J-S59018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
    KURTIS O. GRAVES                           :
                                               :
                 Appellant                     :   No. 2898 EDA 2016

                   Appeal from the PCRA Order August 12, 2016
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0208241-2005


BEFORE:        BENDER, P.J.E., OTT, J., and FITZGERALD, J.

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

        Kurtis O. Graves appeals from the order entered August 12, 2016, in

the Philadelphia County Court of Common Pleas dismissing, as untimely filed,

his serial petition for collateral relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1       Graves seeks relief from the judgment of sentence of an

aggregate term of 20 to 40 years’ imprisonment, imposed on October 15,

2005, following his negotiated guilty plea to third-degree murder and carrying

a firearm without a license.2 On appeal, Graves argues the PCRA court erred

in failing to provide him with an evidentiary hearing so that he could present

the testimony of a witness, Jeremiah Clark, who would support a claim he
____________________________________________



    Former Justice specially assigned to the Superior Court.

1
    42 Pa.C.S. §§ 9541-9546.

2
    18 Pa.C.S. §§ 2502(c) and 6106(a), respectively.
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acted in self-defense and establish his guilty plea was entered unknowingly.

For the reasons below, we affirm.

       The relevant facts and procedural history underlying this appeal are as

follows.   On October 18, 2005, Graves entered a negotiated guilty plea to

charges of third-degree murder and carrying a firearm without a license for

the January 2005, shooting death of James Boone. In exchange for the plea,

the Commonwealth agreed not to pursue a charge of first-degree murder, and

Graves was sentenced to an aggregate term of 20 to 40 years’ imprisonment.

He did not file a direct appeal.

       On November 16, 2006, Graves filed a timely, pro se PCRA petition

asserting the ineffective assistance of plea counsel. Counsel was appointed,

but later sought permission to withdraw. After providing Graves with prior

notice, the PCRA court entered an order on August 10, 2007, dismissing

Graves’s petition and permitting appointed counsel to withdraw.3 Graves did

not file an appeal.

       Thereafter, on February 11, 2008, Graves filed a second, pro se PCRA

petition, in which he sought reinstatement of his appellate rights from the

denial of his first petition. Following an evidentiary hearing, on March 26,

2009, the PCRA court reinstated Graves’s right to appeal the denial of his first

PCRA petition.

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3
  Counsel sought permission to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc).

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       Graves raised two issues on appeal, both challenging the PCRA court’s

decision allowing appointed counsel to withdraw.              In an unpublished

memorandum decision filed on April 12, 2010, a panel of this Court affirmed

the order denying PCRA relief, and the Pennsylvania Supreme Court denied

Graves’s subsequent petition for allowance of appeal. See Commonwealth

v. Graves, 998 A.2d 1005 (Pa. Super. 2010) (unpublished memorandum),

appeal denied, 8 A.3d 898 (Pa. 2010).

       On February 19, 2014, Graves filed the instant, pro se PCRA petition,

claiming he recently acquired exculpatory evidence supporting his assertion

that the victim possessed a gun on the night in question and was the lead

aggressor. See Motion for Post Conviction Collateral Relief, 2/19/2014, at 3a.

Graves attached to his petition, inter alia, an affidavit from his friend,

eyewitness Jeremiah Clark, who attested he told homicide detectives the

victim had a gun and he did not see Graves “commit any crime,” but the

detectives employed “manipulation, threats, and intimidation” to coerce him

into signing a statement implicating Graves.4 See id., Exhibit A, Statement

of Jeremiah Clark, 12/19/2013, at 2.           Counsel was appointed and filed an

amended petition on April 2, 2015. Thereafter, on June 28, 2016, the PCRA

court issued notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the

____________________________________________


4
  Although Graves attached to his petition several affidavits from other
purported witnesses, his argument on appeal focuses solely on Clark’s affidavit
and proposed testimony.




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petition without conducting an evidentiary hearing. Receiving no response,

the court entered an order on August 12, 2016, dismissing Graves’s petition

as untimely filed. This appeal followed.5

       “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

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.” Id. at 1284

(citations omitted).

       Here, the PCRA court concluded Graves’s petition was untimely filed,

and Graves failed to establish the applicability of one of the time-for-filing

exceptions. See PCRA Court Opinion, 3/27/2017, at 3-11.

