                                 [J-76-2016]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT

        SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 714 CAP
                                              :
                    Appellee                  :   Appeal from the Order dated August 13,
                                              :   2015 and entered on the docket on
                                              :   August 14, 2015, in the Court of
             v.                               :   Common Pleas, Allegheny County,
                                              :   Criminal Division at Nos. CP-02-CR-
                                              :   0011609-1997, CP-02-CR-0012047-
WAYNE CORDELL MITCHELL,                       :   1997 and CP-02-CR-0013318-1997.
                                              :
                    Appellant                 :   SUBMITTED: April 26, 2016


                                        OPINION


JUSTICE WECHT                                                   DECIDED: July 19, 2016
      In this capital case, Wayne Cordell Mitchell appeals the order of the Court of

Common Pleas of Allegheny County dismissing his second petition for relief under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.1

      Mitchell was convicted of first-degree murder and sentenced to death for the

September 10, 1997 murder of his estranged wife, Robin Little. Mitchell and Little

began dating in high school and had a turbulent relationship marked by frequent

arguments. In September of 1996, Mitchell threatened to kill Little if she ever left him.

1
       Our opinion affirming Mitchell’s judgment of sentence on direct appeal discussed
the facts underlying his convictions and death sentence. See Commonwealth v.
Mitchell, 902 A.2d 430, 436-44 (Pa. 2006), cert. denied, 549 U.S. 1169 (2007) (“Mitchell
I”). For the purpose of resolving the instant appeal, the facts highlighted in this Court’s
opinion affirming the dismissal of Mitchell’s first PCRA petition also are relevant. See
Commonwealth v. Mitchell, 105 A.3d 1257, 1262-65, 1273-77 (Pa. 2014) (“Mitchell II”).
A son, Malik, was born to the couple in January of 1997. Mitchell and Little married in

April of 1997, when Little was eighteen and Mitchell was nineteen. Mitchell lived with

Little and her mother for several months in the spring of 1997.         Little ended the

relationship as arguments continued, and she asked Mitchell to move out in July of

1997. Little and Malik moved into her brother’s home in Lancaster, Pennsylvania for

approximately a month, but they returned to Little’s mother’s home in Pittsburgh in

August of 1997.

      On September 1, 1997, Little asked Mitchell if she could borrow his bus pass.

He replied that she could do so if she picked it up from him at his place of employment.

Upon Little’s arrival, the two began arguing about a man named Brian that Little had

been seeing.    When Little told Mitchell that she and Brian had engaged in sexual

relations, Mitchell became angry, dragged Little into a supervisor’s office, and raped

her. Little reported the rape to Pittsburgh police officers and went to Magee Women’s

Hospital, where hospital personnel prepared a rape kit.

      While Little was in the hospital, the police located and arrested Mitchell. Mitchell

waived his Miranda2 rights and confessed to the rape. Mitchell was charged with rape,

terroristic threats, unlawful restraint, and simple assault. He remained in jail pending a

preliminary hearing, which was scheduled for September 9, 1997. While Mitchell was in

jail awaiting the preliminary hearing, Little filed a petition for Protection from Abuse

(“PFA”).3 The court granted Little’s petition and entered a ten-day temporary order

directing that Mitchell have no contact with Little pending a final PFA hearing, which was

scheduled for September 10, 1997.


2
      See Miranda v. Arizona, 384 U.S. 436 (1966).
3
      See 23 Pa.C.S. §§ 6101-22.



                                     [J-76-2016] - 2
       On September 9, 1997, Mitchell waived his preliminary hearing in exchange for a

nominal bond, with a condition that he seek immediate in-patient treatment for alcohol

abuse. For reasons that were contested at trial, Mitchell was never admitted to the

designated treatment facility.   Instead, he went home and began telephoning Little.

After several calls, Mitchell convinced Little to allow him to come to her home. Mitchell

arrived at Little’s residence at approximately 4:15 p.m., and the two argued about Brian,

the man whom Little was seeing. Mitchell left shortly after 6:00 p.m., and spent a

portion of the evening drinking alcohol with friends. Upon returning home at 1:00 a.m.,

Mitchell called Little, apologized, and convinced her to allow him to come to her

residence to talk about their son.

       Sheila Britton was the former director of a college-counseling program at the high

school that Mitchell and Little attended. She had remained in contact with Mitchell after

he left the school. Ms. Britton reported that Mitchell called her at approximately 1:00

a.m. on September 10, 1997, and stated that he was going to Little’s house to kill her.

