Com. v. Rouse, R. ( 2018 )


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  • J-S34026-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
    OF PENNSYLVANIA
    Appellee
    v.
    RICKY ROUSE
    Appellant                     No. 1735 WDA 2017
    Appeal from the PCRA Order entered October 6, 2017
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No: CP-02-CR-0004190-2009
    BEFORE: BOWES, STABILE, AND STRASSBURGER,* JJ.
    MEMORANDUM BY STABILE, J.:                            FILED AUGUST 21, 2018
    Appellant, Ricky Rouse, appeals from an order dismissing his third
    petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
    9546, as untimely. We affirm.
    In the afternoon of February 24, 2009, Antoine Cooper (“the victim”)
    was shot and killed in Northview Heights, a neighborhood in Pittsburgh.
    Appellant was seen leaving the crime scene in a vehicle rented by his co-
    defendant, Damone Porter. The Commonwealth alleged that Appellant fired
    the fatal bullet in retaliation for an earlier shooting.
    Appellant and Porter were charged with criminal homicide.              In
    September 2010, a jury found Appellant guilty of first-degree murder1 and
    other offenses, and in December 2010, the trial court sentenced him to life
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1   18 Pa.C.S.A. § 2502(a).
    J-S34026-18
    imprisonment. Appellant filed a timely direct appeal. On August 6, 2012, this
    Court affirmed his judgment of sentence, and on February 13, 2013, the
    Supreme Court denied his petition for allowance of appeal. He did not appeal
    to the United States Supreme Court.
    In 2014, Appellant filed a timely PCRA petition pro se, and the PCRA
    court appointed counsel to represent him. On October 20, 2014, counsel filed
    a letter stating that none of the issues in Appellant’s petition had merit. On
    October 22, 2014, the PCRA court directed counsel to review the issues
    contained in co-defendant Porter’s PCRA petition and determine whether
    Porter’s issues applied to Appellant. On January 5, 2015, counsel determined
    that Porter’s PCRA claims did not apply to Appellant. On January 14, 2015,
    the PCRA court directed Appellant to file a pro se response to counsel’s no-
    merit letters. On March 3, 2015, Appellant submitted a pro se response raising
    additional claims. On March 11, 2015, the PCRA court issued a notice of intent
    to dismiss the claims in Appellant’s 2014 petition and directed counsel to file
    a letter addressing Appellant’s additional claims. On March 30, 2015, counsel
    submitted a letter stating that Appellant’s additional claims had no merit. On
    April 8, 2015, the PCRA court dismissed Appellant’s PCRA petition without a
    hearing and granted counsel leave to withdraw. Appellant filed a timely notice
    of appeal to this Court, and on September 19, 2016, this Court affirmed.
    Commonwealth v. Rouse, 682 WDA 2015 (Pa. Super., Sep. 19, 2016). On
    March 29, 2017, the Supreme Court denied Appellant’s petition for allowance
    of appeal. Appellant did not appeal to the United States Supreme Court.
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    J-S34026-18
    On March 9, 2015, while Appellant’s appeal at 682 WDA 2016 was
    pending in this Court, Appellant filed a second pro se PCRA petition arguing
    that Miller v. Alabama, 
    567 U.S. 460
     (2012), applied to him. On March 16,
    2016, the PCRA court issued a notice of intent to dismiss this petition. On
    May 16, 2016, Appellant filed a supplemental PCRA Petition arguing that
    Miller applied to him. On May 19, 2016, the PCRA court ruled that it would
    not act on Appellant’s second PCRA petition until the conclusion of appellate
    proceedings in his first PCRA petition.
    On April 19, 2017, Appellant filed a third pro se PCRA petition. Appellant
    claimed that he had recently learned that Porter had been willing to exonerate
    him during trial, but Porter’s counsel prevented Porter from testifying.
    Attached to Appellant’s petition was a December 8, 2016 affidavit from Porter
    indicating that Appellant did not shoot the decedent and had nothing to do
    with his death. Appellant also alleged his prior PCRA counsel was ineffective
    for failing to interview Porter in 2014-15, because counsel would have learned
    during the interview that Porter had been willing to exonerate Appellant.
    On June 6, 2017, Appellant moved to dismiss his second PCRA petition
    for lack of merit. On June 7, 2017, the PCRA court dismissed this petition.
    On June 17, 2017, Appellant filed an amendment to his third PCRA
    petition.   On June 28, 2017, the Commonwealth filed an answer to the
    amended third petition.      The PCRA court issued an order that it was
    contemplating dismissal of the third amended petition and provided Appellant
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    an opportunity to respond. On August 31, 2017, the PCRA court issued a
    notice of intent to dismiss the amended third petition. On October 6, 2017,
    the PCRA court dismissed the amended third petition. On November 13, 2017,
    Appellant appealed the order of dismissal to this Court, the appeal presently
    before us.2
    Appellant raises two issues in this appeal:
    1.    Whether the PCRA Court erred by denying Appellant’s
    subsequent PCRA petition that included a properly layered claim
    of ineffective assistance of PCRA/trial Counsel?
    2.   Whether the PCRA Court erred by denying Appellant’s
    subsequent PCRA Petition alleging newly-discovered evidence
    without an evidentiary hearing, where Appellant has met the
    “prima facie” [test] needed to be granted an evidentiary hearing,
    with the claim of ineffective assistance of trial counsel in
    conjunction with the claim of newly-discovered evidence?
    Appellant’s Brief at 4. Appellant claims that (1) Porter would have exonerated
    Appellant had Porter testified during trial; (2) Porter’s attorney prevented him
    ____________________________________________
    2 Both the PCRA court and the Commonwealth claim that this appeal is
    untimely because Appellant filed it more than thirty days after entry of the
    October 6, 2017 order of dismissal. The exhibits attached to Appellant’s reply
