J-S39012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERNEST JAMAL NELSON,

                            Appellant                No. 1220 WDA 2016


             Appeal from the PCRA Order Entered February 1, 2016
              In the Court of Common Pleas of Allegheny County
                          Criminal Division at No(s):
                           CP-02-CR-0003618-2000
                           CP-02-CR-0017102-1999


BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED JULY 7, 2017

        Appellant, Ernest Jamal Nelson (hereinafter, “Nelson”), appeals from

the post-conviction court’s February 1, 2016 order denying, without a

hearing, his petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. After careful review, we are compelled to vacate and

remand for further proceedings.

               At approximately 1:00 a.m., on April 7, 1999, Officer
        Frank Chianese of the Swissvale Police Department responded to
        a call of a shooting at Frankie’s Bar in the Swissvale section of
        eastern Allegheny County. He observed a man lying on the
        ground in front of a poker machine (later identified as Kevin
        Green [“Green”]), a man lying by the bar (later identified as
        Steve [R]oberson), and two women lying on the stairs.

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*
    Retired Senior Judge assigned to the Superior Court.
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            LaDawn King, Kristi Leftwich, Steve Roberson, Shawn Hall
     and Edward Witcher testified that they were patrons in the bar
     on April 7, [1999]. Ms. King was shot in the leg as she was
     running up the stairs. She suffered a shattered fibula and was
     hospitalized for two days. Ms. Leftwich was shot in the hip area
     and bullet fragments remain in her hip. Mr. Roberson, who
     stated that he observed an argument in the bar earlier in the
     evening, was also shot in the leg; however, he did not see
     anyone with a gun. Mr. Hall was shot in the lower back,
     resulting in a hospital stay of more than a week and over five
     months in a rehabilitation facility. Mr. Witcher was shot in the
     stomach and the shoulder.

           Abdulrezzak Shakir, a forensic pathologist with the
     Allegheny County Coroner's Office, testified that he performed
     an autopsy on the body of [Green]. [Green] suffered a non-fatal
     gunshot wound to the left arm and a fatal gunshot wound to the
     head[,] which fractured his skull.

           Louis Gilmore stated that he was at Frankie’s Bar at the
     time of the shooting. He further stated that he knows [Nelson]
     by his nickname[,] “Mall-D.” He identified the shooter as “Mall-
     D.” He estimated that ten shots were fired and he was positive
     that “Mall-D” had the weapon.

            Detective Regis Kelly, of the Allegheny County Police
     Department testified that he was contacted by Thomas Dean,
     who indicated that he had information regarding a homicide. He
     and Detective Lee Yingling took a taped statement from Mr.
     Dean, while Mr. Dean was incarcerated at the Allegheny County
     Jail. In the taped statement, which was played for the jury, Mr.
     Dean stated that while he and [Nelson] were incarcerated in the
     jail, they had discussions about the shooting at Frankie’s Bar.
     [Nelson] told [Dean] that he and a friend named “Woo” were at
     the bar with two girls, Jackie and Starr (who were sisters). They
     got into a confrontation with “some Lang boys” and when
     [Nelson] thought that one of them reached for a gun, he
     grabbed his own gun, began firing and ran out the door.
     Detective Kelly testified further about[] his interviews with
     [Nelson].     Specifically, when he interviewed [Nelson] on
     November 19, 1999, [Nelson] stated that he was not at Frankie’s
     Bar at the time of the shooting; however, he knew that “Rock,”
     whose name is Damion [Nix], was the shooter. When [Nelson]
     was confronted with conflicting information, he admitted that he

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        was at the bar at the time of the shooting. He said that he was
        returning from the bathroom and he heard gunshots. He pulled
        out his weapon and as he fell to the ground the weapon
        discharged accidentally. When pressed further, [Nelson] finally
        acknowledged that there was trouble in the bar and he pulled
        out his gun and fired it several times.[1]

              At trial, the Commonwealth presented evidence that
        Nelson was associated with a gang known as the Wheeler Street
        Crips, and that Green was associated with a gang known as the
        North Lang Crips. The Commonwealth also presented evidence
        of an ongoing feud between the two gangs.

Commonwealth           v.    Nelson,        No.   1996     WDA     2000,    unpublished

memorandum at 1-3 (Pa. Super. filed February 21, 2002) (quoting Trial

Court Opinion, 4/18/01, at 2-3) (citations to the record omitted).

        Based on this evidence, a jury convicted Nelson of one count of

voluntary manslaughter, five counts of aggravated assault, and one count of

carrying a firearm without a license.               On October 25, 2000, he was

sentenced to an aggregate term of 32 to 70 years’ imprisonment. On direct

appeal, this Court affirmed Nelson’s judgment of sentence, and our Supreme

Court    subsequently       denied    his      petition   for   allowance   of   appeal.

Commonwealth v. Nelson, 797 A.2d 1024 (Pa. Super. 2002) (unpublished

memorandum), appeal denied, 806 A.2d 860 (Pa. 2002).

