J-S74026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARRLY GRAY                                :
                                               :
                       Appellant               :   No. 3640 EDA 2018

            Appeal from the PCRA Order Entered December 4, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0108411-1996


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

MEMORANDUM BY MURRAY, J.:                              Filed: February 7, 2020



        Darrly Gray (Appellant) appeals pro se from the order dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        On June 10, 1996, a jury convicted Appellant of first-degree murder and

possession of an instrument of crime in connection with the shooting death of

Thomas Horn in the City of Philadelphia on May 18, 1995.1 On October 3,

1996, the trial court sentenced Appellant to life imprisonment without the

possibility of parole. Appellant appealed without success to both this Court

and the Pennsylvania Supreme Court. See Commonwealth v. Gray, 353

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502 and 907.
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PHL 1997 (Pa. Super. Mar. 3, 1998) (unpublished memorandum), appeal

denied, 725 A.2d 1218 (Pa. 1998) (table). Appellant did not seek further

review with the United States Supreme Court.

       On April 22, 1999, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition. On October 3, 2001, the PCRA court

denied Appellant’s petition. Appellant appealed, and this Court affirmed the

denial on November 21, 2002. Commonwealth v. Gray, 811 EDA 2002 (Pa.

Super. Nov. 21, 2002) (unpublished memorandum).              The Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal on May 15,

2003. Commonwealth v. Gray, 825 A.2d 637 (Pa. 2003) (table).

       On June 1, 2015, Appellant filed the underlying pro se “Petition for

Habeas Corpus Relief . . . and for Post-Conviction Relief Act[.]”2 Appellant’s

PCRA Petition, 6/1/15, at *1. On July 25, 2018, the PCRA court issued notice

of its intent to dismiss Appellant’s petition without a hearing pursuant to Rule

907 of the Pennsylvania Rules of Criminal Procedure; Appellant filed an

amended petition in response to the court’s notice on August 16, 2018. On

December 4, 2018, the PCRA court dismissed Appellant’s petition as untimely.

Appellant appealed.

       Appellant raises three issues for review:

____________________________________________


2 We note that Appellant’s petition must be construed as being raised under
the PCRA. It is well-settled that the PCRA is intended to be the sole means of
achieving post-conviction relief. See Commonwealth v. Taylor, 65 A.3d
462, 465 (Pa. Super. 2013).


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      [1.] WHETHER PCRA COUNSEL RENDERED INEFFECTIVE
      ASSISTANCE OF COUNSEL “PER-SE’ [sic] UNDER THE STATUTORY
      EXCEPTION 42 PA C.S. § 9545 (b)(1)(ii), IN THAT, PCRA COUNSEL
      WAIVED APPELLANT’S PCRA CLAIM BY FAILING TO CONDUCT AN
      INDEPENDENT INVESTIGATION OF AN EYEWITNESS WHO WOULD
      HAVE TESTIFIED AND PROVED APPELLANT’S CLAIM OF ACTUAL
      INNOCENCE?

      [2.] WHETHER APPELLANT’S CONSTITUTIONAL RIGHTS UNDER
      THE SIXTH AND FOURTEENTHS [sic] (THE RIGHT TO EFFECTIVE
      ASSISTANCE OF COUNSEL, AND DUE PROCESS) OF THE UNITED
      STATES CONSTITUTION WAS VIOLATED DURING A CRITICAL
      STAGE OF THE CRIMINAL PROCEEDINGS?

      [3.] WHETHER THE HONORABLE JUDGE GENECE BRINKLEY
      COMMITTED A LEGAL ERROR THROUGH A SIX (6) YEARS OF
      (INORDINATE) DELAY [?] AND COMMITTED AN OBSTRUCTION OF
      JUSTICE OR GOVERNMENT INTERFERENCE BY NOT GRANTING A
      MEANINGFUL PCRA REVIEW ON APPELLANT’S PCRA CLAIMS
      PERTAINING TO A STRUCTURE ERROR?

Appellant’s Brief at 3.

