J-A28044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTOINE CLAYTON WILLIAMS,                :
                                          :
                    Appellant             :         No. 923 MDA 2018

             Appeal from the PCRA Order Entered May 24, 2018
               in the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0002818-1989

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                       FILED FEBRUARY 01, 2019

      Antoine Clayton Williams (“Williams”), pro se, appeals from the Order

dismissing his third Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      Our Pennsylvania Supreme Court previously set forth the facts

underlying Williams’s convictions as follows:

      On … September 17, 1989, at approximately 2:55 a.m., Reading
      police officers were summoned to the 400 block of Gilson Alley in
      Reading, Pennsylvania, to investigate a report of an injured
      woman. Upon their arrival, Officer [Mark G.] Hafner [(“Officer
      Hafner”)] was met by [Williams] and his father, Albert Norman.
      They took Officer Hafner to a place in the alley where a partially
      clothed woman was lying facedown next to two garbage trucks
      owned by [Williams’s] father. The officer saw a substantial
      amount of blood in the cab of one of the garbage trucks and a trail
      of blood could be detected from the truck to the body. Blood was
      also found on the doorway of the cab and in the seat area. The
      victim, twenty-three[-]year[-]old Jacqueline Lugo [“(Lugo”)], was
      found with her panties pulled down around her thighs, her shirt
      pulled up under her arms and her bra ripped in the front. Both
      her eyes had been beaten closed and she had sustained at least
      five other blows to the face. Her neck showed signs of being
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     choked[,] and a stab wound to her neck pierced through to her
     throat and tongue. Numerous stab wounds were found on her
     torso and dirt and stones were found inside her panties.

           Dr. Neil A. Hoffman, a forensic pathologist, who was also at
     the crime scene, observed the body and later determined that the
     cause of death was a stab wound through the heart. Similar stab
     wounds were detected on the left side of the victim’s neck, in the
     middle of her chest and in her abdomen near her navel[.] [P]olice
     eventually retrieved a broken knife blade and another knife from
     the crime area[,] which could have easily made the types of stab
     wounds observed on the victim’s body.

            Officer Albert D. Shade, Jr., who was dispatched to the
     crime scene with Officer Hafner, also found a yellow shirt stained
     with blood in a wooded area near the body. This shirt was later
     identified as having been worn by [Williams] on the day of the
     murder[,] and another witness was able to testify that [Williams]
     was wearing the shirt just prior to the murder. When the officers
     arrived at Gilson Alley, [Williams] was wearing a jacket without a
     shirt and his hands and forehead were covered in blood[,] as was
     the inside of his jacket. Blood was also found on the inside of
     [Williams’s] waistband and underwear, suggesting that they got
     stained with blood when [Williams’s] pant[]s zipper was open and
     his pants [were] down.

            There was evidence that yellow fibers were found in the
     victim’s bra and panties and that these fibers originated from the
     bloody yellow shirt worn by [Williams] on the night of the
     murder[.] [Further,] a fiber consistent with the victim’s clothing
     was found in [Williams’s] boxer shorts. Evidence was also
     introduced that pubic hairs with the same microscopic
     characteristics as that of the victim were recovered from
     [Williams’s person].

            The blood found on the inner lining of [Williams’s] jacket
     was the same blood type as that of the victim[,] and expert
     testimony established that a blood stain on the yellow shirt was
     consistent with having been produced by wiping blood from a
     blood-bearing object or instrument, like a knife. In addition to
     this blood stain, there were other blood stains on [Williams’s]
     jacket[,] and on the yellow shirt[,] that were caused by “spatter
     stains.” These stains consisted of small blood droplets aligned in
     a distinct pattern[,] and [they] were created when a blood source
     was punctured. The small pinpoint droplets found in [Williams’s]

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      jacket indicated that they were caused by a puncture wound made
      with great force.

Commonwealth v. Williams, 650 A.2d 420, 424-25 (Pa. 1994) (hereinafter

referred to as “Williams I”).

      Relevant to the instant appeal, prior to trial, the trial court directed Larry

A. Rotenberg, M.D. (“Dr. Rotenberg”), to conduct a psychiatric/psychological

examination of Williams.     Dr. Rotenberg opined that although Williams did

have “mild” mental retardation (with an IQ below 70), and personality

disorder–not otherwise specified, Williams was nonetheless competent to

stand trial, understand the nature of the proceedings, and participate in his

defense. See Letter, 3/19/90, at 1 (unnumbered).

