Com. v. Edwards, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
OMAR EDWARDS
Appellant No. 2657 EDA 2015
Appeal from the PCRA Order August 14, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0209372-1995
BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED JUNE 09, 2016
Omar Edwards appeals, pro se, from the order entered in the
Philadelphia County Court of Common Pleas, dated August 14, 2015,
dismissing his third petition filed under the Post-Conviction Relief Act
(“PCRA”).”1 Edwards seeks relief from the judgment of sentence imposed on
January 27, 1997, following his convictions of first-degree murder, criminal
conspiracy, and possession of an instrument of crime (“PIC”).2 Because we
agree the petition is untimely, we affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. §§ 2502(a), 903(a)(1), and 907(a), respectively.
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Edwards’ conviction arose out of a drive-by shooting on October 28,
1994, when Edwards shot at several men and killed Demetrius Hawkins. On
June 13, 1996, a jury found Edwards guilty of the above-mentioned crimes.3
On January 27, 1997, the court sentenced Edwards to life imprisonment for
the murder conviction. The court did not impose further penalties on the
other charges. Edwards filed a direct appeal in February of 1997. A panel of
this Court dismissed the appeal on January 8, 1998, due to the failure to file
a brief. Edwards did not seek allowance of appeal in the Supreme Court of
Pennsylvania.
Edwards filed his first PCRA petition on October 7, 1998. Counsel was
appointed, and a “no merit” letter pursuant to Turner/Finley4 was
submitted. After review, the PCRA court dismissed Edwards’ petition on July
13, 1999. A panel of this Court affirmed the order on September 11, 2000,
and the Pennsylvania Supreme Court denied the petition for allowance of
appeal on February 6, 2001. See Commonwealth v. Edwards, 766 A.2d
885 (Pa. Super. 2000), appeal denied, 771 A.2d 1279 (Pa. 2001).
On January 30, 2002, Edwards filed his second PCRA petition. That
petition was dismissed on May 30, 2002. On March 20, 2003, this Court
again affirmed the dismissal. See Commonwealth v. Edwards, 823 A.2d
____________________________________________
3
Edwards’ initial trial resulted in a hung jury on the murder charge.
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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1024 (Pa. Super. 2003). Edwards did not seek further review in the
Pennsylvania Supreme Court.
Based on the docket, the matter went dormant until Edwards filed the
present, pro se petition on February 26, 2015, in which he asserted an after-
discovered evidence exception to the timeliness requirement. After
reviewing the matter, the PCRA court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without first conducting an evidentiary hearing
on July 1, 2015. Specifically, the court found the petition was untimely filed
and did not properly invoke an exception to the timeliness provisions of the
PCRA,5 and therefore, it did not have jurisdiction to review the matter.
Edwards filed a response to the Rule 907 notice on July 16, 2015.
Nevertheless, on August 14, 2015, the PCRA court denied Edwards’ petition.
This appeal followed.6
“Crucial to the determination of any PCRA appeal is the timeliness of
the underlying petition. Thus, we must first determine whether the instant
PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,
768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).
The PCRA timeliness requirement … is mandatory and
jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
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5
See 42 Pa.C.S. 9545(b)(i-iii).
6
The PCRA court did not order Edwards to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). Nevertheless, on
November 9, 2015, the court issued an opinion under Pa.R.A.P. 1925(a).
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1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
petition’s untimeliness and reach the merits of the petition. Id.
Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013).
A PCRA petition must be filed within one year of the date the
underlying judgment becomes final. 42 Pa.C.S. § 9545(b)(1). 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. §
9545(b)(3). Here, Edwards’ judgment of sentence became final 30 days
after January 8, 1998, on February 9, 1998,7 when the time period within
which to file a petition for allowance of appeal expired. See 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 1113. Moreover, pursuant to Section 9545(b)(1),
Edwards had one year from the date his judgment of sentence became final
to file a PCRA petition. See Taylor, supra. The instant petition was not
submitted until February 26, 2015, approximately 17 years later, making it
patently untimely.
An untimely PCRA petition may, nevertheless, 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
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7
The 30th day, February 7, 1998, fell on a Saturday.
