J-S52004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MONTANA BELL                               :
                                               :
                       Appellant               :   No. 3407 EDA 2018

            Appeal from the PCRA Order Entered November 5, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012776-2011


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 15, 2019

        Montana Bell appeals, pro se, from the order entered November 5, 2018,

in the Philadelphia County Court of Common Pleas, dismissing as untimely his

first petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Bell seeks relief from the judgment of sentence of 25 to 50 years’

imprisonment, imposed on August 15, 2013, following his jury conviction of

one count each of murder in the third degree, violations of the uniform

firearms act, and possessing an instrument of crime. On appeal, he asserts

the PCRA court erred in dismissing the petition as untimely because he has

newly discovered evidence. For the reasons discussed below, we affirm in




____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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part, vacate in part, and remand for further proceedings consistent with this

memorandum.

     We take the underlying facts and procedural history in this matter from

this Court’s November 26, 2014 opinion on direct appeal.

     The trial court summarized the facts of this case as follows:

           These charges arose out of an incident that occurred
           on July 11, 2011, at approximately 11:45 p.m. [Bell]
           and the decedent, Kim Davis (“Davis”), were engaged
           in an ongoing argument over prescription pills and
           money. Davis and [Bell] met up that night and
           continued their argument at the corner of Patton and
           Allegheny Streets, outside Davis’s home. During the
           argument, [Bell] hit Davis, knocking her to the
           ground. Davis got back up to her feet and reached for
           the hammer she carried around the neighborhood for
           protection but before she could get the hammer out,
           [Bell] shot her. Davis was shot twice in the head and
           neck area but suffered three (3) gunshot wounds.
           Davis was shot in her right cheek and the bullet exited
           her left cheek, hitting the left upper cervical spine
           causing a spinal cord injury. Davis was shot in her
           neck, behind her right ear, causing injury to her right
           temporal lobe. Davis’s third gunshot wound was to
           her left forearm and appeared to be a reentry from
           having her forearm near either her cheek or her neck
           at the time she was shot.

           Officer James Russell (“Officer Russell”) and his
           partner, James Somerville (“Officer Somerville”)
           noticed a job pending at Patton & Allegheny Streets
           and responded over police radio that they would
           handle the job. Upon arrival, they were flagged down
           by a woman on the street who stated that there was
           a woman, later identified as Davis, lying on the
           ground. Both Officers Russell and Somerville got out
           of the patrol car and approached Davis, who was
           laying on her stomach. The officers rolled Davis over
           on her back and noticed a large amount of blood
           coming from her head. When asked if she knew who

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           shot her, Davis was unresponsive.          Davis was
           breathing but was having difficulty speaking because
           blood was coming from her mouth. Other officers
           arrived shortly after and helped Officers Russell and
           Somerville carry Davis to Russell and Somerville’s
           patrol car. Officers Russell and Somerville rushed
           Davis to Temple University Hospital and remained at
           the hospital with Davis. Davis was pronounced dead
           at 12:01 a.m. on July 12, 2011.            Davis was
           transported to the Medical Examiner’s Office where an
           autopsy was performed which determined that the
           cause of death was two (2) gunshot wounds to the
           face and neck and the manner of death was homicide.

     Trial Court Opinion, 3/4/14, at 2–3.

     The trial court provided the following procedural history of this
     case:

           On June 21, 2013, [Bell] was found guilty, [by a jury],
           of one (1) count of third degree murder, a felony of
           the first degree; one (1) count of Violating the Uniform
           Firearms Act (“VUFA”) § 6108, a misdemeanor of the
           first degree; and, one (1) count of Possession of an
           Instrument of Crime (“PIC”), a misdemeanor of the
           first degree. On August 15, 2013, [the trial court]
           sentenced [Bell] to twenty to forty (20–40) years for
           the 3rd degree murder conviction, two and one-half
           to five (2½–5) years incarceration for the VUFA
           conviction, and two and one-half to five (2½–5) years
           incarceration for PIC. All convictions are to run
           consecutively, for a cumulative sentence of twenty-
           five to fifty (25–50) years incarceration. . . .

     Trial Court Opinion, 3/4/14, at 1–2. . . .

