J-S49018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEATLH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    JUSTIN HEARD

                             Appellant                No. 2750 EDA 2018


              Appeal from the PCRA Order Entered August 30, 2018
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0004950-2008


BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 22, 2019

        Appellant, Justin Heard, appeals from the August 30, 2018 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. We affirm.

        On November 13, 2009, Appellant entered a negotiated guilty plea to

one count of third-degree murder stemming from an incident in which

Appellant conspired with several others to commit a robbery.        During the

robbery, one occupant of the home was shot and killed, and another was shot

and seriously injured. The trial court immediately imposed 17½ to 35 years

of incarceration. Appellant did not file a direct appeal.




____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S49018-19


      On May 20, 2016, Appellant filed the instant, counseled PCRA petition,

alleging the newly discovered fact that one of his codefendants, Kevin Hiller,

who would have testified against Appellant at trial, had denied knowledge of

the murders in his testimony in a separate proceeding. The Commonwealth

filed a motion to dismiss the petition on February 6, 2018, and Appellant filed

a counseled response on May 29, 2018. On July 30, 2018, the PCRA court

entered its notice of intent to dismiss the petition without a hearing, pursuant

to Pa.R.Crim.P. 907. The court dismissed the petition as untimely on August

30, 2018. This timely appeal followed.

      On appeal, Appellant claims the PCRA court erred in dismissing the

petition without a hearing. Appellant’s Brief at 4. On appellate review, the

PCRA court’s findings are binding on this Court if the record supports them.

Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015). We review the

PCRA court’s legal conclusions de novo. Id. A PCRA court has no jurisdiction

to entertain a petition unless the petitioner files it within one year of the date

on which his judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(1).

The PCRA includes several exceptions to the time bar, one of which is the

discovery of new facts which “were unknown to the petitioner and could not

have been ascertained by the exercise of due diligence.”            42 Pa.C.S.A.

§ 9545(b)(1)(ii). As of May 20, 2016, when Appellant filed his petition, § 9545




                                      -2-
J-S49018-19


required him to file his petition within 60 days of the first date on which he

could have raised the claim.1

       Appellant concedes that his petition is facially untimely, but he alleges

that Hiller’s denial of knowledge of the murder is a newly discovered fact under

§ 9545(b)(1)(ii). Appellant claims he became aware of the Hiller’s testimony

on March 23, 2016, such that his May 20, 2016 petition was timely. As the

PCRA court explained, however, Appellant failed to offer any substantiation of

his due diligence. Appellant offered only a short portion of a transcript (two

questions and two short answers comprising less than a single page) attached

as an exhibit to his PCRA petition. Appellant produced no evidence of the date

on which Hiller gave his testimony, and therefore Appellant failed to plead or

prove that he exercised due diligence in learning of Hiller’s testimony. PCRA

Court Opinion, 11/26/18, at 9. Thus, Appellant has failed to plead and prove

the applicability of § 9545(b)(1)(ii); see Commonwealth v. Brown, 111

A.3d 171, 176 (Pa. Super. 2015), appeal denied, 125 A.3d 1197 (Pa. 2015)

(noting that the requirement for a petitioner to prove his due diligence is

strictly enforced).

       Further, the PCRA court noted that Hiller’s denial would have been

impeachment evidence, as it contradicted other statements Hiller gave to



____________________________________________


1 Section 9545(b)(2) has since been amended to permit petitions within one
year of the first date on which the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2).

                                           -3-
J-S49018-19


authorities.    Mere impeachment evidence does not constitute a newly

discovered fact. Brown, 111 A.3d at 177 n.4. Thus, even if Appellant had

established    jurisdiction   by   pleading   and   proving   the   applicability   of

§ 9545(b)(1)(ii), his claim would have failed.

