J-S27017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN D. FIELDS                             :
                                               :
                       Appellant               :   No. 1311 WDA 2018

              Appeal from the PCRA Order Entered August 16, 2018
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001178-2003


BEFORE:      OLSON, J., OTT, J., and COLINS, J.

MEMORANDUM BY OTT, J.:                              FILED SEPTEMBER 9, 2019

        Sean D. Fields appeals, pro se, from the order entered August 16, 2018,

in the Allegheny County Court of Common Pleas, dismissing his third petition

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Fields seeks relief

from the judgment of sentence of an aggregate term of life imprisonment

imposed on January 22, 2004, following his jury conviction of first-degree

murder and firearms not to be carried without a license, 2 for the December

2002 shooting death of Rashan Harris. On appeal, Fields contends the PCRA

court erred when it dismissed his petition without first conducting an

evidentiary hearing. For the reasons below, we affirm.
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. §§ 2501(a) and 6101, respectively.
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      The facts underlying Fields’ convictions were summarized by a panel of

this Court in a prior appeal:

      At approximately 9:30 p.m. on December 28, 2002, Moon
      Township police responded to a report of a shooting in a parking
      lot across from Chez’s Lounge. They discovered the body of
      Rashan Harris, who died from gunshot wounds to the back of the
      head, neck, and leg. Mr. Harris had been shot with a nine
      millimeter Glock pistol from a range of six to twelve inches. No
      gun was discovered on Mr. Harris’s body or in the vicinity of the
      body.

      Three witnesses saw [Fields] and Mr. Harris arguing in the parking
      lot and then observed [Fields] shoot the unarmed man. One
      eyewitness had been acquainted with [Fields] for three months at
      the time of the incident. The motivation for the attack was a
      verbal altercation inside of Chez’s Lounge among Mr. Harris,
      [Fields], and Marquette Williams, a friend of [Fields]. Witnesses
      observed the victim leave the bar after the altercation, and
      [Fields] follow him outside.

Commonwealth v. Fields, 888 A.2d 5 (Pa. Super. 2005) (unpublished

memorandum at 1-2).

      Fields was subsequently arrested and charged with murder and

possession of a firearm without a license.    On October 22, 2003, a jury

convicted him of both charges. Thereafter, on January 22, 2004, the trial

court sentenced him to a mandatory term of life imprisonment for first-degree

murder, and a concurrent term of one to two years’ imprisonment for the

firearms charge.   This Court affirmed the judgment of sentence on direct

appeal, and the Pennsylvania Supreme Court subsequently denied Fields’




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petition for allowance of appeal on December 30, 2005. See Fields, supra,

888 A.2d 5, appeal denied, 556 WAL 2005 (Pa. 2005).3

       Fields filed a timely, pro se PCRA petition on January 24, 2006. After

counsel was appointed and filed an amended petition, the PCRA court granted

Fields relief in the form of a new trial without first conducting an evidentiary

hearing.    On appeal, a panel of this Court reversed and remanded for an

evidentiary hearing. See Commonwealth v. Fields, 23 A.3d 593 (Pa. Super.

2010) (unpublished memorandum). Upon remand, the PCRA court conducted

a hearing, and, on July 19, 2011, entered findings of fact and conclusions of

law, once again granting Fields a new trial. The Commonwealth appealed,

and a panel of this Court reversed the PCRA court’s order and reinstated Fields’

judgment of sentence.          The Pennsylvania Supreme Court denied Fields’

petition for allowance of appeal. See Commonwealth v. Fields, 82 A.3d

470 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 89 A.3d

660 (Pa. 2014).

       On March 7, 2016, Fields filed a second, pro se PCRA petition.

Acknowledging the petition was untimely, he asserted the newly discovered

facts exception to the PCRA’s time-for-filing requirements, based upon an

affidavit from a prior known witness, Steven Bronaugh.         The PCRA court

dismissed the petition on May 9, 2016, and Fields filed a timely appeal. That
____________________________________________


3 Although an order denying Fields’ petition for allowance of appeal is included
in the certified record, our research has failed to uncover an Atlantic Reporter
citation for the ruling.


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same day, he also filed an emergency supplement to the PCRA petition to

which he attached an affidavit signed by another purported witness, Devin

Carter, which is the subject of the present appeal.            See Emergency

Supplement to Post Conviction Relief Act, 6/10/2016. On May 19, 2017, a

panel of this Court affirmed the order on appeal, and the Pennsylvania

Supreme Court denied Fields’ petition for allowance of appeal on February 14,

2018. See Commonwealth v. Fields, 170 A.3d 1237 (Pa. Super. 2017),

appeal denied, 181 A.3d 1078 (Pa. 2018). Neither the PCRA court, nor the

panel of this Court, addressed Carter’s affidavit.

