J-S66026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KYLE RAINEY                                :
                                               :
                       Appellant               :   No. 1254 EDA 2017

                   Appeal from the PCRA Order April 13, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0708341-1994,
                            CP-51-CR-1003961-1994

BEFORE: STABILE, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 18, 2020

        Appellant Kyle Rainey appeals from the orders dismissing his serial Post

Conviction Relief Act1 (PCRA) petitions filed at each of the above-captioned

docket numbers. Appellant contends he presented newly-discovered evidence

that Al-Asim M. Abdul-Karim, a Commonwealth witness at his murder and

robbery trials, was an alias for Elvin Odoms and had a crimen falsi conviction.

We affirm.

        By way of background, in docket number 708341-1994 (Sun Homicide),

a jury found Appellant guilty of first degree murder, two counts of robbery,

one count of aggravated assault, one count of recklessly endangering another

person, one count of criminal conspiracy, one count of possessing instruments

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1   42 Pa.C.S. §§ 9541-9546.
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of crime, and one count of carrying firearms on public streets or public

property on May 22, 1995. Following sentencing and Appellant’s direct appeal,

the conviction in the Sun Homicide became final in July 1998.         In docket

number 1003961-1994 (Bright Jewelers Robbery), a separate jury found

guilty of Appellant of robbery and possessing an instrument of crime on

November 1, 1995.         Appellant’s conviction in the Bright Jewelers Robbery

became final in July 1997.

       This Court previously summarized the facts of the Sun Homicide, as

follows:

       On June 1, 1994, [A]ppellant and three co-conspirators robbed a
       jewelry store. During the commission of the robbery, the gunman,
       Nathan Riley (Riley), shot and killed storeowner Sun Yoo Kang
       [(the decedent)] in front of his wife, Mahlee Kang. Officers of the
       Philadelphia Police Department interviewed Mrs. Kang and
       [Abdul–Karim], a witness who was present outside the store in a
       parked automobile. . . .

       On June 17, 1994, Riley surrendered to the police and gave a
       statement, which was reduced to writing by the interviewing
       detective, Albert Maahs. . . .[2]

       On June 26, 1994, Mrs. Kang and Mr. Abdul–Karim positively
       identified [A]ppellant from a photo array as a participant in the
       events of June 1, 1994. Two days later, after obtaining a search
       warrant, the police searched [A]ppellant’s home and found a .38
       caliber weapon with bullet casings matching those bullets used in
       the robbery. Police also discovered a small gold-colored price tag
       which Mrs. Kang identified as a tag from her store with her

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2 We add that at Appellant’s trial, the Commonwealth introduced Riley’s police
statement inculpating Appellant as the ringleader. Commonwealth v. Riley,
4044 PHL 1995 (Pa. Super. filed Sep. 12, 1996) (unpublished mem.) (citing
N.T. Trial, 5/19/95, at 35, 57).


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     handwriting on it. The police also searched the house of Sharon
     Bell, the girlfriend of Darrell Wallace (Wallace), another
     accomplice to the crime. Inside the house, the police found the
     same type of jewelry that Mrs. Kang described as stolen from the
     store.

     The police arrested [A]ppellant and Wallace and charged them
     with a host of crimes stemming from the events of June 1, 1994.

Commonwealth v. Rainey, 139 A.3d 261, 261-62 (Pa. Super. 2016)

(citation and footnote omitted and some formatting altered).

     This Court previously summarized the facts of the Bright Jewelers

Robbery, as follows:

     On March 26, 1994[,] at approximately noon, at Bright Jewelers,
     . . . , the complainant came into contact with the Appellant.
     Complainant Sam Lee was in his jewelry store, standing behind a
     counter next to the front door when two males, including
     Nathaniel [Riley], approached to enter. Mr. Lee, believing the two
     individuals to be customers, “buzzed” them through the locked
     doors, into the store. As the two individuals were inquiring as to
     some men[’]s gold rings and chains, Mr. Lee observed another
     male outside, looking into his store. Mr. Lee identified this third
     person as Appellant. As Mr. Lee was showing the jewelry, he
     looked to Appellant several times, to see if he wished to enter the
     store.    Instead, Mr. Lee observed Appellant give [Riley] a
     “nodding” signal. At that moment, [Riley] pulled out a gun, while
     the other man jumped over the showcase, handcuffed Mr. Lee and
     ordered him to lay on the floor with his face down. . . . The men
     then pulled out a black trash bag and began putting all of the
     jewelry into the bag. Once the men had finished throwing the
     jewelry into the bag, they [exited the store and ran away.] Mr.
     Lee . . . ran outside to chase after the men. After losing sight of
     the men, Mr. Lee went back to his store and telephoned the police.
     . . . Approximately one month after the robbery, detectives visited
     the complainant at the store and showed him numerous
     photographs.      From these, the complainant was able to
     immediately identify Appellant. . . .




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Commonwealth v. Rainey, 383 PHL 1996 (Pa. Super. filed June 25, 1997)

(unpublished mem.).         Of relevance to this appeal, Abdul-Karim testified

against Appellant in both the Sun Homicide and the Bright Jewelers Robbery.