      In January 1991, a jury convicted Williams of first-degree murder and

related offenses. The jury imposed a sentence of death, after which Williams

filed a direct appeal.

      Our Supreme Court in Williams I analyzed, inter alia, the sufficiency of

the evidence supporting Williams’s first-degree murder conviction. The Court

concluded that the evidence was sufficient, stating as follows:

      Taking all of [the above-mentioned facts] together, a jury could
      conclude beyond a reasonable doubt that [] Lugo’s death was a
      homicide. From the nature of the injuries to her body, a jury could
      infer that the homicide was intentional, malicious and
      premeditated. Finally, the jury could conclude from the types of
      blood stains on [Williams’s] garments[,] and the bloody yellow
      shirt that he was seen wearing during the day and prior to the
      murder[,] that [Williams] committed the crime.




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Williams I, 650 A.2d at 425.1 Though the Supreme Court affirmed Williams’s

murder conviction, it vacated the sentence of death2 and remanded for a new

sentencing hearing. See id. at 428-30.

       On December 21, 1995, the trial court resentenced Williams to life in

prison without the possibility of parole.3 Williams did not file a direct appeal

following resentencing.

       Williams filed a first PCRA Petition in October 1996, which the PCRA

court denied following a hearing.          Williams appealed to this Court, which

dismissed the appeal for his failure to file a brief.

       In August 2004, Williams filed a pro se Motion for post-conviction DNA

testing, which the trial court denied. This Court dismissed Williams’s pro se

appeal from this ruling for his failure to file a brief.

       Williams filed the instant pro se PCRA Petition on March 28, 2017.

Therein, he asserted that he had discovered new information that called into

question the validity of his convictions and the evidence against him.


____________________________________________


1 Notably to the instant appeal, the Williams I Court did not mention the
evidence of the microscopic pubic hair comparison analysis in rejecting
Williams’s sufficiency challenge.

2 The Court vacated the death sentence because the Commonwealth, in
violation of Pa.R.Crim.P. 352, had failed to notify Williams at the arraignment
that his prior convictions would be submitted at the sentencing hearing. See
Williams I, 650 A.2d at 429-30.

3 Prior to resentencing, the trial court ordered Williams to undergo another
psychiatric/psychological examination (hereinafter, “the 1995 mental exam”),
which revealed that he was mildly mentally retarded, and his current mental
state was “almost psychotic.” N.T. (resentencing), 12/21/95, at 13.
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Specifically, Williams attached to his Petition an Affidavit (the “Affidavit”)

purportedly executed by one of his fellow inmates, Darren Johnson

(“Johnson”).     See PCRA Petition, 3/28/17, Exhibit 1.      Therein, Johnson

asserted that Williams had approached him, on or around February 4, 2017,

and asked Johnson to prepare an “Innocence Project” application on behalf of

Williams. Id. According to Johnson, while he was completing this application,

he discovered, in Williams’s prison “record center box,” a July 25, 2014 letter

(hereinafter “the 2014 Letter”). Id. The 2014 Letter, which Williams attached

as an exhibit to his Petition, was issued by the U.S. Department of Justice

(“DOJ”) and sent to the Berks County District Attorneys’ Office,4 which had

prosecuted Williams’s case. See PCRA Petition, 3/28/17, Exhibit 2. The 2014

Letter concerned a DOJ/Federal Bureau of Investigation (“FBI”) review of

certain evidence presented at Williams’s trial. Id. In sum, the 2014 Letter

stated that the microscopic hair analysis testimony (and/or laboratory report)

presented at Williams’s trial included statements that exceeded the limits of

science, and was invalid. Id. at pages 1-2. Finally, Williams also asserted in

the PCRA Petition that his prior counsels were ineffective for failing to

challenge the “faulty and misleading” expert trial testimony in this regard.

       On April 11, 2018, the PCRA court issued a Pa.R.Crim.P. 907 Notice,

announcing its intent to dismiss Williams’s Petition without a hearing, and


____________________________________________


4 Additionally, the 2014 Letter stated that its contents would be made known
to the defense, the “Innocence Project,” as well as the National Association of
Criminal Defense Lawyers. See PCRA Petition, 3/28/17, Exhibit 2, at page 3.
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explaining its reasoning. Williams filed a pro se “Amended PCRA Petition” in

response to the Rule 907 Notice. Therein, Williams urged the PCRA court to

(1) grant him an evidentiary hearing on his claim of newly-discovered

evidence; (2) appoint him counsel to assist him with his claim; and (3) conduct

a hearing concerning Williams’s competency, in light of his low IQ and mental

state.

