Com. v. Griggs, E ( 2020 )

J-S33027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC GRIGGS :
:
Appellant : No. 3051 EDA 2019
Appeal from the PCRA Order Entered September 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1202751-1997,
CP-51-CR-1202811-1997, CP-51-CR-1203021-1997
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC GRIGGS :
:
Appellant : No. 3052 EDA 2019
Appeal from the PCRA Order Entered September 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1202751-1997,
CP-51-CR-1202811-1997, CP-51-CR-1203021-1997
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC GRIGGS :
:
Appellant : No. 3053 EDA 2019
Appeal from the PCRA Order Entered September 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1202751-1997,
J-S33027-20
CP-51-CR-1202811-1997, CP-51-CR-1203021-1997
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 16, 2020
In these consolidated appeals, Eric Griggs (Appellant) appeals pro se
from the order dismissing as untimely his third petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
[Appellant] was arrested and subsequently charged in
connection with a series of neighborhood-bar robberies in the
summer of 1997. On June 14, 1999, following a jury trial presided
over by the Honorable D. Webster Keogh, [Appellant] was
convicted of sixteen counts of robbery, three violations of the
Uniform Firearms Act, and three counts of conspiracy. On July 28,
1999, the trial court sentenced [Appellant] to an aggregate term
of [25] to [70 years of] incarceration. On May 9, 2001, following
a direct appeal, the Superior Court affirmed the judgment of
sentence. [Appellant] did not seek allocatur in the Pennsylvania
Supreme Court.
[Appellant] filed his first pro se PCRA petition on February 12,
2002. Sondra R. Rodrigues, Esquire, was appointed and
subsequently filed an amended petition on March 20, 2003. The
PCRA court denied relief on July 13, 2004. On January 11, 2006,
the Superior Court affirmed the PCRA court’s denial of post-
conviction relief. [Appellant] did not seek allocatur in the
Pennsylvania Supreme Court.
[Appellant] was subsequently unsuccessful in obtaining
collateral relief through a serial PCRA petition filed in 2009.
On April 10, 2017, [Appellant] filed the instant pro se PCRA
petition, his third. [Appellant] submitted a supplemental petition,
____________________________________________
* Former Justice specially assigned to the Superior Court.
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which was reviewed jointly with his initial petition. Pursuant to
Pennsylvania Rule of Criminal Procedure 907, [Appellant] was
served notice of [the PCRA court]’s intention to dismiss his petition
[without a hearing] on April 30, 2019. On September 26, 2019,
[the PCRA court] dismissed his PCRA petition as untimely.
PCRA Court Opinion, 12/4/19, at 1-2 (footnotes omitted).
On October 18, 2019, Appellant filed a timely, single notice of appeal
which listed all three docket numbers in this case.1 On November 20, 2019,
pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), this Court
issued a rule to show cause why the appeal should not be quashed. In
Walker, our Supreme Court instructed that “where a single order resolves
issues arising on more than one docket, separate notices of appeal must be
filed for each case,” or the appeal will be quashed. Id. at 971, 976-77. The
Supreme Court applied this holding prospectively to notices of appeal filed
after June 1, 2018.
Appellant filed his notice of appeal on October 18, 2019, and thus
Walker applies. The underlying appeal is from a single order resolving issues
arising on three docket numbers. Appellant filed a response to our rule to
show cause conceding that he filed a single notice of appeal that listed all
three docket numbers in violation of Walker; however, he asserted, inter alia,
that his pro se filing should “be held to a lesser standard than pleadings
____________________________________________
1 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The PCRA court did, however,
file an opinion which explained its reasons for dismissing Appellant’s petition
as untimely.
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presented by attorneys.” Response to Rule to Show Cause, 11/29/19, at 2,
6.
A recent en banc panel of this Court has explained that we may overlook
the requirements set forth in Walker where a breakdown in the court system
occurs. Commonwealth v. Larkin, 235 A.3d 350, 353-54 (Pa. Super. 2020)
(en banc); see also Commonwealth v. Stansbury, 219 A.3d 157, 160 (Pa.
