Com. v. Saunders, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES SAUNDERS,
Appellant No. 790 EDA 2015
Appeal from the PCRA Order Entered February 23, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0827441-1988
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 20, 2015
Appellant, James Saunders, appeals pro se from the post conviction
court’s February 23, 2015 order denying, as untimely, his petition for relief
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
After careful review, we affirm.
In October of 1989, Appellant was convicted by a jury of first-degree
murder, criminal conspiracy, and possessing an instrument of crime. His
convictions stemmed from the following facts, as set forth by this Court in
our disposition of Appellant’s direct appeal:
On July 15, 1988, at approximately 1:00 a.m., [Appellant]
and three other men were walking back and forth on Walnut
Street between 50th and 51st Streets in the City of Philadelphia.
[Appellant] and an individual named “Maleek” then began
walking on the north side of Walnut Street toward 51st Street,
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while co-defendant Stanley Scott and another male walked in the
opposite direction.[1]
Shortly thereafter, [Appellant] and “Maleek” turned around
and were heading towards 51st Street, when Stanley Scott
shouted, “Yo, there they go.” Barron Bracy, the decedent, and
a companion were standing between [Appellant] and Stanley
Scott. [Appellant] then fired a shot in the direction of Barron
Bracy, who was unarmed. Immediately thereafter, Bracy began
hopping and shouting that somebody had shot him and that he
needed help.
Bracy's companion ran around the corner, and was chased
by [Appellant], Stanley Scott, Maleek, and another male, who
were all firing handguns. At approximately 1:15 a.m., police
officers arrived at the scene and found Barron Bracy lying face
down on Walnut Street. The victim was transported to
Misericordia Hospital by emergency personnel, but died shortly
thereafter.
An autopsy was conducted which revealed that the
decedent suffered a single gunshot wound to the lower left
abdomen. The medical examiner testified that this bullet
entered the decedent's abdominal and pelvic cavities, causing
him to bleed to death. The medical examiner testified that the
cause of death was the gunshot wound to the decedent's
abdomen.
Commonwealth v. Saunders, No. 02140 PHL 1991, unpublished
memorandum at 1-2 (Pa. Super. filed April 13, 1992) (quoting Trial Court
Opinion, 10/17/91, at 2-3) (citations to the record omitted).
On June 3, 1991, Appellant was sentenced to an aggregate term of life
imprisonment. He filed a timely direct appeal with this Court, and we
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1
While Scott is referred to as Appellant’s co-defendant, the two men were
ultimately tried separately.
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affirmed his judgment of sentence. See id. Appellant did not file a petition
for permission to appeal to our Supreme Court.
On October 16, 1998, Appellant filed his first PCRA petition, which was
dismissed by the PCRA court on May 3, 1999. Appellant filed a timely appeal
with this Court, and we affirmed the order dismissing his petition on
September 5, 2000. Commonwealth v. Saunders, 766 A.2d 891 (Pa.
Super. 2000) (unpublished memorandum). Again, Appellant did not petition
for permission to appeal to our Supreme Court.
On November 5, 2012, Appellant filed the pro se PCRA petition
underlying the instant appeal. Therein, Appellant alleged, inter alia, that he
recently discovered the transcripts from Stanley Scott’s trial, which revealed
exculpatory evidence that was withheld by the Commonwealth in Appellant’s
prosecution. On January 13, 2015, the PCRA court issued a Pa.R.Crim.P.
907 notice of its intent to deny Appellant’s petition as untimely. Appellant
filed a response to the Rule 907 notice; however, on February 23, 2015, the
PCRA court issued an order denying his petition.
Appellant timely filed a notice of appeal and a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The PCRA court
subsequently filed a Rule 1925(a) opinion. Herein, Appellant presents five
issues for our review, which we reproduce verbatim:
1) Did the (PCRA) court err, and commit reversible error when it
dismissed appellant’s petition without the benefit of properly
conducted hearing to determine the creditability of the presented
statement(s) that led to the filing of the said petition, and
therefore being able to render a fully informed legal opinion?