Mitchell told Ms. Britton that Little had “disrespected” him and that he planned to dress

in black clothing, go to Little’s home, and “do what he had to do.” Notes of Testimony,

10/5/1999 (“N.T. Trial”), at 326-27.

       Mitchell arrived at Little’s residence at 1:30 a.m. He found Little sitting with a

man on her porch.      The man quickly left when Mitchell and Little began arguing.

Mitchell punched Little in the face and stomach, then dragged her toward an empty lot

near her home, repeatedly striking her when she resisted. Little screamed for help,

yelling, “He’s going to kill me.” Id. at 383. Mitchell placed his hand over her mouth and

continued to drag her. As they passed a house, Mitchell saw a knife lying on a porch.

He punched Little several more times, disabling her, while he retrieved the knife. When

Little attempted to stand, Mitchell pushed her down and stabbed her in the stomach.




                                       [J-76-2016] - 3
Mitchell then removed Little’s clothes, wrapped his hands around her neck, and raped

her, first vaginally and then anally. After the rape, Mitchell stabbed Little multiple times

in the neck.

       Ms. Britton stated that Mitchell called her again at 4:00 a.m. and told her that

“Robin Little is no more.” Id. at 330. He also told her that he was going to his uncle’s

house to establish an alibi, and that he planned to attend the PFA hearing later that

morning, knowing that Little would not appear. Mitchell attended the PFA hearing, and,

when Little did not appear, the court dismissed Little’s petition and vacated the

temporary PFA order. When Mitchell returned home, his mother informed him of Little’s

death. Mitchell denied any involvement, but his mother was concerned and insisted that

he be evaluated at a hospital. Mitchell agreed, and went to St. Francis Hospital at

approximately noon on September 10, 1997. Homicide detectives quickly identified

Mitchell as a suspect and approached him in the hospital’s waiting area when he was

released.      Mitchell agreed to accompany the detectives to their office, where he

provided a statement in which he confessed to raping Little on September 1, 1997, and

to raping and murdering her on September 10, 1997. In addition to the charges relating

to the September 1, 1997 rape, Mitchell then was charged with criminal homicide, rape,

involuntary deviate sexual intercourse (“IDSI”), and unlawful restraint.               The

Commonwealth timely filed and served a notice of its intention to seek imposition of the

death penalty.

       On October 1, 1999, Mitchell pleaded guilty to the rape, IDSI, and unlawful

restraint charges arising from the September 10, 1997 sexual assault and homicide.

The trial court deferred sentencing upon those convictions until after the trial on the

remaining charges, which commenced before a jury on October 4, 1999. During the

guilt phase of the trial, the Commonwealth introduced Ms. Britton’s testimony about the




                                      [J-76-2016] - 4
two telephone calls from Mitchell, which occurred shortly before and shortly after the

murder. Mitchell pursued a diminished capacity defense based upon a psychological

condition and long-term alcohol abuse. The jury rejected Mitchell’s defense and found

him guilty of first-degree murder for the September 10, 1997 killing of Little, as well as

the remaining charges arising from the September 1, 1997 sexual assault. Because the

Commonwealth sought imposition of the death penalty, the jury remained empaneled

for a separate penalty phase hearing. The jury found two aggravating circumstances

and no mitigating circumstances, and accordingly sentenced Mitchell to death.

       On direct appeal, this Court affirmed Mitchell’s judgment of sentence.           See

Mitchell I, supra n.1. Mitchell filed a petition for writ of certiorari, which the Supreme

Court of the United States denied on January 16, 2007. Thus, Mitchell’s judgment of

sentence became final on that date. See 42 Pa.C.S. § 9545(b)(3). On February 21,

2007, Mitchell timely filed a pro se PCRA petition. Lawyers with the Federal Community

Defender Office for the Eastern District of Pennsylvania subsequently entered an

appearance on Mitchell’s behalf. Following several extensions of time, Mitchell filed an

amended PCRA petition on April 28, 2009. Among the thirteen claims that Mitchell

raised in his amended petition was an allegation of trial counsel ineffectiveness for

failure to investigate and develop evidence that would have undermined Ms. Britton’s

credibility as a witness. As noted, supra, at Mitchell’s trial in 1999, Ms. Britton testified

regarding two telephone calls that she received from Mitchell on the night of the murder.