Super. 2019). In both Larkin and Stansbury, we held that with respect to
the Walker mandates, a breakdown in the court system occurs when the trial
court misinforms the defendant of his appellate rights. Larkin, 235 A.3d at
353-54; Stansbury, 219 A.3d at 160. In both Larkin and Stansbury, the
trial court misinformed the defendants that they could to file a single notice
of appeal from an order resolving issues at multiple docket numbers. Id.
Here, our review of the record reveals a scenario similar to the situations
presented in Larkin and Stansbury. The PCRA court’s order dismissing
Appellant’s petition stated, “You have thirty (30) days from the date of this
order to file a notice of appeal to the Superior Court of Pennsylvania.” PCRA
Court Order, 9/26/19 (emphasis added). The PCRA court did not advise
Appellant that he had to comply with the mandates of Walker. Accordingly,
we conclude that a breakdown of the court system occurred. See Larkin,
235 A.3d at 353-54. We thus decline to quash Appellant’s appeal under
Walker, and turn to the issue Appellant presents for our review.
Appellant states:
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1) Does the trial court’s dismissal of the properly filed PCRA
without an evidentiary hearing constitute clear legal error given []
Appellant invoked a valid timeliness exception to the PCRA time
limitations?
Appellant’s Brief at 6.
We review the denial of PCRA relief by “examining whether the PCRA
court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.
Before we address Appellant’s substantive claim, we must determine
whether we have jurisdiction. “Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.” Commonwealth v. Monaco,
996 A.2d 1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v.
Robinson, 837 A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA
petition within one year of the date on which the petitioner’s judgment of
sentence became final, unless one of the three statutory 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
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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). If a petition is untimely, and the petitioner has
not pled and proven an exception, “neither this Court nor the trial court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (quoting Commonwealth
v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
Because Appellant filed his petition on April 10, 2017, he is subject to
the prior law, which required that a petition invoking an exception to the time
bar be filed within 60 days of the date the claim could have been presented.
However, effective December 2017, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petition invoking a timeliness
exception must be filed within one year of the date the claim could have been
presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §§ 2, 3. Although we
note the change, it does not impact our disposition.
Instantly, this Court affirmed Appellant’s judgment of sentence on May
9, 2001, and he did not file a petition for allowance of appeal to our Supreme
Court. See PCRA Court Opinion, 12/4/19, at 2. Consequently, Appellant’s
judgment of sentence became final on June 8, 2001, when the 30-day period
for filing a petition for allowance of appeal to the Supreme Court expired. See
42 Pa.C.S.A. § 9545(b)(3) (stating that a judgment of sentence becomes final
“at the conclusion of direct review, including discretionary review in the
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Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review”); see also Pa.R.A.P.
1113(a) (“[A] petition for allowance of appeal shall be filed with the
Prothonotary of the Supreme Court within 30 days after the entry of the order
of the Superior Court . . . sought to be reviewed.”). Thus, the deadline for
Appellant to file a timely PCRA petition was June 10, 2002. As Appellant filed
the underlying petition on April 10, 2017, it is facially untimely, and we lack
jurisdiction to reach the merits unless Appellant has pled and proven one of
the three exceptions. See 42 Pa.C.S.A. § 9545(b)(1); see also Derrickson,
923 A.2d at 468.
To overcome the PCRA’s time bar, Appellant attempted to satisfy the
newly-discovered fact exception of Section 9545(b)(1)(ii). Specifically,
Appellant asserted that he did not commit the aforementioned robberies, and
he was unaware that the individuals responsible for the robberies would come
forward with affidavits confessing to the crimes. See PCRA Petition, 4/10/17,
¶ 5(II), 6; see also Proposed Amendment to PCRA Petition, 11/8/17
(Affidavit).