       Appellant previously filed one PCRA petition as to the Sun Homicide and

four unsuccessful PCRA petitions related to the Bright Jewelers Robbery, none

of which merited relief. The instant appeal arises from Appellant’s second

PCRA proceeding as to the Sun Homicide, which Appellant commenced pro se

in 2011, and Appellant’s fifth PCRA proceeding in the Bright Jewelers Robbery,

which Appellant commenced pro se in 2013.

       The PCRA court appointed Todd Mosser as Appellant’s PCRA counsel for

the Bright Jeweler Robbery in May 2014, and for the Sun Homicide in August

2015. Attorney Mosser filed an amended PCRA petition for the Sun Homicide

in June 2016, and an amended PCRA petition for the Bright Jewelers Robbery

in January 2016.

       In the amended petition,3 Appellant contended that the Commonwealth

improperly withheld Abdul-Karim’s former name of Elvin Odoms. Appellant’s

PCRA Pet., 11/27/13, at 1. Appellant argued that Abdul-Karim pleaded guilty

to receiving stolen property on January 31, 1975. Id. Appellant maintained

that the Commonwealth failed to disclose Abdul-Karim’s former name and that


____________________________________________


3Although there were two counseled PCRA petitions (the Sun Homicide and
Bright Jewelers Robbery) giving rise to this appeal, we will refer to the
petitions, collectively, as the petition.


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he learned this information on October 2, 2013, from a private investigator

Appellant retained. Id. Appellant further claimed that the Commonwealth

intentionally concealed Abdul-Karim’s prior name and criminal record in

violation of Brady v. Maryland, 373 U.S. 83 (1963). Appellant asserted that

his petition was timely based on the governmental interference exception to

the PCRA time bar. See 42 Pa.C.S. § 9545(b)(1)(i).

      Appellant raises the following issue on appeal from the orders dismissing

his PCRA petition:

      1. Did the PCRA court err in dismissing Appellant’s PCRA Petition
      without an evidentiary hearing because Appellant presented
      newly-discovered evidence, because Appellant was diligent in
      obtaining such evidence, because such evidence constituted a
      Brady violation and would have led to a different outcome at trial,
      and because it is impossible for the PCRA [court] to make factual
      determinations without conducting an evidentiary hearing?

Appellant’s Brief at 4.

      Appellant initially contends that he filed his November 27, 2013 Bright

Jewelers Robbery PCRA petition and memoranda of law within sixty days of

receiving the private investigator’s October 2, 2013 letter, which advised him

of Abdul-Karim’s former name. Id. at 14. Appellant argues that he had no

reason to believe that Abdul-Karim was concealing his name at the time of

Appellant’s 1995 trial.   Id. at 15.    He faults the Commonwealth for not

disclosing Abdul-Karim’s former name of Elvin Odoms and that Abdul-Karim

had a crimen falsi conviction.     Id. at 15-16.    In Appellant’s view, the

Commonwealth engaged in governmental interference and violated Brady.


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Id. at 16. In short, Appellant asserts that he timely filed his petition under

42 Pa.C.S. § 9545(b)(1)(i) and (ii).

      The standard of review for an order resolving a PCRA petition follows:

      This Court’s standard of review regarding an order denying a
      petition under the PCRA 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.

Commonwealth v. Grayson, 212 A.3d 1047, 1051 (Pa. Super. 2019)

(citation omitted).

      “[T]he timeliness of a PCRA petition is a jurisdictional requisite.”

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015) (citation

omitted). A PCRA petition, “including a second or subsequent petition, shall

be filed within one year of the date the judgment becomes final” unless the

petitioner pleads and proves one of three statutory exceptions. 42 Pa.C.S. §

9545(b)(1). The three statutory exceptions follow:

      (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).


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       To invoke one of these exceptions, a petitioner must also file his petition

within sixty days of the date the claim could have been presented. See 42

Pa.C.S. § 9545(b)(2) (subsequently amended, eff. Dec. 24, 2018);4

Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013) (stating, “We

have established that this 60–day rule requires a petitioner to plead and prove

that the information on which his claims are based could not have been

obtained earlier despite the exercise of due diligence.” (citations omitted)). It

is the PCRA petitioner’s “burden to allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa.

2010) (citation omitted).

       “Although a Brady violation may fall within the governmental

interference exception, the petitioner must plead and prove the failure to

previously raise the claim was the result of interference by government

officials, and the information could not have been obtained earlier with the

exercise of due diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263,

1268 (Pa. 2008) (citation omitted). In determining whether a petitioner has

acted with due diligence, we have explained that “[d]ue diligence does not


____________________________________________


4 Section 9545(b)(2) was amended on October 24, 2018, effective December
24, 2018, and extended the time for filing from sixty days of the date the
claim could have been first presented to one year. The amendment applies
to claims arising on December 24, 2017, or thereafter. See Act of Oct. 24,
2018, P.L. 894, No. 146, § 3. Because Appellant filed the PCRA petitions at
issue prior to December 24, 2017, the amended Section (b)(2) does not apply
to him.


