Com. v. Henderson, C. ( 2016 )

J-S38028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLARK HENDERSON,
Appellant No. 2945 EDA 2015
Appeal from the PCRA Order of August 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1035262-1991
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 29, 2016
Appellant, Clark Henderson, appeals pro se from the order entered
August 17, 2015, dismissing his third petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.
This Court previously summarized the factual background of this case
as follows:
On September 15 and 16, 1990, [Appellant’s co-defendant
George] Russell was involved in several arguments with his
cousins, Ronald Bradley and Joseph Bradley. One of the
arguments culminated in a gunshot wound to Russell’s foot. This
series of confrontations climaxed on the morning of September
17, 1990, when [Russell, Kevin Cleveland, and Prince Hagwood]
opened fire on Ronald and Joseph Bradley as they stood outside
their mother’s house.
Several people witnessed this shooting and testified at trial that
[Russell, Cleveland, and Hagwood] assembled near the Bradleys’
mother’s home at approximately 10:30 a.m. Aaron Hainey, who
was also with [Russell, Cleveland, and Hagwood], confronted
J-S38028-16
Ronald and Joseph Bradley. While they were talking, [Appellant]
drew a weapon and began shooting. [Russell, Cleveland, and
Hagwood] then opened fire in the direction of the Bradleys; [35
to 40] shots were fired.
When the shooting concluded, [Russell, Cleveland, and
Hagwood] assisted the wounded Aaron Hainey into a car and fled
the scene. Ronald Bradley and Aaron Hainey died as a result of
their injuries. Joseph Bradley was also wounded; he spent six
weeks hospitalized in intensive care and eventually recovered.
Commonwealth v. Russell, 665 A.2d 1239, 1241 (Pa. Super. 1995),
appeal denied, 675 A.2d 1246 & 679 A.2d 227 (Pa. 1996) (footnote
omitted).
The relevant procedural history is as follows. On August 17, 1993,
Appellant was convicted of six offenses including, inter alia, first-degree
murder.1 On July 1, 1994, the trial court sentenced him to an aggregate
term of life imprisonment without the possibility of parole. This Court
affirmed the judgment of sentence and our Supreme Court denied allowance
of appeal. Commonwealth v. Henderson, 2655 Phila. 1994 (Pa. Super.
Aug. 21, 1995) (per curiam) (unpublished memorandum), appeal denied,
675 A.2d 1244 (Pa. 1996). Appellant filed a timely pro se PCRA petition,
counsel was appointed and filed an amended petition, and the PCRA court
denied relief. This Court affirmed the denial of PCRA relief and our Supreme
Court denied allowance of appeal. Commonwealth v. Henderson, 747
A.2d 412 (Pa. Super. 1999) (per curiam) (unpublished memorandum),
appeal denied, 751 A.2d 186 (Pa. 2000). In 2012, Appellant filed a second
1
18 Pa.C.S.A. § 2502(a).
-2-
J-S38028-16
pro se PCRA petition. The PCRA court dismissed the petition as untimely and
this Court affirmed. Commonwealth v. Henderson, 105 A.3d 24, 2014
WL 10917004 (Pa. Super. 2014) (unpublished memorandum).
On May 5, 2015, Appellant filed the instant pro se PCRA petition, his
third. On July 27, 2015, the PCRA court issued notice of its intent to dismiss
the petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On
August 13, 2015, Appellant filed a response to the dismissal notice. On
August 17, 2015, the PCRA court dismissed the petition and filed an opinion
in support thereof. This timely appeal followed.
Appellant presents two issues for our review:
1. [Whether Appellant satisfied the newly-discovered fact exception
to the PCRA’s timeliness requirement?
2. Whether Appellant satisfied the governmental interference
exception to the PCRA’s timeliness requirement?]
See Appellant’s Brief at 4.
Both of Appellant’s issues address whether he established an exception
to the PCRA’s timeliness requirement. The timeliness requirement for PCRA
petitions “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) (citation omitted). “The
question of whether a petition is timely raises a question of law. Where the
petitioner raises questions of law, our standard of review is de novo and our
-3-
J-S38028-16
scope of review plenary.” Commonwealth v. Taylor, 65 A.3d 462, 468
(Pa. Super. 2013) (citations omitted).
A PCRA petition is timely if it is “filed within one year of the date the
judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 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.A. § 9545(b)(3). Appellant’s judgment of sentence
“became final on July 17, 1996, upon expiration of his time to seek direct
review in the [Supreme Court of the United States] by writ of certiorari.”
Henderson v. DiGuglielmo, 138 F. App’x 463, 466 (3d Cir. 2005).
Appellant’s petition was filed in May 2015. Thus, the petition was patently
untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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.
