Com. v. Jones, S. ( 2023 )

J-A05038-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SASALDINE J. JONES :
:
Appellant : No. 2445 EDA 2021
Appeal from the PCRA Order Entered November 17, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0108471-2006
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 18, 2023
Sasaldine J. Jones (Appellant) appeals from the order dismissing his
third Post Conviction Relief Act (PCRA)1 petition. We affirm.
The PCRA court summarized the underlying facts as follows:
On the afternoon of May 16, 2005, [Appellant] and a friend
(Ronald Hall) were having lunch at Sonny’s Diner in Philadelphia.
Sitting at another table were a man named Ed and Ed’s friend
(Banger or AB). At some point, Ed got up and went to the
bathroom. When he returned to his table, he began looking
around and muttering that his $2000 ring was missing. Ed asked
two diner employees, William Warthen and Alfonso Lanier, if they
had seen the ring. They said they had not. Ed asked if they had
seen anyone go into the bathroom. Mr. Warthen recalled that the
man in the “brown dickie suit” [(Appellant)] had gone into the
bathroom around that time. Ed then left the diner. Later that
day, [Appellant] and Hall returned to the diner and confronted Mr.
Warthen about supposedly having told Ed that [Appellant] stole
the ring. Mr. Warthen assured [Appellant] that all he had told Ed
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1 42 Pa.C.S.A. §§ 9541-9546.
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was that [Appellant] had gone into the bathroom. [Appellant] was
furious and reached for a silver gun in his waistband, but Hall
convinced him not to do that in the diner. Later that day,
however, [Appellant] again confronted Mr. Warthen at the rear
door [of] the diner and this time [Appellant] pulled out his gun
and [fatally] shot Mr. Warthen through the head.
PCRA Court Opinion, 7/8/22, at 1-2 (citation omitted).
On June 15, 2007, following a five-day trial, the jury convicted Appellant
of first-degree murder, carrying a firearm without a license, and possession
of an instrument of crime.2 On July 27, 2007, the trial court sentenced
Appellant to life in prison for murder, followed by an aggregate six to twelve
years for the remaining convictions. Appellant did not file a post-sentence
motion or direct appeal.
Appellant subsequently filed two unsuccessful PCRA petitions. On
November 9, 2020, Appellant filed the instant, counseled PCRA petition, his
third. The Commonwealth responded that the petition was untimely, lacked
merit, and should be dismissed. Commonwealth Response, 4/20/21, at 1-2.
Appellant filed a reply. On November 17, 2021, the PCRA court dismissed
Appellant’s petition without a hearing.3 PCRA Court Order, 11/17/21.
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2 18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), and 907.
3 The PCRA court failed to provide notice pursuant to Pa.R.Crim.P. 907. See
Commonwealth v. Feighery, 661 A.2d 437, 439 (Pa. Super. 1995).
Nonetheless, Appellant has waived any challenge to the absence of Rule 907
notice by not raising the issue on appeal. See Commonwealth v. Taylor,
65 A.3d 462, 468 (Pa. Super. 2013) (“The failure to challenge the absence of
a Rule 907 notice constitutes waiver.”).
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Appellant timely filed this appeal. Appellant and the PCRA court have complied
with Pa.R.A.P. 1925.
Appellant presents the following issue:
Did the PCRA Court err in finding, without benefit of a hearing,
that the newly discovered evidence from Rasheem Hall
[(Rasheem)] could have been obtained at or prior to trial through
reasonable diligence, the evidence is cumulative or being used
solely to impeach credibility, and/or it would not likely compel a
different verdict?
Appellant’s Brief at 2.
In reviewing the PCRA court’s denial of relief, we “examine whether the
PCRA court’s determinations are supported by the record and are free of legal
error.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (citation
omitted). The denial of an evidentiary hearing “is within the discretion of the
PCRA court and will not be overturned absent an abuse of discretion.”
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
We first consider the timeliness of Appellant’s PCRA petition as it
implicates our jurisdiction. See Commonwealth v. Davis, 86 A.3d 883, 887
(Pa. Super. 2014) (recognizing the PCRA’s time limitations implicate the
Court’s jurisdiction). All PCRA petitions, including second and subsequent
petitions, must be filed within one year of when the petitioner’s judgment of
sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment
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
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Pa.C.S.A. § 9545(b)(3). Because the PCRA’s timeliness requirements are
jurisdictional, a court may not address the merits of issues if the petition was
not timely filed. Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).
Appellant’s judgment of sentence became final 30 days after he was
sentenced, i.e., August 28, 2007. See Pa.R.Crim.P. 720(a)(3) (“If the
defendant does not file a timely post-sentence motion, the defendant’s notice
of appeal shall be filed within 30 days of imposition of sentence”). Because
August 27, 2007, fell on a Sunday, Appellant’s judgment of sentence became
final on Monday, August 28, 2007. See 1 Pa.C.S.A. § 1908 (providing
“Whenever the last day of any such period shall fall on Saturday or Sunday,
… such day shall be omitted from the computation.”). Under the PCRA,
Appellant was required to file a petition on or before August 28, 2008. See
42 Pa.C.S.A. § 9545(b)(1). Appellant’s petition, filed on November 9, 2020,
is facially untimely. See id.
Appellant attempts to invoke the newly discovered facts exception to
the PCRA’s timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(ii); see
also id. § 9545(b)(2) (requiring a petitioner to invoke a timeliness exception
within one year of when the claim could have been presented). “To qualify
for an exception to the PCRA’s time limitations under subsection
9545(b)(1)(ii), a petitioner need only establish that the facts upon which the
claim is based were unknown to him and could not have been ascertained by
the exercise of due diligence.” Commonwealth v. Burton, 158 A.3d 618,
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629 (Pa. 2017). Importantly, it is the petitioner’s burden to demonstrate he
could not have previously discovered the information with due diligence. 42
Pa.C.S.A. § 9545(b)(1)(ii); see also Commonwealth v. Brown, 111 A.3d
171, 176 (Pa. Super. 2015) (“Due diligence demands that the petitioner take
reasonable steps to protect his own interests.”). If the petitioner can establish
both prongs, the PCRA court may exercise jurisdiction. Commonwealth v.
