J-S16028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHAWN EDWARDS                            :
                                               :
                       Appellant               :   No. 2197 EDA 2019

              Appeal from the PCRA Order Entered June 20, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014637-2011


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 14, 2020

        Rashawn Edwards appeals from the order dismissing his petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Edwards maintains that the PCRA court erred in dismissing his petition as

untimely. We affirm.

        The PCRA court summarized the facts underlying this case as follows:

              [Aaron] Young allegedly had a dispute with inmate Sean
           Sulivan over a block worker job. Sulivan passed "bangers"
           to the co-defendants and devised a plan to attack; the plan
           included distracting the prison guards so that the
           perpetrators could invade cell 15 which housed victims
           Young and [Richard] Gyton. [The decedent Earl] Bostic was
           nearby watching television in a day room when he was
           attacked by the co-defendants.[1]

                Bostic died of multiple stab wounds to the neck, chest,
           back and right arm, one of which partially severed his aorta.
           Gyton and Young were seriously injured when they were
____________________________________________


1   The co-defendants include instant Appellant Edwards.
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           stabbed in the hand, head, arm and stomach by the co-
           defendants. The perpetrators used shanks and bangers to
           carry out the bloody attacks.

                 Police officers interviewed Gyton at Hahneman
           Hospital at the time he was being treated for his stab
           wounds. The officers memorialized Gyton’s statements in a
           document, which was later read into the record at both the
           preliminary hearing and at trial. In the document, Gyton
           identifies the co-defendants as the individuals who stabbed
           the inmate-victims. At trial, however, Gyton testified he did
           not know who stabbed him, he recanted statements he
           allegedly made during a prison assessment that indicated
           he needed to be separated in jail from the co-defendants
           because he feared they would harm him again, and he
           testified about a letter he sent to the co-defendants
           explaining that his “story” about them committing the
           crimes had been fabricated.

PCRA Ct. Op., 6/20/19, at 2-3.

        In May 2013, a jury convicted Edwards of two counts of attempted

murder, two counts of aggravated assault, and one count each of conspiracy

to commit murder, possession of an instrument of a crime, and prohibited

offensive weapons.2 The trial court sentenced him in July 2013 to an aggregate

term of 19 to 42 years’ imprisonment. Edwards filed a direct appeal and in

January     2015, this court        affirmed   his   judgement   of sentence. The

Pennsylvania Supreme Court denied his petition for allowance of appeal on

October 7, 2015.

        After litigating a prior, unsuccessful PCRA petition, Edwards filed the

instant, pro se PCRA petition on December 12, 2018. He retained private

counsel who filed an amended petition. The PCRA court issued a Pa.R.Crim.P.

____________________________________________


2   18 Pa.C.S.A. §§ 2502, 2702(a), 903, 907(a), and 908(a), respectively.

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907 notice of intent to dismiss Edwards’ petition. Edwards did not respond to

the Rule 907 notice, and the PCRA court dismissed his petition on June 20,

2019. This appeal followed.

      Edwards raises a single issue for our review: “Did the PCRA Court err,

violating [Edwards’] right to due process and a fair trial by finding that

[Edwards’] newly discovered evidence was not timely and lacked merit?”

Edwards’ Br. at 3.

      Edwards’ claim that his PCRA petition was timely lacks merit. A PCRA

petition is timely if filed within one year after the date the judgment of

sentence became final. Commonwealth v. Hart, 199 A.3d 475, 480

(Pa.Super. 2018). Edwards’ conviction became final on January 5, 2016, 90

days after the Pennsylvania Supreme Court denied discretionary review, at

which point the deadline for filing a petition for writ of certiorari in the

Supreme Court of the United States expired. See 42 Pa.C.S.A. § 9545(b)(3);

U.S. Sup.Ct.R. 13(1).

      Thus, Edwards had until January 5, 2017 to file a timely petition and the

instant petition, filed in December 2018, is facially untimely. Therefore, the

PCRA court lacked jurisdiction to review Edwards’ petition unless he pleaded

and proved that one of the statutory exceptions to the PCRA’s one year time-

bar applied.

      The three exceptions are:

         (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

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         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)(i)-(iii).

      A petitioner must raise an exception to the PCRA’s time bar within one

year of the date the petitioner could have first raised it. 42 Pa.C.S.A. §

9545(b)(2). This deadline increased from 60 days to one year, effective

December 24, 2018. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3. However,

the new, extended deadline applies only to claims arising on or after December

24, 2017. Id. Here, as we will discuss below, Edwards cites Commonwealth

v. Thorpe, No. CP-51-CR-0011433-2008 (Phila.Cty. filed Nov. 3, 2017), in

support of his claim. Because that case was issued in November 2017, the 60-

day filling requirement applied. Because Edwards did not file the instant

petition until December 12, 2018, he missed that deadline. Nonetheless, we

conclude that Edwards’ raising of the exception was timely. He filed the instant

petition within 60 days of the end of his prior PCRA appeal. See

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (if the facts upon

which a PCRA petitioner’s newly discovered evidence claim is based are

discovered during the pendency of an appeal of a prior PCRA petition, the

claim is timely if filed within 60 days of the resolution of the prior petition).

