Com. v. Ryak, D. ( 2015 )

J-S60037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEVIN RYAK
Appellant No. 1222 EDA 2014
Appeal from the PCRA Order March 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0910761-2003
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 30, 2015
Devin Ryak appeals from the order entered on March 17, 2014, in the
Court of Philadelphia County, that denied, after an evidentiary hearing, his
second petition filed pursuant to Pennsylvania’s Post Conviction Relief Act,
42 Pa.C.S. §§ 9451–9546. Ryak argues the PCRA court erred in (1) denying
him PCRA relief where he presented a claim of after-discovered evidence,
and (2) finding that his claims raised on appeal were waived pursuant to
Pa.R.A.P. 1925(b). Based upon the following, we affirm, albeit on the basis
that the petition is untimely.1
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1
We may affirm the decision of the PCRA court if there is any basis on the
record to support the PCRA court’s action, even if the appellate court relies
on a different basis in its decision. See Commonwealth v. Fisher, 870
A.2d 864, 870 n.11 (Pa. 2005).
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Ryak was convicted at a jury trial of first-degree murder, criminal
conspiracy, and possessing an instrument of crime,2 in connection with the
shooting death of Hakim Williams.3 The trial court sentenced Ryak to life in
prison without parole on the first-degree murder charge, a consecutive
sentence of 10 to 20 years’ imprisonment on the conspiracy charge, and no
further penalty on the possession of an instrument of crime charge. On
direct appeal, this Court affirmed the judgment of sentence and, on March
26, 2008, the Pennsylvania Supreme Court denied allowance of appeal.
Commonwealth v. Ryak, 943 A.2d 321 (Pa. Super. 2007) (unpublished
memorandum), appeal denied, 945 A.2d 169 (Pa. 2008).
Ryak filed a timely PCRA petition on May 8, 2008. Following the
appointment of counsel, an amended petition was filed on his behalf.
Private counsel then entered her appearance and filed a new amended
petition, raising multiple claims of ineffectiveness of counsel and claims of
newly discovered evidence from three witnesses. Specifically, Ryak claimed
that Nael Reddy would testify that a person known as “Black” fought with
the victim the day before his death and that the victim was shot as a direct
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2
18 Pa.C.S. §§ 2502, 903, and 907, respectively.
3
A full account of the underlying facts of this case is set forth in this Court’s
opinion issued in connection with Ryak’s direct appeal. See
Commonwealth v. Ryak, 943 A.2d 321 [2458 EDA 2006] (Pa. Super.
2007) (unpublished memorandum, at 1–3, quoting Trial Court Opinion,
11/8/2006, at 2–5). See also PCRA Court Opinion, 7/14/2014, at 5–6,
quoting Ryak, supra.
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result of a fight between the victim and “Black.” Ryak claimed that Rashena
Carter witnessed the shooting incident and, according to her affidavit, she
was confident that the shooter was not Ryak. Ryak claimed the third
witness, Desjanava Kinslow also witnessed the shooting incident, and that
she saw someone who was not Ryak shoot the victim. This petition was
followed by a supplemental petition raising another claim of trial counsel’s
ineffectiveness. On April 16, 2012, the PCRA court denied relief without a
hearing. On appeal, this Court affirmed the dismissal of Ryak’s first PCRA
petition. Commonwealth v. Ryak, 2013 Pa. Super. LEXIS 1480 (Pa.
Super. Mar. 19, 2013) (unpublished memorandum).4
On April 12, 2013, Ryak filed the present, counseled, PCRA petition —
his second. Ryak claimed he had new after-discovered evidence, and
attached the affidavits of two witnesses, Brian Rivers and Rakiem Smith. In
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4
This Court affirmed the denial of PCRA relief on the basis of the PCRA
court’s opinion, which rejected Ryak’s newly-discovered evidence claim, as
follows:
Appellant did not exercise reasonable diligence in discovering
witnesses Nael Reddy, Rashena Carter, and Desjanava Kinslow;
several years have passed since trial and Appellant’s explanation
that witnesses “did not want to get involved, were scared, or
feared retaliation” is insufficient reason to excuse lack of
reasonable diligence; additionally, testimony would have only
limited impeachment value[.]
