J-S59041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

ERIC RIDDICK

                           Appellant                  No. 3480 EDA 2016


                 Appeal from the PCRA Order October 14, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0141361-1992

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 26, 2017

        Appellant, Eric Riddick, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas dismissing his second Post

Conviction Relief Act1 (“PCRA”) petition as untimely.     Appellant argues the

PCRA’s newly discovered facts exception excuses the untimeliness of his

petition. We affirm.

        In June 1992, a jury found Appellant guilty of, inter alia, first-degree

murder2 in connection with the shooting death of William Catlett on

November 6, 1991. The trial court sentenced Appellant to life imprisonment.

This Court affirmed on direct appeal, and our Supreme Court denied his

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.

2
    18 Pa.C.S. § 2502.
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petition for allowance of appeal on May 31, 1995.       Commonwealth v.

Riddick, 659 A.2d 6 (Pa. Super. 1995) (unpublished memorandum), appeal

denied, 663 A.2d 689 (1995). Appellant did not appeal to the United States

Supreme Court, so his judgment of sentence became final for PCRA purposes

at the end of August 1995.

     On March 31, 2003, Appellant filed a pro se PCRA petition.      Counsel

was appointed to represent him and filed an amended petition.            The

Honorable Amanda Cooperman denied PCRA relief on the ground that

Appellant’s petition was untimely. This Court affirmed, and our Supreme

Court denied Appellant’s petition for allowance of appeal on January 27,

2009. See Commonwealth v. Riddick, 959 A.2d 467 (Pa. Super. 2008)

(unpublished memorandum), appeal denied, 964 A.2d 895 (Pa. 2009).

     On October 21, 2009, Appellant filed a second PCRA petition, and the

PCRA court appointed counsel to represent Appellant. On October 31, 2012,

William Conrad, a forensic firearms examiner, submitted an expert report to

Appellant’s counsel opining that Appellant did not fire the shots that killed

the victim.   On May 17, 2013, counsel filed an amended petition claiming

that Conrad’s report constituted newly discovered fact of Appellant’s

innocence.    In addition, Appellant alleged that Shawn Stevenson, the only

eyewitness to the crime, had recanted, and that a second witness, Robert

Gordon, had come forward alleging that Appellant was not one of the

shooters. Appellant’s petition included Gordon’s affidavit signed on February



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22, 2013, more than sixty days before the counsel filed an amended

petition.

       On February 15, 2015, Judge Cooperman determined that the newly

discovered facts exception to the PCRA time-bar applied and granted

Appellant a hearing limited to his ballistic evidence claim. Judge Cooperman

granted a hearing out of concern that the ballistic evidence appeared to

exclude Appellant as a shooter. The bullets entered the victim’s body on an

upward trajectory, but Appellant allegedly was positioned on a balcony,

fifteen feet above the victim, so any bullets that he fired would have had a

downward trajectory.

       Judge Cooperman recused herself, and the case was re-assigned to

the Honorable Jeffrey Mineheart.     On October 31, 2016, following an

evidentiary hearing, Judge Mineheart issued an order denying PCRA relief.

Judge Mineheart held a Grazier3 hearing, determined that Appellant’s

waiver of counsel was knowing, voluntary, and intelligent, and dismissed

PCRA counsel from the case. This timely pro se appeal followed.

       Judge Mineheart issued his Pa.R.A.P. 1925 opinion without ordering

Appellant to file a statement of matters complained of on appeal.     In his

opinion, Judge Mineheart expressly disagreed with Judge Cooperman’s prior

order that the newly discovered facts exception to the PCRA applied. In his




3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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view, Appellant’s PCRA petition was time-barred. PCRA Ct. Op., 12/12/16,

at 3-7.