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      Even so, Edwards fails to establish that his claim survives the PCRA’s

time-bar. He argues that the second exception to the time-bar, the newly

discovered fact exception, applies. See 42 Pa.C.S.A. § 9545(b)(ii). To invoke

this exception, a petitioner must plead and prove that: 1) a fact giving rise to

the petitioner’s substantive PCRA claim was unknown to him, and 2) the

petitioner could not have ascertained the fact earlier by the exercise of due

diligence. Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa.Super. 2017).

“[T]he 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).

      In this case, Edwards essentially argues that police coerced the

recanting witnesses into implicating him. This is fundamentally the same claim

that Edwards put forward in his prior PCRA petition. In this petition, Edwards

adds the assertion that the court’s factual findings in Thorpe constituted

newly discovered facts pertinent to his case. The Thorpe court held that a

Philadelphia homicide detective, Detective James Pitts, used coercive and

unconstitutional interrogation tactics. However, Thorpe is of no moment here

because Detective Pitts was not involved in the investigation of Edwards’ case

and any wrongdoing by Detective Pitts is not a “fact” on which Edwards bases

his substantive claim. He attempts to overcome this hurdle by implying that

Detective Pitt’s misconduct should be imputed to the detectives involved in

his case. That tactic is unavailing. Cf. Commonwealth v. Johnson, 179 A.3d

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1105, 1123 (Pa.Super. 2018) (holding that a detective’s criminal convictions

years after the petitioner’s case in an unrelated matter would be used solely

to   impeach   credibility   and   had     no   bearing   on    petitioner’s   case);

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa. Super. 2012) (holding

that filing of criminal charges against a detective in an unrelated matter would

not meet the after-discovered evidence test as it would be used solely to

impeach credibility and would not likely result in a different verdict).

      Moreover,    Edwards    fails   to   prove   that   the   inapposite     factual

determinations in Thorpe constitute newly discovered facts that were

previously “unknown” to him. Edwards already asserted that police coerced

the recanting witnesses into implicating him in his first PCRA petition. Thorpe

represents a different source for those same allegations, and is not itself a

new “fact” sufficient to invoke the “new fact” exception to the PCRA’s time

bar. See Shiloh, 170 A.3d at 558; Brown, 111 A.3d at 176.

      Furthermore, the PCRA court properly determined that Edwards

previously litigated this claim. In order to obtain relief under the PCRA, a

petitioner must prove that the allegation of error has not been previously

litigated. See 42 Pa.C.S.A. § 9543(a)(3) (requiring petitioners to prove that

allegations of error have not been previously litigated or waived, in order to

be eligible for relief under PCRA). Here, Edwards previously raised Richard

Gyron’s, Omar Fulton’s, and Tyrell Rivers’ recantation as “new facts.”

However, Edwards failed to provide the necessary written support for his

contentions and his claim failed. PCRA Ct. Op. at 9-10. Hence, the PCRA court

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properly determined that Edwards’ claim regarding Gyron’s, Fulton’s, and

Rivers’ recantation testimony had been previously litigated and is thereby not

eligible for instant relief. See 42 Pa.C.S.A. § 9543(a)(3).

      The trial court also aptly found that even if Edwards’ claim was timely,

a new trial would not be in order. To obtain a new trial based on after-acquired

evidence, the petitioner must prove that: (1) the petitioner could not have

obtained the new evidence prior to the conclusion of the trial by exercising

due diligence; (2) the evidence is not merely corroborative or cumulative; (3)

the petitioner will not use it solely to impeach the credibility of a witness; and

(4) a new trial would likely result in a different verdict. See Commonwealth

v. Griffin, 137 A.3d 605, 608 (Pa.Super. 2016).

      Edwards claims that the factual determinations provided in Thorpe are

relevant for more than just impeachment purposes. See Griffin, 137 A.3d at

610. To this end, he cites this Court’s decision in Commonwealth v.

Williams, 215 A.3d 1019, 1026-28 (Pa.Super. 2019), for the proposition that

evidence of police misconduct constitutes an elevated type of evidence that is

relevant for more than just impeachment purposes. However, Williams is

distinguishable. There, a lone detective testified at trial and the after-

discovered evidence at issue concerned the alleged misconduct of that specific

detective regarding the actual case at hand. Id. Here, Edwards fails to make

any connection between the Thorpe findings and the detectives involved in

the instant matter. Thus, Edwards has not established that any factual

determinations gleaned from Thorpe would be potentially relevant other than

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for impeachment purposes. See Johnson, 179 A.3d at 1123; Foreman, 55

A.3d at 537.

      Lastly, as noted by the PCRA court, a new trial would be unjustified in

this case because ample evidence supported Edwards’ conviction independent

of the recanting witnesses’ testimony. At trial, Edwards was identified by

another eyewitness, George Moore, and the prosecution introduced DNA

evidence recovered from the murder weapon that matched Edwards. PCRA Ct.

Op. at 8-9. Thus, Edwards also fails to establish that after-acquired evidence

would compel a different verdict in his case. See Griffin, 137 A.3d at 608.

      Accordingly, Edwards’ petition was filed after the PCRA’s one-year time-

bar and does not qualify for any exception. Thus, we affirm the PCRA Court’s

dismissal of Edwards’ petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/20




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