Commonwealth v. Ryak, 2013 Pa. Super. LEXIS 1480 (Pa. Super. Mar. 19,
2013) (unpublished memorandum, at 3–4), citing PCRA Court Opinion,
9/23/2012.
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Rivers’ affidavit, dated March 24, 2013, he states that he saw “Black”
shooting at the victim, and that Ryak was not the shooter. In Smith’s
affidavit, dated March 22, 2013, Smith states he knew the victim and Ryak
prior to the victim’s murder, and that he introduced Ryak and Rivers while
the three men were together in prison. According to Smith, he told Rivers
that Ryak was charged with the shooting of the victim and pointed Ryak out
to Rivers. Rivers told him Ryak was not the shooter because he (Rivers) had
witnessed the shooting. Smith then told Ryak about Rivers, and Ryak asked
to meet Rivers.
The Commonwealth stipulated to an evidentiary hearing, which was
conducted on March 17, 2014. Ryak was represented at the hearing by
private counsel, Teri Himebaugh, Esquire, who had filed Ryak’s second PCRA
petition. At the conclusion of the hearing, the PCRA court denied the
petition, finding the witnesses’ testimony lacked credibility. This appeal
followed.5
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5
Following the filing of notice of appeal, Ryak’s private counsel, Teri
Himebaugh, Esquire, filed in this Court, on June 14, 2014, an application to
withdraw as counsel. On July 9, 2014, by per curiam order this Court
granted the application, and directed the PCRA court to determine Rybak’s
eligibility for court-appointed counsel. By order dated July 11, 2014, and
filed in this Court on July 16, 2014, PCRA court appointed Peter Levin,
Esquire, as counsel for Ryak. On August 4, 2014, Lee Mandell, Esquire, was
appointed to represent Ryak. Thereafter, as a result of a petition for remand
filed by Mandell on behalf of Ryak, this Court remanded to the PCRA court
to conduct an on-the-record determination as to whether Ryak’s request for
waiver of counsel was knowing, intelligent and voluntary, pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), and retained
(Footnote Continued Next Page)
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The standards governing our review of the denial of a request for post
conviction relief are well settled:
[T]he standard of review of an order denying a PCRA petition is
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. The PCRA court’s
findings will not be disturbed unless there is no support for the
findings in the certified record.
Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012)
(citations omitted).
At the outset, we note that, although the PCRA court addressed Ryak’s
petition, we must consider the issue of timeliness of the petition.
The timeliness requirements of the PCRA are jurisdictional in nature.
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,
134 S. Ct. 2695 (2014). As this Court has explained:
A PCRA petition, including a second or subsequent petition, must
be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 2003 Pa. Super. 298, 830 A.2d 1273 (Pa. Super. 2003);
Commonwealth v. Vega, 2000 Pa. Super. 174, 754 A.2d 714
_______________________
(Footnote Continued)
jurisdiction. On February 10, 2015, following a Grazier hearing, the PCRA
court granted Ryak’s request to waive his right to counsel.
On March 9, 2015, this Court granted Ryak’s application for an
extension of time to file his brief until May 26, 2015. On March 12, 2015,
this Court denied Ryak’s application to stay briefing schedule, “in light of the
fact that this appeal appears to involve the denial of a serial untimely PCRA
petition, and therefore, the only issue to be considered in this appeal is the
timeliness of the PCRA petition.” Per Curiam Order, 3/12/2015. On May 4,
2015, Ryak filed his appellate brief pro se. The Commonwealth filed its brief
late on September 21, 2015.
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(Pa. Super. 2000). 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 time for seeking review.” 42
Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness requirements of
the PCRA provide very limited circumstances to excuse the late
filing of a petition. 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 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;
(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). “As such, when a PCRA
petition is not filed within one year of the expiration of direct
review, or not eligible for one of the three limited exceptions, or
entitled to one of the exceptions, but not filed within 60 days of
the date that the claim could have been first brought, the trial
court has no power to address the substantive merits of a
petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor,
562 Pa. 70, 77, 753 A.2d 780, 783 (2000); 42 Pa.C.S.A. §
9545(b)(2).
Commonwealth v. Robinson, 12 A.3d 477, 479–480 (Pa. Super. 2011)
(footnote omitted).
