Com. v. Boyd, O. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
OTIS LEE BOYD :
:
Appellant :
: No. 1697 WDA 2015
Appeal from the PCRA Order September 8, 2015
in the Court of Common Pleas of Allegheny County Criminal Division
at No(s): CP-02-CR-0001335-1991
BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 21, 2016
Appellant, Otis Lee Boyd, appeals pro se from the order of the
Allegheny County Court of Common Pleas dismissing his fourth Post
Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant contends the
trial court judge “departed from his clear line of duty to remain impartial
when through questions he established before the fact-finders that ‘crack
cocaine’ was ‘water insoluble.’” Appellant’s Brief at 7. We affirm.
A prior panel of this Court set forth the procedural posture of this case
as follows:
A jury found [Appellant] guilty of first-degree murder and
not guilty of robbery on March 31, 1992. The trial court
sentenced [him] to life in prison after the jury was unable
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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to agree on whether to impose the death penalty. This
Court affirmed the judgment of sentence on December 15,
1995, and our Supreme Court denied a petition for
allowance of appeal on August 16, 1996. See
Commonwealth v. Boyd, 674 A.2d 311 (Pa. Super.
1995) (unpublished memorandum), appeal denied, 682
A.2d 306 (Pa. 1996). The Supreme Court of the United
States denied a petition for a writ of certiorari on January
13, 1997. See Boyd v. Pennsylvania, 519 U.S. 1092
(1997).
[Appellant] filed his first PCRA Petition on July 31, 1997.
The PCRA court appointed [him] counsel and counsel
eventually filed an amended PCRA Petition of December
12, 2003. The PCRA court dismissed the Petition. This
Court affirmed the dismissal and the Supreme Court
denied a petition for allowance of appeal. See
Commonwealth v. Boyd, 895 A.2d 645 (Pa. Super.
2006) (unpublished memorandum), appeal denied, 931
A.2d 655 (Pa. 2007). On August 21, 2007, [Appellant]
filed a Motion for discovery and inspection, production, and
DNA testing.1 This Motion was denied on September 14,
2007. [Appellant] did not file an appeal from this denial.
1 We will treat [Appellant’s] Motion as his second
PCRA Petition as the PCRA provides the exclusive
remedy for post-conviction claims. See 42 Pa.C.S.A.
§ 9542; Commonwealth v. Lantzy, 736 A.2d 564,
569-70 (Pa. 1999)
Commonwealth v. Boyd, 234 WDA 2010 (unpublished memorandum at 1-
2) (Pa. Super. Apr. 18, 2011).
Appellant filed a third PCRA petition on September 28, 2009. The
PCRA court dismissed the petition on January 7, 2010. This Court affirmed
the dismissal on April 18, 2011. See id. The Supreme Court denied the
petition for allowance of appeal on November 10, 2011. See
Commonwealth v.Boyd, 32 A.3d 1274 (Pa. 2011). Appellant filed the
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instant PCRA petition on June 24, 2015. He filed a supplemental motion in
support of the PCRA petition on July 14, 2015. The PCRA court dismissed
the petition, after issuing a Pa.R.Crim.P. 907 notice, and this appeal
followed.2 Appellant raises the following issue for our review:
Whether the trial court erred in its fraudulent advocacy of
an evidentiary fact establishing crack cocaine as water
insoluble and thereafter having it corroborated by an
expert witness for the Commonwealth proof in a
reasonable mind of an impropriety motivating the court’s
exercise of jurisdiction over facts upon which newly
discovered evidence is predicated without meeting any
due process requirements as clarified under title 42 §
9545(b)(1)(ii) that state that a court must first determine
when an Appellant first learned of the facts upon which the
claim is predicated and rather with the exercise of due
diligence it could have been found sooner?
Appellant’s Brief at 3.3
2
In the instant case, the notice of appeal is docketed as filed with the
Superior Court on October 9, 2015, beyond the thirty day appeal period from
the September 8, 2015 order. See Pa.R.A.P. 903(a); Commonwealth v.
Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001) (noting “questions of
jurisdiction may be raised sua sponte”). However, pro se Appellant is
incarcerated. The notice of appeal is dated by Appellant as having been
served on September 29, 2015 and Appellant attached a cash slip for
documentation. It is well settled the “prisoner mailbox rule provides that a
pro se prisoner’s document is deemed filed on the date he delivers it to
prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34,
38 (Pa. Super. 2011) (citation omitted). Thus, we adopt September 29th as
the date of filing and conclude the present appeal is timely. See id. at 40.
