J-S48037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :     IN THE SUPERIOR COURT
    PENNSYLVANIA,                              :        OF PENNSYLVANIA
                                               :
                            Appellee           :
                                               :
                       v.                      :
                                               :
    SHELTON ALFORD,                            :
                                               :
                            Appellant          :      No. 307 EDA 2019


             Appeal from the PCRA Order Entered January 10, 2019
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0316762-1988

BEFORE:      BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                         FILED OCTOBER 16, 2019

       Shelton Alford (Appellant) appeals pro se from the order entered

January 10, 2019, dismissing his petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

       In February 1989, Appellant and co-defendant, Malcolm Medley, were

tried by a jury in connection with “a shooting barrage at Abbotsford housing

project in Philadelphia, killing Derval Hughes and injuring two others.” PCRA

Court Opinion, 3/29/2019, at 1. The jury convicted Appellant of first-degree

murder and related offenses, and on May 31, 1989, he was sentenced to an

aggregate term of life imprisonment.1              On August 14, 1990, this Court


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1 Medley was also convicted of first-degree murder and sentenced to life in
prison.

* Retired Senior Judge assigned to the Superior Court.
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affirmed Appellant’s judgment of sentence, and he did not file a petition for

allowance of appeal to our Supreme Court. Commonwealth v. Alford, 581

A.2d 968 (Pa. Super. 1990) (unpublished memorandum).

        Appellant sought PCRA relief in 1997,2 2001, and 2012. He was denied

relief each time. Appellant filed a PCRA petition on March 22, 2016 (2016

Petition).   In   that   petition,    Appellant   invoked   the   newly-recognized-

retroactive-right exception to the PCRA time bar set forth in 42 Pa.C.S.

§ 9545(b)(1)(iii), asserting that he was entitled to relief under the United

States Supreme Court’s holdings in Miller v. Alabama, 567 U.S. 460 (2012),

and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).3 The PCRA court took

no action on the 2016 Petition.

        On July 6, 2018, Appellant filed what he entitled an amended PCRA

petition, wherein he asserted that he had obtained newly-discovered facts to

satisfy the PCRA time bar (2018 Petition).4         In his memorandum of law in


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2   Appellant was represented by counsel for this PCRA petition.

3 In Miller, the United States Supreme Court held that a mandatory sentence
of life imprisonment without the possibility of parole is unconstitutionally cruel
and unusual punishment when imposed upon defendants convicted of murder
who were under the age of 18 at the time they committed their crimes. In
Montgomery, the United States Supreme Court held that Miller applies
retroactively to cases on state collateral review. We note that Appellant was
20 years old when he committed these crimes.

4We recognize that Appellant did not seek and obtain leave to file the 2018
petition in violation of Pa.R.Crim.P. 905(A) (“The judge may grant leave to
amend or withdraw a [PCRA petition] at any time. Amendment shall be freely



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support of the petition, Appellant set forth the following explanation of the

events leading up to his arrest and what occurred at trial.

              On December 11, 1987 at the Abbottsford housing project,
       there was a crowd of guys standing in a group. Two people
       approached the group and opened fire hitting [three] people and
       fatally shooting another. The shots were motivated from an
       argument which occurred earlier that evening over the sale of
       drugs.

             About two weeks later, co-defendants, [Appellant] and []
       Medley, [were] riding in Medley’s car and [were] pulled over by
       police for investigational purposes. Both [] were transported to
       police headquarters in a police wagon. [Both] gave statements to
       the detectives. Medley’s statement gave an alibi saying at the
       time of the shooting he was at a hotel party with his girlfriend (Ivy
       Shelby), [Appellant’s] girlfriend (Sherelle Wood)[,] and Pamela
       Hooks. [Appellant] gave a statement stating he was at home until
       11 or 12 that evening. He then went to a friend’s house. He
       remained there for the rest of the night. After giving both
       statements, [both men] were released. []

             All three females were brought to the police station to give
       statements. They gave statements confirming Medley’s alibi.
       Nothing incriminating was said regarding [Appellant]. About 6
       weeks later all three [females] went back to police headquarters
       giving a second statement saying they lied the first time[, by
       saying Medley was with them.] Also they stated [Appellant] made
       up the false alibi and both [Appellant and Medley] told them about
       the shooting and what it was over. Hours later warrants were
       issued. [Appellant and Medley were] arrested for the crime.