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Ryak’s judgment of sentence became final on June 24, 2008, after the
Pennsylvania Supreme Court denied his petition for allowance of appeal on
March 26, 2008, and the 90-day period for filing a petition for writ of
certiorari with the United States Supreme Court expired. See U.S.Sup.Ct.R.
13 (stating that a writ of certiorari is timely if filed within ninety days of the
entry of judgment by a state court of last resort or a federal court of
appeals). Therefore, the petition filed by Ryak on April 12, 2013, is untimely
on its face, as it was filed nearly five years after his judgment of sentence
became final. However, in his petition, Ryak invoked a statutory exception
to the PCRA one-year time bar, 42 Pa.C.S. § 9545(b)(1)(ii).
Our Court recently explained this exception, as follows:
The timeliness exception set forth at Section 9545(b)(1)(ii) has
often mistakenly been referred to as the “after-discovered
evidence” exception. [Commonwealth v.] Bennett, [593 Pa.]
at 393, 930 A.2d at 1270. “This shorthand reference was a
misnomer, since the plain language of subsection (b)(1)(ii) does
not require the petitioner to allege and prove a claim of ‘after-
discovered evidence.’” Id. Rather, as an initial jurisdictional
threshold, Section 9545(b)(1)(ii) requires a petitioner to allege
and prove that there were facts unknown to him and that he
exercised due diligence in discovering those facts. See 42
Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra. Once jurisdiction is
established, a PCRA petitioner can present a substantive after-
discovered-evidence claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi)
(explaining that to be eligible for relief under PCRA, petitioner
must plead and prove by preponderance of evidence that
conviction or sentence resulted from, inter alia, unavailability at
time of trial of exculpatory evidence that has subsequently
become available and would have changed outcome of trial if it
had been introduced). In other words, the “new facts” exception
at:
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[S]ubsection (b)(1)(ii) has two components, which must
be alleged and proved. Namely, the petitioner must
establish that: 1) the facts upon which the claim was
predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. If the
petitioner alleges and proves these two components, then
the PCRA court has jurisdiction over the claim under this
subsection.
Bennett, supra at 395, 930 A.2d at 1272 (internal citations
omitted) (emphasis in original). Thus, the “new facts” exception
at Section 9545(b)(1)(ii) does not require any merits analysis of
an underlying after-discovered-evidence claim. Id. at 395, 930
A.2d at 1271.
Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015)
(footnote omitted), appeal denied, ___ A.3d ___ (Pa. September 30, 2015).
In this case, Ryak’s petition alleges previously unknown facts based
upon the discovery of witnesses Brian Rivers and Rakiem Smith, who
provided affidavits to support his claim that “Black” murdered the victim and
that Ryak was not the shooter. However, the focus of the previously
unknown facts exception “is on [the] newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.” See
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). While Ryak
attempts to focus on the discovery of his new witnesses, the underlying fact
that Ryak did not shoot Williams, if true, was information available to Ryak
and cannot be considered to be previously unknown. In fact, in Ryak’s
previous PCRA petition, he proffered affidavits of three other witnesses who
would claim the shooter was not Ryak.
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Furthermore, Ryak simply states in his petition that “he did not even
know Brian Rivers before he was introduced to him while incarcerated by
Rakeim Smith.” Ryak’s PCRA Petition, 4/12/2013, at 6. However, both
Rivers and Smith were lifelong residents of Ryak’s neighborhood where the
shooting occurred, and Ryak offers no explanation to demonstrate that these
facts could not have been ascertained by the exercise of due diligence.
Accordingly, we conclude Ryak has failed to demonstrate the existence
of a previously unknown fact that could not have been ascertained by the
exercise of due diligence, as required by Section 9545(b)(1)(ii).
Consequently, since Ryak failed to satisfy the requirements of this exception,
neither this Court, nor the PCRA court, has jurisdiction to consider Ryak’s
substantive claim for relief.
In any event, even if the petition were timely filed, no relief would be
due.6 In the PCRA context, regarding newly discovered evidence, a
“petitioner must plead and prove by a preponderance of the evidence ‘[t]he
unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the
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6
We agree with the PCRA court that Ryak’s Pa.R.A.P. 1925(b) statement is
vague in its allusions to the United States Constitution, and therefore his
arguments may be deemed waived. See Pa.R.A.P. 1925(b)(4)(vii).