      Appellant raises the following issues in this appeal, which we re-order

for purposes of convenience:

          (a). Did the PCRA court commit error by dismissing
          Appellant’s second petition for post[-]conviction relief as
          untimely [and by] adjudicating that [the] ballistic expert’s
          report was not a new fact and thus did not fit within the
          [newly discovered fact] exception [to the PCRA’s one year
          statute of limitations][?]

          (b). Did the PCRA court commit         error by reversing the
          reasoned order/adjudication of        its predecessor judge
          (Judge Amanda Cooperman) of            coordinate jurisdiction,
          where neither [the] facts nor [the]   law had changed[?]

          (c). Was PCRA counsel ineffective for failing to be prepared
          at the evidentiary hearing [and] failing to effectively
          extrapolate with clarity the exculpatory scientific facts of
          the forensic expert’s testimony and report[?]

          (d). Was appointed PCRA counsel, Barnaby C. Wittels,
          ineffective for disregarding Appellant’s directions to appeal
          the arbitrary recusal of Judge Amanda Cooperman[?]

          (e). Did the PCRA court commit error by failing to hold an
          evidentiary hearing of the newly discovered fact (i.e. court
          document/witness and exhibit list) upon which trial
          counsel’s failure to present [an] alibi claim was
          predicated[?]

          (f). Did the PCRA court commit error and abuse its
          discretion when it failed to address, consider and
          adjudicate on record, Appellant’s oral challenge to the
          constitutionality of the 1991 amendments to the [PCRA
          statute] and the restrictions therefrom[?]

          (g). Did the PCRA court commit error and abuse its
          discretion when it failed to hold an evidentiary hearing on
          the Stevenson affidavit/recantation and counsel Wittel’s


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         declaration that on November 8, 2012, Stevenson came to
         his law office and reiterated his retraction, providing new
         facts with specific[ity][?]

         (h). Did the PCRA court commit error when it dismissed
         Appellant’s issue regarding the Robert Gordon affidavit
         without the benefit of an evidentiary hearing[?]

         (i). Did the PCRA court commit error and abuse its
         discretion when it failed to properly address the multiple
         on-record assertions by Appellant that he was not being
         represented by appointed counsel to [the] level of
         effectiveness[?]

         (j). In light of the extraordinary circumstances of this case,
         did the PCRA court commit error by not activating its
         inherent power to further inquire into the record and
         intertwining issue[s] relevant to [a] prima facie showing a
         miscarriage of justice "may" have occur[red], adjudicating
         on the overwhelming indications of actual innocence[?]

Appellant’s Brief at 2-3 (with grammatical revisions).

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”       Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

      As our Supreme Court has explained:

         the PCRA timeliness requirements are jurisdictional in
         nature and, accordingly, a PCRA court is precluded from
         considering untimely PCRA petitions. We have also held
         that even where the PCRA court does not address the
         applicability of the PCRA timing mandate, th[e] Court will
         consider the issue sua sponte, as it is a threshold question
         implicating our subject matter jurisdiction and ability to
         grant the requested relief.




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Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

      A PCRA petition “must normally be filed within one year of the date the

judgment becomes final[.]”     Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted). Pursuant to 42

Pa.C.S. § 9545(b)(3), “[a] judgment becomes final at the conclusion of

direct review by this Court or the United States Supreme Court, or at the

expiration of the time seeking such review.” Commonwealth v. Jones, 54

A.3d 14, 17 (Pa. 2012) (citations omitted).

      A petitioner who files a PCRA petition beyond the one-year time limit

must plead and prove one of the three exceptions to the PCRA timeliness

requirements.   Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa.

Super. 2012) (“If the petition is determined to be untimely, and no

exception has been pled and proven, the petition must be dismissed without

a hearing because Pennsylvania courts are without jurisdiction to consider

the merits of the petition” (citation omitted)). These three exceptions are:

         (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


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         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). Any petition invoking one or more of these

exceptions must be “filed within sixty days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2); Copenhefer, 941 A.2d at 648.