         By an Order entered on May 24, 2018, the PCRA court dismissed

Williams’s PCRA Petition as untimely. Williams timely filed a pro se Notice of

appeal.       In response, the PCRA court ordered Williams to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, and Williams

timely complied. The PCRA court then issued a Rule 1925(a) Opinion.

         On appeal, Williams presents the following questions for our review:

         A.    Whether the lower court committed reversible error and
               violated the [Pennsylvania] Supreme Court’s ruling rendered
               in Commonwealth[]v.[] Cruz, [852 A.2d 288 (Pa. 2004),]
               … and right to due process when it denied the mentally
               retarded, low IQ, totally illiterate and unable to comprehend
               [Williams] of [sic] a competent hearing[,] and ruling on his
               two separately[-]filed Motions for appointment of counsel
               prior to dismissing [Williams’s] PCRA Petition “based upon
               previously unknown information” that was newly[-]
               discovered when the … []DOJ[] presented [Williams] with a
               letter informing him that the hair analysis scientific evidence
               presented at his trial by the FBI crime lab was faulty and
               inaccurate?

         B.    Whether the case must be remanded to the lower court for
               a competency hearing and ruling on [Williams’s] two
               separately[-]filed Motions for appointment of counsel – in
               addition to a third filed with his timely[-]filed [N]otice of
               appeal to this Honorable Court – under the Supreme Court’s
               ruling rendered in Cruz, supra …, [and] the Due Process and


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           Equal Protection of the law Clauses of the United States
           Constitution, Amendment Fourteen?

Brief for Appellant at v (some capitalization omitted).

      “Our standard of review for issues arising from the denial of PCRA relief

is well-settled.   We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Spotz,

171 A.3d 675, 678 (Pa. 2017).

      All PCRA petitions, including a second or subsequent petition, must be

filed within one year of the date that the petitioner’s judgment of sentence

becomes final.     42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006) (citation omitted) (stating that “[i]f a

PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition.”). Any PCRA petition that is not filed within one

year of the date the judgment becomes final is time-barred, unless the

petitioner has pled and proven one of the three exceptions to the PCRA’s time

limitation set forth in 42 Pa.C.S.A. § 9545(b)(1)(i-iii) (providing that an

untimely PCRA petition may be considered timely if a petitioner alleges and

proves (1) governmental interference with the presentation of his claims; (2)

discovery of previously unknown facts which could not have been discovered

with due diligence; or (3) a newly-recognized constitutional right given

retroactive application). Importantly, any PCRA petition invoking one of these

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

presented.” Id. § 9545(b)(2) (emphasis added); see also Commonwealth


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v. Fahy, 737 A.2d 214, 219 (Pa. 1999) (emphasizing that the 60-day time

period is mandatory and jurisdictional in nature).        Finally, this Court has

explained that “[t]he PCRA confers no authority upon this Court to fashion ad

hoc equitable exceptions to the PCRA time-bar. This is to accord finality to

the collateral review process.” Commonwealth v. Medina, 92 A.3d 1210,

1215 (Pa. Super. 2014) (en banc) (citations, quotation marks and brackets

omitted).

        Williams’s instant PCRA Petition, filed in March 2017, is facially untimely

because his judgment of sentence became final approximately twenty years

prior. Accordingly, the Petition is time-barred unless Williams has pled and

proven a timeliness exception, and invoked such exception(s) within 60 days.

        Williams contends that he met the requirements of the newly-discovered

facts exception,5 citing his discovery of the 2014 Letter, and invokes our


____________________________________________


5   This Court has explained that

        [t]he 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. Due diligence
        demands that the petitioner take reasonable steps to protect his
        own interests. A petitioner must explain why he could not have
        learned the new fact(s) earlier with the exercise of due diligence.
        This rule is strictly enforced. 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. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations
and quotation marks omitted).