    brief demonstrate that the Clerk of the Court of Common Pleas of Allegheny
    County did not mail the order of dismissal to Appellant until October 17, 2017,
    and the order was not delivered to Appellant’s correctional facility until
    October 19, 2017. We view this delay as a breakdown in the operations of
    the court, because it prevented Appellant from receiving the order for almost
    half of the appeal period. Commonwealth v. Coolbaugh, 
    770 A.2d 788
    ,
    791 (Pa. Super. 2001) (appellant may file appeal nunc pro tunc when delay
    was caused by breakdown in operation of trial court). Accordingly, we deem
    Appellant’s appeal period to have begun on the date he received the order,
    October 19, 2017, and we will treat his appeal as filed within thirty days after
    commencement of the appeal period.
    -4-
    J-S34026-18
    from testifying; and (3) Appellant’s PCRA attorney during 2014-15 was
    ineffective for failing to interview Porter, because counsel would have learned
    during the interview that Porter’s attorney prevented Porter from testifying.
    Appellant’s claim is untimely.         The PCRA contains the following
    restrictions governing the timeliness of any PCRA petition.
    (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.
    (2) Any petition invoking an exception provided in paragraph (1)
    shall be filed within 60 days of the date the claim could
    have been presented.
    (3) For purposes of this subchapter, 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 Pa.C.S.A. § 9545(b) (emphasis added).          The timeliness requirement of
    Section 9545(b)(1) is jurisdictional; we cannot address the merits of an
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    untimely petition. Commonwealth v. Abu Jamal, 
    941 A.2d 1263
    , 1267–68
    (Pa. 2008).
    Here, Appellant’s judgment of sentence became final on May 14, 2013,
    ninety days after our Supreme Court denied his petition for allowance of
    appeal in his direct appeal. 42 Pa.C.S.A. § 9545(b)(3). Appellant filed his
    present petition on April 19, 2017, almost four years after his judgment of
    sentence became final. Thus, it is untimely on its face.
    Appellant’s petition fails to satisfy any of the three exceptions to the
    PCRA’s timeliness requirements in 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Appellant
    attempts to invoke the newly-discovered facts exception, which required him
    to prove “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.”   42 Pa.C.S.A. § 9545(b)(1)(ii).     Our Supreme Court has held,
    however, that petitioners cannot satisfy the newly-discovered facts exception
    by alleging ineffectiveness of PCRA counsel.           In Commonwealth v.
    Gamboa–Taylor, 
    753 A.2d 780
     (Pa. 2000),
    the defendant in a capital case instructed his trial counsel not to
    defend against the charges and not to present mitigating evidence
    at the penalty stage, but later claimed that his counsel was
    ineffective for failing to override the defendant’s decisions. The
    PCRA court concluded that counsel was not ineffective. The
    defendant subsequently filed a second PCRA petition, in which he
    alleged that his first PCRA counsel was ineffective. After the PCRA
    court dismissed the second petition as untimely, this Court
    affirmed, noting that the defendant’s “attempt to interweave
    concepts” of ineffective assistance and newly-discovered facts was
    insufficient to establish jurisdiction . . . This Court explained that
    “a conclusion that previous counsel was ineffective is not a newly
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    discovered ‘fact’ entitling Appellant to the benefit of the exception
    for [newly-discovered facts]. In sum, a conclusion that previous
    counsel was ineffective is not the type of [newly-discovered fact]
    encompassed by the exception.”
    Commonwealth v. Mitchell, 
    141 A.3d 1277
    , 1284-85 (Pa. 2016) (citing
    Gamboa-Taylor, 753 A.2d at 785).         Allowing these claims to go forward
    would “[cause] the timeliness requirements crafted by the legislature [to]
    effectively be eviscerated by any petitioner who was willing to file serial PCRA
    petitions alleging ineffective assistance of counsel.”     Commonwealth v.
    Howard, 
    788 A.2d 351
    , 355 (Pa. 2002) (citing Gamboa–Taylor).
    Here, Appellant cannot satisfy the due diligence element of the newly-
    discovered facts exception. He fails to present a valid reason why he did not
    procure Porter’s affidavit until December 2016, well over three years after his
    judgment of sentence became final.          Perhaps recognizing this fact, he
    attributes this delay to ineffectiveness of PCRA counsel. Counsel, he says,
    failed to interview Porter in 2014-15 and thus failed to learn at that time that
    Porter would have exonerated Appellant during trial had Porter’s counsel not
    prevented him from testifying. Through this argument, Appellant attempts to
    interweave ineffectiveness and newly-discovered facts concepts, precisely
    what our Supreme Court refused to permit in Gamboa-Taylor. Permitting
    such claims would encourage endless series of petitions accusing PCRA
    counsel of ineffectiveness under the guise of the newly-discovered facts
    exception. In accordance with Gamboa-Taylor, we hold that PCRA counsel’s
    -7-
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    alleged ineffectiveness in failing to interview Porter is not a fact encompassed
    by the newly-discovered facts exception to the PCRA’s one-year time bar.
    In addition, Appellant’s third PCRA petition was untimely because more
    than sixty days elapsed between the date of Porter’s affidavit (December 18,
    2016) and the date of Appellant’s third PCRA petition (April 19, 2017).
    42 Pa.C.S.A. § 9545(b)(2) (petitioner must invoke exception to PCRA’s
    timeliness requirements within sixty days after the claim first could have been
    presented).
    For these reasons, we agree with PCRA court’s determination to dismiss
    as untimely Appellant’s third PCRA petition for want of jurisdiction.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/21/2018
    -8-
    

Document Info

Docket Number: 1735 WDA 2017

Filed Date: 8/21/2018

Precedential Status: Precedential

Modified Date: 8/21/2018