      Preliminarily, in reviewing the denial of a PCRA petition, our review is

limited to examining whether the PCRA court’s findings are supported by the

record and free of legal error. See Commonwealth v. Hanible, 30 A.3d

426, 438 (Pa. 2011). We view the findings of the PCRA court and the evidence

of record in the light most favorable to the prevailing party. Id. “The PCRA

court’s credibility determinations, when supported by the record, are binding

on this Court; however, we apply a de novo standard of review to the PCRA

court’s legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).

      Further, Pennsylvania law makes clear that no court has jurisdiction to

hear an untimely PCRA petition.     Commonwealth v. Monaco, 996 A.2d


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1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within

one year of the date on which the petitioner’s judgment of sentence became

final, unless one of the three statutory exceptions applies:


       (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.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).3 If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

____________________________________________


3 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
2018, and now provides that a PCRA petition invoking a timeliness exception
must be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall
apply only to claims arising one year before the effective date . . . or
thereafter.” Id. This change does not impact Appellant or our analysis.


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trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Appellant’s PCRA petition is facially untimely. “A judgment is deemed

final ‘at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.’” Monaco, 996 A.2d at

1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)).

      Here, the trial court entered Appellant’s judgment of sentence on

October 3, 1996.    Appellant appealed to this Court and the Pennsylvania

Supreme Court, but did not seek review with the United States Supreme

Court.   Therefore, Appellant’s judgment of sentence became final 90 days

from the July 28, 1998 order denying his petition for allowance of appeal with

the Pennsylvania Supreme Court, or October 26, 1998. See 42 Pa.C.S.A. §

9545(b)(3); U.S.Sup.Ct.R. 13.

      Under Section 9545(b)(1), Appellant had to file his PCRA petition within

one year of his judgment of sentence becoming final – or October 26, 1999.

Appellant did not file the instant petition, his second, until June 1, 2015.

Accordingly, we are without jurisdiction to decide Appellant’s appeal unless he

pled and proved one of the three timeliness exceptions of Section 9545(b)(1).

See Derrickson, 923 A.2d at 468.




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       Appellant argues that he satisfied the newly-discovered fact exception

under Section 9545(b)(1)(ii), and therefore, the PCRA court has jurisdiction

over the merits of his petition.4         In order to qualify for this exception, a

petitioner must establish that (1) he did not know the facts upon which he

based his petition, and (2) he could not have learned those facts earlier with

the exercise of due diligence.         See 42 Pa.C.S.A. § 9545(b)(1)(ii).     Both

components “must be alleged and proven as an initial jurisdictional threshold.”

Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa. Super. 2019) (citation

omitted). To qualify as a new fact, “the information may not be part of the

public record.” Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013)



____________________________________________


4 Throughout his brief, Appellant uses the term “after-discovered facts,”
instead of “newly discovered facts” in pleading an exception to the PCRA time-
bar. There is an important and often misapprehended distinction between the
newly discovered facts exception to the time limitations of the PCRA and after-
discovered evidence as a basis for substantive relief. The Supreme Court of
Pennsylvania offered the following clarification:

       To qualify for an exception to the PCRA’s time limitations under
       subsection 9545(b)(1)(ii), a petitioner need only establish that the
       facts upon which the claim is based were unknown to him and
       could not have been ascertained by the exercise of due diligence.
       However, where a petition is otherwise timely, to prevail on an
       after-discovered evidence claim for relief under subsection
       9543(a)(2)(vi), a petitioner must prove that (1) the exculpatory
       evidence has been discovered after trial and 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.

Commonwealth v. Burton, 158 A.3d 618, 629 (Pa. 2017).

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(citation omitted).   In addition, the item must “not merely [be] a newly-

discovered or newly willing source for previously known facts.” Id.

      “Due diligence demands that the petitioner take reasonable steps to

protect his own interests and explain why he could not have learned the new

facts earlier with the exercise of due diligence.” Diggs, 220 A.3d at 1117

(citation omitted). The Pennsylvania Supreme Court has explained that “[d]ue

diligence does not 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). However, a petitioner must “explain why his asserted facts could

not have been ascertained earlier with the exercise of due diligence.”