Fears, 250 A.3d 1180, 1199 (Pa. 2021).
Here, Appellant asserts as newly discovered facts, the August 7, 2020
statement Rasheem Hall (Rasheem) gave to Appellant’s private investigator.
Rasheem memorialized his statement in an affidavit which states:
I went inside the diner with my friend Doughboy, [and] I saw the
guy AB right away, he was sitting at the table. I gave a head nod
to say what’s up, I order my sandwich, and then I was leaving …
and looked over towards AB and he looked like he was looking for
something and got up and walked towards the bathroom. I didn’t
think anything of it at the time and walked out of the diner with
my friend, Doughboy.
We went over to Doughboy’s apartment in the projects which was
close to the diner. We were at 11th and Cumberland. We went
back to the diner about 15 minutes later to pick up our food.
When I went back inside, the owner, Sunny, told me that the guy
AB left his cell phone number and said that AB thinks that my
brother Ronald Hall and his friend took his ring.
Me and my friend leave and we went to 15th and York St. I called
my brother on the phone and let him know that the guy AB wanted
to talk to him about his ring being stolen. I then called AB myself
to [ask] what was going on. I asked why he was looking for my
brother and he said that his ring went missing and he thinks they
got it. A[B] then asked me where I was from, and I told him 15th
and York. He was then telling about all the people he knew in my
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area. After our conversation about the people he knew from the
area he hung up and about 5 to 10 minutes [later] he showed up.
He showed up with the guy with the dreads. I then called my
brother back again and told [him] that AB was there. I handed
my phone to AB and he was talking to my brother Ronald. After
about 5 or 10 minutes, my brother Ronald pulled up with Jay
(Appellant). All of us were all ta[l]king about the ring.
My brother told AB he didn’t have his ring and that’s when AB said
that the guy who worked inside the diner named Wild Bill told him
that they had his ring. My brother got real mad that someone was
accusing him of stealing the ring so we all went back to the diner.
The guy Wild Bill and another guy, who was the cook[,] came
outside and we were all on the corner.
There was an argument, and everyone was playing the blame
game. At that point, I saw AB pull a gun out of the side of
[his] waistband and then sho[o]t the guy in his head right
behind his ear. Then AB and his friend, the one with the
dreads[,] took off and ran south on Broad St. They never took off
in their car. After that I went across the street on the other side
of Broad St. and saw the police [had] arrived. I walked back over,
and I was watching them try to do CPR on the guy and then the
ambulance came, and they put him inside.
* * *
I came to find out who took the ring. Wild Bill, the guy who got
killed[,] stole the ring. I saw the guy AB again after that and he
told me.
Appellant’s Brief at 7-8 (italic emphasis added, bold emphasis in original)
(quoting Affidavit of Rasheem Hall). Rasheem claims “AB” shot the victim.
See id.Appellant asserts he “did not know prior to receiving the newly
discovered information from Rasheem Hall that Rasheem had been standing
on the corner and had witnessed the shooting.” Appellant’s Brief at 9.
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Appellant states: “There was a large crowd of people — between 15 and 20 —
who had been standing outside.” Id. Appellant asserts he only discovered
Rasheem through the efforts of his present counsel and her private
investigator. Id. at 10. Appellant claims he did not know of Rasheem’s
presence because he was talking on a cell phone and “not focused on what
was going on around him.” Id. Appellant also states Ronald Hall, “did not
advise [] Appellant that his brother had been present and seen the shooting
either.” Id.
Appellant further asserts he could not have discovered this evidence
sooner with due diligence. Id. at 8. Appellant claims his newly retained
counsel “had flyers put up in the neighborhood around the Diner where the
crime occurred seeking new information.” Id. at 10. In addition, new counsel
sent a private investigator to the diner to obtain statements from “several
individuals mentioned in the case materials,” including Ronald Hall. Id. After
locating Ronald Hall, the investigator determined that Rasheem had witnessed
the shooting. Id.
In rejecting Appellant’s argument, the PCRA court explained:
[Appellant] has failed to establish that he could not have obtained
the information prior to the conclusion of trial by the exercise of
due diligence. The petition and the affidavit are at odds with each
other. [Appellant] claims to have not known Rasheem Hall was
present at the murder. In his reply to the Commonwealth,
[Appellant] says “just because you know someone from the
neighborhood does not mean that you knew that person was a
witness to a crime.” However, Rasheem Hall states he was with
[Appellant] at the time of the murder and was standing next to
his brother Ronald Hall. Rasheem Hall’s name appears in pre-
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trial discovery and at trial. Indeed, Ronald Hall, who was
involved in the shooting, is Rasheem Hall’s brother ….
PCRA Court Opinion, 7/8/22, at 6 (emphasis added).
Our review confirms Appellant failed to demonstrate that he could not
have previously discovered the information with due diligence. Appellant
concedes Rasheem was mentioned in the “case materials,” but fails to explain
why he did not take action to locate and obtain information from Rasheem
sooner. Consequently, Appellant’s claim of newly discovered facts fails. See
Brown, 111 A.3d at 176. Because Appellant failed to establish the newly
discovered facts exception to the PCRA’s timeliness requirement, the PCRA
court and this Court lack jurisdiction over Appellant’s third petition. See 42
Pa.C.S.A. § 9545(b)(1).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2023
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