      Thereafter, on March 8, 2018, Fields filed the present PCRA petition, pro

se. He asserts he is entitled to a new trial based upon Carter’s affidavit, which

states as follows:

      Around late December 2002, around 8-8:30 pm I, Devin Carter,
      was walking home from my grandfather’s house, I lived in 161
      Juniper Dr. Moon Twp. As I was walking down Fifth Ave.
      approaching Thorn Run Rd. I heard several gunshots. As I was
      approaching Thorn Run, I saw people running to their cars. They
      were coming out of the Chez Lounge. As I was walking past I saw
      a man laying in the parking lot across the street. An older man
      walked over to the man on the ground and took what looked like
      a chrome gun out of the man on the ground’s hand. He jumped
      into a dark colored SUV and sped off. By the time I got home my
      brother heard about what happened. He told me that the dude
      that got shot was a man named Gator. I told my brother that I
      saw dude laying in the parking lot. He told me not to say anything
      to anybody because he didn’t want me getting involved. …

Affidavit of Devan Carter, 6/30/2016 (some punctuation and capitalization

added). Carter further averred that he did not tell Fields what he saw until

June of 2016 when they were housed in the same prison. See id. On July


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24, 2018, the PCRA court issued notice of its intent to dismiss the petition

without first conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907.

Fields filed a pro se response to the Rule 907 notice on August 9, 2018.

Nevertheless, on August 16, 2018, the PCRA court dismissed Fields’ PCRA

petition. This timely appeal follows.4

       Although Fields purports to raise two issues on appeal, both claims

challenge the PCRA court’s decision to dismiss the petition without first

conducting an evidentiary hearing. See Fields’ Brief at vii.

       “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. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).     Further, “a PCRA court may

decline to hold a hearing on the petition if petitioner’s claim is patently

frivolous or lacks support from either the record or other evidence.”

Commonwealth v. duPont, 860 A.2d 525, 530 (Pa. Super. 2004) (citation

omitted), appeal denied, 889 A.2d 87 (Pa. 2005), cert. denied, 547 U.S. 1129

(2006).




____________________________________________


4 On September 19, 2018, the PCRA court ordered Fields to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Fields complied with the court’s directive and filed a concise statement on
October 5, 2018.




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       Before we may address the merits of Fields’ underlying claim, we must

first determine if the petition was timely filed.5 The requirement that a PCRA

petition must be filed within one year of the date the underlying judgment

becomes final “is mandatory and jurisdictional in nature.” Commonwealth

v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied, 134 S.Ct. 2695 (U.S.

2014). See also 42 Pa.C.S. § 9545(b)(1).             “The court cannot ignore a

petition’s untimeliness and reach the merits of the petition.” Id. Here, Fields’

judgment of sentence was final on March 28, 2006, 90 days after the

Pennsylvania Supreme Court denied his petition for allowance of appeal, and

Fields failed to file a petition for writ of certiorari in the United States Supreme

Court. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup.Ct.R. 13. Therefore, Fields

had until March 28, 2007, to file a timely PCRA petition. The one before us,

filed nearly 11 years later, is patently untimely.

       Nevertheless, an untimely PCRA petition may still be considered if one

of the    three time-for-filing exceptions applies.          See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).    A PCRA petition alleging any of the exceptions under

Section 9545(b)(1) must be filed within 60 days of when the PCRA claim could

have first been brought.6 See 42 Pa.C.S. § 9545(b)(2).

____________________________________________


5 We note the PCRA court did not address the timeliness of Fields’ petition in
in its opinion.

6The Legislature recently amended Subsection 9545(b)(2), which now grants
a petitioner one year to invoke one of the timing exceptions. See Section 3



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       Upon our review, we find Fields has sufficiently invoked the newly

discovered facts exception to the timing requirements set forth in Subsection

9545(b)(1)(ii).      The Act provides an exception to the one-year filing

requirement when the petitioner alleges and proves “the facts upon which the

claim is predicated were unknown to the petitioners and could not have been

ascertained by the exercise of due diligence[.]” 42 Pa.C.S. § 9454(b)(1)(ii).