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Supreme Court’s decision in Cruz, 852 A.2d 287 (discussed below), in

asserting that his mental incompetence excuses his failure to timely invoke

this exception.6 See Brief for Appellant at 9-13. Additionally, Williams argues

that the PCRA court erred in denying his requests for the appointment of PCRA

counsel and an evidentiary hearing on his competency and claim of newly-

discovered facts. See id. at 18-20.

       Concerning the timeliness of Williams’s invocation of the newly-

discovered facts exception, the PCRA court stated in its Rule 907 Notice as

follows:

       [Williams] alleges that counsel was ineffective and also claims that
       misleading expert testimony was presented at trial. Specifically,
       [Williams points to] Johnson[’s discovery of the 2014 Letter, and
       the DOJ’s determination that] … the microscopic hair analysis
       testimony or laboratory report presented in [Williams’s] trial
       exceeded the limits of science and was invalid. A review of the
       transcript reveals that Special Agent Paul Bennett of the FBI
       testified at trial concerning this topic. (N.T. Trial, 1/17/91–
       1/18/91, at 388-443). However, because this claim was not
       raised within sixty days of the date that [Williams] received the
       [2014 L]etter, [see 42 Pa.C.S.A. § 9545(b)(2),7] it fails to meet
       an exception to the PCRA time bar.


____________________________________________


6Specifically, Williams emphasizes that his IQ is below 70, and points out the
above-mentioned comments made by the resentencing judge as to Williams’s
mental state. Brief for Appellant at 11.

7 Williams did not file his PCRA Petition relying upon the 2014 Letter (dated
July 25, 2014) until 2½ years after the date on the 2014 Letter. Moreover,
though Williams filed his PCRA Petition within 60 days of the date that Johnson
stated, in the Affidavit, that he had purportedly discovered the 2014 Letter
and brought it to Williams’s attention (i.e., on or about February 4, 2017), the
2014 Letter expressly stated that it had been sent to the defense in 2014, and
it was undisputedly in Williams’s possession. See PCRA Petition, 3/28/17,
Exhibit 2, at page 3.
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Order and Notice of Intent to Dismiss, 4/11/18, at 4 (footnote added). We

agree with the PCRA court’s rationale and determination.

      Moreover, Williams’s reliance on Cruz, supra, is unavailing. Cruz held

that, when proven, mental incompetence “may satisfy the requirements” of

the newly-discovered facts exception. Cruz, 852 A.2d at 288 (emphasis in

original). In Cruz, the PCRA petitioner suffered brain damage from a self-

inflicted gunshot wound.      This Court has previously summarized the Cruz

Court’s holding as follows:

      The petitioner entered a plea of nolo contendere, because
      according to his defense counsel he could not “discuss the facts of
      [his] case in any sort of sensible way,” as a result of the injuries
      resulting from his suicide attempt.      Despite the petitioner’s
      condition, defense counsel did not claim incompetence, and no
      determination regarding the petitioner’s competency was made.
      After nearly six years had passed, the petitioner filed a pro
      se PCRA petition, essentially alleging that he had only recently
      recovered from his self-inflicted gunshot wound to the degree of
      mental competency required to know and understand the facts of
      his case. Therefore, the petitioner argued that he could submit
      his first PCRA petition only recently. The [PCRA] court held, and
      the Superior Court affirmed, that the petitioner’s case did not
      qualify under the after-discovered evidence exception to the time
      bar of the PCRA.

             On appeal, the Supreme Court noted that there had not
      been any determination that the petitioner was incompetent or
      that he regained competency. Additionally, the Supreme Court
      noted that in the petitioner’s case, it was indisputable that
      petitioner had sustained a serious brain injury that impaired his
      brain function, and that it takes time for such an injury to heal.
      The Court further stated that the record contained nothing to
      sufficiently and definitively establish if and when the petitioner
      had passed from incompetence to competence, and that the
      petitioner had failed to prove that he was incompetent at the
      pertinent times, or that he had brought his claims during the
      sixty[-]day window provided by the after-discovered evidence
      exception.    The Court held that given the language of the

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       exception coupled with the unique circumstances of the
       petitioner’s case, the petitioner should be provided the
       opportunity to prove that he was incompetent at the relevant
       times, and that his incompetence qualifies under the after-
       discovered evidence exception.