       The PCRA timeliness requirement … is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
       753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
       untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S.Ct. 2695 (U.S. 2014).


____________________________________________


5
  On September 21, 2016, the PCRA court ordered Graves to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Graves complied with the court’s directive and filed a concise statement on
October 12, 2016.


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

judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). Graves’s judgment

of sentence was final on November 17, 2005, 30 days after he was sentenced

and the time for filing a direct appeal expired.    See id. at § 9545(b)(3);

Pa.R.Crim.P. 720(A)(3). Therefore, he had until November 17, 2006, to file a

timely petition, and the one before us, filed more than seven 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. 42 Pa.C.S. § 9545(b)(2).

      Here, Graves asserts his petition meets the timeliness exception for

newly discovered facts found in Section 9545(b)(1)(ii). See Graves’s Brief at

21-28. This Court has previously explained the interplay between the newly

discovered facts exception to the timeliness requirements and a substantive

collateral claim of after-discovered evidence:

             The timeliness exception set forth 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. Commonwealth v.
      Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1271 (2007). Due
      diligence demands that the petitioner take reasonable steps to
      protect his own interests. Commonwealth v. Carr, 768 A.2d
      1164, 1168 (Pa. Super. 2001). A petitioner must explain why he
      could not have learned the new fact(s) earlier with the exercise of
      due diligence. Commonwealth v. Breakiron, 566 Pa. 323, 330–

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     31, 781 A.2d 94, 98 (2001); Commonwealth v. Monaco, 996
     A.2d 1076, 1080 (Pa. Super.2010), appeal denied, 610 Pa. 607,
     20 A.3d 1210 (2011).        This rule is strictly enforced.     Id.
     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.” Commonwealth v. Marshall, 596
     Pa. 587, 596, 947 A.2d 714, 720 (2008) (emphasis in original).

            The timeliness exception set forth at Section 9545(b)(1)(ii)
     has often mistakenly been referred to as the “after-discovered
     evidence” exception. Bennett, supra at 393, 930 A.2d at 1270.
     “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 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 at 395, 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.

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

(emphasis in original), appeal denied, 125 A.3d 1197 (Pa. 2015). Accordingly,


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before we may consider whether Graves’s substantive claim of after-

discovered evidence merits relief,6 we must first determine whether he has

established “there were facts unknown to him and that he exercised due

diligence in discovering those facts.” Id. at 176.

       Graves argues his petition satisfied both requirements, and raised a

genuine issue of material fact warranting an evidentiary hearing.7 First, he

asserts the new, previously unknown facts, are that, contrary to his signed

statement, Clark told the investigating detectives that Boone was armed on

the night in question, but the detectives “refused to memorialize this

exculpatory fact” and threatened to imprison Clark if he did not sign the

statement they drafted. Graves’s Brief at 22. Further, Graves insists he had

“no way of knowing what detectives did or said to [Clark] or that their threats

to him were the reason [Clark] signed a statement he knew to be false and

misleading.” Id. To this end, Graves contends his decision to plead guilty
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6
  To obtain relief based upon a substantive claim of after-discovered evidence,
a petitioner must demonstrate the 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. Montalvo, 986 A.2d 84, 109 (Pa. 2009) (quotation
omitted), cert. denied, 562 U.S. 857 (2010).

7
   Neither the Commonwealth nor the PCRA court dispute the fact that Graves
filed the present petition within 60 days of the date this claim could have first
been raised pursuant to 42 Pa.C.S. § 9545(b)(2).


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was based on false and misleading information concerning the viability of a

self-defense claim due to the Commonwealth’s suppression of Clark’s

exculpatory statement. See id. at 13-14. Accordingly, he maintains Clark’s

affidavit “raised a material issue of disputed fact regarding the truthfulness of

[his] plea’s factual basis” and, as such, the PCRA court should have conducted

an evidentiary hearing. Id. at 15.

         The PCRA court, however, found Graves failed to establish (1) the facts

in Clark’s affidavit were “previously-unknown” to him, and (2) that he could

not have ascertained the facts earlier “through reasonable diligence.” PCRA

Court Opinion, 3/27/2017, at 3, 10. The court explained Graves was present

at the scene of the crime, and, therefore, “would have certainly been aware,

at the time of his guilty plea,” that the victim was armed, a fact which he

insists supports a claim of self-defense. Id. at 8.     Furthermore, the court

found Graves failed to establish why he could not have learned of Clark’s

statement previously if he had acted with due diligence.        See id. at 10.