        On August 23, 2003, Nelson filed his first, counseled PCRA petition.

That petition was denied on March 4, 2004, and after this Court affirmed on
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1
  We note that Nelson’s statement to Detective Kelly was not written or tape
recorded. Detective Kelly testified that Nelson was unwilling to “put the
interview on tape[,]” despite twice being asked to do so by the detective.
N.T. Trial, 7/17-7/19/00, at 338.



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appeal, our Supreme Court denied Nelson’s subsequent petition for

allowance of appeal. See Commonwealth v. Nelson, 873 A.2d 770 (Pa.

Super. 2005) (unpublished memorandum), appeal denied, 877 A.2d 461

(Pa. 2005)).
             On February 9, 2011, [Nelson] filed a second pro se PCRA
      petition alleging the existence of newly-discovered exculpatory
      evidence. The PCRA court appointed counsel, who filed an
      amended PCRA petition on July 14, 2011. The PCRA court held a
      hearing on October 25, 2011, where [Nelson] and a witness,
      Alvin Dix, testified that Dix’s deceased brother, Damion Dix, was
      responsible for the shooting for which Appellant had been
      convicted. The PCRA court, determining that their testimony
      was not credible, denied the petition on November 3, 2011.

Commonwealth        v.   Nelson,    No.    1842   WDA     2011,   unpublished

memorandum at 2-3 (Pa. Super. filed May 24, 2012).

      Appellant filed a timely appeal from the denial of this second PCRA

petition, and this Court affirmed, concluding that the PCRA court’s credibility

determinations were supported by the record, and that Nelson “failed to

provide newly-discovered evidence because, even if admissible, [Alvin] Nix’s

testimony would not ‘likely compel a different verdict.’” Id. at 5, 6 (quoting

Commonwealth v. D’Amato, 856 A.2d 806, 823 (Pa. 2004) (“To obtain

relief based upon newly-discovered evidence under the PCRA, a petitioner

must establish that: (1) the evidence has been discovered after trial and it

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.”)).

Notably, neither the PCRA court, nor this Court, conducted any assessment

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of whether Nelson’s second PCRA petition, asserting the after-discovered

evidence of Alvin Nix’s statement, met an exception to the PCRA’s one-year

time-bar, discussed in detail infra. See 42 Pa.C.S. § 9545(b).

       On September 10, 2015, Nelson filed a third, pro se PCRA petition,

which underlies the present appeal. In that facially untimely petition, Nelson

maintained that he satisfied the ‘new fact’ exception to the PCRA’s one-year

time-bar.   Specifically, Nelson asserted that he had “received information”

that an individual named Ronald Robinson “was with Damion Nix[] when

Damion shot Kevin Green.”      See PCRA Petition, 9/10/15, at 3.       Nelson

further averred that he “sought to have this information either confirmed or

denied[ b]y Ronald Robinson[,]” and after “[e]xploring all avenues,” he

finally received “in early September of 2015,” an affidavit from Robinson.

Id.

       Appellant attached Robinson’s signed affidavit (dated August 28,

2015) to his petition. Therein, Robinson stated that he and Damion Nix had

gone to Frankie’s Bar on the night of the shooting and, once inside the bar,

Robinson had given Nix one of two guns that Robinson had secreted into the

bar.   See PCRA Petition, 9/10/15 (Sworn Affidavit of Ronald Robinson).

Robinson stated that he and Nix then proceeded to the dance floor, where

they saw Kevin Green and “[a]n argument immediately broke out between




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[Green] and [Nix].” Id.2 Robinson claimed that he and Nix “both pulled out

our guns and started shooting.”            Id.   Robinson explained that after the

shooting, he and Nix fled out a back door of the bar and “drove to the Rakin

[sic] Bridge,” where Robinson “threw both guns into the river.” Id.

       On October 22, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Nelson’s petition without a hearing, stating only that

his petition “is patently frivolous and without support on the record….” Rule

907 Notice, 10/22/15, at 1. Nelson filed a pro se response, but on February

1, 2016, the PCRA court issued an order dismissing his petition.

       Thereafter, the PCRA court granted Appellant two, 60-day extensions

of time within which to file his notice of appeal with this Court. Appellant

ultimately filed his notice of appeal within the time-frame mandated by the

PCRA court. It does not appear from the record that the PCRA court directed

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal. However, on September 22, 2016, the PCRA court issued an

opinion, the entirety of which stated as follows:

              The Petitioner, Ernest Nelson, has appealed this Court’s
       dismissal of his most recent Post-Conviction Relief Act (PCRA)
       petition. This court has reviewed the petition and finds that it is
       time-barred for the same reasons as stated in the attached
       previous opinion dismissing a prior PCRA.