      We conclude that the PCRA court did not err in dismissing Appellant’s

petition as untimely, and we affirm the order for the reasons explained in the

PCRA court opinion (attached).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/19




                                        -4-
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                                                             Filed 5/11/2019 8: 13:00 AM Superior Court Eastern District
       FILED                                                                                           2750 EDA2018

             IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
 2018NOV     26 AH 9:Ij,ST JUDICIAL DISTRICT OF PENNSYLVANIA
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 Cuoo!Y1.0N:WE•1\;l�qff OF PENNSYLVANIA                         CRIMINAL TRIAL DIVISION

                                                                2568 EDA 2018
                 v.                                             2750 EDA 2018
                                                                2818 EDA 2018

           JUSTIN HEARD                                         CP-51-CR-0004950-2008

                                                                     CP-51·CR-0004950-2008 Comm. v. Heard . .klslin
                                                                                        Opinion
                                             OPINION

 O'KEEFEtJ.                                                               llllllll 11111111111111111
                                                                                   8193142631

           Justin Heard appeals from the order denying his Post-Conviction Relief Act Petition (here-

 inafter referred to as "PCRA" for the sake of brevity) pursuant to 42 Pa.C.S. § 9541 er seq.


 PROCEDURAL HISTORY:


          On October S, 2007, Justin Heard was arrested and charged with murder, robbery, criminal

 conspiracy, violation of the Uniform Firearms Act, and possessing the instrument of a crime. The

 defendant was bound over on all charges following a preliminary hearing on October 31, 2007. A

jury trial commenced before the Honorable Renee Caldwell Hughes, however a mistrial was de-

 dared on October 26, 2009, when a co-defendant suffered serious injuries in prison. Jury selection

 re-commenced November 9, 2009} but mid-trial, on November 13, 2009, Heard pled guilty to third

 degree murder, conspiracy to commit murder and possessing an instrument of crime in return for

 a sentence of seventeen and one-half to thirty-five years' incarceration, concurrent with the two to

 four years' incarceration this defendant was serving on drug charges at CP-51-CR-0707191-2005.
        Defendant's counseled PCRA petition was filed on May 20, 2016. The prosecution filed

a motion to dismiss on February 6, 2018, to which the defendant replied. On July 30, 2018, after

an independent review of the record, a Notice of Intent to Dismiss pursuant to Pennsylvania Rule

of Criminal Procedure 907 was mailed to the defendant and all counsel. On August 2 !51 the de-

fendant filed a prose Notice of Appeal to the Superior Court, despite the fact the PCRA had yet

to be dismissed. After another independent review, the defendant's PCRA petition was dismissed

on August 30, 2018. A counseled Notice of Appeal was filed on September I l th, with a counseled

Statement of Matters Complained of on Appeal on November 7, 2018.


STANDARD OF REVIEW:


        When reviewing an order denying a PCRA petition, an appellate court looks to whether

the PCRA court's decision is supported by the evidence of record and is free of legal error. Com-

monwealth v. Spotz, 624 Pa. 4, 84 A.3d 294 (2014). On questions of law, the standard of review

is de novo and the scope of review is plenary. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super.

2014). The court will grant great deference to the factual findings of the PCRA court and will not

disturb those facts unless they have no support in the record. Id.


FACTS:


       The trial court aptly summarized the facts in an opinion concerning the co-defendant, Stan-

ley Pettus (CP-5 l-CR-0004951-2008):


               In early 2006, [Pettus] conspired with Kevin Hiller to rob the home
               of Abdul Wyatt, an individual he knew sold substantial quantities of
               drugs. (Pettus] had been a guest in Wyatt's home, and he knew its
               layout as well as [Wyatt's] schedule. [Pettus] informed Hiller that


                                                 2
               Wyatt kept large quantities of illegal narcotics and cash in his base-
               ment. In exchange for this information, Hiller agreed to split the
               proceeds from the robbery with [Pettus}. Hiller thereafter enlisted
               the help of Christopher Knight and Justin Heard to carry out the rob-
               bery. On March 21, 2006, Hiller, Knight and Heard went to Wyatt's
               home in Philadelphia. Knight and Heard entered the property and
               proceeded towards the basement, where they were confronted by
               Wyatt and Jenesta Jones. An altercation ensued during which
               Knight and Heard shot Jones in the chest and Wyatt in the neck.
               Wyatt's wound proved fatal. [Pettus] was eventually arrested and
               charged with Wyatt's death.