Indeed, Clark indicates he was Graves’s best friend at the time of the shooting.

See Statement of Jeremiah Clark, supra, at 1. Graves did not allege he took

any steps to contact Clark, or question the legitimacy of Clark’s purportedly

false statement, either prior to the entry of his guilty plea, or in the ensuing

eight years before Clark signed the statement. Finding no genuine issue of

material fact, the PCRA court declined to hold an evidentiary hearing. See id.

at 10.




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       Our review of the record, the parties’ briefs, and the relevant statutory

and case law, reveals no basis to disturb the PCRA court’s ruling. Graves does

not deny he was aware of a potential self-defense argument before he entered

his guilty plea. See Graves’s Brief at 25 (“Mr. Graves knew he fired in self-

defense and therefore presumably knew or may have known [Clark’s]

statement was untrue.”).          Rather, the crux of his complaint is the only

evidence supporting a self-defense claim would have been his own, self-

serving testimony, and “[b]ecause the discovery contained no witness

statements supporting [this] claim, trial counsel advised [him] to accept the

Commonwealth’s third-degree murder plea offer.”8         Id. at 11.    Therefore,

Graves focuses on the fact that the Commonwealth purportedly suppressed

Clark’s “true” statement, not on the facts contained in the statement itself.

       We find his argument misplaced.           Even assuming, arguendo, the

detectives did coerce Clark into signing a false statement, Graves still cannot

establish he was unaware of the facts contained in Clark’s “true” statement.

Furthermore, we agree with the PCRA court’s finding that Graves failed to

demonstrate he could not have previously learned of Clark’s “true” statement,

____________________________________________


8
  We note Graves did not comply with Section 9545(d)(1) of the PCRA, and
include a certification that plea counsel would testify to this fact at an
evidentiary hearing. See 42 Pa.C.S. § 9545(d)(1) (“Where a petitioner
requests an evidentiary hearing, the petition shall include a signed certification
as to each intended witness stating the witness’s name, address, date of birth
and substance of testimony …[.] Failure to substantially comply with the
requirements of this paragraph shall render the proposed witness’s testimony
inadmissible.”).


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as well as the Commonwealth’s purported misconduct in suppressing that

statement, if he had exercised reasonable diligence.

      Graves responds to the PCRA court’s finding by asserting that that while

he knew he acted in self-defense, and, therefore, that Clark’s pretrial

statement might be untrue, he had “‘no way of knowing’ what detectives said

or did to [Clark] during his interrogation.” Graves’s Brief at 24. In support,

he relies upon this Court’s en banc decision in Commonwealth v. Medina,

92 A.3d 1210 (Pa. Super. 2014) (en banc).

      In Medina, supra, the defendant was convicted of first-degree murder

based solely upon the “emotional” testimony of a 12-year-old boy, who

claimed he witnessed the defendant stab the victim, and his 10-year-old

brother, who claimed he had witnessed a drunken defendant earlier that

evening brandishing a knife, and threatening to kill someone. See id. at 1213.

There was no physical evidence or motive linking the defendant to the crime,

and, the defendant, at all times, maintained his innocence.     See id.   The

younger brother recanted his testimony fourteen years later, claiming a police

detective coerced and threatened both he and his brother, forcing them to lie.

See id. at 1217. In concluding the defendant could not have discovered the

child’s recantation through the exercise of due diligence, the en banc panel

relied, in part, on the PCRA court’s determination that in the years since his

trial, the defendant had no reason to suspect a detective coerced the boys’

statements. See id. at 1217. Moreover, the panel opined:




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      We further note that [the younger brother] testified consistently
      and unequivocally at trial that [the defendant] wielded a knife
      shortly before the murder and stated that he was going to kill
      someone. As such, it was highly unlikely that defense counsel,
      without any supporting factual basis, could have compelled [the
      child] to change his testimony during cross-examination, by
      engaging in a fishing expedition as to why [he] was lying.
      Therefore, we conclude that [the defendant] could not have
      discovered the source of [the younger brother’s] recantation, or
      the recantation itself, through the exercise of due diligence, and
      his second petition was filed timely under the after-discovered
      evidence exception. See Commonwealth v. McCracken, 540
      Pa. 541, 659 A.2d 541, 545 (1995) (concluding that recantation
      testimony qualified as after-discovered evidence because the
      witness identified the defendant at the preliminary hearing and
      trial unequivocally, which “foreclosed the possibility that defense
      counsel could have persuaded [the witness] to change his
      statement concerning the identity of the perpetrator prior to the
      close of trial.”); Commonwealth v. Cobbs, 759 A.2d 932, 934–
      35 (Pa. Super. 2000) (concluding that variations in officers’
      identification testimony elicited during a civil case deposition after
      the criminal trial was completed satisfied the after-discovered
      exception because “it could not have been discovered prior to or
      at the trial.”).