____________________________________________


2
 Robinson explained that Nix wanted revenge against Green because Green
had shot and wounded Nix “in early 1999.” Id.



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PCRA Court Opinion (PCO), 9/22/16, at 1 (unnecessary capitalization and

emphasis omitted).        To this opinion, the court attached its opinion from

2012, in which it explained the basis for its denial of Nelson’s second PCRA

petition, as follows:

      The sole issue on appeal is the allegation of an abuse of
      discretion in denying the Petition.      This [c]ourt, during the
      evidentiary hearing, heard all of the testimony and observed all
      of the witnesses and concluded that the testimony of [Nelson],
      and witness Alvin [N]ix[,] was incredible.           A credibility
      determination adverse to [Nelson] requires dismissal of the
      Petition and is not an abuse of discretion. See Commonwealth
      v. Robinson, 780 A.2d 675[] (Pa. Super[.] 2001).

PCRA Court Opinion, 1/10/12, at 4-5.

      Nelson at some point obtained counsel, who filed a brief on his behalf

raising the following issue for our review: “Should the PCRA court have

granted an evidentiary hearing before dismissing the petition on credibility?”

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.     Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of


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the petition).   Under the PCRA, any petition for post-conviction relief,

including a second or subsequent one, must be filed within one year of the

date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any 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:

            (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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

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

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

      Here, Nelson’s judgment of sentence became final in 2002, and thus,

his present petition filed in 2015 is clearly untimely. For this Court to have

jurisdiction to review the merits thereof, Nelson must prove that he meets




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one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S.

§ 9545(b).

      In his PCRA petition, Nelson invoked the after-discovered fact

exception of section 9545(b)(1)(ii). However, the PCRA court never ruled on

whether Nelson satisfied that exception.       Instead, the court improperly

dismissed his after-discovered evidence claim on the merits, cursorily

deeming it ‘frivolous’ and unsupported by the record. Additionally, while the

court’s Rule 1925(a) opinion refers to Nelson’s petition as being ‘time-

barred,’ the court relies on the rationale set forth in its 2012 opinion, which

made no mention of the timeliness of Nelson’s petition.

      Because the PCRA court never ruled on the timeliness of Nelson’s

current petition, we conclude that remand is necessary.       It is well-settled

that “the PCRA’s timeliness requirements are jurisdictional in nature, and a

court may not address the merits of the issues raised if the PCRA petition

was not timely filed.” Commonwealth v. Copenhefer, 941 A.2d 646, 648

(Pa. 2007). Moreover, “[t]here can be no reasonable dispute that the due

diligence inquiry [of the after-discovered fact exception] is fact-sensitive and

dependent upon the circumstances presented.”              Commonwealth v.

Burton, 121 A.3d 1063, 1070 (Pa. Super. 2015) (en banc). Our Supreme

Court has also consistently stressed that “[t]he PCRA court’s factual

determinations are entitled to deference….” Commonwealth v. Johnson,

966 A.2d 523, 532 (Pa. 2009).      Because in this case, we have no factual

findings regarding the timeliness of Nelson’s petition - and, in particular,

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whether he exercised due diligence - we conclude that it is appropriate to

remand this case for the PCRA court to render such findings in the first

instance.3

       Therefore, we vacate the PCRA court’s order dismissing Nelson’s

petition and remand for a hearing, at which the PCRA court must first assess

the timeliness of Nelson’s petition.4 If the court concludes that Nelson has

met the timeliness exception of section 9545(b)(1)(ii), it must then

determine if Robinson’s testimony satisfies the four-pronged test for


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3
  We also mention our concern with the fact that, in assessing the merits of
Nelson’s petition, the PCRA court provided no discussion of its reason(s) for
dismissing his claim as ‘frivolous.’ Even more troubling is the court’s
suggestion in its opinion that it rejected Nelson’s claim because it had
previously concluded that Alvin Nix was incredible.         Nix and Robinson
presented wholly distinct information in their affidavits, and the PCRA court
did not hold a hearing to assess the credibility of Robinson’s claims. Thus,
even if the PCRA court had been permitted to assess the merits of Nelson’s
petition, we would conclude that it abused its discretion by rejecting his
after-discovered evidence claim for the reason that it did, and without
conducting a hearing.
4
  A hearing on the timeliness of Nelson’s petition is warranted, as there is a
genuine issue of material fact regarding his due diligence in discovering
Robinson.     In Nelson’s pro se petition, he averred that he obtained
information that Robinson was with Nix on the night of the shooting, and he
then pursued ‘all avenues’ of contacting Robinson to confirm or refute this
claim, which led to his receiving Robinson’s affidavit. See PCRA Petition,
9/10/15, at 3. Moreover, in his appellate brief, Nelson stresses that “[n]o
diligence in the world could have made Ronald Robinson admit to this crime
until he was ready.” Nelson’s Brief at 13. We deem these statements
sufficient to demonstrate an issue of material fact regarding whether Nelson
acted diligently in obtaining Robinson’s statement.




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obtaining a new trial based on after-discovered evidence.   See D’Amato,

856 A.2d at 823.

      Order vacated. Case remanded for further proceedings.    Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2017




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