Nonetheless, the PCRA court meaningfully addressed the argument raised by
Ryak in this appeal, enabling this Court to review the merits. See
Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) (en banc)
(holding where the trial court is capable of filing a meaningful opinion, our
appellate review could proceed).
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trial if it had been introduced.’” Commonwealth v. Foreman, 55 A.3d 532,
537 (Pa. Super. 2012), citing 42 Pa.C.S. § 9543(a)(2)(vi). Specifically, in
order to obtain relief under the PCRA based upon newly-discovered
evidence, the petitioner must establish that:
(1) the evidence has been discovered after trial and it could not
have been obtained at or prior to trial through reasonable
diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel
a different verdict. See [Commonwealth v.] D'Amato, 856
A.2d [806, 823 (Pa. 2004)]; Commonwealth v. Abu-Jamal,
553 Pa. 485, 720 A.2d 79, 94 (Pa. 1998).
Commonwealth v. Washington, 927 A.2d 586, 595–596 (Pa. Super.
2007).
Here, the PCRA court conducted an evidentiary hearing after which it
denied relief, finding that the testimony of Ryak’s witnesses, besides being
cumulative and offered solely for impeachment purposes,7 was so
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7
The PCRA court noted that on direct appeal, this Court stated:
Ryak’s arguments are utterly unpersuasive: he was identified as
the shooter by three witnesses, each of whom observed Ryak for
several minutes just prior to the shooting, and each of whom
testified that they knew him from the neighborhood before the
shooting.
PCRA Court Opinion, 7/14/2014, at 13, quoting Commonwealth v. Ryak,
943 A.2d 321 (Pa. Super. 2007) (unpublished memorandum, at 5–6), appeal
denied, 945 A.2d 169 (Pa. 2008). The PCRA court concluded, “New evidence
to support a claim of innocence in the face of this direct evidence is
cumulative.” PCRA Court Opinion, supra, at 14.
(Footnote Continued Next Page)
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inconsistent and incredible that it would not have compelled a different
verdict. See PCRA Court Opinion, 7/14/2014, at 12–15.
When the PCRA court makes a credibility determination regarding
newly discovered evidence, the PCRA court must determine “whether the
nature and quality of the evidence is such that there is a reasonable
probability that the jury would have credited it and rendered a more
favorable verdict.” Commonwealth v. Johnson, 966 A.2d 523, 542 (Pa.
2009). In its opinion, the PCRA court thoroughly reviewed the witnesses’
testimony and discussed, inter alia, the witnesses’ sudden and suspicious
timing, the many inconsistencies in their testimony, and their evasiveness in
testifying, which led the court to conclude that the witnesses were not
credible. See PCRA Court Opinion, 7/14/2014, at 9–11. The PCRA court
concluded “Ryak failed to meet his burden of proof, showing that more likely
than not the jury verdict would have been different if this ‘new’ evidence
_______________________
(Footnote Continued)
The PCRA court further found that “Ryak failed to show that the
testimonies of Smith and Rivers are not being offered solely for
impeachment purposes.” Id. at 14. The court explained:
Three witnesses testified that they observed Ryak for several
minutes prior to the shooting, knew Ryak from the neighborhood
before that night, and identified Ryak as the shooter. … Rivers’
testimony only contradicts the Commonwealth’s testimony by
stating that he was there that night also and he saw someone
else shoot [the victim].
Id. at 14.
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were introduced, to warrant relief.” Id. at 11. See also id. at 15. The
record supports the PCRA court’s determination and we would not disturb it.8
See Commonwealth v. Spotz, 896 A.2d 1191, 1227 (Pa. 2006) (“Because
the PCRA court was afforded the opportunity to assess and weigh the
credibility of [the witness] at the PCRA hearing, we should refrain from
disturbing its credibility determinations.”).
Accordingly, even if this second PCRA petition were timely, which it is
not, Ryak’s substantive newly discovered evidence claim would fail to
warrant PCRA relief. Therefore, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2015
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8
In light of our discussion of the PCRA court’s credibility determination,
there is no need to discuss the PCRA court’s findings that the proffered
newly discovered evidence was cumulative and offered solely for
impeachment purposes.
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