Commonwealth v. Bell, 2014 WL 10558245, at ** 1-2 (Pa. Super. Nov. 26,

2014) (unpublished memorandum).




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       On November 26, 2014, this Court affirmed the judgment of sentence.

See id. at *1. Bell did not seek leave to appeal to the Pennsylvania Supreme

Court.

       On February 2, 2016, Bell filed the instant PCRA petition. The PCRA

court appointed counsel who filed amended PCRA petitions. However, Bell

wished to proceed pro se and, therefore, the court held a Grazier hearing,2

after which it permitted Bell to proceed pro se with appointed backup counsel.

After the filing of several more amended PCRA petitions, on October 3, 2018,

the PCRA court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1). Bell did not file a response.

On November 5, 2018, the PCRA court dismissed the petition as untimely filed.

Bell filed a timely notice of appeal. On November 29, 2018, the PCRA court

directed Bell to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Bell filed a timely Rule 1925(b) statement on

December 19, 2018. On January 8, 2019, the PCRA court filed an opinion, in

which it recommended remanding for an evidentiary hearing on one of the

issues raised by Bell.

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)



____________________________________________


2   Commonwealth v. Grazier, 393 A.2d 335 (Pa. 1978).

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(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, that Bell’s petition was untimely. We agree. A petitioner must file

a PCRA petition within one year of the date the underlying judgment becomes

final. See 42 Pa.C.S.A. § 9545(b)(1).

        The PCRA timeliness requirement, however, is mandatory and
        jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
        1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
        A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
        753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
        untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

        Bell’s judgment of sentence was final on December 26, 2014, 30 days

after this Court affirmed the judgment of sentence and Bell failed to seek leave

to appeal to the Pennsylvania Supreme Court.              See 42 Pa.C.S.A. §

9545(b)(3); Pa.R.A.P. 113(a). Therefore, he had until December 28, 2015,3

to file a timely PCRA petition. His petition, filed February 2, 2016, is untimely.

        Nevertheless, we may still consider an untimely PCRA petition if one of

the following three 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
____________________________________________


3   December 26, 2015, was a Saturday.

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        (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)(i-iii).

       Here, Bell attempts to invoke the unknown facts exception set forth in

Subsection 9545(b)(1)(ii). Until recently, a petitioner invoking an exception

had to file his petition within 60 days of the date he or she could have

presented the claim.4

       This Court has previously explained the interplay between the newly

discovered facts exception to the timeliness requirements and a substantive

collateral claim of after-discovered evidence as follows:

       The 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.

       The timeliness exception set forth at Section 9545(b)(1)(ii) has
       often mistakenly been referred to as the “after-discovered
____________________________________________


4 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.


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     evidence” exception. This shorthand reference was a misnomer,
     since the plain language of subsection (b)(1)(ii) does not require
     the petitioner to allege and prove a claim of “after-discovered
     evidence.” Rather, as an initial jurisdictional threshold, Section
     9545(b)(1)(ii) requires a petitioner to allege and prove that there
     were facts unknown to him and that he exercised due diligence in
     discovering those facts. Once jurisdiction is established, a PCRA
     petitioner can present a substantive after-discovered-evidence
     claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
     eligible for relief under PCRA, petitioner must plead and prove by
     preponderance of evidence that conviction or sentence resulted
     from, inter alia, unavailability at time of trial of exculpatory
     evidence that has subsequently become available and would have
     changed outcome of trial if it had been introduced). In other
     words, the “new facts” exception at:

           [S]ubsection (b)(1)(ii) has two components, which
           must be alleged and proved. Namely, 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. If the petitioner alleges and proves these
           two components, then the PCRA court has jurisdiction
           over the claim under this subsection.

     Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
     require any merits analysis of an underlying after-discovered-
     evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) (some

citations and quotation marks omitted, emphases in original), appeal denied,

125 A.3d 1197 (Pa. 2015).     Accordingly, before we may consider whether

Bell’s substantive claim of after-discovered evidence merits relief, we must

first determine whether he has established “there were facts unknown to him

and that he exercised due diligence in discovering those facts.” Id. at 176.