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2) Did (PCRA) court err, and commit reversible error when it
failed to recognize a timely presented motion to the court, that
was pertinent to the due process of the law within regards to
final disposition of (PCRA) petition?
3) Did the Commonwealth’s attorney perpetrate a knowing fraud
upon the court when they failed to disclose discoverable material
to the defense, that it presented to the court at suppression and
at trial, and knew was inherently false in nature?
3) Did the Commonwealth’s prosecuting attorney err, and
commit reversible error, when it permitted knowing false
testimony to remain on the record uncorrected, when it was
presented at a criminal suppression hearing and trial, as well as
during appellate post collateral proceedings, impeding justice
and perpetrating a knowing fraud upon the judiciary?
4) Did the (PCRA) court err, and commit reversible error when it
omitted facts of record upon which appellants claims are
predicated and completely failed to address claims of appellant
that are properly preserved and presented to the court for
review?
Appellant’s Brief at 4 (unnumbered).2
This Court’s standard of review regarding 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. Commonwealth v. Ragan,
923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
We must begin by addressing the timeliness of Appellant’s petition, as
the PCRA time limitation implicates our jurisdiction and may not be altered
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2
We note that the Commonwealth did not file a brief in this case.
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or disregarded in order to address the merits of a petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date the judgment of
sentence becomes final, unless one of the following exceptions applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on May 13, 1992,
at the expiration of the thirty-day time period for seeking review with the
Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (stating that
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judgment of sentence becomes final at the conclusion of direct review or the
expiration of the time for seeking the review); Pa.R.A.P. 1113(a) (directing
that “a petition for allowance of appeal shall be filed with the Prothonotary of
the Supreme Court within 30 days of the entry of the order of the Superior
Court sought to be reviewed”). Thus, Appellant had until May 13, 1993, to
file a timely petition, making his November 5, 2012 petition patently
untimely. Consequently, for this Court to have jurisdiction to review the
merits thereof, Appellant must prove that he meets one of the exceptions to
the timeliness requirements set forth above.
In his pro se brief, Appellant argues that he meets the “newly
discovered fact” exception of section 9545(b)(1)(ii) based on his discovery of
evidence purportedly withheld by the Commonwealth in violation of Brady
v. Maryland, 373 U.S. 83 (1963).3 Specifically, Appellant maintains that
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3
Our Supreme Court has explained:
Under Brady, the prosecution's failure to divulge exculpatory
evidence is a violation of a defendant's Fourteenth Amendment
due process rights. “[T]o establish a Brady violation, a
defendant is required to demonstrate that exculpatory or
impeaching evidence, favorable to the defense, was suppressed
by the prosecution, to the prejudice of the defendant.”
Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1126
(2008).
Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009). Additionally,
“[t]he burden of proof is on the defendant to demonstrate that the
Commonwealth withheld or suppressed evidence.” Id. (citing
Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890, 898 (1999)).
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“on or about October 2012,” an individual named Claude Saunders, “being
suspicious of the circumstances leading up to [A]ppellant’s conviction, …
researched [A]ppellant’s case,” and found (and mailed to Appellant) the
transcripts of the trial of Stanley Scott, Appellant’s cohort in the shootings.
Appellant claims that those transcripts reveal that a witness, William Holden,
testified at Scott’s trial that Appellant was not the shooter, and was not even
present on the street at the time of the shooting. Appellant contends that
he was unaware of Holden’s testimony at Scott’s July 1989 trial because the
transcripts of that proceeding were withheld by the Commonwealth prior to
Appellant’s October 1989 trial.
Appellant further claims that, included with Scott’s trial transcripts,
were transcripts of 911 calls made by two witnesses who testified at
Appellant’s trial, Jesse Hambright and Hillary Williams. According to
Appellant, the 911-call transcripts indicate that Hambright and Williams were
inside their homes when the shooting occurred. Thus, Appellant avers that
he could have used that evidence to impeach Hambright’s and Williams’
testimony that they saw Appellant participate in the shooting. However,
Appellant was purportedly unaware of these 911-call transcripts because the
Commonwealth did not turn them over to Appellant prior to his trial.