(Trial Court Opinion, dated July 21, 2010, p. 1).


LEGAL DISCUSSION:


       The standard and scope of review for the denial of a PCRA petition is well-settled. The

appellate court examines a PCRA appeal in the light most favorable to the prevailing party at the

PCRA level. The court's review is limited to the findings of the PCRA court and the evidence of

record. Additionally, the reviewing court grants great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in the record. In this

respect, the appellate court will not disturb a PCRA court's ruling if it is supported by evidence of

record and is free of legal error. However, where the petitioner raises questions of law, the stand-

ard of review is de novo and the scope of review is plenary. Commonwealth v. Henkel, 90 A.3d

16, 20 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks

omitted).


                                           Timeliness of Petition

       The law is clear that any PCRA petition "shall be filed within one year of the date the

judgment becomes final." 42 Pa.C.S. § 9545(b)(l). The date the judgment becomes final is at the


                                                 ....
                                                 j
conclusion of direct review, including discretionary review by both the Pennsylvania and United

States Supreme Courts, or at the expiration of time for seeking such review. Id. §9545(b)(3).

These time limits are jurisdictional and a court may not address the merits of the issues raised if

the PCRA petition was not timely filed. Commonwealth v. Albrecht, 606 Pa. 64, 994 A.2d 1091,

I 093 (201 O); Commonwealth v. Hernandez, 79 A.3d 649 (Pa.Super.2013).


        An exception to the timeliness requirement arises if the petitioner alleges and proves one

of the following statutory exceptions:


                (i) failure to raise the claim was the result of interference by govern-
                ment officials with the presentation of the claim in violation of the
                constitution or laws of the Commonwealth or laws of the United
                States;
                (ii) facts upon which the claim is predicated were unknown to peti-
                tioner and could not have been ascertained by exercise of due dili-
                gence; or
               (iii) right(s) asserted is a constitutional right that was recognized by
               the Supreme Court or the Supreme Court of Pennsylvania after the
               time period provided and has been held by that court to apply retro-
               actively. 42 Pa. C.S. § 9545(b)(l ).

        When applying one of the exceptions, the petition must be filed within sixty days of the

date the claim could have been presented. 42 Pa.C.S. § 9545(b). That sixty day period runs from

the date of the underlying decision. Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.Super. 2007).

Heard' s pet it ion does not satisfy the timeliness requirement.


       The time limit on filing a PCRA petition is jurisdictional. Commonwealth v. Yarris, 557

Pa. 12, 731 A.2d 581, 586 (1999) (citing Commonwealth v. Peterkin, 554 Pa. 547, 553, 722 A.2d

638, 641 (1998)). As such, an untimely petition may not be addressed simply because it is couched

in terms of ineffectiveness. Commonwealth v. Peterkin, 554 Pa. 547, 557, 722 A.2d 638, 643


                                                   4
(l 998). Moreover, to successfully invoke one of the exceptions to the time limit, a petitioner must

plead and prove that an exception to the time for filing the petition set forth at 42 Pa.C.S.

§9545(b)( I) applies. Commonwealth v. Crews, 581 Pa. 45, 50, 863 A.2d 498, 50 l (2004).


        Heard argues that his petition meets the requirements of the newly discovered facts excep-

tion, based on an excerpt from a transcript of the testimony of co-defendant, Kevin Hiller, in an

unrelated matter "that directly refutes his own claims about being forthright and truthful during his

proffer sessions ... [s]pecifically, at this prior proceeding, Hiller steadfastly disclaimed knowing

anything about "any" murders."(PCRA Petition, p. 4). The entirety of the relied upon testimony

is as follows:

                         "Q. Mr. Hiller, I left off asking you that, isn't it - you testi-
                 fied that you had tried to solicit Mr. Dooley to participate in an
                 armed robbery. Then I asked you the question, that isn't it true you
                 also confided in him with respect to double homicides, correct?
                         A. No., sir.
                         Q. Okay.
                         A. I know of nothing of it."
       (PCRA Petition, Exhibit A, Commonwealth v. Dooley, citation unknown.)