            At trial [] Wood testified saying [Appellant] had a part in
       making up the false alibi…. Both Wood and Shelby testified that
____________________________________________

allowed to achieve substantial justice.”). However, because the PCRA court
had not yet taken action on the 2016 Petition, the PCRA court was permitted
to consider the 2016 Petition and the 2018 Petition simultaneously. See
Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018)
(“PCRA courts are not jurisdictionally barred from considering multiple PCRA
petitions relating to the same judgment of sentence at the same time unless
the PCRA court’s order regarding a previously filed petition is on appeal and,
therefore, not yet final.”).

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      they came forward the second time on their own. [] Hooks never
      testified at trial.

Memorandum of Law, 9/28/2018, at 1 (unnumbered).

      In the 2018 Petition, Appellant attached a letter from Thelma Ringgold,

Wood’s mother. Ringgold was a new police officer in 1987 and is now retired.

According to the letter, the lead detective on the case asked Ringgold to

arrange to have Wood interviewed.        Then, Ringgold “insisted and forced

[Wood] to go to [the] Homicide Division and give a statement.         A better

decision would have been for [Wood] to be accompanied with an attorney.”

PCRA Petition, 7/6/2018, at Exhibit A.       According to Appellant, he was

completely unaware of this information until he received the letter from

Ringgold in June of 2018.

      On September 25, 2018, the PCRA court issued notice of its intent to

dismiss Appellant’s petitions without a hearing pursuant to Pa.R.Crim.P. 907.

Relevant to this appeal, the PCRA court concluded that the 2018 letter from

Ringgold did not satisfy the newly-discovered facts exception to the

jurisdictional time bar of the PCRA.

      Appellant responded to the notice, asserting that the letter reveals that

“the Commonwealth knowing[ly] used perjured testimony to obtain a

conviction.” Response to 907 Notice, 10/10/2018, at 1 (unnumbered).

According to Appellant, the letter reveals that Wood “fabricate[d] a version of

her testimony based upon the coercive efforts of her mother and homicide




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detectives, which was unknown to [Appellant] until” he received the letter on

June 25, 2018. Id. at 2.

       On January 10, 2019, the PCRA court dismissed the petitions as

untimely filed, concluding they did not satisfy any exceptions to the PCRA time

bar. Appellant timely filed a notice of appeal. The PCRA court did not order

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), and filed an opinion on March 29, 2019.

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

2018 Petition as untimely filed.5 Appellant’s Brief at 11. “The question of

whether a [PCRA] petition is timely [filed] raises a question of law. Where the

petitioner raises questions of law, our standard of review is de novo and our

scope of review [is] plenary.” Commonwealth v. Brown, 141 A.3d 491, 499

(Pa. Super. 2016).

       Because Appellant’s judgment of sentence became final in 1990, his

petition is facially untimely.6      In the 2018 Petition, Appellant attempted to


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5 Appellant has abandoned claims related to the 2016 Petition. See also
Commonwealth v. Lee, 206 A.3d 1 (Pa. Super. 2019) (en banc) (holding
Miller does not apply to those who were age 18 or older when they committed
their crimes).

6 Appellant’s judgment of sentence became final after the expiration of time
for filing a petition for allowance of appeal to our Supreme Court after this
Court affirmed his judgment of sentence on direct appeal. See Pa.R.A.P. 1113
(requiring petition for allowance of appeal to be filed within 30 days after entry
of the order from the Superior Court); 42 Pa.C.S. § 9545(b)(3) (“For purposes
of [the PCRA], a judgment [of sentence] becomes final at the conclusion of



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plead and prove the newly-discovered facts exception.            That exception

provides that “[a]ny petition under this subchapter, including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final, unless the petition alleges and the petitioner proves that … 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.” 42 Pa.C.S.