The first occurred at 1:00 a.m., when Mitchell told her that he planned to kill Little

because she had “disrespected” him. N.T. Trial at 326. The second call occurred at

4:00 a.m., when Mitchell told Ms. Britton that “Robin Little is no more.” Id. at 330.

       In March 2008, then-assistant federal defender Carol Wright interviewed Ms.

Britton while preparing Mitchell’s federal habeas corpus petition. At the PCRA hearing,




                                      [J-76-2016] - 5
Mitchell presented an affidavit from Attorney Wright, which indicated that she met with

Ms. Britton on August 1, 2007, and subsequently spoke with Ms. Britton on the

telephone on March 20, 2008. Attorney Wright stated that Ms. Britton did not reveal the

information relevant to this appeal during the August 1, 2007 meeting, but that, during

the March 20, 2008 telephone conversation, Ms. Britton offered the following

information for the first time in the course of these proceedings:

       [T]he morning Robin died, Robin’s mother called and [Ms. Britton] went
       over to her house. The police were there and they questioned her, but
       she went totally blank and could not remember anything about her
       conversations with [Mitchell] the previous night. She did not tell the police
       officers anything about her conversations at that time. That evening when
       she went to bed all she started to remember [was] her interactions with
       [Mitchell] the previous night. She told me the following morning she called
       a mental health facility and made an appointment with a psychiatric social
       worker. She discussed what she remembered with the social worker.

       [Ms. Britton] told me that a different set of police officers questioned her at
       a later time and she told them all that she remembered about the phone
       calls with [Mitchell].

       Ms. Britton told us that she would have talked with [trial counsel] before
       trial and was surprised that they did not contact her.


Mitchell II, 105 A.3d at 1274-75 (quoting Mitchell’s PCRA Evidentiary Hearing Exhibit

16).

       After learning of Ms. Britton’s statements to Attorney Wright, Mitchell included in

his first PCRA petition an allegation that his trial counsel was ineffective for failing to

interview Ms. Britton prior to his trial. Mitchell argued that, had trial counsel done so, he

would have discovered that Ms. Britton “remembered” the content of the telephone calls

only after going to bed on the day following the murder, and, further, that Ms. Britton

briefly spoke to police officers on the morning after the murder but did not mention the

incriminating telephone calls at that time. Because this information could have cast




                                      [J-76-2016] - 6
doubt upon Ms. Britton’s trial testimony, Mitchell alleged that he was prejudiced by his

trial counsel’s failure to discover the potential impeachment evidence.

        Ms. Britton’s trial testimony about the phone calls was consistent with a

statement that she provided to police on July 23, 1998, approximately ten months after

the murder. Although Ms. Britton did not disclose in either her July 23, 1998 statement

or during Mitchell’s trial that she had spoken to police officers on the morning after the

murder or that she only remembered the telephone calls after going to bed on the

following day, she testified at the PCRA hearing that she informed the trial prosecutor of

these facts before Mitchell’s trial when she met with the prosecutor to review her

statement. Ms. Britton also testified that, had Mitchell’s trial counsel interviewed her

prior to trial, she would have disclosed the manner in which she remembered the

telephone conversations. Notes of Testimony, 10/15/2012, at 82. Ms. Britton affirmed

that her trial testimony was accurate and that, at the time of trial, she remembered the

telephone calls “vividly.” Id. at 86. The Commonwealth called the trial prosecutor to

rebut portions of Ms. Britton’s testimony, and he stated that, before trial, he was

unaware that Ms. Britton had spoken to police officers immediately after the murder,

and that Ms. Britton never informed him of the manner in which she remembered the

telephone calls.

      The PCRA court rejected Mitchell’s ineffectiveness claim, reasoning that the

claim presumed that Ms. Britton would have informed Mitchell’s counsel of the salient

facts had he interviewed her prior to trial, but that no credible evidence established that

she would have done so.       To the extent that Ms. Britton’s testimony at the PCRA

hearing conflicted with the trial prosecutor’s testimony, the court credited the prosecutor

over Ms. Britton. The PCRA court specifically declined to credit Ms. Britton’s testimony

that she would have disclosed the manner of her recollection if trial counsel had




                                     [J-76-2016] - 7
interviewed her, noting that Ms. Britton did not reveal the relevant information for more

than eight years after Mitchell’s trial, despite having numerous prior opportunities to do

so in statements to the police, in meetings with the prosecutor, at Mitchell’s trial, or in

her first interview with Attorney Wright on August 1, 2007. Because Mitchell failed to

establish that an interview with Ms. Britton prior to trial would have yielded the

information that Attorney Wright discovered in 2008, the PCRA court concluded that

Mitchell failed to prove that he was prejudiced by trial counsel’s failure to conduct such

an interview. Thus, trial counsel was not ineffective. On appeal, this Court affirmed the

PCRA court’s conclusion, taking note of the PCRA court’s exclusive prerogative to

make credibility determinations. See Mitchell II, 105 A.3d at 1276-77.