-4-
J-S38028-16
42 Pa.C.S.A. § 9545(b)(1)(i-iii). If an exception applies, a PCRA petition
may be considered if it is filed “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Appellant argues that he satisfied the newly-discovered fact exception
and, therefore, the PCRA court possessed jurisdiction over the merits of his
petition. The newly-discovered fact exception
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.
Commonwealth. v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal
quotation marks and citations omitted; emphasis removed).
Appellant argues that a March 2, 2015, Rolling Stone article about
Detective Frank Jastrzembski constitutes a newly-discovered fact. That
article asserted that Detective Jastrzembski, who was involved in the
investigation of Appellant’s crime, concealed evidence in an unrelated case. 2
Our Supreme Court addressed a situation similar to the case sub judice in
Commonwealth v. Castro, 93 A.3d 818 (Pa. 2014). In Castro, the
2
Although the United States District Court for the Eastern District of
Pennsylvania granted habeas relief in the case discussed in the article,
Dennis v. Wetzel, 966 F.Supp.2d 489 (E.D. Pa. 2013), a three-judge panel
of the United States Court of Appeals for the Third Circuit vacated the grant
of habeas relief. Dennis v. Sec’y, Pennsylvania Dep’t of Corr., 777 F.3d
642 (3d Cir. 2015). Thereafter, the Court of Appeals granted rehearing.
The en banc court has yet to issue an opinion in the case.
-5-
J-S38028-16
petitioner relied upon a newspaper article to establish newly-discovered
evidence for use in a post-sentence motion.3 Our Supreme Court held that
while a newspaper “article [may] contain allegations that suggest
[exculpatory] evidence may exist, [] allegations in the media, whether true
or false, are no more evidence than allegations in any other out-of-court
situation.” Id. at 825. Although magazine and newspaper “articles can alert
a party to the possible existence of evidence, [] the party must do more
than attach the article [to establish] the evidence that will meet the [test for
newly-discovered facts. . . . A petition] must, at the very least, describe the
evidence that will be presented at the hearing.” Id. at 837. Thus, the
Rolling Stone article is not a newly-discovered fact.
Appellant, however, argues that the Rolling Stone article led him to
discover evidence concealed by the Commonwealth at the time of trial.
Specifically, Appellant argues that he discovered the Commonwealth
suppressed a firearm found on Raymond Bradley and a photograph of the
lineup from which Yolanda Tate identified Appellant. As to the firearm found
on Raymond Bradley, trial testimony established that paramedics turned the
gun over to security at Thomas Jefferson University Hospital. N.T., 8/10/93,
at 34-35. At trial, Appellant’s counsel questioned the paramedic and police
officers as to the firearm’s location. N.T., 7/23/93, at 7-9; N.T., 8/10/93, at
3
Castro has since been applied to the newly-discovered fact exception to
the PCRA. See Commonwealth v. Brown, 2016 WL 11783782016, *7
(Pa. Super. Mar. 24, 2016).
-6-
J-S38028-16
36, 41. They testified that hospital security never turned the firearm over to
police.
Appellant failed to plead and prove that police recovered the firearm
from the hospital and later concealed its existence from him. Instead, he
merely argues that because Detective Jastrzembski was involved in the
investigation of this case, he must have concealed the firearm from
Appellant. This is mere conjecture. Appellant does not point to any
evidence to suggest that police recovered the firearm. The paramedic and
Detective William Wynn, the two individuals who testified at trial regarding
the firearm recovered from Raymond Bradley, were never implicated in the
Rolling Stone article. Thus, Appellant failed to plead and prove that the
Commonwealth concealed the firearm. Accordingly, he failed to plead and
prove the existence of a newly-discovered fact.
As to the lineup from which Yolanda Tate identified Appellant,
Detective Wynn testified at trial that there was no photograph taken of the
lineup. N.T., 8/11/93, at 15. Appellant argues that the Commonwealth’s
brief in Henderson v. DiGuglielmo, supra, proves that a photograph of
the lineup exists. The portion of the brief cited by Appellant, however,
merely states that a lineup occurred. It does not state that a photograph of
the lineup exists. Appellant presents no evidence that a photograph of the
lineup exists. As such, he failed to plead and prove that the Commonwealth
-7-
J-S38028-16
concealed a photograph of the lineup. Accordingly, he failed to plead and
prove the existence of any newly-discovered fact.
In his second issue, Appellant asserts that he satisfied the
governmental interference exception. This argument, however, is based
entirely on the same alleged evidentiary concealment issues discussed
above. As we have determined that Appellant failed to plead and prove that
the Commonwealth concealed any evidence, we further conclude that
Appellant failed to plead and prove the applicability of the governmental
interference exception. As Appellant’s petition was patently untimely, and
he failed to plead and prove the applicability of any of the three statutory
timeliness exceptions, the PCRA court properly held that it lacked jurisdiction
to reach the merits of the petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2016
-8-