      We review the first two issues together, because they concern the

same question: whether the PCRA court erred by concluding that the

October 31, 2012 expert report of forensic firearms examiner William Conrad

was not newly discovered fact.      We hold that the PCRA court made the

correct decision.

      Conrad stated at the beginning of his three-page report that he

reviewed (1) a police report from the date of the victim’s death, (2) a

postmortem report of the medical examiner, (3) photocopies of crime scene

photographs, (4) diagrams of the crime scene and the victim, and (5) the

transcript from Appellant’s trial. The report did not claim that any of these

documents were unavailable, or outside the public domain, at the time of

trial in 1992. To the contrary, the record demonstrates that the trial court

admitted the first four items as exhibits into evidence during trial. The trial

transcript was prepared following trial.

      Conrad opined that the ballistics evidence demonstrated that Appellant

did not fire the shots that killed the victim, because Appellant allegedly was

fifteen feet above the victim, yet the bullets entered the victim’s body on an



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upward trajectory. Appellant’s Brief, exhibit A (“Conrad’s report”). Conrad

further observed that trial testimony indicated that Appellant was in

possession of a rifle, yet none of the bullets came from a rifle. Id. More

specifically, according to Conrad, (1) the medical examiner found .32 and

.22 caliber bullets in the victim’s body; (2) the .32 caliber bullets could only

come from a revolver, not a rifle; (3) had a .22 caliber rifle been fired, police

would have recovered .22 caliber cartridge cases at the crime scene; and (4)

the police did not recover any .22 caliber cartridge cases, so the .22 caliber

bullets came from a revolver, not a rifle.

      Although Conrad’s report makes interesting—and perhaps compelling—

points, we are constrained to deny Appellant relief in view of two recent

decisions: Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013), and

Commonwealth v. Smallwood, 155 A.3d 1054 (Pa. Super. 2017).                   In

Edmiston, the defendant argued that his PCRA petition was timely because

he filed it within sixty days after publication of a National Academy of

Science report detailing the imprecision of microscopic hair analysis.       Our

Supreme Court held that the PCRA petition was untimely, and that the newly

discovered fact exception did not apply, because the information on which

the report rested had been in the public domain for years before the report.

Edmiston, 65 A.3d at 352.         In order for a study to satisfy the newly

discovered fact exception, the Court said, the information “may not be part

of a public record.” Id. (citation omitted). Moreover, the defendant must



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allege and prove previously unknown “facts,” not merely a “newly discovered

or newly willing source for previously known facts.” Id. (citation omitted).

        In Smallwood, the defendant was convicted of arson and first-degree

murder in 1973. Forty years later, in 2014, the defendant moved for PCRA

relief on the basis of an expert opinion that the Commonwealth’s evidence

failed to prove arson under national fire protection standards (“the NFPA

standard”) adopted in 1992 and revised several times thereafter.           The

defendant first learned of this standard in 1999 and then “spent immense

time and effort over the next fifteen years attempting to find evidence of the

construction of the subject building so that her expert could offer an

alternative theory as to the cause of the fire.”     Smallwood, 155 A.3d at

1063.    The PCRA court granted the defendant a new trial, but this Court

reversed.

        While we acknowledged that the NFPA standard was a new fact that

the defendant could not have discovered at the time of trial, we held that

she waited too long to request relief on the basis of this fact:

          This case is deeply troubling on several levels. There is no
          doubt in this Court’s opinion that the expert currently
          retained would give an opinion that the fire that occurred
          on August 29, 1971 was of undetermined origin. From the
          evidence available and the current state of “fire science,” it
          is likely that the Commonwealth’s expert might well
          concede that fact. It seems axiomatic that a jury hearing
          [the defendant’s] statements and the evidence in light of
          the uncertainty of the origin of the fire might well reach a
          different conclusion as to [her] guilt than that determined
          by the original jury who heard [the Commonwealth’s
          expert] testimony that the fire was of incendiary origin.