       On February 13, 2015, Mitchell filed an untimely second PCRA petition, arguing

that the facts surrounding Ms. Britton’s recollection of the telephone calls constituted

after-discovered evidence that entitled him to a new trial.              See 42 Pa.C.S.

§ 9543(a)(2)(vi). Recognizing that his petition was facially untimely, Mitchell invoked the

exception to the PCRA’s time bar for the discovery of a new fact. See 42 Pa.C.S.

§ 9545(b)(1)(ii).4   Specifically, Mitchell relied upon the PCRA court’s reasoning in


4
        The “newly-discovered fact” exception provides that a PCRA claim need not be
filed within the one-year time restriction where “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. § 9545(b)(1)(ii). This exception is distinct from a
claim for relief premised upon the existence of “after-discovered evidence,” which the
PCRA provides for in 42 Pa.C.S. § 9543(a)(2)(vi). In Commonwealth v. Bennett, 930
A.2d 1264, 1270-73 (Pa. 2007), this Court clarified the distinctions between the
applicable inquiries under both sections of the PCRA and sought to eliminate the
confusion that had resulted from prior instances of terminological imprecision. The
“newly-discovered fact” exception applies only to the PCRA’s time bar, and it “requires
petitioner to allege and prove that there were ‘facts’ that were ‘unknown’ to him and that
he exercised ‘due diligence.’” Id. at 1270. An “after-discovered evidence” claim, by
contrast, provides a basis for substantive relief and requires that the proffered evidence
be “exculpatory” and that it “would have changed the outcome of the trial.” Id.



                                     [J-76-2016] - 8
denying his ineffectiveness claim in his first petition, arguing that the judicial conclusion

that Ms. Britton would not have disclosed the relevant information about the manner of

her recollection prior to trial constituted a “fact” that previously was unknown and could

not have been discovered by the exercise of due diligence, thereby satisfying the newly-

discovered fact exception to the PCRA’s time bar. Furthermore, Mitchell argued that he

properly raised this claim within sixty days following the issuance of this Court’s opinion

affirming the dismissal of his first PCRA petition, as he had no opportunity to raise the

claim prior to this Court’s affirmance.

       The PCRA court rejected Mitchell’s newly-discovered fact argument, reasoning

that the court’s prior conclusion was not a new fact, but, rather, that “the ‘facts’ upon

which the claim is predicated are the facts surrounding the manner, the day after the

murder, in which [Ms.] Britton ‘remembered’ the phone calls from [Mitchell].” PCRA Ct.

Op., 12/10/2015, at 6. Mitchell learned these facts in 2008, as evidenced by Attorney

Wright’s affidavit. The PCRA court noted that Mitchell chose to rely upon the relevant

facts as the basis for an ineffective assistance of counsel claim in his first PCRA

petition, but then sought to recast the facts in his second petition as establishing a claim

premised upon the existence of after-discovered evidence.           However, because the

claim was not predicated upon previously-unknown facts that could not have been

ascertained by the exercise of due diligence, the PCRA court concluded that Mitchell’s

petition failed to establish an exception to the time bar, leaving the court without

jurisdiction to entertain the petition. Accordingly, the PCRA court dismissed Mitchell’s

second petition without a hearing.

       Mitchell appeals the PCRA court’s order dismissing his petition, presenting three

questions for our review:

       I.     Did the PCRA court err when it dismissed the [p]etition as untimely
              where it was timely filed under 42 Pa.C.S. § 9545(b)(1)(ii)?


                                          [J-76-2016] - 9
       II.    Did the PCRA court err when it determined that the [p]etition was
              without merit where the after-discovered evidence entitled Mr.
              Mitchell to a new trial based on (A) Pennsylvania’s after-discovered
              evidence standard, and (B) Mr. Mitchell’s Fifth, Eighth and
              Fourteenth Amendment rights to due process and a verdict based
              on reliable evidence?