3
We note that Appellant’s argument, in support of the issue raised on
appeal, consists solely of the following paragraph, reproduced verbatim:
Had the jury been informed that crack cocaine was
water insoluble and that Dennis Logan had a tendency to
instruct the Commonwealth’s witnesses to testify falsely
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When analyzing the dismissal of a PCRA petition, “an appellate court’s
scope of review is limited by the PCRA’s parameters; since most PCRA
appeals involve mixed questions of fact and law, the standard of review is
whether the PCRA court’s findings are supported by the record and free of
legal error.” Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009)
(citation omitted).
Preliminarily, we consider whether Appellant’s supplemental motion to
his PCRA petition is properly before this Court. In Commonwealth v.
Porter, 35 A.3d 4 (Pa. 2012), the Pennsylvania Supreme Court opined:
Our procedural Rules contemplate that amendments to
pending PCRA petitions are to be “freely allowed to achieve
substantial justice.” Pa.R.Crim.P. 905(A).[4] And, it is true
that Rule 905 does not explicitly distinguish between initial
and serial petitions. However, [the] appellant is mistaken
in arguing that Rule 905 amendments are self-authorizing,
i.e., that a petitioner may simply “amend” a pending
petition with a supplemental pleading. Rather, the Rule
then the results of Appellant trial would have been
different. And for any Jury to learn that a judge
instructing it would conspire with a witness to strike foul
blows to insure Appellant’s guilty verdict would had been
an appearance of an impropriety with enough weight to
alter the trial’s outcome.
Appellant’s Brief at 13.
4
Rule 905(A) provides as follows: “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).
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explicitly states that amendment is permitted only by
direction or leave of the PCRA court.
Id. at 12 (emphasis added). In the case sub judice, Appellant was neither
directed nor granted leave by the PCRA court to file the supplement to the
PCRA petition. Therefore, it is not properly before us. See id.
We next consider whether the instant PCRA petition is timely. The
timeliness of a PCRA petition is a threshold question that implicates the
jurisdiction of a court to consider the merits of the relief requested.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).
To be timely, a PCRA petition must be filed within one year
of the date that the petitioner’s judgment of sentence
became final, unless the petition alleges and the petitioner
proves one or more of the following statutory exceptions:
(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).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any of
the timeliness exceptions must be filed within 60 days of
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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. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some
citations omitted and emphasis added).
In Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013), the
Pennsylvania Supreme Court found the appellant’s claim that he was unable
to obtain statements from two witnesses did not satisfy Section
9545(b)(1)(ii). Id. at 350. The Edmiston Court opined:
[The a]ppellant has not addressed why he was unable to
obtain these statements and present them at an earlier
date with the exercise of due diligence. As he was
required to file his claims within 60 days of when they
could have been presented, and has not explained why he
could not have presented these claims earlier, i.e., during
his first PCRA petition, they are untimely.
Id. (citation omitted).
Appellant was sentenced on April 2, 1992. This Court affirmed his
judgment of sentence on December 15, 1995. See Commonwealth v.
Boyd, 370 Pitts. 1994 (unpublished memorandum) (Pa. Super. Dec. 15,
1995). On August 16, 1996, the Pennsylvania Supreme Court denied his
petition for allowance of appeal. Commonwealth v. Boyd, 682 A.2d 306
(Pa. 1996). On January 13, 1997, the United States Supreme Court denied
his petition for writ of certiorari. See Boyd v. Pennsylvania, 519 U.S.
1092 (1997). Appellant’s judgment of sentence became final on January 13,
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1998. See 42 Pa.C.S. § 9545(b)(3) (providing “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[ ]”); see also U.S. Sup.
Ct. R. 13(1). Appellant had until January 13, 1998, to file his PCRA petition.
See 42 Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within
one year of date judgment becomes final). Therefore, because he filed the
instant PCRA petition on June 24, 2015, his petition is untimely.
Appellant avers as follows:
On April 7, 2015, Appellant discovered the following
exculpatory evidence during a KDKA News report wherein
district Attorney Steven Zappala reported that a test
performed on an Officer’s blood found that the metabolites
found therein proved that he was not intoxicated at a
specific time.
On May 3, 2015, Appellant discovered the following
exculpatory evidence through hearsay of a news report on
KDKA on April 18, 2015, a report in which a Federal Judge
said that Dennis Logan and other Officers could be sued for
suborning a witness to commit perjury or testify falsely in
a court.
Appellant’s Brief at 11.
Appellant contends he discovered exculpatory evidence. Appellant did
not explain why he could not have presented this evidence earlier with the
exercise of due diligence. See Edmiston, 65 A.3d at 350. Appellant did not
plead and prove any exception to the PCRA’s timeliness requirement. See
Marshall, 947 A.2d at 719-20. The PCRA court did not err in dismissing his
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PCRA petition as untimely. See Pitts, 981 A.2d at 878; Marshall, 947 A.2d
at 719-20. Thus, the PCRA court lacked jurisdiction to consider Appellant’s
claims. See Davis, 86 A.3d at 887.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
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