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         What remains incomprehensible is why [the defendant],
         who clearly knew about the advancements in fire science
         as early as 1999, waited until March 14, 2014, to file a
         petition for post-conviction relief based upon this new fact.
         Even her own expert opines that the 2014 version of the
         NFPA is a refinement rather than a revision of the 1992
         NFPA, so the fact relied upon by [the defendant] was in
         the public domain as early as 1992 and [the defendant]
         knew of it in 1999. [The defendant] did not file her
         petition within 60 days of the 1999 occurrence. Our focus
         is not on the date the expert published his opinion, but on
         the [defendant’s] “reasonable efforts” to bring forth the
         newly discovered fact of the NFPA 921 standards based on
         the information that was publicly available and accessible
         to her, and any number of experts, for years.

Id. at 1070 (footnote omitted).

       In view of Edmiston and Smallwood, we are constrained to conclude

that Appellant cannot obtain relief on the basis of Conrad’s expert report.

This case, like Smallwood, is deeply troubling, since Conrad’s report points

out that the case against Appellant is difficult, if not impossible, to reconcile

with the ballistics evidence.   Unfortunately, it is clear that all information

used by Conrad was in the public domain at the time of trial in 1992.4 Like

the experts in Edmiston and Smallwood, Conrad was nothing more than a

“newly willing source for previously known facts.”      Edmiston, 65 A.3d at

352.   Thus, Appellant did not demonstrate due diligence in seeking PCRA

relief on the basis of this evidence.




4
 Neither does Conrad’s methodology appear to be new or different. Conrad
merely applies sound logic to an existing set of facts.



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      Appellant complains that the coordinate jurisdiction doctrine prohibited

Judge Mineheart from overruling Judge Cooperman’s ruling that Appellant’s

PCRA petition was timely. It is well settled, however, that an appellate court

can affirm the PCRA court on any ground. See Commonwealth v. Judge,

916 A.2d 511, 517 n. 11 (Pa. 2007). It is equally clear that we may sua

sponte determine whether a PCRA petition is timely. See Commonwealth

v. Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000).           Thus, even if the

coordinate jurisdiction rule applies, we have the authority to affirm Judge

Mineheart’s order for any reason appearing in the record.       As discussed

above, the record makes plain that Conrad’s report does not constitute

newly discovered fact.

      Before turning to Appellant’s remaining arguments, we note that the

defendant in Smallwood has appealed to the Supreme Court, which has yet

to rule on her petition for allowance of appeal. Conceivably, the Supreme

Court’s decisions in Smallwood might change the law in this area.          At

present, however, we have no choice but to deny Appellant’s argument

under the existing law.

      In his third argument, Appellant argues that PCRA counsel provided

ineffective assistance by failing to prepare for the PCRA evidentiary hearing

and failing to present exculpatory facts within Conrad’s testimony and

report.   No relief is due for two reasons.   First, this Court has held that

“absent recognition of a constitutional right to effective collateral review



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counsel, claims of PCRA counsel ineffectiveness cannot be raised for the first

time after a notice of appeal has been taken from the underlying PCRA

matter.” Commonwealth v. Ford, 44 A.3d 1190, 1201 (Pa. Super. 2012).

Because Appellant did not raise PCRA counsel’s alleged ineffectiveness

before filing his appeal, he cannot raise it in this Court.   Id.     Second, as

discussed above, Conrad’s report and testimony is not newly discovered fact

and therefore does not entitle Appellant to relief.

      In his fourth argument, Appellant contends that PCRA counsel was

ineffective for failing to object to Judge Cooperman’s recusal. Once again,

Appellant did not raise this issue before filing his appeal, so he cannot raise

it in this Court. Id.