Commonwealth v. Taylor, 933 A.2d 1035, 1041 (Pa. Super. 2007) (citation

omitted). “This rule is strictly enforced.” Monaco, 996 A.2d at 1080 (citation

omitted).

      Appellant argues in his amended petition that the affidavit he received

from Kareem Morefield, who was allegedly present during the shooting of Mr.

Horn on May 18, 1995, constitutes a newly discovered fact for the purposes

of Section 9545(b)(1)(ii). See Appellant’s Amended PCRA Petition, 8/16/18,

at 3. Specifically, Mr. Morefield’s affidavit alleges that Appellant is a victim of

mistaken identity. Appellant attached Mr. Morefield’s affidavit as an exhibit to

his amended petition, which states:

            I, Kareem Morefield, hereby attest that I was present during
      the shooting death of Thomas Horn[] (a.k.a. T.J.); and that the


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      shooting occurred on May 18, 1995, on the corner of 22nd and
      Diamond Street, in the County of Philadelphia, PA.

            I, Kareem [Morefield] state that the above-mentioned
      incident, occurred over an argument between Big Bubbie, and T.J.
      (Thomas Horn[]) over some money that T.J. claimed Big Bub had
      owed to him. Big Bub tried explaining that he had paid T.J. the
      money and that T.J. must’ve been high or something, and just
      didn’t remember. T.J. stated that he wasn’t trying to hear that
      BS (bull-shit), that he (Big Bub) better get his money, before he
      bust his ass, and then T.J. reached as if he was going to shoot Big
      Bub, and this is when Big Bub pulled his gun out, and shot T.J.
      and then Big Bub ran.

             I, Kareem Morefield, further attest, that everybody started
      walking towards the corner of 22nd and Diamond Street. Now,
      this is the first time that I seen little Bub ([Appellant]) walk around
      the corner of 22nd and Diamond Street. Little Bub was not out
      there when the shooting took place. At this time some of T.J’s
      Homies (friends and family members) were talking about killing
      Big Bub, in retaliation, and that when everybody seen Little Bub,
      trying to cool everybody out.

      I, Kareem Morefield, states that over the years everybody always
      got Big Bub, and Little Bub, mixed-up. And to this very day
      everybody thinks that Little Bub killed T.J. when all along it was
      Big Bub. A lot of people didn’t know which one (1) of the two (2)
      had killed T.J., but I know, because I was out there. And, I am
      coming forward, because I was out in A-Yard at SCI @
      Huntingdon when I heard people arguing about this, and
      that’s when and where I learned that Little Bub
      [(Appellant)] had a Life Sentence for a crime he didn’t do.
      I said damn, it’s not like I’m snitching on Big Bub, because
      he is dead now, and I know my dad’s Homie (friend) at SCI
      @ Greene maybe I could get him to reach out.

Appellant’s Amended PCRA Petition, 8/16/18, Exhibit A (emphasis added).

      Upon review, we conclude that Appellant’s alleged newly discovered

fact, the affidavit of Mr. Morefield, amounts to facts that were previously

known but are now presented through a newly discovered source. Notably,

in Appellant’s first PCRA petition, he presented a similar affidavit from another

individual, Rasheem Wright, which stated “that [Wright] saw the shooting and

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that [Appellant] was not the shooter. In a sworn statement, Wright states

that [Appellant] was not present when the victim was shot, because

[Appellant] had walked around the corner before the shooting.” Gray, 811

EDA 2002, at *4.

       As stated above, our Supreme Court has explicitly held that a newly

discovered source does not constitute facts which were unknown to a

petitioner and could not have been ascertained by the exercise of due

diligence. Edmiston, 65 A.3d at 352; see also Commonwealth v. Chmiel,

173 A.3d 617, 625 (Pa. 2017) (“[T]he factual predicate of the claim . . . must

not be facts that were not previously known but are now presented through a

newly discovered source.”) (citation omitted).   Thus, Mr. Morefield’s affidavit

proffered by Appellant does not qualify as a newly discovered fact for purposes

of 9545(b)(1)(ii).