       III.   Did the PCRA court err in finding the petition untimely and denying
              relief without holding a hearing as to both timeliness and the merits
              of the petition?


Brief of Appellant at 1.

       Our standard of review over the denial of a PCRA petition is well-settled. “In

reviewing the denial of PCRA relief, we examine whether the PCRA court’s

determination ‘is supported by the record and free of legal error.’” Commonwealth v.

Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v. Rainey, 928 A.2d

215, 223 (Pa. 2007)). A PCRA petition, including a second or subsequent petition, must

be filed within one year of the date that the judgment of sentence becomes final. See

42 Pa.C.S. § 9545(b)(1). For purposes of the PCRA, “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. § 9545(b)(3).

       There are three exceptions to the timeliness requirement, including an exception

concerning the discovery of a previously-unknown fact. See 42 Pa.C.S. § 9545(b)(1)(ii).

Under this exception, a petitioner must file a PCRA petition within sixty days of the date

that the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2). “PCRA time

limits are jurisdictional in nature, implicating a court’s very power to adjudicate a

controversy.” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014). “Accordingly, the

‘period for filing a PCRA petition is not subject to the doctrine of equitable tolling;’

instead, the time for filing a PCRA petition can be extended only if the PCRA permits it


                                    [J-76-2016] - 10
to be extended, i.e., by operation of one of the statutorily enumerated exceptions to the

PCRA time-bar.” Id. (quoting Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999)).

“The court cannot ignore a petition’s untimeliness and reach the merits of the petition.”

Taylor, 67 A.3d at 1248. “[A] petition for post-conviction relief in a capital case may be

dismissed without an evidentiary hearing if there are no genuine issues of material fact

and the petitioner is not entitled to relief.” Commonwealth v. D’Amato, 856 A.2d 806,

820 (Pa. 2004); see also Pa.R.Crim.P. 909(B)(2).

       We need only address Mitchell’s first issue, because our resolution of that issue

is dispositive of this appeal. Mitchell’s judgment of sentence became final on January

16, 2007. Because Mitchell filed his second PCRA petition on February 13, 2015, the

petition was facially untimely. Therefore, Mitchell could establish the PCRA court’s

jurisdiction only by pleading and proving an exception to the PCRA’s timeliness

requirement. Mitchell pursued the “newly-discovered fact” exception to the time bar,

which provides that a PCRA claim need not be filed within the one-year time restriction

where “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.

§ 9545(b)(1)(ii). As he argued before the PCRA court, Mitchell maintains that the PCRA

court’s prior conclusion that Ms. Britton would not have disclosed the manner of her

recollection prior to trial constituted such a “fact.”

       Mitchell’s argument is not unlike one that this Court rejected in Commonwealth v.

Gamboa-Taylor, 753 A.2d 780 (Pa. 2000). In that case, 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




                                        [J-76-2016] - 11
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.     Id. at 785.    This Court

explained that “a conclusion that previous counsel was ineffective is not a newly

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.” Id.

       Similarly, in the instant case, the PCRA court correctly concluded that Mitchell

failed to prove the existence of a newly-discovered “fact” that he could not have

ascertained previously through the exercise of due diligence. The PCRA court’s earlier

determination that Ms. Britton would not have disclosed the relevant information to

Mitchell’s counsel prior to trial was part of the court’s reasoning for rejecting Mitchell’s

ineffective assistance of counsel claim.     The court’s legal conclusion, itself, did not

establish any new and previously-unknown fact regarding the circumstances

surrounding Ms. Britton’s recollection of the telephone calls. Accordingly, Mitchell has

failed to satisfy the newly-discovered fact exception to the PCRA’s time bar. Therefore,

Mitchell’s petition was untimely, leaving the PCRA court without jurisdiction to entertain

his claims. See Ali, supra.

       Because Mitchell failed to satisfy any exception to the PCRA’s time bar, the

PCRA court did not err in concluding that Mitchell’s petition was untimely, and that it

lacked jurisdiction to hear Mitchell’s claims. Accordingly, the PCRA court did not err in

dismissing Mitchell’s petition without a hearing.

       Order affirmed.

       Justices Baer, Todd, Donohue and Dougherty join the opinion.




                                     [J-76-2016] - 12
Chief Justice Saylor files a concurring opinion.




                              [J-76-2016] - 13
