so. [Appellant’s] claim does not meet any
exceptions to the PCRA’s time-bar. Thus, [Appellant’s] claim of
ineffectiveness is untimely, however, but for the procedural bar,
[Appellant] would be entitled to relief
Appellant’s Brief at 21 (footnote omitted). We agree that this claim was not
timely raised.
Moreover, to the extent Appellant contends that the untimeliness of the
instant PCRA petition should be excused due to the ineffective assistance of
his prior PCRA counsel, we observe that such relief is impermissible. As our
Supreme Court has explained:
It is well settled that allegations of ineffective assistance of
counsel will not overcome the jurisdictional timeliness
requirements of the PCRA. See Commonwealth v. Pursell, 561
Pa. 214, 749 A.2d 911, 915-16 (2000) (holding a petitioner’s
claim in a second PCRA petition, that all prior counsel rendered
ineffective assistance, did not invoke timeliness exception, as
“government officials” did not include defense counsel); see also
Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780,
785-86 (2000) (finding that the “fact” that current counsel
discovered prior PCRA counsel failed to develop issue of trial
counsel’s ineffectiveness was not after-discovered evidence
exception to time-bar); Commonwealth v. Lark, 560 Pa. 487,
746 A.2d 585, 589 (2000) (holding that allegation of
ineffectiveness is not sufficient justification to overcome otherwise
untimely PCRA claims).
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Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Accordingly,
Appellant’s claim of prior PCRA counsel’s ineffective assistance does not
provide him relief of his untimely filing of the instant PCRA petition. Therefore,
the instant PCRA petition remains time-barred.
In conclusion, because Appellant’s PCRA petition was untimely and no
exceptions apply, the PCRA court lacked jurisdiction to address the issues
presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,
398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear
untimely petition).
Order affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2021
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