We note:

       The timeliness exception set forth at Section 9545(b)(1)(ii) has
       often mistakenly been referred to as the “after-discovered
       evidence” exception. [Commonwealth v.] Bennett, … 930 A.2d
       [1264,] 1270 [(Pa. 2007)]. “This shorthand reference was a
       misnomer, since the plain language of subsection (b)(1)(ii) does
       not require the petitioner to allege and prove a claim of ‘after-
       discovered evidence.’” Id. 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. See 42
       Pa.C.S.A. § 9545(b)(1)(ii); Bennett, supra. Once jurisdiction is
       established, a PCRA petitioner can present a substantive after-
       discovered-evidence claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi)
       (explaining that to be eligible for relief under PCRA, petitioner
       must plead and prove by preponderance of evidence that
       conviction or sentence resulted from, inter alia, unavailability at
       time of trial of exculpatory evidence that has subsequently
       become available and would have changed outcome of trial if it
       had been introduced). 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
____________________________________________


of Act 2018, Oct. 24, P.L. 894, No. 146. The amendment, however, applies
only to claims arising on or after December 24, 2017. Therefore, it is
inapplicable here.


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          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.

       Bennett, supra …, 930 A.2d at 1272 (internal citations omitted)
       (emphasis in original). 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 395, 930 A.2d
       at 1271.

Com. v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015), appeal denied,

125 A.3d 1197 (Pa. 2015).

       Fields asserts that the information in Carter’s affidavit was unknown to

him, and could not have been ascertained by the exercise of due diligence.

See Fields’ Brief at 4; Motion for Post Conviction Collateral Relief, 3/8/2018,

at Exhibit A, ¶ 6. We agree. Carter was a previously unknown witness, who

did not know Fields at the time of the crime, and did not tell the police what

he saw that night; therefore, we fail to see how Fields could have learned of

Carter’s existence by the exercise of due diligence. Furthermore, because at

the time Fields first learned of this new witness in June of 2016, an appeal

from his prior PCRA petition was pending in this Court, the 60-day period for

presenting a time-for-filing exception did not begin to run until the resolution

of the prior appeal, that is, February 14, 2018, the date the Pennsylvania

Supreme Court denied Fields’ petition for allowance of appeal. 7            See

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). Accordingly, we

conclude Fields’ petition filed on March 8, 2018, sufficiently invoked the newly
____________________________________________


7We note that Fields’ notice of appeal from his second PCRA was filed on June
10, 2016, and Carter’s affidavit was sworn on June 30, 2016.


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discovered facts exception to the PCRA’s timing requirements, and we may,

therefore, proceed to consider his substantive claim on appeal.

      As noted above, Fields argues the PCRA court erred in failing to conduct

an evidentiary hearing on his claim of after-discovered evidence. We reiterate

that “a PCRA court may decline to hold a hearing on the petition if petitioner’s

claim is patently frivolous or lacks support from either the record or other

evidence.” duPont, supra, 860 A.2d at 530. In order to obtain relief based

upon after-discovered evidence, a PCRA petitioner must prove

      four distinct requirements, each of which, if unproven by the
      petitioner, is fatal to the request for a new trial. As stated, this
      four-part test requires the petitioner to demonstrate the new
      evidence:      (1) could not have been obtained prior to the
      conclusion of the trial by the exercise of reasonable diligence; (2)
      is not merely corroborative or cumulative; (3) will not be used
      solely to impeach the credibility of a witness; and (4) would likely
      result in a different verdict if a new trial were granted.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018).

      Fields asserts the PCRA court made a credibility determination

concerning Carter’s affidavit without conducting an evidentiary hearing. See

Fields’ Brief at 3. He claims that Carter’s affidavit “if tested at an evidentiary

hearing and survive rigorous examination can establish doubt, actual

innocence, testimony the [j]ury never heard.” Id. at 5. Indeed, Fields argues

Carter’s affidavit states Fields “was not the person standing over the victim

moments after the shooting, then removing a chrome gun off the deceased.”

Id.




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           Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we find the PCRA court thoroughly addressed and

properly disposed of Fields’ issue in its opinion.      See PCRA Court Opinion,

12/11/2018, at 5-8 (holding (1) to the extent Fields argues Carter’s affidavit

supports a claim of self-defense, Fields did not argue self-defense at trial, and

therefore, the after-discovered evidence “would not likely result in a different

verdict[;]”8 and (2) to the extent Fields argues Carter’s affidavit supports a

mistaken identity defense, (a) Carter’s affidavit does not state he “actually

witnessed the shooting” or that “he can identify or describe the shooter nor

does it indicate that [Fields] was not the shooter[;]”9 (b) “[a]t best the

statement refers to events occurring after the shooting as described by a

witness walking by the scene who did not witness the actual shooting[;]”10

and (c) therefore, the after-discovered evidence would not likely result in a

different verdict).     Accordingly, we rest on the PCRA court’s well-reasoned

basis.

           Order affirmed. Parties are directed to attach a copy of the PCRA court

opinion in the event of further proceedings.




____________________________________________


8   PCRA Court Opinion, 12/11/2018, at 6.

9   Id. at 8.

10   Id.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2019




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