Commonwealth v. Liebensperger, 904 A.2d 40, 46-47 (Pa. Super. 2006)

(citations to Cruz omitted). The Liebensperger Court distinguished Cruz on

the basis that the PCRA petitioner in Liebensperger, while suffering from

some mental conditions (including “mild mental retardation”), did not have a

physical brain injury and was able to cooperate in his own defense. See id.

at 47-48.

       This Court has further explained the scope of Cruz as follows:

       Only under a very limited circumstance has the Supreme Court
       ever allowed a form of mental illness or incompetence to excuse
       an otherwise untimely PCRA petition. See, e.g., [] Cruz[.] …
       Thus, the general rule remains that mental illness or psychological
       condition, absent more, will not serve as an exception to the
       PCRA’s jurisdictional time requirements.

Commonwealth v. Monaco, 996 A.2d 1076, 1080-81 (Pa. Super. 2010)

(emphasis added).

       In the instant appeal, Williams asserts that his low IQ, illiteracy, and

“almost psychotic” mental state kept him from exercising due diligence (i.e.,

timely seeking collateral relief based upon the information contained in the

2014 Letter). However, like the situation in Liebensperger, Williams has not

pled that he has a brain injury, or that he was unable to assist in his defense

at trial.   See Liebensperger, supra.      Indeed, Dr. Rotenberg opined that

although Williams was mildly mentally retarded, he was nevertheless legally


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competent.8 See id. at 48 (wherein the Liebensperger Court stated that

“unlike the appellant in Cruz, who was at no point deemed competent to stand

trial, [Liebensperger] was determined to be competent by Dr. Rotenberg prior

to the guilty plea and sentencing. The type of chronic mental illness suffered

by   [Liebensperger]      is   fundamentally       different   than   the   effects   and

circumstances surrounding the appellant’s indisputable physical injury to his

brain in Cruz ….”); see also Monaco, supra. Moreover, as this is Williams’s

third PCRA Petition, it is clear that he has been actively pursuing his avenues

of relief, which belies any claim of sustained incompetence. Thus, this case is

sufficiently distinguishable from Cruz as to not require us to reach the same

result.

       Nevertheless, even if Williams had timely invoked the newly-discovered

facts exception, he would not be entitled to relief on the merits of his claim.

In this regard, we adopt the PCRA court’s cogent rationale on this matter in

the Rule 907 Notice:

       [Williams] was not convicted solely on the basis of microscopic
       hair analysis. He was found at the scene of the crime covered in
       blood and wearing a jacket without a shirt. [See Williams I, 650
       A.2d at 424-25]. Officer Albert D. Shade, Jr., located a yellow
       shirt that was stained with blood in a wooded area nearby, and a
       witness testified that [Williams] was wearing the shirt just prior to
       the murder. Id. at [424].

             In addition, blood found on the inner lining of [Williams’s]
       jacket was the same type of blood as that of the victim, and expert
____________________________________________


8 Additionally, the 1995 mental exam essentially showed that Williams’s
mental state remained the same, to the extent that he was mildly mentally
retarded.
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       testimony established that the pattern of blood droplets on the
       jacket was consistent with a puncture wound that was made with
       great force. Id. at [425]. Therefore, even if the microscopic hair
       analysis evidence were excluded, [Williams] could not establish
       that he was convicted of a crime that he did not commit. See 42
       Pa.C.S.A. § 9542.

Order and Notice of Intent to Dismiss, 4/11/18, at 5; see also 42 Pa.C.S.A.

§ 9543(a)(2)(i) (noting that in order to be entitled to relief, a PCRA petitioner

must establish there was a violation of law “which, in the circumstances of the

particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.”).

       Accordingly, because Williams has failed to meet the pleading

requirements established in the PCRA, and because we hold that the very

limited exception established by Cruz does not apply to the instant Petition,

the PCRA court properly dismissed Williams’s Petition as untimely.9

       Order affirmed.




____________________________________________


9 Finally, contrary to Williams’s urging, an evidentiary hearing, and/or the
appointment of PCRA counsel, was not required because the PCRA court lacked
jurisdiction to address Williams’s claims. See Pa.R.Crim.P. 904(D) & (E)
(providing that an unrepresented PCRA petitioner filing a serial petition shall
only be appointed counsel whenever the interests of justice require it);
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (emphasizing
that “[t]he right to an evidentiary hearing on a post-conviction petition is not
absolute.” (citation omitted)).
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/1/2019




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