After assessing Appellant’s claims, the PCRA court concluded that
Appellant “failed to establish that the Commonwealth withheld or suppressed
any evidence[]” in violation of Brady. PCRA Court Opinion, 2/23/15, at 4.
The court additionally found that Appellant “failed to demonstrate that the
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alleged Brady violation so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken place.” Id.
(citing Cam Ly, 980 A.2d at 75). Consequently, the PCRA court concluded
that Appellant did not satisfy any exception to the PCRA’s one-year time-bar.
The PCRA court’s legal analysis is technically flawed. Our Supreme
Court clarified, in Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005),
that a PCRA petitioner can satisfy the timeliness exception set forth in
section 9545(b)(1)(ii) by alleging a Brady violation and, to do so, the
petitioner need not prove the underlying merits of his Brady claim(s). Id.
at 851-852. Instead, “[t]he exception merely requires that the ‘facts’ upon
which such a claim is predicated must not have been known to [the
petitioner], nor could they have been ascertained by due diligence.” Id.
Pursuant to Lambert, we conclude that the PCRA court erred by assessing
the merits of Appellant’s Brady claims in rejecting his petition as untimely.
While the PCRA court erred by examining the merits of Appellant’s
Brady claims, we agree with the court’s ultimate conclusion that Appellant
failed to prove the timeliness exception of section 9545(b)(1)(ii). The
evidence presented at Scott’s trial, i.e., Holden’s testimony and the
transcripts of the 911 phone calls by Hambright and Williams, became public
in July of 1989, when Scott’s trial was conducted. See Appellant’s Brief at 7
(stating Scott’s trial occurred on or about July 20, 1989). At that time,
Appellant was awaiting his own trial (which took place in October of 1989),
and was represented by counsel. Therefore, it is reasonable to presume that
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Appellant had access to the public information revealed during Scott’s trial,
and the evidence presented during that proceeding was not ‘unknown’ to
him for purposes of proving the exception in section 9545(b)(1)(ii). See
Commonwealth v. Burton, --- A.3d ---, 2015 WL 5076284, *6-7 (Pa.
Super. 2015) (en banc) (stating that the general rule that matters of public
record are not ‘unknown’ for purposes of proving a timeliness exception “is
reasonable when we may conclude that the petitioner retains access to
public information, such as when a petitioner is represented by counsel[;]”
however, such a presumption does not apply when the petitioner is pro se at
the time the information becomes public).
Certainly, Appellant could rebut the presumption that the evidence
revealed during Scott’s public trial was accessible and known to him. Id. at
*6. However, Appellant offers no discussion of what reasonable efforts he
took to uncover that evidence, or state how or why the particular
circumstances of his case precluded him from accessing sooner the
transcripts that Claude Saunders uncovered in 2012. See Burton, 2015 WL
5076284, at *6 (holding “that due diligence requires neither perfect
vigilance nor punctilious care, but rather it requires reasonable efforts by a
petitioner, based on the particular circumstances, to uncover facts that may
support a claim for collateral relief”).
For these reasons, we conclude that Appellant has not proven the
applicability of the ‘newly discovered facts’ exception of section
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9545(b)(1)(ii).4 Therefore, the PCRA court did not err in denying his petition
as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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4
We note that Appellant also presents ineffective assistance of counsel (IAC)
claims, and challenges the legality of his sentence. However, “[i]t is well
settled that allegations of ineffective assistance of counsel will not overcome
the jurisdictional timeliness requirements of the PCRA.” See
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations
omitted). Likewise, in Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999),
our Supreme Court held that claims challenging the legality of sentence are
subject to review within PCRA, but must first satisfy the PCRA’s time limits.
Id. at 223. Appellant does not attempt to argue that a timeliness exception
applies to either his IAC argument or his legality of sentencing claims.
Consequently, we do not have jurisdiction to address the merits of those
issues.
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