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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). Furthermore, a PCRA petition alleging any of
the exceptions under Section 9545(b)(1) must be filed within 60 days of
when the PCRA claim could have first been brought. 42 Pa.C.S. §
9545(b)(2).
Moreover, we are mindful that “although this Court is willing to
construe liberally materials filed by a pro se litigant, pro se status generally
confers no special benefit upon an appellant.” Commonwealth v. Lyons,
833 A.2d 245, 252 (Pa. Super. 2003) (citation omitted), appeal denied, 879
A.2d 782 (Pa. 2005). It merits mention that Edwards’ brief is disjointed and
lacking at various points.
Nevertheless, a review of the brief reveals that he raises the following
arguments on appeal: (1) trial counsel was ineffective;8 (2) Edwards
received an affidavit, dated July 9, 2007, from a trial witness, David
Dickerson, concerning “newly discovered evidence” that Dickerson never saw
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8
See Edwards’ Brief at 1, 5-6, 9.
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Edwards with a gun on the night of the shooting, he lied on the stand, and
Edwards did not kill the victim;9 and (3) judicial error and double jeopardy.10
With respect to Edwards’ first issue regarding ineffective assistance,
we are guided by the following:
Our Supreme Court has made clear that the section
9545(b)(1)(ii) exception will not apply to alleged ineffective
assistance of counsel claims, even if the claims were not
knowable until advised of their existence by present counsel.
See Commonwealth v. Bronshtein, 561 Pa. 611, 752 A.2d
868 (Pa. 2000); Commonwealth v. Pursell, 561 Pa. 214, 749
A.2d 911 (Pa. 2000); see also [Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999);] (claim of ineffective assistance of
counsel does not save an otherwise untimely petition for review
on merits).
Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super. 2008).
Accordingly, Edwards’ ineffective claim does not qualify under any of the
three enumerated exceptions to the timeliness requirement. Moreover, we
note Edwards did not raise this claim in his PCRA petition. It was well
settled that “an issue is waived where it was not presented in the original or
amended PCRA petition below.” Commonwealth v. Jones, 912 A.2d 268,
278 (Pa. 2006). Therefore, Edwards also waived the claim.
With respect to Edwards’ “newly discovered evidence” argument, we
note that he did not file the present petition within 60 days of the date that
his claim could have been presented. As pointed out by the PCRA court:
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9
Id. at 2-4.
10
Id. at 10-11.
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In the instant petition, since the affidavit was dated July 9,
2007, [Edwards] was in receipt of this information for the past 8
years, which is well past the 60 days deadline. In fact, a review
of the record reveals that [Edwards] was aware of Mr.
Dickerson’s testimony as far back as [the] January 30, 2002
petition[.] [Edwards] wrote in his Memorandum of Law, “Prior to
trial, an investigator went out conducting an investigation for the
defense, whereupon, the Commonwealth’s witness Mr. Dickerson
informed the investigating officer, ‘that, it wasn’t [Edwards], who
allegedly shot and killed the decedent Mr. Demetrius Hawkins.’”
Therefore, the information provided by Mr. Dickerson was
previously known information that could have and should have
been raised earlier. This petition was patently untimely and
[Edwards] has failed to state how he acted with due diligence to
timely present this claim.
PCRA Court Opinion, 11/9/2015, at unnumbered 3-4. As such, we find
Edwards fails to invoke the exception pursuant to Section 9545(b)(1)(ii), for
after-discovered facts, to excuse his untimely petition.
Lastly, with Edwards’ allegations of judicial error and double jeopardy,
we conclude these arguments are waived for failure to raise them on direct
appeal. See 42 Pa.C.S. § 9544(b) (An allegation is waived “if the petitioner
could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state post-conviction proceeding.”).
Moreover, Edwards also failed to set forth these claims in his PCRA petition.
See Jones, supra.
Accordingly, there is no dispute that Edwards filed his third PCRA
petition more than one year after his judgment of sentence became final.
Based on the aforementioned, we conclude Edwards failed to satisfy his
burden of pleading and proving the applicability of one of the after-
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discovered evidence exceptions to the PCRA’s timeliness requirement.
Therefore, we affirm the PCRA court’s order dismissing Edwards’ PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2016
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