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require perfect vigilance and punctilious care, but merely a showing the party

has put forth reasonable effort to obtain the information upon which a claim

is based.” Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation

and some formatting omitted).

      Here,   Appellant   merely   asserts   a   bald   claim   of   governmental

interference because he did not articulate or prove that the Commonwealth

knew of Abdul-Karim’s former name, and that it intentionally or inadvertently

suppressed this information.    Therefore, Appellant’s claim of governmental

interference did not establish the timeliness of his PCRA petitions.         See

Albrecht, 994 A.2d at 1094; Abu-Jamal, 941 A.2d at 1268.

      Appellant also argues that he recently discovered new facts, namely,

Abdul-Karim’s former name and the prior crimen falsi conviction. The newly

discovered fact timeliness exception 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. Due diligence
      demands that the petitioner take reasonable steps to protect his
      own interests. A petitioner must explain why he could not have
      learned the new fact(s) earlier with the exercise of due diligence.
      This rule is strictly enforced. 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.

Brown, 111 A.3d at 176 (citations and quotation marks omitted).              The

timeliness exception in Section 9545(b)(1)(ii)

      has often mistakenly been referred to as the “after-discovered
      evidence” exception. This shorthand reference was a misnomer,
      since the plain language of subsection (b)(1)(ii) does not require
      the petition to allege and prove a claim of “after-discovered

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       evidence.” 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. Once jurisdiction is established, a PCRA
       petitioner can present a substantive after-discovered-evidence
       claim. 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.

       Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
       require any merits analysis of an underlying after-discovered-
       evidence claim.

Id. at 176-77 (citations and some formatting altered).

       Appellant acknowledged that he heard Abdul-Karim testify in 1995, but

did not retain a private investigator to investigate him until 2007.         The

investigator could not locate any records on Abdul-Karim.       Appellant then

retained a second private investigator who discovered in October 2013 that

Abdul-Karim’s former name was Elvin Odoms.5 Appellant also reiterated that

he requested relief from the federal district court in 2007, and had also

requested information from the Pennsylvania State Police in 2010 concerning

the name change.         We are not convinced that Appellant’s above detailed



____________________________________________


5 The record does not detail how the investigator determined Abdul-Karim’s
former name. The existence of Abdul-Karim’s former name is not disputed by
the Commonwealth.


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actions over six years prove that he acted with due diligence. See id.; see

also Cox, 146 A.3d at 230.

      But   even   assuming    Appellant      pleaded   and   proved   a   Section

9545(b)(1)(ii) exception, he is not entitled to relief.        As to the merits,

Appellant argues that if he had known about Abdul-Karim’s prior conviction,

he could have filed a criminal complaint and potentially barred him from taking

the stand as a witness.     Appellant’s Brief at 21.     Alternatively, Appellant

contends that if he could have established Abdul-Karim’s testimony was not

credible, he could have been acquitted because the other evidence identifying

him was contradictory and vague. Id. at 28. Appellant separately asserts

that the PCRA court erred by not holding an evidentiary hearing to assess

credibility. Id. at 22.

      To establish eligibility for relief under the “after-discovered evidence”

provision of Section 9543(a)(2)(vi):

      a petitioner must prove that (1) the evidence has been discovered
      after trial and it could not have been obtained at or prior to trial
      through reasonable diligence; (2) the evidence is not cumulative;
      (3) it is not being used solely to impeach credibility; and (4) it
      would likely compel a different verdict.

Cox, 146 A.3d at 228 (citation and quotation marks omitted).

      We agree with the PCRA court that Appellant failed to establish that the

information regarding Abdul-Karim, even if admitted into evidence, would

likely compel a different verdict. See Cox, 146 A.3d at 228. Concerning the

Bright Jewelers Robbery, the complainant identified Appellant from a photo


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array. The Commonwealth presented evidence that established the gun used

in the Bright Jewelers Robbery was identical to the gun used in the Sun

Homicide case. Further, the decedent’s wife identified Appellant from a photo

array in the Sun Homicide case. The police also recovered other inculpatory

evidence from Appellant’s home. Further, as noted above, the Commonwealth

introduced Appellant’s co-defendant’s police statement implicating Appellant

as the ringleader. This record contains overwhelming evidence supporting the

verdicts in both cases notwithstanding Abdul-Karim’s testimony identifying

Appellant.

      Accordingly, Appellant has failed to establish that after-discovered

evidence concerning Abdul-Karim’s former name would have likely resulted in

a different verdict. See Cox, 146 A.3d at 228. Additionally, Appellant did not

demonstrate that the trial court would have admitted Abdul-Karim’s 1975

conviction for receiving stolen property, which occurred more than ten years

prior to Appellant’s trial.   See generally Pa.R.E. 609(b).   Moreover, since

Appellant has not established a genuine issue of fact that he was entitled to

relief, we find no error in the PCRA court’s decision to dismiss Appellant’s

petition without a hearing. See Commonwealth v. Smith, 121 A.3d 1049,

1052 (Pa. Super. 2015); see also Pa.R.Crim.P. 907(1).

      Orders affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/20




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