       The law is clear that after-discovered evidence must: (1) be discovered after the trial and

could not have been obtained any sooner by the exercise of due diligence; (2) not be merely cor-

roborative or cumulative; (3) not be used solely for impeachment purposes; and (4) be of such a

nature and character that a different verdict will likely result if a new trial were granted. See

Commonwealth v. Brown, 111 A.3d l 71 (Pa.Super.2015); Commonwealth v. Washington, 592 Pa.

698, 715, 927 A.2d 586, 596 (2007); Commonwealth v. Valderramma, 4 79 Pa. 500, 388 A.2d l 042,

1045 (1978).



                                                    5
       It is important to note that this defendant entered into a negotiated guilty plea on November

13, 2009, in which he pied guilty to the crimes of murder of the third degree, conspiracy to murder

and possessing the instrument of a crime, in return for an aggregate sentence of seventeen and one-

half to thirty-five years imprisonment. (N.T. 11-13-2009, pp. 7-50). A signed written guilty plea

colloquy is referenced in the notes of testimony, and that colloquy is attached hereto, made a part

hereof and marked Exhibit A. Heard admitted the facts and his intent to plead guilty to the crime

in a protracted oral colloquy. (N.T. 11-13-2009, pp. 7-50). Defense counsel went to extensive

lengths to make sure Mr. Heard understood all of what he was pleading as well as the conse-

quences. On the third page of the written colloquy is Heards signature below the declaration "I

have read all of the above, or my lawyer read it to me. I understand it. My answers are all true

and correct." (Exhibit A). This certification was witnessed and attested to by the both the defend-

ant's attorney and the prosecutor, as well as the trial court. (Exhibit A, pp. 3-4). Immediately

above the signature is the statement "The facts of the case have been read to me. The crimes and

elements of the crime(s) have been explained to me. I committed the crime(s), and that is why [

am pleading guilty." (Exhibit A, p. 3).


       Additionally, the following oral colloquy was conducted with the defendant:


               "The Court: Mr. Heard, you have heard all of the testimony that has
               been presented in October and yesterday, but I want to ask you spe-
               cifically, did you and Cluistopher Knight agree, at the request of
               Kevin Hiller, to go rob Abdul Wyatt?
               Mr. Heard: Yes, ma'am.
               The Court: Did you both go into the home of Abdul Wyatt with guns
               to rob him?
               Mr. Heard: Yes, ma'am.
               The Court: As a result of that, was Jenesta Jones shot and Abdul


                                                6
                Wyatt killed?
                Mr. Heard: Yes, ma'am.
                The Court Are these the facts you are prepared to plead guilty to?
                Mr. Heard: Yes, ma'am.
                The Court: Very good.
                A Court Officer: May l, Judge?
                Justin Heard, to this Common Pleas Docket 0004950 in the year
                2008 charging you with murder in the third degree, victim Abdul
                Wyatt, how do you plead?
                Mr. Heard: Guilty.
                A Court Officer: Justin Heard, to the same Common Pleas Docket
                charging you with criminal conspiracy to rob and shoot, victim Ab-
                dul Wyatt, graded as a felony of the first degree, how do you plead?
               Mr. Heard: Guilty.
               A Court Officer: Justin Heard, to the same Common Pleas Docket
               charging you with possessing an instrument off crime, graded as a
               misdemeanor of the first degree, how do you plead?
               Mr. Heard: Guilty.
               A Court Officer: Your Honor, the defendant, Justin Heard, has pied
               guilty to all charges and signed all forms."

(N.T. 11-13-2009, 29-31).