Id. at 1217-1218.

      We find the facts sub judice distinguishable. Most significantly, in the

present case, Graves entered a guilty plea before trial. This Court considered

the voluntariness of Graves’s plea in his prior appeal:

            At the guilty plea colloquy, the trial court specifically
      informed [Graves] of the Commonwealth’s burden of proof for
      both murder in the first and third degree. [Graves] stated that he
      understood this. [Graves] also agreed that he understood the
      presumption of innocence, that he was entitled to a trial by jury,
      and that he could be convicted only if he was found guilty beyond
      a reasonable doubt by all twelve jurors. [Graves] stated that no
      promises had been made to him beyond what had been
      negotiated; that he was not pressured or coerced to plead guilty;
      and that he was pleading guilty of his own freewill. [Graves] also
      signed a written guilty plea colloquy in which he affirmed that he


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       was pleading guilty of his own free will; no further promises had
       been made to him beyond the negotiated deal; he understood his
       trial rights; he was satisfied with counsel’s advice and
       representation; and that he was giving up all rights to defend his
       case. [Graves] also agreed that the facts read onto the record by
       the Commonwealth were true.

             A criminal defendant is bound by the statements he made
       during his plea colloquy. Commonwealth v. Muhammad, 794
       A.2d 378, 384 (Pa. Super. 2002). Thus, at this juncture, a
       defendant cannot assert grounds for withdrawing the plea that
       contradict statements made at that time. Commonwealth v.
       Stork, 737 A.2d 789, 790 (Pa. Super. 1999), appeal denied 764
       A.2d 1068 (Pa. 2000) (table).

Graves, supra, 998 A.2d 1005 (unpublished memorandum at 7-8).

       Accordingly, unlike in Medina, Clark did not testify against Graves at

trial under oath.     Had Graves truly believed his best friend’s statement to

police was incorrect, or even fabricated, he could have attempted to contact

Clark in the eight years after he entered his guilty plea, and before Clark

signed the affidavit.9 See Commonwealth v. Brown, 111 A.3d 171, 178

(Pa. Super. 2015) (finding defendant failed to establish he acted with due

diligence in learning a Commonwealth witness omitted crucial details

regarding shooting from his testimony, when defendant knew witness was at

the scene and “would have had reason to believe” the witness heard the victim

curse at the defendant and reach toward his waistband before defendant fired

shots; “[n]otably, Appellant makes no claim that he attempted to contact [the

witness] at any point since trial to determine whether [he] had additional
____________________________________________


9
   The affidavit is addressed to the Third Circuit Court of Appeals, and
references a case entitled “Kurtis Graves v. Superintendent SCI Mahoney, et
al.” See Statement of Clark, supra, at 1. It does not reveal whether Clark
was contacted by Graves to provide the “true” account of his police statement.

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information regarding the day of the shooting.”), appeal denied, 125 A.3d

1197 (Pa. 2015).

      Furthermore, Graves acknowledged in his written plea colloquy that by

entering a plea of guilty, he was forfeiting his right to raise any defense to his

crime:

      If I plead guilty, I am giving up the right to defend my case. I
      cannot come back to court later and say that I was not guilty.
      Once I plead guilty, I can no longer complain that I was innocent
      and did not commit the crime.

Written Guilty Plea Colloquy, 10/15/2005, at 3. If he had indeed committed

the crime in self-defense, Graves was aware of that fact at the time he entered

the plea and signed the written colloquy. He is entitled to no relief now.

      Accordingly, because we agree with the ruling to the PCRA court that

Graves’s petition was untimely filed and he failed to establish the applicability

of any of the time-for-filing exceptions, we affirm the order dismissing his

petition without first conducting an evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/26/2017




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