Com. v. Glasgow, O. ( 2021 )

J-S09038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR GLASGOW :
:
Appellant : No. 1021 EDA 2020
Appeal from the PCRA Order Entered July 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1200461-2001
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2021
Omar Glasgow (“Glasgow”) appeals from the Order dismissing his
second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the relevant factual and procedural history as
follows:
The evidence adduced at trial showed that on January 26, 2001,
[Glasgow] knocked on victim Anthony Randall’s [(“Randall”)]
door, entered his apartment in a rage, and demanded money.
When Randall did not immediately comply, [Glasgow] hit Randall
on the head with a fire extinguisher. [Glasgow’s] two companions
then entered the apartment[,] and the three men beat Randall
until he lost consciousness. [Randall] woke up in the hospital,
where he remained for three days. Later that same day,
[Glasgow] and his two accomplices pulled up in a car next to
victim Reginald Smith [(“Smith”)] and his girlfriend[,] Yvette
Mitchell. [Glasgow] chased Smith down the street and began
punching Smith repeatedly[,] while his companion broke a bottle
over Smith’s head. After Smith fell to the ground [Glasgow] and
his cohort continued to kick and stomp Smith’s body and head
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with their boots. [Glasgow] and his companion left[,] but returned
a few moments later with their third companion. By this time, a
small crowd of approximately 10-20 people had gathered around
Smith’s unconscious body. [Glasgow] inexplicably began firing his
weapon up and down the street. Mark Thor[n]ton, who had
spoken to Smith on the street just before [Glasgow’s] attack, was
grazed by a bullet. [Glasgow] and his companions fled the scene
in a car. Police arrived on the scene shortly thereafter[,] and an
ambulance took Smith to the hospital. Smith never regained
consciousness[,] and remained intubated until he died seven
months later as a result of head injuries sustained during the
beating.
On May 31, 2005, a jury found [Glasgow] guilty of third[-
]degree murder, conspiracy, and two counts of aggravated
assault. On July 19, 2005, [the trial court] sentenced him to an
aggregate term of 35 to 75 years [of] state incarceration. Th[is]
Court affirmed this judgment of sentence on October 12, 2006.
[See Commonwealth v. Glasgow, 913 A.2d 941 (Pa. Super.
2006) (unpublished memorandum). Glasgow] did not seek review
before the Pennsylvania Supreme Court.
On March 24, 2006, while his direct appeal was still pending
before th[is] Court, [Glasgow] filed a premature PCRA [P]etition.
This [P]etition was reinstated after review of [Glasgow’s] direct
appeal was completed. On January 3, 2007, PCRA counsel filed
an [A]mended [P]etition alleging trial counsel’s ineffectiveness.
This [P]etition was dismissed on January 8, 2008. Th[is] Court
affirmed this dismissal … [, and] the Pennsylvania Supreme Court
denied allocator. [See Commonwealth v. Glasgow, 970 A.2d
467 (Pa. Super. 2009) (unpublished memorandum), appeal
denied, 8 A.3d 342 (Pa. 2010).]
On June 19, 2014, [Glasgow] filed a pro se Petition for Writ
of Habeas Corpus. On April 26, 2018, [Glasgow’s] counsel[,]
Lauren Wimmer, Esquire [(“Attorney Wimmer”),] filed a second
PCRA [P]etition[, raising the newly-discovered fact exception to
the PCRA’s time bar]. … On September 18, 2018, [Glasgow] filed
a supplemental [A]mended [P]etition. On April 24, 2019, the
Commonwealth filed its Motion to Dismiss. On June 11, 2019,
[the PCRA c]ourt sent [Glasgow] a Notice of Intent to Dismiss
Pursuant to [Pa.R.Crim.P.] 907. On June 18, [Glasgow] replied to
the [Rule] 907 [N]otice. On July 11, 2019, [the PCRA c]ourt
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dismissed [Glasgow’s P]etition based upon lack of merit. On July
30, 2019, PCRA counsel filed a [M]otion to withdraw.[FN1]
On August 26, 2019, [Glasgow’s] appellate rights were
reinstated[,] nunc pro tunc.[FN2] On that same day, [the PCRA
c]ourt granted [Attorney] Wimmer’s [M]otion to withdraw and
issued an [O]rder that new counsel be appointed. On December
5, 2019, Matthew Sullivan, Esquire [(“Attorney Sullivan”),] was
appointed as counsel. On January 7, 2020, [Attorney] Sullivan
was relieved and [Attorney] Wimmer was appointed as PCRA
counsel. [Attorney] Wimmer then filed a PCRA [P]etition, asking
that [Glasgow’s] appellate rights be reinstated once again. On
March 12, 2020, [the PCRA court] granted relief and reinstated
[Glasgow’s] appellate rights. On March 16, 2020, [Glasgow] …
filed a Notice of Appeal….