       Furthermore, the PCRA court determined that Appellant failed to

exercise due diligence in asserting his “newly discovered evidence” claim. The

PCRA court stated:

            In response to the 907 notice, [Appellant] filed an amended
       PCRA petition attempting to invoke the newly discovered facts and
       newly recognized constitutional rights exceptions.[5] [Appellant]
____________________________________________


5The PCRA court correctly notes that Appellant also argues in his amended
PCRA petition that he meets the newly-recognized constitutional right
exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(iii).          See Appellant’s
Amended PCRA Petition, 8/16/18, at 2-3. However, because Appellant has
abandoned this claim in his brief, it is waived for purposes of our review. See
Pa.R.A.P. 2119(a)-(d); see also Commonwealth v. Lewis, 63 A.3d 1274,
1279 (Pa. Super. 2013) (holding newly-recognized constitutional right
exception argument waived for failure to include it in appellate brief).

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     attempted to invoke the newly discovered facts exception
     enumerated in 42 Pa. Cons. Stat. § 9545 (b)(1)(ii) by attaching
     an affidavit from Kareem Moorefield stating [Appellant] was a
     victim of mistaken identity. In his affidavit, the affiant alleged
     that [Appellant] was called “Little Bub” while the individual who
     committed the homicide was referred to as “Big Bub.” Mr.
     Moorefield further states that he saw “Big Bub” shoot the
     complainant, and not [Appellant,] who was allegedly referred to
     as “Little Bub.” PCRA amended petition, 08/09/2018, Exhibit A.

            To successfully invoke the newly discovered fact exception,
     [Appellant] must plead and prove the facts that his claim was
     predicated upon were not only unknown to him, but could not
     have been ascertained by exercising due diligence. Upon review
     of this claim, [Appellant] failed to state what due diligence, if any,
     he took to secure the witness’ testimony. [Appellant] did not
     explain why he could not have discovered the witness on an earlier
     date, through the use of a private investigator or otherwise. For
     instance, he did not state what attempts, if any, were taken to
     locate the alleged witnesses.         Furthermore, there was not
     information in [Appellant’s] record making a distinction between
     a “Little Bub” and “Big Bub.” Presumably, [Appellant] would have
     made his trial attorney, appellate attorney, or his PCRA attorney
     aware of this mistaken identity. . . .

PCRA Court Opinion, 4/1/19, at 3-4 (footnote added).

     We agree with the PCRA court that Appellant failed to demonstrate why

Mr. Morefield’s affidavit could not have been ascertained earlier through the

exercise of due diligence. Taylor, 933 A.2d at 1041. A review of Appellant’s

amended PCRA petition indicates that although he “invokes the statutory

exception under 42 Pa. C.S. § 9545(b)(1)(ii),” Appellant fails to provide any

explanation or reason as to why Mr. Morefield’s alleged eyewitness account of

the murder of Mr. Horn could not have been ascertained earlier with the




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exercise of due diligence. See Appellant’s Amended Petition, 8/16/18, at 3-

5.6

       In sum, the information upon which Appellant relies to qualify for the

newly discovered fact exception does not meet the requirements prescribed

in Section 9545(b)(1)(ii), and Appellant has failed to prove how the alleged

newly discovered facts could not have been ascertained earlier.           Because

Appellant’s petition is untimely and not subject to a statutory exception to the

PCRA’s time bar, the PCRA court lacked jurisdiction. We therefore affirm the

order denying relief.

       Order affirmed.




____________________________________________


6 Likewise, Appellant’s claim of mistaken identity contradicts the arguments
Appellant presented on direct appeal. In a post-sentence motion, Appellant
argued the evidence was insufficient to establish that he had the specific intent
to kill Mr. Horn. Appellant stated:

       Lyons’ and Corbitts’ testimony indicated that [Appellant] had fired
       5 or 6 times at close range while the victim was struck only once,
       in the side. [Appellant’s] erratic firing at close range is consistent
       with his being intoxicated and with his acting for a reason other
       than his wanting to kill . . . .”

Appellant’s Post-Sentence Motion Memorandum, at 17. Given Appellant’s
argument that he was the shooter but the shooting was an accident, Mr.
Morehead’s affidavit would not have been helpful to Appellant.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/20




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