       Clearly, a general denial by a co-defendant, at an unknown proceeding, would not change

the outcome of this defendant's case, where this man pied guilty to the charges. The law is clear

that a reviewing court is free to look at the totality of the circumstances surrounding the entry of a

plea when assessing whether the plea was entered into in accordance with the law. Commonwealth

v. Allen, 557 Pa. 135, 732 A.2d 582, 588 (Pa. 1999); Commonwealth v. Muhammad, 794 A.2d 378,

383-84 (Pa.Super. 2002); Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002). A defendant

is obliged to tell the truth during a plea hearing, and a trial court may rely on a properly executed

written guilty plea colloquy supplemented by an oral colloquy in deciding whether the plea is

                                                  7
knowing, intelligent and voluntary. See Commonwealth v. Cappelli, 340 Pa.Super. 9, 489 A.2d

813 (1985); Commonwealth v. Nelson, 319 Pa.Super. 66, 465 A.2d 1056 (1983). The defendant's

contention that Mr. Hiller's testimony is somehow relevant, and that it would change the outcome

of his case clearly is without merit. Mr. Hiller's claim that he knew nothing of a double homicide

is insufficient to overcome the defendant's written and oral admission of guilt to these crimes, and

the proposed evidence would not affect the validity of those guilty pleas, nor its outcome in any

manner whatsoever.


        For the defendant to succeed in his claim, he would need assert that he was lying, under

oath when he attested to the written guilty plea forms. He is barred from doing so. See Common·

wealth v. Cappelli, 340 Pa.Super. 9, 489 A.2d 813, 819 (1985); Commonwealth v. Willis, 68 A.3d

997(Pa.Super.2013). Hiller's admission or denial of his involvement in this crime would not have

mattered, as the defendant pied guilty, and it would not have affected the outcome of this defend·

ant's guilty plea.


        Furthermore, the evidence offered would have only been used to impeach the credibility of

the co-defendant, a claim that does not entitle the defendant to post-conviction relief. See Com-

monwealth v. Foreman, 55 A.3d 532 (Pa.Super.2012). Moreover, the courts have repeatedly held

that "a defendant seeking a new trial must demonstrate he will not use the alleged after-discovered

evidence solely to impeach the credibility of a witness." Commonwealth v. Padillas, 997 A.2d

356, 365 (Pa.Super. 2010). The testimony referred to by Heard clearly would be used solely to

impeach the co-defendant's' credibility at the trial. The defendant has made no credible offer that

the proposed evidence could serve any other purpose, and as such the defendant has failed to meet

his burden and accordingly the issue was properly dismissed. More importantly, the credibility of

                                                 8
the co-defendant is of no matter in this case. There was no trial. The co-defendant did not testify

at the plea hearing. The defendant admitted to his guilt, never requested to withdraw his plea of

guilty and has not averred that he is not guilty of the charges to which he admitted his culpability.

       Likewise the defendant has failed to prove that he acted with due diligence. Heard has

failed to describe when he first came into possession of the transcript he cites. No mention is made

of when the transcripts were first available or even when the cited testimony was taken. It is the

petitioner's burden to prove his due diligence and his failure to do so was likewise fatal to his

petition. Commonwealth v, Brown, 111 A.3d 17 l, 176 (Pa.Super. 2015).

                                          Hybrid Representation


       Pennsylvania courts have consistently held that where a litigant is represented by an attor-

ney any pro se filing is a nullity.   Commonwealth v. Glacken, 32 A.3d 750, 752-53 (Pa.Su-

per.2018); Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super.2007) appeal denied 594 Pa.

704, 936 A.2d 40 (2007); Commonwealth v. Ellis, 534 Pa. 176, 183-84, 626 A.2d 1137, l 140-4 l

(l 993); Commonwealth v. Jelle, 23 A.3d I 032 (Pa. 2011). As such this court will not consider any

issue raised by the defendant in his prose l 925(b) statement that was not raised by counsel.

                                                           BY THE COURT:




DATE: November 261 2018




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