With respect to the newly-discovered fact exception, this Court has
explained:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence. Commonwealth v.
Bennett, 930 A.2d 1264, 1271 (Pa. 2007). Due diligence
demands that the petitioner take reasonable steps to protect his
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own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168
(Pa. Super. 2001). A petitioner must explain why he could not
have learned the new fact(s) earlier with the exercise of due
diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.
2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.
Super. 2010). This rule is strictly enforced. Id. Additionally, the
focus of this exception “is on the newly discovered facts, not on a
newly discovered or newly willing source for previously known
facts.” Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa.
2008) [].
The timeliness exception set forth at Section 9545(b)(1)(ii) has
often mistakenly been referred to as the “after-discovered
evidence” exception. Bennett, 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:
[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, 930 A.2d at 1272 (internal citations omitted) (emphasis
in original).
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Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015)
(citations modified).
Here, the PCRA court summarized the content of the affidavits provided
by Appellant, and explained its rejection of Appellant’s claim as follows:
In an attempt to satisfy the newly-discovered fact exception, §
9545(b)(1)(ii), [Appellant] claimed he recently discovered that he
was not involved in the commission of the robberies. In support
of his claim, [Appellant] appended a 2017 affidavit authored by
Reginald Boykin, one of his convicted co[-]conspirators. See
PCRA petition, 4/10/17 at 3, 22 (unpaginated). According to
Boykin, [Appellant] did not participate in the robberies. See id.
at 22. [Appellant] also appended a 2017 affidavit authored by
Lawrence Davis, an associate of [Appellant]’s co-conspirators.
See Supplemental petition, 11/8/17 at 5 (unpaginated).
According to Davis, he helped Boykin execute the robberies and
[re-]iterated Boykin’s contention that [Appellant] wasn’t involved.
See id.
At the outset, the purported fact that [Appellant] did not
participate in the robberies, if true, would have been known to
[Appellant] since his arrest. Therefore, Boykin and Davis are
merely new sources for a previously-known fact, which are
insufficient to satisfy subsection 9545(b)(1)(ii). See
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008)
(holding that the focus of section 9545(b)(1)(ii) “is on the newly-
discovered facts, not on a newly discovered or newly willing source
for previously known facts”).
Additionally, [Appellant] failed to satisfy the due diligence
prong of subsection 9545(b)(1)(ii). [Appellant] was aware that
Boykin was willing to provide exculpatory evidence at the time of
trial. See PCRA petition, 2/12/02 at 6 (stating that [Appellant]
informed trial counsel of Boykin’s proposed testimony).
[Appellant] did not, however, explain why he couldn’t have
obtained a statement from one of his co-conspirators until nearly
two decades after his trial. Thus, [Appellant] failed to meet his
burden of showing that his decision to wait for a “chance
encounter” with Boykin constituted due diligence. Furthermore,
with respect to Davis’ affidavit, [Appellant] failed to specify when
he discovered the information contained therein. Specifically,
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despite [Appellant]’s acknowledgement of his presence at one of
the robberies, he neither averred that he was unaware of Davis’
participation nor detailed when he discovered it. These omissions
were fatal to [Appellant’s] attempt to demonstrate that he filed
his supplemental petition within the [60-day] time period
mandated by the former provision of 42 Pa.[C.S.A.] § 9545(b)(2).
PCRA Court Opinion, 12/4/19, at 3-4 (footnotes omitted).
Based upon our review, including Appellant’s PCRA petition and
supplemental filings, we agree with the PCRA court’s well-reasoned analysis
of Appellant’s attempt to plead and prove the newly-discovered fact exception
of Section 9545(b)(1)(ii). Thus, Appellant’s third PCRA petition is untimely,
he has failed to successfully plead or prove an exception to the PCRA’s one-
year time limitation, and we lack jurisdiction to address the merits of
Appellant’s claim for collateral relief. See Derrickson, 923 A.2d at 468.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/20
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