[FN1] [Attorney]
Wimmer … had been retained as counsel; however,
[Glasgow] could no longer afford to pay her after his [P]etition
was dismissed. [Attorney] Wimmer asked that she be permitted
to withdraw so that she could be appointed by the court as
counsel.
[FN2] No timely direct appeal was filed as a result of this
reinstatement.
PCRA Court Opinion, 8/31/20, at 1-3. Glasgow also filed a Pa.R.A.P. 1925(b)
Concise Statement of errors complained of on appeal.
Glasgow now raises the following issues for our consideration:
I. Did the PCRA court err in holding that [Glasgow] is unable to
establish jurisdiction under the newly-discovered fact exception
pursuant to 42 Pa.C.S.[A.] § 9545(b)(1)(ii)?
II. Did the PCRA court err in denying [Glasgow’s] after-discovered
evidence claim without an evidentiary hearing[,] where he
successfully pleaded and proved all four prongs of the after-
discovered evidence test under 42 Pa.C.S.[A.] § 9543(a)(2)(vi)?
Brief for Appellant at 3.
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We will address Glasgow’s claims together. Glasgow first argues that in
March 2018, he was approached by another inmate, DeWayne White
(“White”), who told Glasgow that he was present at the time of the fight. Id.
at 15. White told an investigator that Glasgow had been knocked unconscious
before Smith was knocked to the ground and kicked by two other individuals.
Id. According to Glasgow,
[o]n the day of the shooting, White was outside with his two
children when he noticed a crowd gathering approximately ½
block away. As White approached the crowd, he noticed a bunch
of guys fighting and observed [Glasgow] being knocked to the
ground. White said that [Glasgow] was the first person knocked
to the ground. [Glasgow] appeared to be unconscious; he was
not moving. White was 10 to 15 feet away from [Glasgow].
[Randall] was fighting with two other guys and was eventually
knocked to the ground. This fight continued on for two to three
minutes after [Glasgow] was knocked unconscious. White saw
[Glasgow’s] friends kicking [Smith] as [Smith] attempted to block
their kicks. White heard sirens and left the scene prior to the
arrival of the police. [White] moved out of that neighborhood
between July and August 2001.
Id. at 15-16. Glasgow claims that he filed the instant PCRA Petition within
approximately one month of learning of this evidence, and filed his Amended
PCRA Petition after receiving an Affidavit from White. Id. at 16 n.2. Glasgow
asserts that the PCRA court improperly stated that the alleged “new fact” was
that Glasgow had been knocked unconscious by Smith; however, Glasgow
maintains the “new fact” is “that a disinterested witness possesses first-hand
knowledge that [Glasgow] was not involved in the fight that resulted in the
injuries that led to [Smith’s] death.” Id. at 18. Glasgow also contends that
he could not have discovered this information sooner, because White had
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moved out of the neighborhood “almost contemporaneously with [Smith’s]
passing.” Id. at 19.
In his second claim,1 Glasgow again argues that White’s testimony could
not have been obtained earlier through the exercise of reasonable diligence,
because White moved out of the neighborhood a few months after the fight.
Id. at 22. Glasgow claims that there was no evidence presented at trial that
he was unconscious at the time of the fight that led to Smith’s death. Id. at
23. Glasgow also asserts that this new information would not be used solely
for impeachment purposes, as it also provides “a different factual scenario
than that presented at [Glasgow’s] trial.” Id. at 23-24. According to Glasgow,
this evidence would compel a different result, because a jury could conclude
that Glasgow did not commit an overt act necessary to sustain his conviction.
Id. at 25.
Our standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. The PCRA court’s
findings will not be disturbed unless there is no support for the
findings in the certified record.
____________________________________________
1 In his second claim, Glasgow cites to 42 Pa.C.S.A. § 9543(a)(2)(vi),
concerning after-discovered evidence claims under the PCRA. Because
Glasgow’s PCRA Petition is facially untimely, as we will discuss infra, his claim
must be considered an attempt to invoke the newly-discovered fact exception
to the PCRA’s timeliness requirement. See Commonwealth v. Burton, 158
A.3d 618, 628 (Pa. 2017) (explaining that an after-discovered evidence claim,
raised in a timely PCRA petition, is distinct from the newly-discovered fact
exception to the PCRA’s time limitations).