     Bell first contends he discovered the judge who presided over the

preliminary hearing in this matter, former Philadelphia Municipal Court Judge

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Dawn Segal, was removed from the bench for corruption. See Bell’s Brief, at

6-10. Bell attached multiple documents supporting this claim to his August

20, 2017 and December 20, 2017 amended PCRA petitions.

      Even assuming, arguendo, Bell has demonstrated both that this was an

unknown fact and he exercised due diligence, this claim cannot succeed.

Here, former Judge Segal’s only involvement in this matter was to preside

over Bell’s preliminary hearing. Our Supreme Court has held once a defendant

has pleaded guilty or gone to trial and been found guilty he cannot establish

actual prejudice relative to alleged errors that took place at a preliminary

hearing. See Commonwealth v. Sanchez, 82 A.3d 943, 984 (Pa. 2013),

cert. denied, 135 S.Ct. 154 (2014). As the PCRA court stated, “[s]ince [Bell’s]

complaint is simply that his preliminary hearing was presided over by a jurist

later removed from the Municipal Court bench, and because [Bell] was

properly convicted following a jury trial presided over by a different judge of

the Court of Common Pleas, [he] is entitled to no relief.” PCRA Court Opinion,

1/08/2019, at 6. We agree; Bell’s first claim does not merit relief.

      In his second and third claims, Bell argues the PCRA court erred in not

holding an evidentiary hearing and in not holding he met the timeliness

exception based upon his claim of police misconduct. Bell’s Brief, at 10-12.

Specifically, Bell alleges former Philadelphia Police Detective James Pitts, who

interviewed a Commonwealth witness in this matter, was later found to be

corrupt and was disciplined for his actions. See id.


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       However, at trial, Bell was already aware Commonwealth witness

Nathaniel Devore maintained Detective Pitts coerced his statement and

defense counsel thoroughly questioned Devore about the circumstances and

his disavowal at trial of the statement. See N.T. Trial, 6/18/2013, at 178-

184.

       In rejecting this type of claim, we stated:

       In Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714
       (Pa.2008), our Supreme Court explained that,

             [e]xception (b)(1)(ii) “requires petitioner to allege
             and prove that there were ‘facts’ that were ‘unknown’
             to him” and that he could not have ascertained those
             facts by the exercise of “due diligence.”
             [Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d
             1264, 1271-1272 (Pa. 2007)] (emphasis added). The
             focus of the exception is “on [the] newly discovered
             facts, not on a newly discovered or newly willing
             source for previously known facts.” Commonwealth
             v. Johnson, 580 Pa. 594, 863 A.2d 423, 427 (2004)
             (emphasis in original). In Johnson, this Court
             rejected the petitioner’s argument that a witness’s
             subsequent admission of alleged facts brought a claim
             within the scope of exception (b)(1)(ii) even though
             the facts had been available to the petitioner
             beforehand. Relying on Johnson, this Court more
             recently held that an affidavit alleging perjury did not
             bring a petitioner’s claim of fabricated testimony
             within the scope of exception (b)(1)(ii) because the
             only “new” aspect of the claim was that a new witness
             had come forward to testify regarding the previously
             raised claim. [Commonwealth v.] Abu–Jamal, [941
             A.2d 1263,] 1267 [Pa. 2008)]. Specifically, we held
             that the fact that the petitioner “discovered yet
             another conduit for the same claim of perjury does not
             transform his latest source into evidence falling within
             the ambit of [Section] 9545(b)(1)(ii).” Id. at 1269.

Marshall, 947 A.2d at 720 (footnote omitted).

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      Here, Bell knew at the time of trial that Devore contended Pitts obtained

his statement through coercion. His current claim is merely another conduit

for information regarding a previously known fact. See id. Bell’s second and

third contentions do not merit relief.

      In his fourth claim, Bell contends the PCRA court should have

determined his petition was timely because prior counsel failed to raise issues

on appeal that he raised in the Pa.R.A.P. 1925(b) statement. Bell’s Brief, at

12-14. This Court has long held an appellant does not present an exception

to the time-bar by claiming ineffective assistance of counsel.            See

Commonwealth v. Davis, 816 A.2d 1129, 1135 (Pa. Super. 2003), appeal

denied, 839 A.2d 351 (Pa. 2003) (“[A]ttempts to utilize ineffective assistance

of counsel claims as a means of escaping the jurisdictional time requirements

for filing a PCRA petition have been regularly rejected by our courts.”)