§ 9545(b)(1)(ii).

             The newly[-]discovered fact exception has two components,
       which must be alleged and proved. 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. Due diligence requires the petitioner take
       reasonable steps to protect his own interests.

              However, [due diligence] does not require perfect vigilance
       nor punctilious care, but rather it requires reasonable efforts by a
       petitioner, based on the particular circumstances to uncover facts
       that may support a claim for collateral relief. As such, the due
       diligence inquiry is fact-sensitive and dependent upon the
       circumstances presented. A petitioner must explain why he could
       not have obtained the new fact(s) earlier with the exercise of due
       diligence.




____________________________________________

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.”). Any PCRA petition, including second and
subsequent petitions, must either (1) be filed within one year of the judgment
of sentence becoming final, or (2) plead and prove a timeliness exception. 42
Pa.C.S. § 9545(b). Thus, both Appellant’s PCRA petitions were facially
untimely, and he was required to plead and prove an exception to the
timeliness requirement.



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Commonwealth v. Brensinger, __ A.3d __, 2019 WL 4134163 at *3-4 (Pa.

Super. 2019) (en banc) (internal citations and quotation marks omitted).

Furthermore, Appellant had to file his petition within 60 days “of the date the

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).7

       Instantly, the PCRA court concluded that Ringgold’s letter was not a

newly-discovered fact because it was “silent regarding the substance and

veracity of Wood’s statement” to police. PCRA Court Opinion, 3/29/2019, at

3. In addition, the PCRA court concluded that “because [Appellant] would

have been aware that Wood’s statement and subsequent testimony were false

since the trial, he failed to demonstrate the circumstances of Wood’s [alleged]

fabrication were previously unascertainable with the exercise of due

diligence.” Id.

       On appeal, Appellant argues that he acted with due diligence because

“Wood and the Commonwealth withheld [the information contained in the

letter] at trial so [A]ppellant had no reason to question [Wood] about it.”

Appellant’s Brief at 14 (unnumbered). It is Appellant’s position that he filed

the PCRA petition as soon as he received the letter.




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7 This statute was amended, effective December 24, 2018, to provide that
claims arising after December 24, 2017, were permitted to be filed within one
year, rather than 60 days, of the date the claim could have been presented.
Appellant filed the PCRA petition containing the letter at issue in 2018; thus,
arguably, the amendment applies. However, based on our discussion infra,
Appellant is not entitled to relief.

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       Even assuming arguendo this letter indeed contained facts upon which

the claim is predicated that were previously unknown to Appellant, we agree

with the PCRA court that Appellant failed to act with due diligence to discover

the information. Appellant has been aware, at least since trial, that Wood

initially gave one statement to police, then went back a second time to police

where she provided a different statement. To the extent Appellant believed

her motivations were suspect, it was his burden to investigate that issue. In

addition, Wood was Appellant’s girlfriend at the time of the shootings, and

thus, it was possible that Appellant even knew that Wood’s mother was a

member of the police force. As we have stated, “the due diligence inquiry is

fact-sensitive    and     dependent       upon   the   circumstances   presented.”

Brensinger, supra.           Other than baldly claiming police withheld the

information that Ringgold had a hand in encouraging her daughter to speak

to police,8 Appellant has set forth no details regarding the efforts he made

since his conviction to delve into this matter further. See Commonwealth v.

Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017) (“A petitioner must explain why

[he or] she could not have learned the new fact earlier with the exercise of

due diligence.”).       Accordingly, even if these facts were indeed new, as

Appellant suggests, he has not established that he acted with due diligence in

obtaining them.


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8 Notably, the letter is silent as to whether Ringgold encouraged her daughter
the first time to speak to police, the second time to speak to police, or both.

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     Based on the foregoing, we agree with the PCRA court that Appellant

has not satisfied the newly-discovered facts exception to the PCRA’s

jurisdictional time bar. Thus, his petition was untimely filed, and we affirm

the order of the PCRA court.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/19




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