      In his fifth argument, Appellant contends that trial counsel was

ineffective for failing to call three alibi witnesses during trial.    Appellant

claims to have discovered this fact through review of the witness and exhibit

list prepared during trial. He further claims that the witness and exhibit list

is newly discovered fact. We disagree. The witness and exhibit list has been

in the trial record since trial in 1992. Appellant fails to explain why he did

not raise a claim of ineffectiveness on the basis of the witness and exhibit

list until the present stage of this case, two decades after his judgment of

sentence became final. Thus, this argument is time-barred. See 42 Pa.C.S.

§ 9545(b)(1)(ii) (newly discovered fact exception to PCRA’s statute of

limitations is not fulfilled unless petitioner demonstrates that “the facts upon



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which the claim is predicated were unknown to the petitioner and could not

have been ascertained by the exercise of due diligence”).

      Sixth, Appellant argues that the PCRA court erred by denying his

verbal challenge to the constitutionality of the PCRA’s statute of limitations

during his evidentiary hearing. To begin with, Appellant waived this issue by

failing to plead it in his amended PCRA petition. See 42 Pa.C.S. § 9543(a)

(to be eligible for relief under PCRA, petitioner must both “plead and prove”

all requisites for relief). In any event, our Supreme Court has held that the

PCRA’s statute of limitations is constitutional.    See Commonwealth v.

Cruz, 852 A.2d 287, 292 (Pa. 2004). Thus, no relief is due.

      Seventh, Appellant argues that the PCRA court erred by failing to hold

an evidentiary hearing relating to the recantation of Shawn Stevenson.

Stevenson identified Appellant as the gunman at trial but signed an affidavit

in 1999 averring that he lied on the stand. This issue was previously raised

in Appellant’s first PCRA petition but rejected by the PCRA court. This Court

affirmed the order dismissing the first PCRA petition.      See Riddick, 959

A.2d at 467. Accordingly, this issue is barred as previously litigated. See

42 Pa.C.S. § 9544(a)(3) (issue is “previously litigated” if “it has been raised

and decided in a proceeding collaterally attacking the conviction or

sentence”).

      Eighth, Appellant argues that the PCRA court erred by failing to hold

an evidentiary hearing relating to Robert Gordon, who signed an affidavit on



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February 22, 2013 stating that he saw two men shoot the victim, neither of

whom were Appellant.5 This argument is time-barred, because Appellant did

not file his amended PCRA petition based on this affidavit until May 17,

2013. See 42 Pa.C.S. § 9545(b)(1)(iii), (2) (claim of newly discovered fact

must be filed “within 60 days of the date the claim could have been

presented”).

       Ninth, Appellant argues that the PCRA court failed to address his

assertions on the record that PCRA counsel was providing ineffective

assistance.    To succeed on a claim of ineffective assistance of counsel, an

appellant must demonstrate (1) that the underlying claim is of arguable

merit; (2) that counsel's performance lacked a reasonable basis; and (3)

that   the    ineffectiveness   of   counsel     caused   the   appellant   prejudice.

Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). Appellant’s brief

makes clear that he accuses PCRA counsel of ineffective assistance merely

because Appellant and counsel were arguing at one point during the PCRA

evidentiary hearing.      Appellant’s Brief at 34-35.           Since this does not

demonstrate arguable merit, Appellant’s claim fails.

       Finally, Appellant argues that the PCRA court erred by failing to

consider “extraordinary circumstances” such as “overwhelming indications of


5
  Gordon averred that he did not come forth sooner with this information
because he “was so young at the time [that his] mother didn’t want [him]
getting involved with it because she feared for [his] life.” Appellant’s Brief,
exhibit Q.



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actual innocence.” Appellant’s Brief at 3. However, claims of miscarriage of

justice or actual innocence do not constitute an exception to the PCRA’s

timeliness requirements. See Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999).

     For these reasons, the PCRA court properly denied Appellant’s

amended PCRA petition.

     Order affirmed.

     Judge Ott Joins the Memorandum.

     P.J.E. Bender files a Concurring Statement in which Justice Fitzgerald
     joins.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/26/2017




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