(citations omitted). Bell’s fourth claim does not merit relief.

      In his fifth claim, Bell avers his direct appeal counsel abandoned him

and failed to file a request for leave to appeal to the Pennsylvania Supreme

Court. Bell’s Brief, at 14-15. In Bennett, supra, the Pennsylvania Supreme

Court determined counsel’s failure to file an appellate brief and perfect the

appeal, which resulted in this Court’s dismissal of the appeal, constituted

abandonment as it was “the functional equivalent of having no counsel at all.”

Id. at 1273. Our Supreme Court further concluded counsel’s abandonment

could serve as a newly discovered fact, as


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      allowing such claims to go forward would not eviscerate the time
      requirements crafted by the Legislature [in the PCRA]. Rather,
      subsection (b)(1)(ii) is a limited extension of the one-year time
      requirement under circumstances when a petitioner has not had
      the review to which he was entitled due to a circumstance that
      was beyond his control.

Id.   In so holding, the Court distinguished Bennett’s claim of counsel’s

abandonment from those claims of ineffectiveness that “narrowed the ambit

of appellate review,” and could not fall within the purview of Section

9545(b)(1)(ii). Id. at 1273.

      Here, however, we are unable to determine whether Bell acted with due

diligence in bringing this claim and/or he brought this claim within sixty days

of discovering the information.     Bell attached to his original petition an

unsworn affidavit dated November 3, 2015, from DeVonte Douglass. In the

affidavit, Douglass states he was assisting Bell with his legal work and

contacted Bell’s former counsel on August 15, 2015. See Affidavit of DeVonte

Douglass, 11/03/2015, at unnumbered page 1. At that time, Douglass was

already aware counsel had not sought leave to appeal to the Pennsylvania

Supreme Court. See id. We cannot ascertain from the affidavit when either

Bell or Douglass became aware of that fact; nor why Bell waited until February

2016 to file his PCRA petition. Both the PCRA court and the Commonwealth

believe Bell is entitled to an evidentiary hearing on the issue of due diligence

and the sixty-day rule. See PCRA Court Opinion at 10; Commonwealth’s Brief,

at 6. We agree.




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       We agree with the PCRA court that there is a genuine issue of material

fact as to whether the facts were unknown and whether Bell acted with due

diligence and within sixty days of discovering the alleged fact. Therefore, Bell

is entitled to an evidentiary hearing with respect to these issues. 5 If, after a

hearing, the PCRA court determines the facts were unknown and Bell did act

with due diligence and within sixty days, then Bell has pled and proven the

applicability of the newly discovered fact exception to the PCRA’s timeliness

requirement.      In that case, the PCRA court possesses the jurisdiction to

consider the merits of Bell’s abandonment by counsel claim.

       In his final issue, Bell maintains the PCRA court should not have

dismissed the petition without first writing a detailed opinion. See Bell’s Brief,

at 15-17. However, Bell waived this issue because he raised it for the first

time on appeal. See Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3

(Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008) (new legal theories

cannot be raised for first time on appeal); Pa.R.A.P. 302(a). In any event,

the claim is without merit.

       There is nothing in the text of Rule 907 that requires the PCRA court to

undertake an independent analysis of the issues in the notice.               See

Pa.R.Crim.P. 907. Here, the PCRA court alerted Bell in its Rule 907 notice as


____________________________________________


5We make no determination as to whether Bell met the threshold inquiry of
establishing “the facts upon which the claim was predicated were unknown
and could not have been ascertained by the exercise of due diligence.”
Brown, supra at 1076.

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to the reasons why it was proposing to dismiss his petition without a hearing.

It then drafted a full and independent Rule 1925(a) opinion explaining the

basis for its decision. That is all that is required. See id. Thus, this issue

does not merit relief.

      Accordingly, for the reasons discussed above, we affirm in part, vacate

in part, and remand for a due diligence hearing on Bell’s claim of abandonment

by direct appeal counsel.

      Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/19




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