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Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citations
omitted).
Initially, under the PCRA, any PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). 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.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature, and a court may not address the merits of an untimely
petition. Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003). Here,
Glasgow’s judgment of sentence became final in November 2006, when his
time for seeking allowance of appeal with our Supreme Court expired. See
Pa.R.A.P. 1113. Because Glasgow filed the instant PCRA Petition on April 26,
2018, his Petition is facially untimely.
Pennsylvania courts may consider an untimely petition if the appellant
can explicitly plead and prove one of the three exceptions set forth at 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of these exceptions
“shall be filed within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). Glasgow invokes the newly-
discovered fact exception, which
requires that the facts upon which such a claim is predicated must
not have been known to appellant, nor could they have been
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ascertained by due diligence. To fall within this exception, the
factual predicate of the claim must not be of public record and
must not be facts that were previously known but are now
presented through a newly-discovered source.
Commonwealth v. Shannon, 184 A.3d 1010, 1015-16 (Pa. Super. 2018)
(citations, quotation marks, and some brackets omitted). Further, “[d]ue
diligence demands that the petitioner take reasonable steps to protect his own
interests. A petitioner must explain why he could not have obtained the new
fact(s) earlier with the exercise of due diligence. This rule is strictly enforced.”
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)
(citations omitted).
The PCRA court addressed Glasgow’s arguments as follows:
[Glasgow] relies upon the [A]ffidavit of [] White, a fellow inmate
he met in 2017[,] while they were both incarcerated at SCI –
Forest. In his [A]ffidavit, White stated that while he was living at
2807 S. 82nd Street, he was outside with his children when he saw
several men fighting. [White] stated that he saw [Glasgow] get
knocked down by two other men while [Glasgow] was still
unconscious. [White] stated that he immediately left the scene
as soon as he heard police sirens. White stated that he never told
anyone that he witnessed the crime until he ran into [Glasgow] in
prison. Indeed, at no time prior to his current PCRA [P]etition did
[Glasgow] ever claim that he was unconscious, not prior to trial,
not at trial, not post-trial, not on direct appeal, and not in his prior
PCRA [P]etition.
Moreover, [Glasgow’s] attempt to invoke the after-
discovered evidence exception fails[,] as he did not explain how
he could not have ascertained White’s statement earlier.
[Glasgow] simply states that he could not have known about
White’s presence at the crime scene any earlier because he was,
as White asserts, unconscious at the time. However, the evidence
adduced at trial showed that a crowd of up to 20 people had
gathered during the incident. [Glasgow] does not explain why he
did not attempt to identify and contact any of those onlookers to
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see if anyone had observed him being knocked unconscious prior
to Smith’s beating. [Glasgow] does not identify who hit him or
who[m] he was fighting with[,] nor does he explain what
happened to him after he regained consciousness. [Glasgow] fails
to provide any explanation as to why he waited nearly 20 years,
and only after meeting White in jail, to put forth the argument
that he was unconscious during the attack on Smith. … [D]ue
diligence requires some “reasonable efforts” on the part of the
petitioner to show that he attempted to uncover facts to support
his claim. Here, [Glasgow] made no effort to find witnesses to
support his claim that he was unconscious during Smith’s attack[,]
and did not even put forth this claim until White approached him
in prison. Accordingly, no relief is due.
PCRA Court Opinion, 8/31/20, at 6-7.
We agree with the PCRA court’s analysis. If Glasgow was unconscious
during the fight, he presumably would have known of that fact before his
fortuitous encounter with White. As the PCRA court noted, Glasgow failed to
explain why he made no attempt to locate additional witnesses. Glasgow
acknowledged in his brief that a defense investigator located three witnesses,
see Brief for Appellant at 22, though he does not explain whether any of those
witnesses were ever asked if they had seen Glasgow unconscious. Further,
Glasgow repeatedly points to the fact that White moved out of the
neighborhood as evidence that he could not have obtained this information
sooner. However, as Glasgow himself indicates in his brief, White moved out
of the neighborhood a few months after the fight. See id. at 19, 22.
Accordingly, Glasgow failed to establish the existence of a newly-discovered
fact that he could not have ascertained sooner through the exercise of due
diligence. See Shannon, supra; Monaco, supra; see also
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Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (stating that
“[t]he focus of the exception is on the newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.” (citation
omitted; emphasis in original)).
Because Glasgow has failed to successfully invoke any of the exceptions
necessary to circumvent the PCRA’s timeliness requirement, the PCRA court
did not err when it dismissed Glasgow’s Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2021
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